Court Will Not Modify Alimony or Child Support Unless There is a Permanent Change in Circumstances
By Snyder & Sarno on August 29, 2016
New Jersey courts will not modify an alimony or child support award unless a permanent change in circumstances has occurred. But there is no brightline rule for deciding when a changed circumstance has gone on long enough to justify modification. It is therefore up to the judges of the Family Part to use their experience and discretion to make such determinations.
Klemash v. Klemash involved a post-judgment matrimonial matter, in which the husband was denied reduction or termination of his alimony and child support obligations. The husband and wife were married in 2001, had two children, and divorced on December 19, 2012. Pursuant to the Final Judgment of Divorce (JOD), the husband was to pay $81 a week in child support, and $150 a week in alimony for 4 years. The child support obligation became effective July 11, 2012, and the alimony obligation became effective February 1, 2013.
At the time of the December 2012 divorce, the husband worked as a loan officer earning $24,000 a year. He was laid off from his job in June 2013. On September 30, 2014, the husband filed a motion to modify both his alimony and child support obligations based on changed circumstances, which included: (1) his inability to earn the income that the Family Part imputed to him because of the loss of his job; (2) his inability to find another loan officer position because of the economic downturn’s effect on the mortgage loan business and the loss of his professional license because of his own bad credit rating; (3) the loss of his real estate investments with the wife; and (4) his failure to earn the income he had anticipated from a book he wrote. The husband also asserted that a change in the wife’s circumstances warranted modification because she could earn more money working full-time and because she was cohabiting with her boyfriend.
A judge who had not presided over the divorce trial denied the husband’s motion on October 23, 2014. The judge was concerned about the short amount of time since the JOD was entered, and found that the husband was capable of doing more to secure work than he had demonstrated. The judge accordingly entered an order stating that the husband had not shown a change in circumstances and that he had the ability to earn the income imputed to him during the divorce trial. The husband then filed a motion for reconsideration, arguing that he should have been afforded discovery and a plenary hearing. During a motion hearing on December 5, 2014, the judge asked the wife questions related to the cohabitation allegations, but found that there was insufficient information to support those claims. The judge therefore denied the motion for reconsideration.
On appeal, the husband argued that he had made a prima facie showing of changed circumstances based on his decreased earnings. The Appellate Division agreed, explaining that New Jersey statutory law explicitly prohibited the lower court from relying solely on the length of the husband’s involuntary employment and reduced income as a basis for denying his motion. The Family Part was required to consider numerous factors, including the reasons for the loss of income and documented efforts to find replacement employment. The Appellate Division found that the husband presented irrefutable proof that he had been involuntarily laid off in June 2013 because of a “lack of work,” and that he consistently sought another job as a loan officer for 14 months before filing his motion. The Appellate Division further concluded that the lower court erred by failing to compare the financial circumstances of the husband and wife at the time of the JOD with the circumstances presented in the husband’s modification motion.
Moreover, the Appellate Division determined that the Family Part erred in failing to make factual findings regarding the cohabitation claim. The husband alleged that the wife’s boyfriend lived with her because: (1) his truck was always in the driveway; (2) the children told the husband that the boyfriend lives there; (3) the boyfriend carries groceries into the wife’s home; (4) the boyfriend walks around the wife’s neighborhood; (5) the boyfriend accompanies the wife to the court proceedings; (6) the boyfriend attends the children’s social events; and (7) the boyfriend goes to holiday gatherings with the wife. The Appellate Division found that the lower court had improperly considered documents showing that the boyfriend maintained his own residence because the husband was never provided with such evidence. Finally, the lower court mentioned the cohabitation issue for the first time in the hearing on the reconsideration motion, but failed to address it in denying the husband’s original modification motion.
As a result, the Appellate Division reversed and remanded the matter to the Family Part. The Appellate Division clarified that the remand was based only on the lower court’s failure to make the findings required by statutory law on the husband’s motion for modification. It offered no opinion as to whether the husband was entitled to a plenary hearing on any of the bases asserted. However, the Appellate Division did note that a plenary hearing is required if the husband establishes a change in circumstances and “clearly demonstrate[s] the existence of a genuine issue as to a material fact.”
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