STATE OF NEW JERSEY VS. JOSE LUIS SUAREZ (07-04-0573, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1158-15T2

JOSE RIVERA,

Plaintiff-Appellant,

v.

MARIA RIVERA-TORRES,

Defendant-Respondent.
___________________________

Submitted December 20, 2016 – Decided May 5, 2017

Before Judges Kennedy and Gilson.

On appeal from the Superior Court of New
Jersey, Family Part, Middlesex County, Docket
No. FM-12-2172-11.

Menar & Menar, attorneys for appellant (Raul
E. Menar, on the brief).

Nemergut & Duff, attorneys for respondent
(Howard Duff, on the brief).

PER CURIAM

Plaintiff Jose Rivera appeals from an October 9, 2015 order

that denied his post-divorce-judgment motion to terminate his

alimony obligation, but granted him a reduction in his alimony
obligation and fixed July 31, 2017, as the date when his alimony

obligation will terminate. We affirm.

I

Plaintiff and defendant Maria Rivera-Torres married in 1986,

and divorced twenty-five years later in 2012. They have five

adult children who are emancipated. Following a trial, a Final

Judgment of Divorce was entered on March 2, 2012. Under that

judgment, plaintiff was ordered to pay defendant permanent alimony

of $125 per week.

On February 24, 2015, plaintiff filed a motion seeking to

terminate his alimony obligation, asserting that he had retired.

Alternatively, plaintiff sought to terminate alimony contending

that since 2007, defendant had been cohabitating with another

individual, S.D.

The Family Part ordered discovery and then conducted a plenary

hearing. The testimony at the hearing established that at the

time of the divorce, plaintiff worked as a "driver/warehouse man,"

where he earned an average of $33,000 per year. In July 2012, six

months after the divorce, plaintiff retired at the age of sixty-

eight. Following his retirement, plaintiff's sole source of income

was Social Security, which provides $1754 a month. With his

monthly expenses totaling approximately $2454, plaintiff began

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incurring arrears. By October 2015, plaintiff owed defendant

$15,625 in alimony arrears.

At the time of the plenary hearing, defendant was sixty years

old and was not yet eligible to collect Social Security. She did

not work and she had no other source of income. Since 2007, she

has lived with S.D., and S.D. pays most of the expenses to maintain

the home. The Puerto Rican Association helps pay some of the

utilities in the home. Defendant testified that the issue of her

living with S.D. had been addressed at the divorce trial, and the

court determined that she was not romantically involved with S.D.

At the hearing in 2015, S.D. testified that he was not romantically

involved with defendant and he assists her out of sheer generosity.

After considering the testimony and evidence submitted at the

hearing, the Family Part issued an order on October 9, 2015. The

court found plaintiff's testimony incredible. In contrast, the

court found the testimony of both defendant and S.D. to be

credible. The court then (1) denied plaintiff's request to

terminate alimony; (2) found that plaintiff had shown a change of

circumstances and, therefore, reduced his alimony obligation from

$125 per week to $85 per week effective February 28, 2015; and (3)

directed that plaintiff's alimony obligation will terminate on

July 31, 2017, which is the date when defendant will be eligible

for Social Security benefits because she will have reached the age

3 A-1158-15T2
of sixty-two. The court also rejected plaintiff's assertion that

defendant was cohabitating with S.D., concluding that that issue

had been resolved when the parties were divorced in 2012, and

"there [has been] no change in circumstances whatsoever[.]" Thus,

the court found that while defendant and S.D. were sharing a home,

they were not in a romantic relationship.

II

On appeal, plaintiff makes four arguments: (1) the Family

Part erred in failing to apply the rebuttable presumption of

termination upon retirement set forth in N.J.S.A. 2A:34-23(j)(1);

(2) the September 10, 2014 amendment to N.J.S.A. 2A:34-23 should

apply retroactively to this case because the judgment of divorce

was entered after a trial and not as a result of an agreement; (3)

the Family Part abused its discretion in not terminating alimony;

and (4) the Family Part abused its discretion in modifying the

alimony obligation as of the date of the filing of the motion, as

opposed to the date when plaintiff retired. We are not persuaded

by any of these arguments and we affirm.

We begin our analysis with our standard of review and then

evaluate each of plaintiff's arguments. In reviewing an order

entered after a fact-finding hearing, we defer to factual findings

"supported by adequate, substantial, credible evidence." Spangenberg

v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015) (quoting

4 A-1158-15T2
Gnall v. Gnall, 222 N.J. 414, 428 (2015)). Thus, reversal is proper

only when the trial court's factual findings are "so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice."

Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,

65 N.J. 474, 484 (1974)). We review de novo a trial court's

determinations on questions of law. Reese v. Weis, 430 N.J. Super.

552, 568 (App. Div. 2013).

Plaintiff's first two arguments are based on a 2014 amendment

to the statute governing modifications of an existing alimony

order. L. 2014, c. 42, § 1. This statutory interpretation

question is a legal issue subject to our plenary review. Reese,

supra, 430 N.J. Super. at 568.

