In New Jersey, an alimony or child support order may be modified based on permanently changed circumstances. When the facts are disputed by the former spouses, a court may choose to order a plenary, or evidentiary, hearing. In Galante v. Galante, a married couple with three children divorced in 2011. As part of the divorce proceedings, the couple entered into a Marital Settlement Agreement (“MSA”) that required the husband to pay all of his youngest child’s expenses in lieu of traditional a child support payment based on the child support guidelines. It also included an alimony obligation from the husband to the wife that was broken down into two steps where he would pay certain expenses of the Wife plus he would give her a weekly amount of support direct. After the former marital residence would be sold, the second step of the alimony kicked in. In step two, the husband simply paid the wife a fixed sum of alimony each month.
About one year after the couple divorced, the husband sought to vacate the MSA due to “manifest unfairness.” Approximately six months after his request was denied, the man filed a new motion, this time he sought to modify his support and other obligations. As part of this new motion, he also requested a plenary hearing to address his requested relief and to determine how much his support should be reduced to.
In his motion, the former husband claimed that the parties’ MSA should be modified due to his changed financial circumstances. According to the former husband, since the time of the divorce being entered in 2011, his business income declined significantly, his business assets were seized by creditors, and he owed $16,000 in medical bills. The husband also stated that his financial circumstances were permanently changed when he accepted a much lower paying job with a new company. In response, the wife filed a cross-motion asking the trial court to deny her former husband’s request.
In May 2013, the trial court held that the man failed to supply the court with sufficient evidence to demonstrate that his circumstances were permanently changed. The court also stated the man was aware of the problems associated with his three businesses at the time he entered into the MSA back in 2011 when the parties divorced. As a result, the court denied the former husband’s application. The following month, the man filed a motion for reconsideration and attached his 2012 personal income tax return and other financial documentation to his latest motion. His former wife again opposed his motion but, at the same time, she voluntarily agreed to accept a reduced alimony payment of $1000 per month instead of the $1500 amount (she agreed to also allow the extra $500 to accrue).
The trial court then rendered it decision on the parties motion and cross motion, denying the former husband’s request. The trial judge however viewed the man’s motion for reconsideration as simply an attempt to now cure the deficiencies in his first motion that resulted in the original denial of the relief he sought. The court also said the man provided it with information that was available when his first motion was filed. In addition to denying his request, the trial court ordered the man to purchase a vehicle for his daughter and pay his former wife’s legal fees. In response, the former husband filed an appeal with the Superior Court of New Jersey, Appellate Division.
On appeal, the man claimed that the trial court should have granted his request for a plenary hearing because he successfully demonstrated his financial circumstances were permanently changed pursuant to the requirements enumerated in applicable New Jersey case law (Lepis vs. Lepis). The former husband stated that he made a prima facie case demonstrating his income permanently decreased because he was unable to secure comparable employment. He also argued that the trial court should not have ordered him to pay his former wife’s legal fees and purchase a vehicle for his daughter without an evidentiary (plenary) hearing.
The Appellate Division recited the applicable law as to when alimony and child support obligations may be revised, where the parties’ circumstances merit a change. In order to demonstrate a change in circumstances occurred, the party seeking modification must show one or more of the following occurred: a cost of living increase, changes to the supporting spouse’s income, illness or disability, the dependent spouse’s cohabitation, loss of home or subsequent employment, or relevant changes to the federal income tax law. Additionally, the trial court stated any changes relied upon must be permanent.
The court said a trial court judge is required to compare the parties’ situation at the time a support order was entered with the parties’ current circumstances in order to determine whether to order a plenary hearing. Such a hearing is required when the affidavits demonstrate that material facts are in dispute and the judge finds that a plenary hearing would assist the court in resolving those factual issues. A trial court’s holding will not typically be overturned on appeal absent an abuse of discretion.
After reviewing the evidence offered, the Appellate Division held that the trial court had, as the former husband claimed in his appeal, abused its discretion when it failed to order a plenary hearing because material facts were in dispute and the former husband provided specific details in support of his position. As a result, the Superior Court of New Jersey, Appellate Division reversed the trial court’s order and remanded the case for a plenary hearing.
If you need to pursue or defend a motion or application to modify the terms of your divorce settlement agreement (PSA or MSA), you need a skillful New Jersey family law attorney on your side. The capable lawyers at Goldstein Law Group have the experience and ability needed to help you achieve an acceptable result. To request a confidential consultation with a knowledgeable alimony and child support lawyer, do not hesitate to call Goldstein Law Group today at 732-967-6777 or contact us through our website.
Galante v. Galante, NJ: Appellate Div. 2015
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