Under New Jersey alimony laws and case law, if you retire at 67 years of age your alimony will be terminated (or reduced) upon your attorney proving to a judge of a New Jersey Family Court that your retirement was in good faith. However, if you are forced to retire for other reasons such as a serious medical condition, your lawyer should be successful in having your alimony payments lowered or completely terminated. Alimony and retirement is a highly fact sensitive area of New Jersey divorce law that our law firm handles on a weekly basis.
In Frangipane v. Frangipane, the parties were married in January 1973. After twenty-four years, the parties divorced in July 1997. There was one child born of the marriage. On July 9, 1997, the parties entered into a marital settlement agreement (“MSA”), which discussed the terms of the divorce. The MSA discussed alimony, equitable distribution, child support, custody, and visitation. The parties agreed to a modification of the MSA on April 3, 2004. The modification required all amounts owed to the ex-wife of the FC Capital Accumulation Account (“FCCAA”) to be paid in full.
The ex-husband filed a motion with the New Jersey Superior Court, Family Part in July 2015 seeking to terminate or reduce his alimony obligation. The ex-wife opposed the motion and filed a cross-motion. The ex-husband opposed the cross-motion. The court entered two orders on August 11, 2015 after hearing oral argument. The court required that the parties attend economic mediation, which is where parties try to settle issues out of court with a neutral mediator. The court also established pendente lite child support in the amount of forty dollars per week from the ex-wife to the ex-husband. Pendente lite child support is child support that is paid during the course of the litigation. Lastly, the court scheduled a case management conference (“CMC”), which is a hearing for the parties to discuss the issues in the case, and intensive settlement conference (“ISC”), which is a meeting in the courthouse where the parties and their attorneys attempt to settle the issues of the case.
Although the parties took part in mediation, the parties were unable to resolve the issues. In September 2015, the ex-wife filed a motion with the court asking for particular financial documents from the ex-husband. The ex-husband opposed the ex-wife’s motion. In December 2015, the court entered an order after oral argument. The court reduced the ex-husband’s alimony obligation. The ex-wife filed a motion for reconsideration, meaning the ex-wife asked the court to reconsider its decision to reduce the ex-husband’s alimony obligation. After oral argument, the court denied the ex-wife’s motion for reconsideration on March 21, 2016. The ex-wife then filed a notice of appeal, and the judge supplemented the record with more detailed information pursuant to R. 2:5-1(b).
The ex-wife then filed a motion with the court requesting an interest in the Metropolitan Annuity retirement fund, which was included as equitable distribution in the parties’ MSA. The ex-husband opposed the motion and filed a cross-motion for attorney’s fees. The ex-wife filed a reply to the ex-husband’s cross-motion, and on April 25, 2016, the judge granted the ex-wife the power to hire a forensic accountant to evaluate the Metropolitan Annuity retirement fund. The ex-husband then filed a motion for reconsideration, and the ex-wife filed a cross-motion requesting that the court require the ex-husband to pay fifty percent of the value of the retirement fund. The court granted the ex-husband’s motion for reconsideration on June 29, 2016, and vacated the April 25, 2016 order. The ex-wife then filed a notice of appeal. The ex-wife also filed a motion with the court in August 2016 asking the court to recalculate the FCCAA division. The ex-husband filed a cross-motion, and the court entered an order on October 11, 2016 denying the ex-wife’s motion seeking that the judge step down from the case and her motion for recalculation of the FCCAA division. The ex-wife then filed a notice of appeal.
On appeal, the New Jersey Appellate Division consolidated the ex-wife’s appeals. The Appellate Division has a limited scope of review in family matters, and owes significant consideration to the Family Part’s findings of fact because of the court’s expertise in these matters. The Family Part’s decision should be upheld if the lower court’s factual findings are supported by reliable and adequate evidence. However, the Appellate Division owes no consideration to the lower court’s legal conclusions. If the lower court’s factual findings and legal determinations are unsupported by competent and dependable evidence, then the Appellate Division may disturb the lower court’s decision. Further, the lower court’s decision should only be reversed if not reversing would result in injustice.
The Appellate Division reviews a denial of a motion for reconsideration under an abuse of discretion standard, since reconsideration is up to the discretion of the trial court judge. Reconsideration is appropriate where it is clear that the trial court failed to consider substantial or significant evidence. The review of a denial of a motion requesting a judge’s recusal is also reviewed under the abuse of discretion standard. Recusal is also up to the discretion of the trial court judge.
The ex-wife appealed the March 21, 2016 order, which denied her motion for reconsideration of a request to vacate the December 3, 2015 order reducing the ex-husband’s alimony obligation and requiring the ex-wife to pay pendente lite child support to the ex-husband in the amount of forty dollars per week. The reconsideration order also denied the ex-wife’s request for the ex-husband’s financial statements, vacated the ex-husband’s child support obligation, maintained the ex-wife’s obligation to contribute to college costs, and denied a request for a plenary hearing and attorney’s fees. On appeal, the ex-wife raised issues that she did not previously raise in her motion for reconsideration. The Appellate Division held that its review is limited to the issues raised in the ex-wife’s motion for reconsideration and judge’s supplemental letter.
In the supplemental letter, the judge included factors for his decision to reduce the ex-husband’s alimony obligation. The judge found that the ex-husband was seventy-four at the time, which prevented him from working full time. The judge found that despite the ex-husband’s age, the ex-husband was still working part-time even though he could have retired. The judge also found that the ex-husband’s health had been deteriorating, evidenced by documentation from a medical doctor. Also, the judge found that the parties distributed their assets equally during the divorce, and that the ex-wife’s income would increase if she terminated her failing business. The Appellate Division noted that alimony may be modified as required by the parties’ changed circumstances. The Appellate Division found that retirement may be considered a change in circumstance, whether voluntary or involuntary. The court found that the Family Part did not abuse its discretion because there was a change in the ex-husband’s circumstance, which warranted a reduction in his alimony obligation.
The Appellate Division also found that a plenary hearing was not necessary because there were no disputed facts regarding to alimony modification. The court agreed with the Family Part that the ex-wife was adequately informed of the nature of the hearing, and that the ex-wife’s misunderstanding as to the nature of the hearing was not the trial judge’s fault. The court also found that the ex-wife suffered no harm as a result of the misunderstanding.
The ex-wife also appealed the order granting the ex-husband’s motion for reconsideration and vacating the April 25, 2016 order, which related to the Metropolitan Annuity retirement fund. The Appellate Division found that the ex-wife’s issues on appeal were meritless and that the record indicated that the ex-wife knew about the retirement fund, and there was no bad faith on the part of the ex-husband regarding the fund. Therefore, the Appellate Division agreed with the lower court’s determinations and affirmed its decision. The ex-wife also appealed the denial of her motion for recusal and the order relating to the distribution of the FCCAA. The Appellate Division affirmed the lower court’s decision and found that recusal was not warranted because there was no basis to believe that the trial judge was bias in any way. The court also found that the ex-wife received all shares from the FCCAA that she was owed per the MSA. Ultimately, the Appellate Division affirmed the decision of the trial court, and held that the record was supported with ample evidence to support its findings.
If you face a similar situation with respect to alimony payments, please contact my office today.