It is well known in New Jersey family law that if a litigant wants to modify or terminate his or her alimony obligations, he or she will have to prove a significant change of circumstances. As a divorce lawyer I am frequently asked how one can successfully show that his or her circumstances have in fact changed since the initial court order. As a rule of thumb, my associate attorneys and I advise our clients that, when applicable, it is always best to submit expert testimony to the court when trying to prove changed circumstances. Such testimony is typically the most credible and persuasive. While expert testimony will not be necessary in every case, the recent decision of Monico v. Monico is a great example of where it should have been submitted but wasn’t.
In the case, the parties divorced in 2007. They entered into a property settlement agreement, which among other things, required the husband to pay the wife $2500 per month in permanent alimony. Years later in January 2013, the husband began to have health issues. He had to quit his job with his towing company, but kept a 50% interest in the business.
A few months later in June 2013, the husband filed a motion to reduce and/or terminate his alimony based on changed circumstances. He stated that he was still unemployed and therefore could not continue to pay $2500 a month to his ex-wife. The motion judge found that the husband established a prima facie case of changed circumstances and scheduled a hearing.
In November 2013, the judge heard testimony from both of the parties. The husband presented a work release form dated June 5, 2013, indicating that he could not return to work until further notice. Additionally, the husband testified that he had successfully applied for disability benefits from the Social Security Administration. He had started receiving monthly disability in the amount of $2386 in August 2013. Furthermore, the husband told the court that he had back problems, which make it tough for him to lift heavy things or sit or stand for long periods of time.
On cross-examination, the husband stated that in 2010 he owned 75% of the towing business. At that time, the business had gross sales of $1,347,159. He further stated that in 2011 the business’ gross sales increased to $1,649,003, yet they declined to $1,444,324 in 2012. Moreover, the husband testified that in 2011 or 2012 he transferred 25% of the towing business to his son as a gift. He also claimed that he made gifts to his children in the preceding two years totaling $100,000.
In February 2014, the judge found that there was no change in circumstances regarding the husband’s disability because he failed to prove that his disability was permanent. The trial judge stated that the husband only provided a document from his doctor that stated he may not return to work until further notice. Furthermore, the court noted that none of the doctors listed on that document’s letterhead matched any of the doctors the husband said were treating him.
Additionally, the trial judge found no change of circumstances regarding the husband’s income. He stated that the husband received income from the following sources:
(2)50% interest in the towing business
(3)renting the land to the towing business on which it was located
(4)renting a billboard located on the same property as the towing business
Furthermore, the judge considered the husband’s income from 2012 concerning the towing business because at the time of the hearing, his earnings for 2013 from the company had not yet occurred. Accordingly, the husband’s 2012 tax return was used to calculate income at $153,370, which had increased from $107,380 in 2006. The husband appealed.
On appeal, the husband argued that the trial court erred because it failed to find changed circumstances and modify his alimony obligations. In particular, the husband stated that the trial court incorrectly used his 2012 tax return instead of his projected earnings for 2013. The Appellate Division stated that the lower court’s findings concerning alimony should not be vacated “unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, make mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.”
However, the Appellate Division found that the trial court did not abuse its discretion. The court held that the lower court properly utilized the 2012 tax return because the husband’s 2013 financial information had not yet been finalized. Additionally, the Appellate Division stated that the husband did not provide sufficient evidence to warrant modification related to his disability. It was his responsibility to prove that he was permanently disabled; however, he failed to provide any expert testimony.
Ultimately, it is always better to submit expert testimony when trying to prove changed circumstances. For more questions on this area of the law, do not hesitate to contact my office today.