Lepis

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the need for detailed proofs to fulfill one’s threshold burden required to modify support, the Appellate Division’s unpublished (not precedential) decision in Bonaventura v. Bonaventura tells the tale of a supporting spouse who unsuccessfully (and surprisingly) tried to reduce his alimony obligation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.…

Continue Reading On The Other Hand, Modifying Support Can Be a Steep Hill To Climb

We have blogged countless times about a payor spouse’s efforts to modify his alimony obligation post-divorce by claiming that he has suffered a substantial and continuing change in his financial circumstances.  When a court concludes that a change has occurred meriting modification, and implements a new modified support obligation, at what point should the modification become effective?  When the payor spouse first filed for a modification?  When a plenary hearing is held?  At the conclusion of the entire matter? 

Oftentimes, the payor spouse will claim that he has established a change in circumstances and, if the Court determines a plenary hearing is necessary and an intervening period of discovery, that a reduction be made in the interim pending the outcome of the hearing.  Why is such a request appropriate?  First, if the payor has established his initial burden of proving a change in circumstances, requiring him to continue paying at the current amount until completion of a hearing will likely ensure the ongoing accrual of arrears at the higher number.  A Court’s refusal to grant such relief also incentivizes the payee spouse to drag out the matter indefinitely, since only the payor suffers without some form of interim relief. To that end, we recently had a matter where the Court declined our payor client’s request for interim relief pending the plenary hearing but later granted such relief because the payee spouse had deliberately dragged on the matter for months beyond that envisioned by the Court. 

This issue was also recently addressed by the Appellate Division in its unpublished (not precedential) decision in Baker v. Baker.  There, the payor spouse argued that the trial court erred by only retroactively reducing his alimony by one month – to August 1, 2010 – as opposed to either March 25, 2008 when payor filed his original motion to reduce alimony, or May 2, 2005 when he was involuntarily terminated from his position of employment precipitating his economic downward spiral.…

Continue Reading Retroactive Modification of Alimony – How Far Back Should a Court Go?

If you’re a regular reader of this blog, you’ve seen many a post about changes in circumstances and modifications of support obligations.  In fact, Apple Sulit-Paralejo in our Atlantic City office recently published a post on the Ferstenfeld decision. The thing is with changed circumstances,  in this economic climate and job market, it is a popular topic for courts and new decisions are being delivered on a fairly frequent basis.

Today’s post is about proving the change in circumstances and stems from the unpublished Appellate Division decision of Romito v. Romito, A-0486-09, decided March 29, 2011. This appeal came from an Essex county trial court decision made after Mr. Romito filed what was at least his second motion to reduce his alimony and child support obligations stemming from a 2002 divorce and property settlement agreement.

Mr. Romito’s application was supported by his Certification attesting to the failure of his remaining businesses and a sworn statement of his ability to earn $52,000/yr working for a friend’s business, similar to what he had previously operated.  It was also supported by a current Case Information Statement and copies of income tax returns.  Part of the relief sought was a hearing pursuant to Lepis v. Lepis, to prove the changed circumstances.

Ms. Romito filed a cross motion in response opposing this application and seeking other forms of economic and additional relief.  Her application was supported by a Certification attesting that she and the children were in desperate financial straits due to Mr. Romito’s failure to pay his support obligations and his unfair competition with her business.  She attested that Mr. Romito owned the business of his friend that he claimed to only work at and that he was concealing income and living a lifestyle inconsistent with his alleged reduced economic circumstances.  It was also supported by her current Case Information Statement, tax returns and proof of expenses that were not paid.

In response, Mr. Romito denied the allegations made in the cross motion and attested that Ms. Romito’s economic problems were of her own doing and stemmed from her inability to profitably run the business.  He proposed that if Ms. Romito would agree to turn the Montclair office over to him, he’d pay her $2,000/month in alimony (still a reduction from the parties’ agreement but more than he’d been paying).…

Continue Reading Modifying Support – Proving Changed Circumstances

It seems as though a wave of cohabitation cases has recently swept across the Appellate Division in New Jersey. And for good reason. While well-settled is the concept that a supported spouse’s cohabitation typically will constitute a change of circumstances sufficient to justify end of a supporting spouse’s alimony obligation, the nuances of the law can be quite involved. This can been seen from the Appellate Division’s February decision in the case of Wonderlin v. Wonderlin, on which Sandra Fava blogged. That holding came down to evidence of the times and frequency that an unrelated male came and went from a former wife’s home, which, the Appellate Division ruled, entitled a former husband to discovery on the issue of whether the wife was cohabitating.

While the comings and goings of an unrelated male can be one indicia of cohabitation, in the case of Okoshi-Wilson v. Wilson, the Appellate Division examined a different source to prove cohabitation: the wife’s earnings as compared to her expenditures. There, the husband moved for a termination of his alimony obligation on the basis of the wife’s cohabitation with an unrelated male.

