STATE OF NEW JERSEY VS. JOSE LUIS SUAREZ (07-04-0573, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1158-15T2
JOSE RIVERA,
Plaintiff-Appellant,
v.
MARIA RIVERA-TORRES,
Defendant-Respondent.
___________________________
Submitted December 20, 2016 – Decided May 5, 2017
Before Judges Kennedy and Gilson.
On appeal from the Superior Court of New
Jersey, Family Part, Middlesex County, Docket
No. FM-12-2172-11.
Menar & Menar, attorneys for appellant (Raul
E. Menar, on the brief).
Nemergut & Duff, attorneys for respondent
(Howard Duff, on the brief).
PER CURIAM
Plaintiff Jose Rivera appeals from an October 9, 2015 order
that denied his post-divorce-judgment motion to terminate his
alimony obligation, but granted him a reduction in his alimony
obligation and fixed July 31, 2017, as the date when his alimony
obligation will terminate. We affirm.
I
Plaintiff and defendant Maria Rivera-Torres married in 1986,
and divorced twenty-five years later in 2012. They have five
adult children who are emancipated. Following a trial, a Final
Judgment of Divorce was entered on March 2, 2012. Under that
judgment, plaintiff was ordered to pay defendant permanent alimony
of $125 per week.
On February 24, 2015, plaintiff filed a motion seeking to
terminate his alimony obligation, asserting that he had retired.
Alternatively, plaintiff sought to terminate alimony contending
that since 2007, defendant had been cohabitating with another
individual, S.D.
The Family Part ordered discovery and then conducted a plenary
hearing. The testimony at the hearing established that at the
time of the divorce, plaintiff worked as a "driver/warehouse man,"
where he earned an average of $33,000 per year. In July 2012, six
months after the divorce, plaintiff retired at the age of sixty-
eight. Following his retirement, plaintiff's sole source of income
was Social Security, which provides $1754 a month. With his
monthly expenses totaling approximately $2454, plaintiff began
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incurring arrears. By October 2015, plaintiff owed defendant
$15,625 in alimony arrears.
At the time of the plenary hearing, defendant was sixty years
old and was not yet eligible to collect Social Security. She did
not work and she had no other source of income. Since 2007, she
has lived with S.D., and S.D. pays most of the expenses to maintain
the home. The Puerto Rican Association helps pay some of the
utilities in the home. Defendant testified that the issue of her
living with S.D. had been addressed at the divorce trial, and the
court determined that she was not romantically involved with S.D.
At the hearing in 2015, S.D. testified that he was not romantically
involved with defendant and he assists her out of sheer generosity.
After considering the testimony and evidence submitted at the
hearing, the Family Part issued an order on October 9, 2015. The
court found plaintiff's testimony incredible. In contrast, the
court found the testimony of both defendant and S.D. to be
credible. The court then (1) denied plaintiff's request to
terminate alimony; (2) found that plaintiff had shown a change of
circumstances and, therefore, reduced his alimony obligation from
$125 per week to $85 per week effective February 28, 2015; and (3)
directed that plaintiff's alimony obligation will terminate on
July 31, 2017, which is the date when defendant will be eligible
for Social Security benefits because she will have reached the age
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of sixty-two. The court also rejected plaintiff's assertion that
defendant was cohabitating with S.D., concluding that that issue
had been resolved when the parties were divorced in 2012, and
"there [has been] no change in circumstances whatsoever[.]" Thus,
the court found that while defendant and S.D. were sharing a home,
they were not in a romantic relationship.
II
On appeal, plaintiff makes four arguments: (1) the Family
Part erred in failing to apply the rebuttable presumption of
termination upon retirement set forth in N.J.S.A. 2A:34-23(j)(1);
(2) the September 10, 2014 amendment to N.J.S.A. 2A:34-23 should
apply retroactively to this case because the judgment of divorce
was entered after a trial and not as a result of an agreement; (3)
the Family Part abused its discretion in not terminating alimony;
and (4) the Family Part abused its discretion in modifying the
alimony obligation as of the date of the filing of the motion, as
opposed to the date when plaintiff retired. We are not persuaded
by any of these arguments and we affirm.
We begin our analysis with our standard of review and then
evaluate each of plaintiff's arguments. In reviewing an order
entered after a fact-finding hearing, we defer to factual findings
"supported by adequate, substantial, credible evidence." Spangenberg
v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015) (quoting
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Gnall v. Gnall, 222 N.J. 414, 428 (2015)). Thus, reversal is proper
only when the trial court's factual findings are "so manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice."
Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 484 (1974)). We review de novo a trial court's
determinations on questions of law. Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013).
Plaintiff's first two arguments are based on a 2014 amendment
to the statute governing modifications of an existing alimony
order. L. 2014, c. 42, § 1. This statutory interpretation
question is a legal issue subject to our plenary review. Reese,
supra, 430 N.J. Super. at 568.
