GARY EDDEY VS. ILENE EDDEY (FM-14-0795-02, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2112-18T4

GARY EDDEY,

Plaintiff-Respondent,

v.

ILENE EDDEY,

Defendant-Appellant.
_______________________________

Submitted March 17, 2020 – Decided April 29, 2020

Before Judges Hoffman, Currier and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0795-02.

Simon, O'Brien & Knapp, attorneys for appellant (John
T. Knapp, of counsel and on the briefs; Sarah E.
Kapitko, on the brief).

Greenbaum, Rowe, Smith & Davis LLP, attorneys for
respondent (Mark H. Sobel and Barry Scott Sobel, of
counsel and on the brief).

PER CURIAM
 Defendant Ilene Eddey appeals from a December 11, 2018 Family Part

order that granted plaintiff Gary Eddey's motion to terminate his alimony and

life insurance obligations. Applying N.J.S.A. 2A:34-23(j)(3), the Family Part

judge concluded the factors weighed in favor of terminating plaintiff's alimony

and life insurance obligations, and his retirement was undertaken in good faith.

We affirm.

I.

The following factual history is derived from the motion record. After

almost twenty-seven years of marriage, plaintiff and defendant divorced in 2003.

The final judgment of divorce (JOD) incorporated their property settlement

agreement (PSA). It required plaintiff to "pay [defendant] permanent alimony

in the sum of $40,000 per year. Said payments shall be paid weekly at the rate

of $770 per week." The PSA also provided that plaintiff maintain life insurance

for the benefit of defendant "for so long as his alimony obligation lasts." The

PSA did not address the consequences of plaintiff's retirement.

Both parties were actively employed when they divorced. Plaintiff

worked as a medical doctor and defendant was employed as a teacher. Their

three children are now emancipated.

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 Under the JOD, defendant kept the marital residence, although she was

required to refinance the existing mortgages and buy-out plaintiff's equity

interest in the home. The parties equitably divided their retirement accounts and

two defined benefit plans, including defendant's pension. They evenly divided

their $5700 credit card debt, and plaintiff agreed to pay the $11,000 IRS debt

for the 2001 tax year.

In January 2017, defendant retired from her teaching position. Later that

year, in October, plaintiff advised defendant he planned to retire at the end of

the year, when he turned sixty-six years old. At the time, plaintiff worked as an

"on call" physician for a special education hospital for individuals with

developmental disabilities. Plaintiff chose to retire partly because of the

"stressful and physically and mentally demanding schedule" his position

entailed. In April 2016, plaintiff was terminated from a different position and

found it difficult to become re-employed. After obtaining the new position for

the one-and-a-half-year period, he decided to retire.

In an effort to avoid litigation upon plaintiff's imminent retirement, the

parties exchanged financial information in December 2017. No agreement was

reached. On January 5, 2018, plaintiff retired at the age of sixty-six. While

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plaintiff presently has no known health conditions, defendant has significant

medical issues.

On May 30, 2018, plaintiff filed a motion to permanently terminate his

alimony and life insurance obligations and for an award of counsel fees. In his

moving certification, plaintiff contended he was entitled to relief because he

reached a good faith retirement age and met the statutory factors required by

N.J.S.A. 2A:34-23(j)(3). He also was eligible for social security benefits.

Defendant opposed plaintiff's motion on the basis that he failed to

completely disclose his income information and she cross-moved for counsel

fees. On August 9, 2018, the prior Family Part judge denied plaintiff's motion

"due to the lack of information provided by [p]laintiff, which . . . prevents the

[c]ourt from determining if a prima facie case of changed circumstances has

been established." Specifically, the judge noted that plaintiff failed to include a

current case information statement (CIS) with his motion.

On September 27, 2018, plaintiff re-filed his motion and included an

updated CIS and documents pertaining to his social security benefits. Defendant

again opposed the motion, contending that plaintiff failed to disclose all of his

assets and anticipated income streams from his annuities and other sources, and

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cross-moved for counsel fees. In reply, plaintiff certified that his only current

source of income is his social security payments.

On December 7, 2018, the subsequent Family Part judge heard oral

argument on the motions. In his statement of reasons, the judge concluded that

"the totality of the factors . . . weigh in favor of terminating alimony and no

factor, either individually or cumulatively, weighs against terminating

[p]laintiff's alimony obligation."

In reaching his decision, the judge considered the factors under N.J.S.A.

2A:34-23(j)(3) in holding that plaintiff's alimony and life insurance obligation

be terminated. Notably, the judge found plaintiff's desire to retire after facing

termination from his previous job and upon attaining retirement age was

reasonable and did not reflect an improper motive. Defendant's expectation that

plaintiff would continue to work in perpetuity was deemed unreasonable by the

judge.

