On May 13, 2010, the Appellate Division issued yet another unreported decision in the matter of Walsh v. Walsh.  This is yet another interesting decision in a matter that has been appealed several times.  In one of the prior opinions, the trial court employed an 11 year average of the husband’s income for support purposes given the historic variability of his income.

In the present appeal, at issue was a modification of alimony.  In this instance, while the court found that the husband’s 2008 income was $58,000, the court essentially imputed twice as much to the husband.  The Appellate Division, however, did not disturb this finding.  They did, however, reverse the decision for several interesting reasons and remanded the matter for a new hearing.

In the trial judge’s decision, he found that with the reduced alimony that he ordered, that each party would have a similar monthly shortfall in their budget.  The husband argued and the Appellate Division agreed that there was no basis for this decision.  In fact, the court made no specific findings as to the husband’s needs.  In failing to do so, the Appellate Division held that: "As a result, the court did not sufficiently address the central issue in any alimony modification case, the supporting spouse’s ability to pay."

The case also highlights the fact that the same standards apply to an initial determination of alimony and a modification.  In fact, the Court held that:

As a final observation, we note that the trial court recognized in its bench opinion that the $2,000 award  "is probably more than [it] would find if this were an initial hearing." Because the same standards apply to an initial alimony proceeding as to a modification proceeding, the court needs to explain its decision in that respect as well.

In the day and age of financial crisis and reduced incomes for many, this case cogently reminds us of the standards to apply and the notion that once a court decides to review an alimony award, while consideration of the marital lifestyle is clearly important, the review is a fresh review based upon all of the alimony factors.  Strict adherence to the prior award is not the standard.

Leave a Reply

Your email address will not be published.