The authority to modify an existing alimony order is primarily
governed by statute. Landers v. Landers, 444 N.J. Super. 315, 320
(App. Div. 2016). The preamble to N.J.S.A. 2A:34-23, states in
pertinent part:
[A]fter judgment of divorce . . . the court
may make such order as to the alimony or
maintenance of the parties, . . . as the
circumstances of the parties and the nature
of the case shall render fit, reasonable and
just . . . Orders so made may be revised and
altered by the court from time to time as
circumstance may require.
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Before September 2014, when the statute was amended, "[o]ur
courts [had] interpreted this statute to require a party who seeks
modification to prove 'changed circumstances[.]'" Spangenberg,
supra, 442 N.J. Super. at 536 (third alteration in original)
(quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)). Thus, a party
moving for modification had to "demonstrate that changed
circumstances have substantially impaired the ability to support
himself or herself." Lepis, supra, 83 N.J. at 157. It was
recognized that the reduction of income resulting from a good
faith retirement was a change of circumstances warranting a review
of the financial situation facing the parties to evaluate a pre-
existing alimony award. Landers, supra, 444 N.J. Super. at 320.
Effective September 10, 2014, the Legislature amended
N.J.S.A. 2A:34-23 to add a new subsection (j). Subsection (j)
lists objective considerations a judge must examine and weigh when
reviewing an obligor's request to modify or terminate alimony when
an obligor retires. L. 2014, c. 42, § 1. The 2014 amendment
addressed when alimony can be modified or terminated in three
different scenarios. For example, subsection (j)(1) created "a
rebuttable presumption that alimony shall terminate upon the
obligor spouse or partner attaining full retirement age." N.J.S.A.
2A:34-23(j)(1). Subsection (j)(2) addresses the circumstances
when an obligor "seeks to retire prior to attaining the full
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retirement age as defined in" the statute. N.J.S.A. 2A:34-
23(j)(2). Subsection (j)(3) applies "[w]hen a retirement
application is filed in cases in which there is an existing final
alimony order or enforceable written agreement established prior
to the effective date of this [amendment.]" N.J.S.A. 2A:34-
23(j)(3).
Here, plaintiff argues that subsection (j)(1) should have
applied because he filed his motion in 2015. Alternatively, he
argues that subsection (j)(1) should have applied because his
alimony obligation was imposed as a result of a trial, rather than
a negotiated settlement. We have already rejected these arguments.
Landers, supra, 444 N.J. Super. at 323.
In Landers, we reviewed the plain meaning of the words of the
statute and explained, "subsection (j) distinguishes alimony
orders executed prior to the amendment's effective date and those
executed afterwards." Ibid. (citing N.J.S.A. 2A:34-23(j)(1) and
(3)). We went on to explain:
Therefore, this unambiguous legislative
directive governs a court's examination of
alimony modification requests arising when an
obligor retires, depending on the original
date alimony is awarded.
Subsection (j)(3) applies "[w]hen a retirement
application is filed in cases in which there
is an existing final alimony order or
enforceable written agreement established
prior to the effective date of this act
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. . . . " N.J.S.A. 2A:34-23(j)(3) (emphasis
added). This purposeful design demonstrates
an intent to address such circumstances
somewhat differently than orders entered
following the enactment of the statutory
amendments.
[Ibid. (alterations in original).]
Accordingly, plaintiff is incorrect when he argues that the
court here should have applied subsection (j)(1) and the rebuttable
presumption. Plaintiff is also incorrect in arguing that there
is a distinction between an order of final judgment entered after
a trial, as compared to an order of final judgment entered because
of an agreement between the parties. The statute expressly
addresses either "an existing final alimony order or enforceable
written agreement." N.J.S.A. 2A:34-23(j)(3); see Lozano v. Frank
DeLuca Const., 178 N.J. 513, 522 (2004) (explaining that courts
should look at the text of a statute, and if its language is clear
and unambiguous, the plain language should govern the statute's
interpretation).
Alternatively, plaintiff argues that the trial court abused
its discretion in concluding that alimony was still warranted,
despite plaintiff's changed circumstances. Plaintiff argues that
the trial court made specific findings not supported by the record,
including that defendant no longer has the ability to work.
Plaintiff asserts that since defendant was never found to be
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disabled, never presented evidence of poor physical or emotional
health, and is of working age, her unemployment can only be found
to be voluntary. Moreover, the court abused its discretion in
failing to conduct the requisite analysis under N.J.S.A. 2A:34-
23(j)(3).
N.J.S.A. 2A:34-23(j)(3) states that:
When a retirement application is filed in
cases in which there is an existing final
alimony order or enforceable written agreement
established prior to the effective date of
this act, the obligor's reaching full
retirement age as defined in this section
shall be deemed a good faith retirement age.