The judge based his decision on a number of findings. Post-retirement,

plaintiff's income is $2545 per month from social security benefits. Excluding

real estate, plaintiff has liquid assets of $1,770,467, including his retirement

annuity of $683,931, which does not vest for another five years. While

defendant claims plaintiff should have included his New York condominium in

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his list of assets, the judge did not find the omission fatal because "it is clear

that over the proximate years [p]laintiff's [s]ocial [s]ecurity income will be

inadequate to cover his alimony obligation . . . requir[ing] [him] to deplete his

liquid assets in order to subsidize . . . payments alone (before paying any of his

own monthly expenses)."

The judge found plaintiff spends $13,914 per month, including $3333 in

alimony payments and $688 in life insurance premiums. The judge noted that

"[p]laintiff will be unable to afford his current lifestyle" if his alimony

obligations continued post-retirement.

The judge found that defendant continued to work until her retirement in

January 2017. During the latter stages of her career, defendant earned $143,244

in 2015 and $136,402 in 2016, and has total assets of $1,222,959.1 The judge

noted that defendant's monthly net pension and social security benefits totaled

$4072. With estimated monthly expenses of $6206.35, like plaintiff, defendant's

income will not sufficiently cover her current lifestyle without depleting her

retirement assets.

Given those facts, the judge concluded:

Overall, while there is a disparity in the parties' assets,
and [p]laintiff could liquidate assets to continue

1
Excluding estimated real estate value, defendant has assets worth $794,959.01.
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 alimony payments, the court finds that both parties have
sufficient assets to supplement their own monthly
incomes to support and maintain their own lifestyles for
the indefinite future.

. . . Based upon [d]efendant's current income from her
pension and social security as well as the assets she has
amassed, the court does not find that she is financially
dependent upon [p]laintiff or that the retirement and
termination of alimony will be materially detrimental
to [d]efendant. Rather, the court finds that she has
adequate assets to supplement her retirement income so
as to sustain her lifestyle.

. . . [T]he court does note that [p]laintiff has paid
[d]efendant alimony for more than [seventeen-and-a-
half years], which equates to a[t] least $700,000 in non-
taxable payments to [d]efendant. The court finds that
based upon [d]efendant's continued employment
following the parties' 2003 divorce until January 2017
and the alimony she received, [d]efendant had the
opportunity to adequately save for retirement. While
perhaps [d]efendant could have save[d] more for
retirement, the court finds that she has adequate assets
to supplement her retirement income so as to sustain her
lifestyle.

The judge granted plaintiff's motion thereby terminating his alimony and life

insurance obligations, and denied both parties' motions for counsel fees.

On appeal, defendant contends the judge improperly concluded that: (1)

plaintiff established changed circumstances warranting termination of his

alimony and life insurance obligations; (2) discovery and a plenary hearing were

unnecessary; (3) plaintiff could no longer afford to pay alimony and defendant

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no longer needed alimony; (4) plaintiff could terminate life insurance for

defendant; (5) alimony received by defendant was tax-free; and (6) plaintiff had

disclosed all relevant sources of income.

II.

We accord "great deference to discretionary decisions of Family Part

judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in

recognition of the "family courts' special jurisdiction and expertise in family

matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343

(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We are bound by

the trial court's factual findings so long as they are supported by sufficient

credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,

279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App.

Div. 1993)). "A trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference."

Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting Manalapan Realty,

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The court is required to examine and weigh a list of objective

considerations when it reviews an alimony termination or modification request

for an obligor who has retired. Landers v. Landers, 444 N.J. Super. 315, 321

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(2016). If the alimony order pre-dates September 10, 2014, the request for

modification or termination must be reviewed under N.J.S.A. 2A:34-23(j)(3).

That section expressly requires "[i]n making its determination, the court shall

consider the ability of the obligee to have saved adequately for retirement . . .

[and] whether the obligor, by a preponderance of the evidence, has demonstrated

that modification or termination of alimony is appropriate . . . ." N.J.S.A. 2A:34-

23(j)(3). The obligee's ability to have adequately saved is set "apart from other

considerations and require[s] . . . explicit analysis." Landers, 444 N.J. Super. at

324.

The statute requires the court to consider other factors, which include:

(a) The age and health of the parties at the time of the
application;

(b) The obligor's field of employment and the generally
accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for
retirement at the obligor's place of employment,
including mandatory retirement dates or the dates upon
which continued employment would no longer increase
retirement benefits;

(d) The obligor's motives in retiring, including any
pressures to retire applied by the obligor's employer or
incentive plans offered by the obligor's employer;

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 (e) The reasonable expectations of the parties regarding
retirement during the marriage or civil union and at the
time of the divorce or dissolution;

(f) The ability of the obligor to maintain support
payments following retirement, including whether the
obligor will continue to be employed part-time or work
reduced hours;

(g) The obligee's level of financial independence and
the financial impact of the obligor's retirement upon the
obligee; and

(h) Any other relevant factors affecting the parties'
respective financial positions.

[N.J.S.A. 2A:34-23(j)(3)(a) to (h).]

Importantly, alimony orders define "only the present obligations of the

former spouses," and therefore, are always subject to "review and modification"

upon a showing of "changed circumstances." Crews v. Crews, 164 N.J. 11, 24

(2000) (quoting Lepis v. Lepis, 83 N.J. 139, 146 (1980)); see also N.J.S.A.

