EMILY B. STANSBURY VS. JOHN M. STANSBURY (FM-08-0736-98, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5337-16T1
EMILY B. STANSBURY,
Plaintiff-Respondent,
v.
JOHN M. STANSBURY,
Defendant-Appellant.
____________________________
Argued October 15, 2018 – Decided November 29, 2018
Before Judges Haas, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FM-08-0736-98.
AllynMarie Smedley argued the cause for the appellant
(Smedley & Lis, attorneys; AllynMarie Smedley, on the
briefs).
Emily B. Stansbury, respondent, argued the cause pro
se.
PER CURIAM
Defendant John Stansbury appeals from a Family Part order modifying his
permanent alimony obligation based upon his desire to retire. The trial judge issued
a decision (1) modifying defendant's permanent alimony obligation from $250
weekly to $150 weekly, and (2) reducing defendant's obligation to carry life
insurance from $142,125 to $25,000. We reverse in part and remand for a plenary
hearing.
Plaintiff and defendant were married on June 25, 1972, and divorced on June
19, 1999, after a twenty-eight-year marriage. The marital settlement agreement
("MSA") provided that defendant would pay plaintiff permanent alimony of $250
per week. At the time of the agreement, defendant made $52,000 per year. Plaintiff
also received a portion of defendant's pension and a portion of defendant's savings
and investment plan. The MSA also obligated defendant to carry life insurance to
secure his obligations.
On March 31, 2017, defendant filed to terminate his alimony and life
insurance obligations to plaintiff because he wanted to retire. Defendant certified
that he was seventy-two years old, has diabetes, and had undergone heart bypass
surgery when he was in his fifties. Defendant was a professional pipe-fitter by trade,
and he certified that he can no longer perform this strenuous work.
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Defendant further certified that he has both a pension and Savings and
Investment plan from DuPont Merck, where he worked from 1973 to approximately
2003. This pension was equitably distributed as part of the parties' divorce.
Defendant states that his DuPont pension, which pays him $9,156 a month, "ha[d]
been distributed under equitable distribution, [and] it is [his] understanding that this
is not income for purposes of alimony calculations." Defendant's present job at
Brown and Root does not offer a pension.
On June 1, 2017, plaintiff filed a cross-motion opposing the termination of
permanent alimony. Plaintiff certified that she lives on a monthly budget of $3,246
and depends on defendant's alimony to meet that budget. Plaintiff is a home health
aide who works approximately twenty hours per week. Plaintiff previously worked
as a certified nursing assistant (CNA), but alleges she is no longer able to do so after
suffering shoulder injuries in 2012. Plaintiff certified that her monthly earnings
come from social security benefits, a pension she acquired after the divorce, and
monthly income, totaling $2,281 after deductions for Medicare and taxes.
Plaintiff asserts that defendant's obligation should not be terminated because
he will net $51,6281 annually after retirement – $26,465 in social security benefits,
1
The total of these amounts is actually $51,528.
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$9,055 in pension benefits, and $16,008 in military benefits – which is almost the
same income as the $52,000 he made before retirement. Plaintiff also alleges that
defendant is concealing assets, particularly from a home that he and his former wife
owned. She claims that defendant has had a desk job since 2002, which she claims
undermines the credibility of defendant's argument that he cannot work.
On June 30, 2017, the parties appeared for oral argument. That same day, the
Family Part judge issued a decision granting defendant's motion in part, reducing his
alimony obligation to $150 per week, retroactive to March 31, 2017, and reducing
his life insurance obligation to $25,000.
In so ruling, the trial judge considered the factors enumerated in N.J.S.A.
2A:34-23(j)(3). N.J.S.A. 2A:34-23(j)(3) is triggered upon the actual or
contemplated retirement of the supporting spouse when the parties have an existing
agreement. Specifically, Section (j)(3) provides that where there is an existing final
order or enforceable written agreement establishing an alimony obligation prior to
the effective date of an amendment to the statute in September 10, 2014, “the
obligor’s reaching full retirement age as defined in this section shall be deemed a
good faith retirement age.” “Full retirement age” means the age at which a person
is eligible to receive full retirement benefits under section 216 of the federal Social
Security Act, 42 U.S.C § 416. N.J.S.A. 2A:34-23(n).
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Once the court determines that the obligor has reached full retirement age, the
court may equitably weigh a series of additional factors specified in the statute to
determine whether alimony should be terminated, modified, or left intact. In making
its determination, the court may consider various points, including but not limited to
the ability of the obligee to have saved adequately for retirement. This court has
previously found that the amended N.J.S.A. 2A:34-23(j)(3) "elevates the ability of
the obligee to have saved adequately for retirement . . . setting it apart from other
considerations and requiring its explicit analysis." Landers v. Landers, 444 N.J.
