For those of you who follow my law firm’s New Jersey Divorce Lawyer Blog, our state’s alimony laws have been “modernized” to reflect the many cultural and economic changes that have occurred over the past few decades. In this attorney’s opinion, one of the most essential aspects of New Jersey’s amended alimony statute concerned the termination of permanent alimony (please enjoy my law firm’s video regarding this issue). In other words, New Jersey law now acknowledges an individual’s right to retire at a reasonable age. This takes into account not only a person’s biological age, but other factors such as their health, their inability to gain employment at an advanced age and their ability to keep paying while being able to support themselves as well. In the recent case of Court v. Court, the New Jersey Appellate Division established how to properly balance the new statutory factors in an equitable and just manner.
In Court v. Court, husband Howard J. Court appealed from a Family Part order that denied his motion to terminate his alimony obligation, and vacate his alimony arrears. Howard and Eileen Walls Court were married in 1981. Their divorce was finalized in 2003. The judgment of divorce required Howard to pay Eileen $ 1000 per week in alimony. This figure was based upon the fact that he earned $160,000 in 2002. Furthermore, Eileen had an imputed income of only $27,500.
Howard was working as a wholesale lumber salesman at the time, and apparently was not paying the ordered alimony. In July 2013 he filed a motion with the court for a modification of alimony, and his obligation was subsequently reduced to $ 500 every week with an added $250 per week toward the accumulated arrearages. He retired in August 2014, because of an economic downturn within the industry, and his deteriorating health. Howard tried to terminate his alimony obligation in 2014, based on his retirement age of 72. He earned $ 27,010.80 a year from Social Security, and argued that Eileen could receive $1221 a month from social security, but she refused to apply for the benefits. Conversely, in her opposition brief Eileen contended that she was receiving benefits, but there was no finding of fact by the Family Part on this issue. Even though Eileen “lost employment” according to the trial judge, still her prior and current incomes were unclear from the record. As of July 30, 2014, Howard’s alimony arrears totaled $196,344.66.
The New Jersey Family Part court found that Howard provided sufficient evidence of his health problems to show he lost his life insurance and was unable to find gainful employment. In addition, the court found that both Howard and Eileen were in difficult financial situations, but noted that Howard’s sole income from Social Security was not sufficient to allow him to continue to pay his bills, pay alimony, and pay his arrears. Nevertheless, despite the above findings, the Family Part court stated that Eileen made a good point that even if it is insufficient for the social security garnishment to pay it in full that it is appropriate that, because there might be increases in the future and he might find work again. Accordingly the court lowered Howard’s alimony from $ 750 per week to $ 400 per week. $50 were allocated towards alimony and $350 towards arrears.
On appeal, Howard argued that the court failed to consider Howard’s ability to pay and Eileen’s monthly budget, and filed to make factual findings on the 13 factors required by New Jersey Statute 2A:34-23(B). The New Jersey Appellate Division started its opinion by stating the applicable standard of review. A trial court’s factual findings are binding on appeal provided that they are supported by adequate, substantial, credible evidence. Still reversal may be warranted if the trial court’s findings are so clearly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence that they offend the interest of justice. Furthermore, the legal conclusions are not entitled to special deference.
The New Jersey noted that even though trial courts have a heavy burden resulting from busy motion calendars, it is still the trial judge’s responsibility to provide fact finding and state specific detailed reasons in support of its conclusions. A trial judge’s responsibility to make findings of fact is especially important in divorce cases because without findings of fact it would be impossible for an appellate court to perform its duty of determining whether the judgment is supported by substantial credible evidence. In Court v. Court, the New Jersey Appellate Division determined that the Family Part court failed to place adequate findings of fact on the record. Moreover, the court completely failed to directly address the fact of Howard’s retirement. Even though the court lowered his alimony obligation $ 750 to $ 400 per week, it did not state any reason for the chosen amount.
The court recognized that Howard’s annual income of $27,010 was not nearly enough to cover his expenses and alimony. Despite this fact, the judge still ordered him to pay $ 20,640 of his $27,010 income. This left Howard with only $530 per month to pay for all of his expenses. There was analysis provided that supported the basis of Howard’s ability to pay this amount even though the fact finding suggested that he was unlikely to find any future employment due to his advanced age and deteriorated health. Furthermore, the judge ignored Howard’s right to retire in good faith at age seventy-two.
The New Jersey Appellate Division stated that issued needed to be heard again, and upon rehearing the court would have to apply the recently modified standard for alimony following retirement, enumerated in New Jersey Statute 2A:34-23, to determine if Howard is still legally required to pay weekly alimony. Under this law there is a rebuttable presumption that alimony shall be terminated upon the supporting spouse or partner reaching full retirement age. Alimony will only be continued if the dependent spouse can present proof to rebut this presumption. This would require consideration of the following factors: the age of the parties at the time of retirement; the ages at the time of marriage and their ages when the alimony was entered; the duration and degree of financial dependency during the marriage; the amount of alimony already paid; the health of the parties; the ability of the dependent spouse to have saved for retirement; and any other factors the court deems relevant. If after analyzing the ten factors in New Jersey Statute 2A:34-23 the court determines that the presumption has been rebutted and that alimony should continue, it must make specific findings of facts to support its decision both to continue payments and of the amount ordered.
The New Jersey Appellate Division reasoned that because of Howard’s retirement, poor health, age and limited income, the trial court will be faced not only with the question whether alimony should be terminated, but also determining an equitable and just resolution regarding the arrearages of almost $ 200,000. The appellate panel noted that N.J.S.A. 2A:34-23 was amended in September 2014 to state that any arrearages accrued prior to alimony termination shall not be vacated. However, the trial court must calculate an arrearage payment that comports with Howard’s ability to pay. Therefore, the New Jersey Appellate Division ordered that the issue should be heard again by the Presiding Judge of the Family Part to reassign the case for a plenary hearing within sixty days.
Please continue to follow our New Jersey Divorce Lawyer Blog as my law firm continues to monitor and analyze all new cases that interpret New Jersey’s “new” alimony laws.