2A:34-23 ("[Alimony orders] may be revised and altered by the court from time

to time as circumstances may require."). The moving party "bears the burden of

making a prima facie showing of changed circumstances" to initiate this

modification. Crews, 164 N.J. at 28 (quoting Miller v. Miller, 160 N.J. 408, 420

(1999)). Changed circumstances generally means a recent inability to support

himself or herself. Lepis, 83 N.J. at 157.

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 Defendant argues the Family Part judge improperly determined that

plaintiff established a prima facie case of changed circumstances. She also

contends the judge failed to consider relevant factors.

We do not agree that the judge improvidently weighed the statutory

factors. The judge's ruling considered each of the factors under N.J.S.A. 2A:34-

23(j)(3). Moreover, the judge correctly noted that regardless of whether

"retirement" was specifically included in the PSA, "the current state of the law

. . . recognizes [plaintiff's] ability to make this application based upon good -

faith retirement." Further, the judge found there was no generally accepted age

for retirement in plaintiff's field.

In addition, the judge made detailed findings about the parties' financial

situations. He found plaintiff has social security income of $2545 per month

and liquid assets of $1,770,467, excluding real estate, but inclusive of $683,931

in annuities, which will not vest for another five years. Saliently, the judge

considered plaintiff's age, health, and reasons for retiring in making his findings.

The judge also explained that defendant failed to state her income. Her

CIS reflected she had total assets of $1,222,959. Her monthly net pension and

social security income is $4072.

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 Subsection (j)(3) emphasizes that the court "shall consider the ability of

the obligee to have saved adequately for retirement . . . ." This section "elevates

the ability of the obligee to have saved adequately for retirement [over the other

factors] . . . setting it apart from other considerations and requiring its explicit

analysis." Landers, 444 N.J. Super. at 324 (citing N.J.S.A. 2A:34-23(j)(3)).

This consideration is a primary factor in the analysis.

Defendant had a clear ability to make appropriate retirement

arrangements. The judge found not only that "[d]efendant had the opportunity

to save for retirement" but that she, in fact, had "adequate assets to supplement

her retirement income so as to sustain her lifestyle." The judge was correct in

his analysis.

Despite defendant's contention that she has health conditions requiring

treatment and monitoring, the judge aptly found "she provide[d] no evidence

that any treatments since retirement have been uncovered or that she has had to

pay for any treatments out-of-pocket causing any material depletion of her

financial resources." Her health issues did not justify denying plaintiff's motion

on account of his changed circumstances.

The judge also made findings under the balance of the (j)(3) factors as

follows:

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 Based upon [d]efendant's current income from her
pension and social security as well as the assets she has
amassed, the court does not find that she is financially
dependent upon [p]laintiff or that the retirement and
termination of alimony will be materially detrimental
to [d]efendant. Rather, the court finds that she has
adequate assets to supplement her retirement income so
as to sustain her lifestyle.

There was ample, credible evidence in the record to terminate alimony on

the basis of plaintiff's retirement. We are satisfied the judge did not abuse his

discretion in balancing the relevant factors. The judge's decision was based

upon a thorough analysis of the statutory factors set forth in N.J.S.A. 2A:34 -

23(j)(3), with proper consideration given to the entire record.

Furthermore, the judge did not err by not conducting a plenary hearing. It

is not "required or warranted in every contested proceeding for the modification

of a judgment or order relating to alimony." Murphy v. Murphy, 313 N.J. Super.

575, 580 (1998). Otherwise, "courts would be obligated to hold hearings on

every modification application." Lepis, 83 N.J. at 159. Hearings must only be

held where "affidavits show that there is a genuine issue as to a material fa ct,

and . . . the trial judge determines that a plenary hearing would be helpful . . . . "

Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

Here, the judge determined that plaintiff's alimony obligation should be

terminated "[b]ased upon the preponderance of the evidence" without the need

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for additional information. As a plenary hearing was unnecessary, the judge did

not abuse his discretion in denying the request. See Costa v. Costa, 440 N.J.

Super. 1, 4 (App. Div. 2015).

Lastly, we address defendant's argument that the judge mischaracterized

her alimony payments as tax-free, warranting reversal. Specifically, she

challenges the judge's finding that "[p]laintiff has paid [d]efendant alimony for

more than [seventeen-and-a-half years], which equates to a[t] least $700,000 in

non-taxable payments to [d]efendant." In defendant's view, the judge

erroneously concluded she was thereby able to adequately save for retirement.

Again, we reject defendant's argument.

Our careful review of the record shows the judge properly noted

"[d]efendant's continued employment following the parties' 2003 divorce until

January 2017 and the alimony she received . . . ." Put into context, the judge

considered defendant's earned income in tandem with the alimony she received.

The judge's conclusion was not dependent on whether the alimony was taxable.

Moreover, there is sufficient, credible evidence in the record to show defendant

has adequate assets to augment her retirement income. Therefore, we reject

defendant's argument.

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 Other arguments raised by defendant lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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