Deegan v. Deegan

603 A.2d 542, 254 N.J. Super. 350
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 5, 1992
StatusPublished
Cited by39 cases

This text of 603 A.2d 542 (Deegan v. Deegan) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deegan v. Deegan, 603 A.2d 542, 254 N.J. Super. 350 (N.J. Ct. App. 1992).

Opinion

254 N.J. Super. 350 (1992)
603 A.2d 542

EDNA DEEGAN, PLAINTIFF-APPELLANT,
v.
ROSS J. DEEGAN, DEFENDANT-RESPONDENT.

Superior Court of New Jersey, Appellate Division.

Submitted November 6, 1991.
Decided March 5, 1992.

*352 Before Judges LONG, BAIME and THOMAS.

Drazin & Warshaw, attorneys for appellant (Vincent L. Stripto, on the brief).

Donington, Karcher, Leroe, Salmond, Luongo, Ronan & Connell, attorneys for respondent (James J. McGuire, Jr., on the letter brief).

The opinion of the court was delivered by LONG, J.A.D.

We are called upon here to address the question of what standard should apply in determining whether unanticipated early retirement, or any other voluntary life style alteration, constitutes a change in circumstances warranting a support modification pursuant to Lepis v. Lepis 83 N.J. 139, 416 A.2d 45 (1980).

I

Plaintiff, Edna Deegan and defendant Ross Deegan were divorced in 1985. The Judgment of Divorce, which incorporated an oral property settlement agreement, provided, among others, that defendant would pay alimony to plaintiff in the amount of $250.00 per week. The agreement also provided that plaintiff would receive one-third of defendant's annual vacation pay and *353 one-third of the value of his pension from the proceeds of the sale of the marital home.

The parties honored the judgment until 1990 when defendant decided to retire and advised plaintiff by letter that he wished to amicably resolve the issue of alimony. For reasons unknown, plaintiff did not respond to his inquiry. On April 27, 1990, defendant retired, four months short of his 62nd birthday. On August 22, 1990, he moved for an order terminating alimony. In support of the motion, the 62-year old defendant filed a certification stating that he had previously shared his pension with his former wife thus eliminating that asset as a source for alimony. He set forth the reasons for his decision to retire:

In reaching the decision to retire I considered many factors. First of all, the steamfitter's union, for whom I had worked for 42 years, offered a single sum pension option which was quite attractive. Secondly, work at the time was very slow and there was a real possibility that I would be laid off. Thirdly, working as a steamfitter involves a great deal of physical labor, including bending, lifting, climbing, and working in the elements. On August 14, 1989, I turned 60 years of age and this sort of labor has become increasingly more difficult for me over the years.

According to defendant's certification, he received a lump sum pension distribution of $189,801.03 which he placed into an IRA for a total annual income of $13,106.25. He also stated that plaintiff, who had been unemployed at the time of the divorce was, at the time of the motion, earning $20,000.00 per year at Brookdale Community College.

Plaintiff responded to defendant's motion and filed a cross-motion to enforce the judgment of divorce as to alimony and vacation pay. She filed a certification indicating that defendant's decision to retire prior to the availability of social security benefits, left the parties with inadequate income. According to plaintiff, defendant had additional rental income and could have invested his pension to yield a better return. She characterized his decision to retire as totally voluntary and asked the court not to allow him to stop the support she needed to survive.

*354 Without a plenary hearing, the judge denied defendant's motion, and granted plaintiff's cross-motion reasoning as follows:

The plaintiff, — the defendant seeks to terminate his alimony obligation pursuant to a judgment of divorce dated November the 12th of 1985 which is $250.00 a week because he has decided to retire at age sixty. He suggests to the court that he took a lump-sum pension benefit and has now invested that which generates income of approximately $13,100.00 per year and that is the extent of his income vis a vis his 1989 income of $54,000.00.
Individuals who have obligations and in particular alimony and child support obligations cannot voluntarily retire and then say to the court, we have a substantial change of circumstances, I don't have the income to comply with the previous judgment of divorce. When he retired, he knew he had this obligation to this woman and he continues to have this obligation to this woman, and he will continue to pay the alimony of $250.00 per week.
He'll just have to secure some other additional work to supplement his pension of $13,100.00 which I'm sure will not be difficult for him. He's been in the labor market for forty-two years. He is a healthy individual. There's no allegations that he is in bad health. So he does have the ability. He'll just have to go out and find a job to generate the income. So his application to terminate alimony will be denied.

Defendant appeals, claiming that the trial judge erred in determining that he had failed to meet the burden of establishing that he had undergone changed circumstances within the meaning of Lepis, supra. In addition, he argues that in no event could such a conclusion have been reached in the absence of a plenary hearing. We agree and reverse.

II

Spousal support agreements are always subject to modification pursuant to N.J.S.A. 2A:34-23 upon a showing of changed circumstances. Lepis v. Lepis, supra, 83 N.J. at 145, 416 A.2d 45. The Lepis Court carefully outlined a procedure which litigants, as well as courts, must follow to modify support obligations. 83 N.J. at 157, 416 A.2d 45. A party seeking modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157, 416 A.2d 45. An analysis of "changed circumstances" is not limited to what the parties might have *355 contemplated at the time of the divorce. To the contrary, the analysis focuses on "whether the change in circumstances is continuing and whether the agreement or decree has made explicit provision for the change." Id. at 152, 416 A.2d 45.

Whether circumstances have really changed so as to warrant modification requires a court to study the parties' financial condition at the time of the divorce, as well as at the time of the application. Id. at 157, 416 A.2d 45. Where the change is involuntary, all that is required is an analysis of the alterations in the parties' financial circumstances. However, where the change is a voluntary one, other considerations come into play.

The exact mechanics of evaluating a voluntary change in circumstances has not been settled. In Horton, Jr. v. Horton, 219 N.J. Super. 76, 529 A.2d 1034 (Ch.Div. 1987), an ex-husband sought relief from an alimony obligation after early retirement at age 56, one and one-half-years subsequent to the property settlement agreement with his former spouse. The trial judge rejected the application concluding that because early retirement took place such a short time after the parties' agreement was entered into, the husband should have specifically provided for such a contingency in the agreement. 219 N.J. Super. at 79, 529 A.2d 1034. More recently, in Dilger v. Dilger, 242 N.J. Super. 380, 576 A.2d 951 (Ch.Div.

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603 A.2d 542, 254 N.J. Super. 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deegan-v-deegan-njsuperctappdiv-1992.