It seemed, based on the proofs submitted, that the husband had always earned a significantly greater salary than the wife, with the wife only earning about $47,000 in 2008 after her alimony of $22,500 per year was considered, as compared to the husband’s $164,164 the year prior. Despite this fact, the wife was apparently living in a posh, three-bedroom Upper East Side apartment, which she clearly was unable to afford on her salary alone. As it turned out, also a tenant of the same apartment was an unrelated male by the name of Steven Macy. This revelation led to the husband’s application for a termination of his alimony obligations. During the hearing at the trial level, Okoshi admitted that she had been able to maintain her New York City residence, because she was Macy’s tenant, allegedly paying him only $135 per week in rent and household work such as watering the plants, purchasing food, and collecting the mail. She further testified that Macy and his daughter only stay at the apartment about five times per month. Okoshi had documents to support some of her assertions — a lease signed by her and Macy and receipts for rent she paid in cash. She denied any romantic involvement with Macy and said he does not support her in any way.…

Continue Reading Can a landlord-tenant relationship terminate an alimony obligation based upon cohabitation?

When parties resolve their divorce via a settlement agreement, can they agree that neither party will seek to modify the agreed upon terms of alimony and child support?  In New Jersey, a court may generally modify a support obligation at any point in time to achieve equity inherent in this State’s alimony law.  For instance, as detailed countless times on this blog, a party must establish that they have experienced a substantial and continuing change in circumstances under the seminal case of Lepis v. Lepis, 83 N.J. 139 (1980), in order to merit some form of support modification. 

An "anti"-Lepis clause, however, attempts to limit the court’s ability to modify via a waiver by the parties to seek such modification.  To be enforceable, the clause must fulfill several conditions.  First, the parties must include such language in the settlement agreement "with full knowledge of all present and reasonably foreseeable future circumstances," and second, "must bargain for a fixed payment or establish the criteria for payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement."

However, consistent with my assertion above that such clauses are enforceable – until they are not enforceable – the overriding legal principle in New Jersey is that "If circumstances have made the parties’ standards unreasonable, they can in extreme cases be modified.  In less extreme cases . . . the payments can be accrued with enforcement conditioned upon the payment of reasonable periodic payments."…

Continue Reading What Is An Anti-Lepis Clause And Can It Be Modified?

It is well-settled law in New Jersey that child support and alimony awards are always modifiable. While there is an abundance of case law in the area of post-judgment modifications of support obligations, particularly in this economic climate, the most often cited case for modification is the seminal New Jersey case of Lepis v. Lepis, 83 N.J. 139 (1980). Indeed, the Lepis Court was the first in holding that when changed circumstances substantially impinge upon the supporting spouse’s ability to pay support at the level ordered, a modification of the support order might be necessary. The burden to prove this change in circumstances falls upon the supporting spouse when such a downward modification is sought.

A reduction in the supporting spouse’s income has long been recognized as a changed circumstance warranting a support modification, so long as it is not temporary in nature. In addition, the recent Appellate Division case of Angelastro v. Angelastro, recently solidified the notion that a support modification may be sought when the supported spouse’s economic circumstances change for the better.

In Angelastro, the parties’ property settlement agreement, executed in September of 2008, awarded the wife alimony as follows:

The [h]usband shall pay to the [w]ife[,] starting at the sale of the marital home[,] the sum of $350[] a week in [a]limony commencing for a period of six (6) years. Upon the completion of aforementioned six (6) years[,] the [h]usband’s [a]limony obligation shall reduce to that of $200[] and continue for a period of eight (8) years thereafter representing a total payment period of fourteen (14) years.

In addition, child support in the amount of $200 per week was provided for. The parties’ property settlement agreement specifically predicated the above support awards upon the wife’s imputed income of approximately $25,000.…

Continue Reading Changed Circumstances Is A Two Way Street, the Appellate Division Says

In these economic times we have seen an increase in our practice of post divorce applications seeking a downward modification of a former spouse’s support obligation(s).  These applications apply to both spousal support or alimony as well as child support.

NJ courts are all to familiar with these applications as there exists an entire body of case law that guides judges, attorneys and litigants alike in the burden of proof that must be established and the standard to meet in order to successfully seek the modification or defend against one.

Recently, the Appellate Court addressed this issue once again in the unpublished decision of O’Brien v. O’Brien, A-6045-08T1 decided November 10, 2010.  This matter stemmed from an appeal of the trial court’s Orders emancipating one of the parties’ 4 children and reducing defendant-husband’s child support obligation.…

Continue Reading When Is a Modification of Child Support Proper?