Change of Circumstances

Recently I lost a dear client and friend, Bill*, after his long battle with brain cancer.  Bill was a man with a kind-hearted spirit and a gentle disposition – one of those “really nice guys” that you just wanted to bend over backwards to help.

While Bill was fortunate enough to spend his last days

Most people are aware that a supporting spouse may be entitled to modify an alimony obligation upon a showing of “changed circumstances.” However, many people do not know that the “leg-work” that they have to do to set themselves up to succeed on such a Motion begins long before the parties ever go to Court, especially if a supporting spouse is asking for relief on the basis of a purported job loss or reduction in income.

Below is a non-exhaustive list of items that a Judge will look for when a supporting spouse is requesting to reduce his or her alimony obligations:

• Has the applicant proven that his/her circumstances have changed such that he/she would be entitled to a child support or alimony reduction – Common scenarios constituting changed circumstances include:
       o A reduction in a party’s income;
       o Illness;
       o Retirement;
       o The receipt of an influx of liquid assets;
       o Cohabitation of the supported spouse.


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In this economy, you would be surprised to see how many judges are jaded by applications brought by supporting spouses to reduce their support obligations based upon a reduction in income. After all, some judges entertain these applications on their daily docket and oftentimes see supporting spouses who are simply attempting to capitalize on the down economy and lack any actual merit to their cases. This blog post will explore one of the reactions by judges to this type of application; namely, denying the request of the supporting spouse outright without even holding a hearing, taking testimony, and making credibility findings.

Support obligations are always modifiable by the family court upon application of the supporting spouse.  Typically, this type of application requires the supporting spouse to make a threshold prima facie showing that “changed circumstances have substantially impaired the ability to support himself or herself.” Lepis v. Lepis, 83 N.J. 139, 157 (1980). When such a showing is made, the Court must next determine if a plenary hearing is warranted. This is sometimes referred to as the two-step Lepis analysis.


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With the economic downturn and slow down in the economy since 2008, there has been a lot more post-judgment litigation to reduce alimony and child support. Much of this litigation has been legitimate; other has been brought by opportunists, throwing around buzzwords and crying about the economy when there is really no substantial change of

While decisions from the Appellate Division addressing a former professional athlete’s motion to reduce his support obligations do not come around all that often, we have, in fact, previously blogged on the issue.  Now from the Appellate Division comes the unpublished (not precedential) matter of Villone v. Villone, where the Appellate Division strictly relied on “triggering” language in the parties’ Marital Settlement Agreement in reversing and remanding a trial court’s decision that a former Major League Baseball pitcher was not entitled to a modification of support.

The matter involved that of former pitcher Ron Villone, who has played for more franchises than almost anyone else in the history of the game (an interesting record that was recently broken) – 12 to be exact as of Spring Training 2011, when he was released by the Washington Nationals and signed with the Somerset Patriots (an independent, minor league baseball club).  He became well known for his travels, earning the nickname “Suitcase” Villone from teammates.  Also interesting is that his current wife is on the reality show “Baseball Wives”, which, in the context of asking for a support reduction could provide potential evidence for his former spouse to use against him in opposing such request at the trial level.


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In these uncertain times, it seems as though everyone is talking about the impact of the economy.  We’ve posted many blogs about proving changed circumstances for an increase or decrease in child support and/or alimony as well as a modification of parenting time.  You can read a few of those blogs here, here or here.

The trend continues.  In the recent unpublished Appellate Division decision of Rosenthal v. Whyte, A-1776-10T4, decided December 5, 2011, stemming from two Orders from the Cape May County trial court, the Court affirmed the lower court’s Orders denying Ms. Whyte’s motions to modify custody and child support.  To put it simply, Ms. Whyte failed to meet her burden that enough of a change had occurred to warrant a modification of the parties’ 2008 Property Settlement Agreement (“PSA”).

The parties’ 2008 PSA provided for an anticipated move by Ms. Whyte with the minor child to upstate NY, more than 500 miles from Mr. Rosenthal’s Cape May county residence.  It also provided that Ms. Whyte was leaving her job as a school teacher to pursue a business opportunity in NY state.  Child support was set with these facts in mind.  Mr. Rosenthal’s parenting time was set forth as one weekend each month and one continuous month every summer with an additional week over the summer.


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An interesting decision on the issue of support modifications came down last week from the Appellate Division in the unpublished (not precedential) matter of Schechter v. Shechter.  There, the husband in 2004 agreed via settlement to pay child support and 12 years of limited duration alimony.  In July 2010, he filed a motion to modify his support

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.


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Oftentimes, issues of custody and parenting time are the most difficult and sensitive decisions that a judge in the family part must make. It involves deliberation of the ever-elusive “best interests of the child” – a question with no right or wrong answers. While the standard is ostensibly subjective, there are certain guideposts that a judge must look to in order make the difficult determinations that come along with issues of custody. Those factors, as set forth in N.J.S.A. 9:2-4(c), include: 

  1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
  2. The parents’ willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse;
  3. The interactions and relationship of the child with its parents and siblings;
  4. Any history of domestic violence;
  5. The safety of the child and the safety of either parent from physical abuse by the other parent;
  6. The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision;
  7. The needs of the child;
  8. The stability of the home environment offered;
  9. The quality and continuity of the child’s education;
  10. The fitness of the parents;
  11. The geographical proximity of the parents’ homes;
  12. The extent and quality of the time spent with child prior to or subsequent to the separation;
  13. The parents’ employment responsibilities;
  14. The age and number of children.

As can be seen in the recent case of Vidal v. Gelak (an unreported/non-precedential decision), when judges do not examine these all-important factors, their decisions face reversal and remand on appeal. 


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