Upon application by the obligor to modify or
terminate alimony, both the obligor's
application to the court for modification or
termination of alimony and the obligee's
response to the application shall be
accompanied by current Case Information
Statements or other relevant documents as
required by the Rules of Court, as well as the
Case Information Statements or other documents
from the date of entry of the original alimony
award and from the date of any subsequent
modification. In making its determination, the
court shall consider the ability of the
obligee to have saved adequately for
retirement as well as the following factors
in order to determine whether the obligor, by
a preponderance of the evidence, has
demonstrated that modification or termination
of alimony is appropriate:
(a) The age and health of the
parties at the time of the
application;
(b) The obligor's field of
employment and the generally
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accepted age of retirement for those
in that field;
(c) The age when the obligor becomes
eligible for retirement at the
obligor's place of employment,
including mandatory retirement
dates or the dates upon which
continued employment would no
longer increase retirement
benefits;
(d) The obligor's motives in
retiring, including any pressures
to retire applied by the obligor's
employer or incentive plans offered
by the obligor's employer;
(e) The reasonable expectations of
the parties regarding retirement
during the marriage or civil union
and at the time of the divorce or
dissolution;
(f) The ability of the obligor to
maintain support payments following
retirement, including whether the
obligor will continue to be employed
part-time or work reduced hours;
(g) The obligee's level of financial
independence and the financial
impact of the obligor's retirement
upon the obligee; and
(h) Any other relevant factors
affecting the parties' respective
financial positions.
Here, the Family Part judge did not look to N.J.S.A. 2A:34-
23(j)(3) for his analysis, instead incorrectly applying the
factors under N.J.S.A 2A:34-23(b). Nevertheless, the findings
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associated with the court's N.J.S.A. 2A:34-23(b) analysis overlap
and support the denial of plaintiff's application for termination
of his alimony obligations under N.J.S.A. 2A:34-23(j)(3).
The court adequately discussed factors (a) through (d), as
they relate to the parties' ages, health, and plaintiff's good
faith motivations for retirement. See N.J.S.A. 2A:34-23(j)(3)(a)
to (d). At the time of the hearing, plaintiff was seventy years
old, whereas defendant was sixty years old, and although neither
party provided medical evidence demonstrating that they were
suffering from poor physical or emotional health, both testified
that they were declining in health.
Next, the court here made sufficient findings, supported by
credible evidence in the record, to support a denial of plaintiff's
application for termination of alimony obligations under
subsection (j)(3) (e) to (h) of N.J.S.A. 2A:34-23. For example,
the court found plaintiff is in the superior economic position.
Defendant does not possess any marketable skills to earn income
and could not obtain Social Security benefits at the time of the
hearing. Defendant also did not have a driver's license or own a
car, and, therefore, she was severely limited in her prospective
employment. Further, as the court emphasized, defendant was almost
entirely dependent on S.D. for housing and other necessities.
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Finally, the court credited defendant's testimony that she has not
been able to save for her own retirement.
Consequently, there was sufficient substantial, credible
evidence in the record to support the court's decision to deny
plaintiff's request to terminate his alimony obligation. Gnall,
supra, 222 N.J. at 428.
We also reject plaintiff's argument that the court improperly
considered his liquidated 401(k) account. While the trial court
mentioned that plaintiff liquidated the proceeds of his 401(k)
account, it did so primarily in discussing plaintiff's arrears,
not his ability to continue his obligation in the future.
Accordingly, we discern no violation of N.J.S.A. 2A:34-23(j)(4).
That subsection directs: "The assets distributed between the
parties at the time of the entry of a final order of divorce or
dissolution of a civil union shall not be considered by the court
for purposes of determining the obligor's ability to pay alimony
following retirement." Ibid.
Finally, plaintiff argues that the court abused its
discretion in using the date plaintiff filed his motion, rather
than the date of his retirement, as the date to modify his alimony
obligation. Subsection (j)(3), which governs plaintiff's
application, does not expressly state when alimony shall be
modified or terminated. Nevertheless, as we have already
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explained, that subsection addresses an application that is filed
in a case with an existing alimony order that predates the
effective date of the 2014 amendment. Subsection (j)(1), however,
gives the court discretion to set a date different from the date
of retirement. In that regard, the statute provides: "The court
may set a different alimony termination date for good cause shown
based on specific written findings of fact and conclusions of
law." N.J.S.A. 2A:34-23(j)(1). This is also true of alimony
modifications that result from retirement.
Here, following a plenary hearing, the court found that
plaintiff's alimony obligation should be reduced as of the date
that he filed his application. In making that finding, the court
noted that plaintiff had incurred over $15,600 in arrears and he
had not offered any justification for why he waited to make his
application. Accordingly, the court reasoned that it would be
unfair to reduce retroactively the arrears. We discern no abuse
of discretion in that decision. Accordingly, good cause existed
to use the motion date as the date of modification.
Affirmed.
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