Super. 315, 324 (App. Div. 2016).
The trial judge acknowledged that she was required to give a specific analysis
to this point and noted that she had "heavily considered the [p]laintiff's inability to
have adequately saved for retirement." The judge concluded that it was "unlikely"
that plaintiff had the ability to adequately save for retirement.
The [p]laintiff certifies that she receives a gross of
$1,178.90 monthly in Social Security ($1,074 net),
$575 per month from her pension (acquired after the
marriage), for a total gross income of $2849.00.
Plaintiff also receives $13,426 gross annually ($11,922
net) from her part-time job as a certified home health
aide. Plaintiff's total net income is approximately
$2581 per month, excluding spousal support. Plaintiff
does not report any income from her marital share of
defendant's pension. As such, the pension may have
been liquidated and spent down to meet expenses or
perhaps reinvested, [p]laintiff offers no explanation.
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The Court infers that the marital pension may have
replaced her lost income for 2014 while in treatment for
cancer.
… It is unlikely [p]laintiff had the ability to save for
retirement, as she currently has no savings, and was out
of work for a year due to cancer treatments.
The court also considered the additional statutorily mandated factors to
determine whether defendant had demonstrated by a preponderance of the evidence
that modification or termination of alimony was 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
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.
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[N.J.S.A. 2A:34-23(j)(3).]
As to factor (a), the judge found that both parties have significant health issues
and that defendant was seventy-two and plaintiff was seventy-one at the time of the
hearing. She found that this weighed in favor of granting defendant's application.
As to factors (b) and (c), the judge found that seventy-two was a generally accepted
retirement age even though there was no mandatory retirement age for defendants'
job because defendant was "beyond any date where continued employment would
increase his retirement benefits." This factor, the judge found, also weighed in favor
of defendant's application. Concerning factor (d), the judge found that defendant's
motive for retiring was reasonable and weighed in favor of his application because
he was not physically capable of fulfilling strenuous requirements of his pipefitting
job, and he did not receive a pension from his current company.
The judge also considered defendant's ability to maintain support payments
pursuant to factor (g). She slightly reduced defendant's submitted budget because
she felt that some of his expenses were too high. In contrast, she did not alter
plaintiff's "bare bones" budget. She found that the "financial impact of the
termination of alimony upon [plaintiff] would be severe[,]" a factor that weighed
against granting defendant's application.
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The trial judge also granted in part defendant's motion to terminate life
insurance, and reduced the amount defendant was obligated to carry from $142,125
to $25,000. The trial court also denied both parties' motions for counsel fees. The
trial judge ordered (1) both parties to exchange lifetime social security earnings
statements within thirty days; (2) defendant to sign an authorization for plaintiff to
inquire into whether he can obtain reasonably priced life insurance through his
pension; and (3) plaintiff to provide defendant's counsel her certification regarding
the disposition of her share of defendant's employment-based pension within thirty
days.
On appeal, defendant argues that because the trial judge did not conduct a
plenary hearing, her modifications to his alimony and life insurance obligations are
not supported by any substantial credible evidence in the record and cannot be
sustained. Defendant also argues that the trial court erred in including his pension
in computing his income. We will address these arguments in reverse order.
N.J.S.A. 2A:34-23(j)(4) provides, "[t]he 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." "When a share of a retirement benefit is treated
as an asset for purposes of equitable distribution, the trial court shall not consider
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income generated thereafter by that share for purposes of determining alimony."
Innes v. Innes, 117 N.J. 496, 505 (1990). N.J.S.A. 2A:34-23(b) provides "[w]hen a
share of a retirement benefit is treated as an asset for purposes of equitable
distribution, the court shall not consider income generated thereafter by that share
for purposes of determining alimony." In Steneken v. Steneken, 367 N.J. Super.
427, 439, 443 (App. Div. 2004), this court affirmed the decision of the trial court
prohibiting "double counting" of pension assets. We found that "a retiree has a right
to a future stream of income attributable to past employment" and because the
pension was distributed as marital property, "the asset [is] outside the reach of the
dependent spouse's need-based alimony claim." Ibid. This court reiterated a
principle from Steneken that,
[I]t would be unfair if the dependent spouse were able
to assert what amounts to a double claim on the spouse
employee's pension . . . [and] it would be inequitable
for her to be able to include his pension income twice
for her benefit, first for a share of equitable distribution,
and second for inclusion in his cash flow determination
of an alimony base.
[Id. at 437 (quoting D'Oro v. D'Oro, 187 N.J. Super.
377, 379 (Ch. Div. 1982)) (internal quotations
omitted).]
