Following on the heels of Melissa Ruvolo’s blog entry discussing the need for detailed proofs to fulfill one’s threshold burden required to modify support, the Appellate Division’s unpublished (not precedential) decision in Bonaventura v. Bonaventura tells the tale of a supporting spouse who unsuccessfully (and surprisingly) tried to reduce his alimony obligation after losing his job in the financial industry.  With the Dow having dropped 500 points yesterday as widespread economic jitters continue three years after the bottom fell out of the economy, and unemployment rates soaring at around 19%, job losses, especially in the financial industry are to sure to continue. 

With that, our jobs as matrimonial practitioners will continue to require creativity to convince courts that a given case is different from the "run of the mill" Lepis applications and, at the very least, necessitates a period of discovery and subsequent plenary hearing.  Bonaventura reveals, however, that not only is each case fact-specific, but also each trial judge can rule differently on a similar factual scenario.

The Final Judgment of Divorce entered in 2003 imputed $100,000 in annual income to Husband.  In late 2005, Husband obtained a job working for HSBC, where he earned $75 per hour with no benefits.  He was hired full time for this position a year and a half later, providing him with $150,000 in annual income.  Husband maintained this job for 5 years before his employment was terminated in 2008.  In mid-2008, Husband obtained a position with Alas Consulting, where he worked on various banking/brokerage projects, earning the same salary as that which he earned with HSBC – $150,000.  His employment, however, was terminated in September 2009.  Husband filed for an alimony reduction in September 2010.

Husband posited to the trial court that since being laid off in September 2009, his only source of income was unemployment compensation in the amount of $390 per week.  Husband further asserted that he applied to no less than 181 different jobs and was able to identify numerous organizations to which he sent applications for employment; he maintained "personal contacts" at HSBC, Alas, and other financial institutions; and he created a professional profile on linkedin.com, which led to three interviews, but no job offers.   As to finances and assets, Husband appropriately submitted a Case Information Statement from both the time of the divorce and an updated version, asserted that his remaining savings would be depleted in a few short months, his home was under contract for sale, and he could not take from his deferred compensation plan without penalty for another 8.5 years.

Despite the voluminous proofs presented, the trial court found Husband had not fulfilled his initial burden of proving a change in his financial circumstances that would merit a subsequent hearing.  The trial court even considered Husband’s reduced income in the context of his employment in the financial industry and how such industry was negatively impacted by the current economy and his substantial efforts to find a new job in his area of expertise.  However, because the trial court found that Husband failed to seek training and employment in related fields; he had previously retired voluntarily; he failed to establish that he had exhausted all of his assets (including the retirement fund that would incur penalties should he withdraw money); his failure to sufficiently explain and provide proofs as to his severance pay; and his failure to sufficiently account for monies/assets that flowed upon him in the divorce and recent sale of his home, his application was denied.

Providing due deference to the trial court’s findings, the Appellate Division affirmed the trial court’s denial of the Husband’s application.  No mention was made of existing law that provides protection to a payor spouse from having to utilize assets that were obtained in a divorce to pay support.  No mention was made of protections afforded to litigants for deferred compensation-type assets, since forcing a former spouse to liquidate such an asset and incur penalties seems unduly harsh and, in some cases, is prohibited.  As to Husband’s job search efforts, even with proof of 181 different jobs to which he applied, along with proof of a substantial and continuing decrease in income, as well as limited assets with which to pay support, it still was not enough to warrant a plenary hearing. 

With Lepis (so-called "changed circumstance") applications, however, each case is factually different.  It also clear that each trial judge analyzes a given set of facts differently.  Thus, while the need for detailed proofs holds true, even that may not be enough to overcome the first hurdle in the modification process.

 

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