ROBERT ISETTS VS. ANGELA ISETTS(FM-07-1027-08, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3799-15T1
ROBERT ISETTS,
Plaintiff-Appellant,
v.
ANGELA ISETTS,
Defendant-Respondent.
_______________________________
Submitted September 25, 2017 – Decided October 20, 2017
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FM-07-1027-08.
Robert Isetts, appellant pro se.
Angela Isetts, respondent pro se.
PER CURIAM
Plaintiff pro se appeals from a March 28, 2016 Family Division
order denying his motion for modification of alimony, requiring
him to pay back due alimony and make all future payments through
probation, and requiring proof of life insurance. For the reasons
discussed in this opinion, we affirm.
The parties were married in 1982 and had two children. They
divorced in 2008 after entering into a Property Settlement
Agreement (Agreement) which provided, among other things,
plaintiff would pay permanent alimony to defendant and maintain a
life insurance policy in which defendant is named as beneficiary.
At the time of the divorce, for purposes of alimony, plaintiff's
income was agreed to be $82,000 per year, not including his State
of New Jersey Police and Fire pension. For purposes of setting
alimony, defendant's annual income was imputed to be $30,000.
On November 15, 2015, plaintiff filed a pro se notice of
motion for modification of alimony. In support of his motion, he
submitted a certification explaining for the past thirteen years
he had been working full time as a Security Director and that he
received an annual income of $158,000, including his pension.
Plaintiff asserted he was on Family Medical Leave, after being
diagnosed with prostate cancer in September 2015, and expected to
receive temporary disability benefits.
Plaintiff argued, since the inception of his illness, his
only source of income was his pension because he was no longer
working, but he anticipated returning to work after he recovered
from his cancer treatments. However, he also asserted he suffered
from chronic coughing and skin disease after being exposed to mold
contamination on the job. He certified, "due to the mold
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environment I will not be able to return to my current employment,
since I have very sensitive mold allergies which affect my health
and therefore I have elected not to further subject myself to a
mold environment."
He asserted while on Family Medical Leave in December 2015,
his attempts to resolve the health conditions at his workplace
were unsuccessful; he resigned and has brought a constructive
termination action against his previous employer. Plaintiff
attached a copy of correspondence from his attorney to his prior
employer, rejecting a proposed accommodation offered for plaintiff
to return to work, and threatening suit. Plaintiff further stated
he was fifty-eight years old and, due to his health, intended to
take an early retirement relying on his pension as his only source
of income. He asked the court to relieve him of any further
alimony obligation.
Defendant filed a cross motion asking the court to dismiss
plaintiff's motion because he did not file requisite case
information statements per Rule 5:5-4(a), deny plaintiff's motion
for modification, hold plaintiff in violation of litigant's
rights, order repayment of arrears through probation, and provide
proof of life insurance as required by the Agreement. Thereafter,
plaintiff hired counsel who filed a supplemental notice of motion
asking the court to modify the support obligation retroactive to
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the date of plaintiff's loss of employment, alternatively suspend
enforcement while preserving plaintiff's right to seek retroactive
modification, and award counsel fees.
The Family Part considered the motions on March 28, 2016, and
entered an order denying plaintiff's requests and granting
defendant's. This appeal followed.
On appeal, plaintiff argues the court erred in denying his
motion for modification, and instead should have conducted a
plenary hearing on changed circumstances because of his cancer
diagnosis and his assertion he could not return to work because
of a mold condition at his job. He argues the court erred by
ordering him to secure life insurance within ten days. Plaintiff
also asserts the matter should be remanded to a different judge.
Having reviewed the record, we disagree for the following reasons.
We accord a deferential standard of review to fact-finding;
however, the trial judge's legal conclusions, and the application
of those conclusions to the facts, are subject to our plenary
review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995). Our review of a trial court's legal
conclusions is always de novo. Dep't of Envtl. Prot. v. Kafil,
395 N.J. Super. 597, 601 (App. Div. 2007).
Spousal support and alimony agreements are subject to
modification at any time upon a showing of substantial and
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permanent changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146
(1980). When a modification application is made, the court should
examine evidence of the paying spouse's financial status in order
"to make an informed determination as to 'what, in light of all
of the [circumstances] is equitable and fair.'" Id. at 158(quoting Smith v. Smith, 72 N.J. 350, 360 (1977) (alteration in
original)). The party seeking modification of a prior order bears
the burden of making a prima facie showing of changed
circumstances. Id. at 157. Where the supporting spouse seeks a
termination of alimony, "the central issue is the supporting
spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420
(1999).
The reason given by the Family Part judge for denying
plaintiff's request for modification was that after having
reviewed the medical and employment records, he found plaintiff
had suffered from a temporary change in circumstances because of
his illness. However, no doctors offered an opinion plaintiff was
incapable of working or that continuation of work was detrimental
to his health. Moreover, the record demonstrated his employer
offered accommodation for him to return to work. The court also
considered plaintiff's election of early retirement at fifty-eight
or fifty-nine to be voluntary and not based on medical advice.
For those reasons, the court denied plaintiff's motion and declined
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a plenary hearing, concluding plaintiff had not demonstrated prima
facie evidence of permanent changed circumstances.
An obligor's post-judgment illness is a change of
circumstances a court may consider to warrant a modification.
However, it is not the illness that justifies the modification but
the effect of the illness on the obligor's ability to earn and pay
his obligation. Here, as the Family Part judge noted, plaintiff's
proofs did not establish his prostate cancer or his mold allergy,
independently or in combination, prevented him from returning to
work or diminished his permanent earning capacity. We discern no
error in the court's conclusion.
The Family Part judge also ordered plaintiff to provide proof
of life insurance within ten days. Plaintiff argued to the Family
Part judge defendant previously waived the Agreement's insurance
requirement and now argues he could not secure a policy because
of his cancer diagnosis, but provided no underlying proof to
support either contention. However, we note plaintiff is not
foreclosed from prospective relief if he can provide evidence of
his current inability to secure a life insurance policy.
Plaintiff also argues the Family Part judge should have
suspended enforcement during his period of Family Medical Leave
pursuant to N.J.S.A. 2A:34-23(m) which provides,
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[w]hen assessing a temporary remedy, the court
may temporarily suspend support, or reduce
support on terms; direct that support be paid
in some amount from assets pending further
proceedings; direct a periodic review; or
enter any other order the court finds
appropriate to assure fairness and equity to
both parties.
Here, the judge ordered back due alimony payments to be paid within
thirty days and future payments be made "when plaintiff finds
employment" through wage garnishment. The order requires
plaintiff to notify probation when he obtains employment. Because
the judge found only temporary changed circumstances, we do not
consider this remedy to be an abuse of the court's discretion,
assuming for purposes of argument, N.J.S.A. 2A:34-23(m) applies
to a 2008 Agreement. But see Spangenberg v. Kolakowski, 442 N.J.
Super. 529, 538 (App. Div. 2015) (noting the "legislative
recognition of the need to uphold prior agreements executed . . .
before adoption of the statutory amendments."); and Landers v
Landers, 444 N.J. Super. 315, 323 (App. Div. 2016) (same).
In light of our decision, we need not address plaintiff's
argument for a new judge to hear this matter.
Affirmed.
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