In this case, the trial judge calculated defendant's income after retirement
as $51,628 per year, which included the $9,055 from his pension. We agree
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with defendant that the judge erred in including defendant's pension in
computing his income because defendant's pension was equitably distributed
during the final judgment of divorce. The judge's calculation contravened the
principles articulated in Steneken because it deprived defendant of his "right to
a future stream of income attributable to past employment" and unfairly included
an asset that was distributed as marital property for purposes of determining
alimony. Steneken, 367 N.J. Super. at 439. That error was not harmless and
requires reversal for a recalculation of defendant's income. Because we are
remanding on other grounds, explained in detail below, on remand the court
shall exclude defendant's pension payments in determining defendant's income.
As a second ground for his appeal, defendant asserts that the trial judge made
certain assumptions and inferences without conducting a hearing to adduce evidence
to support her conclusions. In particular, defendant complains that the judge had no
evidentiary basis to conclude that plaintiff "likely" had no ability to adequately save
for retirement. Defendant alleges that without adducing proof of what plaintiff's
budget was when the parties divorced in 1999, and absent proof of how plaintiff
disposed of her share of defendant's pension, the court's decisions to reduce, but not
eliminate, defendant's alimony and life insurance obligations were based on nothing
but pure speculation.
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The New Jersey Court Rules state that a court "shall, by an opinion or
memorandum decision, either written or oral, find the facts and state its conclusions
of law thereon in all actions tried without a jury, on every motion decided by a
written order that is appealable as of right. . . ." R. 1:7-4(a). This requires the court
to "disclose an analysis of the facts as they apply to the many applicable factors."
Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 561 (App. Div. 2009). As
stated by the New Jersey Supreme Court, "[n]aked conclusions do not satisfy the
purpose of R. 1:7-4." Curtis v. Finnernan, 83 N.J. 563, 570 (1980). Because
"[m]eaningful appellate review is inhibited unless the judge sets forth the reasons
for his or her opinion," Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990),
the absence of adequate findings "necessitates a reversal." Heinl v. Heinl, 287 N.J.
Super. 337, 347 (App. Div. 1996).
In her written decision, the trial judge without explanation reduced
defendant's life insurance obligation from $142,125 to $25,000. Similarly, the judge
made no specific findings to support her decision to downward adjust defendant's
alimony obligation from $250 per week to $150 per week.
Finally, with respect to the critical issue of whether plaintiff had
adequately saved for retirement, the judge disregarded the issue of how plaintiff
disposed of her share of defendant's pension. The judge stated expressly that
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"[p]laintiff offers no explanation" on that issue. Instead, the judge speculated
that the "pension may have been liquidated and spent down to meet expenses or
perhaps reinvested," and "infer[ed] that the marital pension may have replaced
her lost income for 2014 while in treatment for cancer." The judge also did not
require proofs or make any factual findings regarding plaintiff's monthly budget
at the time of the divorce, or whether she had some ability to put aside some of
her (admittedly meager) income during the seventeen years she was not under
treatment for cancer. Thus, the judge's decision that "[i]t is unlikely [p]laintiff
had the ability to save for retirement, as she currently has no savings, and was
out of work for a year due to cancer treatments" is a naked conclusion untethered
to any supporting facts.
We are sensitive to the judge's apparent reluctance to force these parties
of advanced age and limited means to marshal the appropriate proofs and
conduct a full plenary hearing. Unfortunately, under these circumstances we are
constrained to remand the matter to allow the judge to set forth the factual and
legal basis for her decision after a full plenary hearing. That hearing should
require plaintiff to come forward with evidence that she saved for retirement to
the extent she was able to do so, and how plaintiff disposed of her share of
defendant's pension. The judge may also consider plaintiff's argument that
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defendant is hiding assets and whether a reduction, if any, rather than an
elimination of defendant's alimony obligation is appropriate.
Lastly, defendant raises two constitutional issues about the alimony
statute itself. He first asserts that his constitutional rights were violated because
N.J.S.A. 2A:34-23(j)(3) is too vague to enable judges to make a decision about
the ability of the obligee to save for retirement because it does not provide
instructions for judges to make this finding. He also asserts that this statute
creates two classes of litigants whose alimony agreements upon retirement are
reviewed differently based on whether the parties were divorced before or after
the 2014 amendment of the statute. However, neither of the constitutional
arguments were raised below, and we decline to address them for the first time
on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); In re
Stream Encroachment Permit, 402 N.J. Super. 587, 602 (App. Div. 2008).
"[O]ur appellate courts will decline to consider questions or issues not properly
presented to the [tribunal below] when an opportunity for such a presentation is
available 'unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'" Nieder, 62 N.J. at 234
(quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)).
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Reversed and remanded. We do not retain jurisdiction.
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