The authority to modify an existing alimony order is primarily

governed by statute. Landers v. Landers, 444 N.J. Super. 315, 320

(App. Div. 2016). The preamble to N.J.S.A. 2A:34-23, states in

pertinent part:

[A]fter judgment of divorce . . . the court
may make such order as to the alimony or
maintenance of the parties, . . . as the
circumstances of the parties and the nature
of the case shall render fit, reasonable and
just . . . Orders so made may be revised and
altered by the court from time to time as
circumstance may require.

5 A-1158-15T2
 Before September 2014, when the statute was amended, "[o]ur

courts [had] interpreted this statute to require a party who seeks

modification to prove 'changed circumstances[.]'" Spangenberg,

supra, 442 N.J. Super. at 536 (third alteration in original)

(quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)). Thus, a party

moving for modification had to "demonstrate that changed

circumstances have substantially impaired the ability to support

himself or herself." Lepis, supra, 83 N.J. at 157. It was

recognized that the reduction of income resulting from a good

faith retirement was a change of circumstances warranting a review

of the financial situation facing the parties to evaluate a pre-

existing alimony award. Landers, supra, 444 N.J. Super. at 320.

Effective September 10, 2014, the Legislature amended

N.J.S.A. 2A:34-23 to add a new subsection (j). Subsection (j)

lists objective considerations a judge must examine and weigh when

reviewing an obligor's request to modify or terminate alimony when

an obligor retires. L. 2014, c. 42, § 1. The 2014 amendment

addressed when alimony can be modified or terminated in three

different scenarios. For example, subsection (j)(1) created "a

rebuttable presumption that alimony shall terminate upon the

obligor spouse or partner attaining full retirement age." N.J.S.A.

2A:34-23(j)(1). Subsection (j)(2) addresses the circumstances

when an obligor "seeks to retire prior to attaining the full

6 A-1158-15T2
retirement age as defined in" the statute. N.J.S.A. 2A:34-

23(j)(2). Subsection (j)(3) applies "[w]hen a retirement

application is filed in cases in which there is an existing final

alimony order or enforceable written agreement established prior

to the effective date of this [amendment.]" N.J.S.A. 2A:34-

23(j)(3).

Here, plaintiff argues that subsection (j)(1) should have

applied because he filed his motion in 2015. Alternatively, he

argues that subsection (j)(1) should have applied because his

alimony obligation was imposed as a result of a trial, rather than

a negotiated settlement. We have already rejected these arguments.

Landers, supra, 444 N.J. Super. at 323.

In Landers, we reviewed the plain meaning of the words of the

statute and explained, "subsection (j) distinguishes alimony

orders executed prior to the amendment's effective date and those

executed afterwards." Ibid. (citing N.J.S.A. 2A:34-23(j)(1) and

(3)). We went on to explain:

Therefore, this unambiguous legislative
directive governs a court's examination of
alimony modification requests arising when an
obligor retires, depending on the original
date alimony is awarded.

Subsection (j)(3) applies "[w]hen a retirement
application is filed in cases in which there
is an existing final alimony order or
enforceable written agreement established
prior to the effective date of this act

7 A-1158-15T2
 . . . . " N.J.S.A. 2A:34-23(j)(3) (emphasis
added). This purposeful design demonstrates
an intent to address such circumstances
somewhat differently than orders entered
following the enactment of the statutory
amendments.

[Ibid. (alterations in original).]

Accordingly, plaintiff is incorrect when he argues that the

court here should have applied subsection (j)(1) and the rebuttable

presumption. Plaintiff is also incorrect in arguing that there

is a distinction between an order of final judgment entered after

a trial, as compared to an order of final judgment entered because

of an agreement between the parties. The statute expressly

addresses either "an existing final alimony order or enforceable

written agreement." N.J.S.A. 2A:34-23(j)(3); see Lozano v. Frank

DeLuca Const., 178 N.J. 513, 522 (2004) (explaining that courts

should look at the text of a statute, and if its language is clear

and unambiguous, the plain language should govern the statute's

interpretation).

Alternatively, plaintiff argues that the trial court abused

its discretion in concluding that alimony was still warranted,

despite plaintiff's changed circumstances. Plaintiff argues that

the trial court made specific findings not supported by the record,

including that defendant no longer has the ability to work.

Plaintiff asserts that since defendant was never found to be

8 A-1158-15T2
disabled, never presented evidence of poor physical or emotional

health, and is of working age, her unemployment can only be found

to be voluntary. Moreover, the court abused its discretion in

failing to conduct the requisite analysis under N.J.S.A. 2A:34-

23(j)(3).

N.J.S.A. 2A:34-23(j)(3) states that:

When a retirement application is filed in
cases in which there is an existing final
alimony order or enforceable written agreement
established prior to the effective date of
this act, the obligor's reaching full
retirement age as defined in this section
shall be deemed a good faith retirement age.
Upon application by the obligor to modify or
terminate alimony, both the obligor's
application to the court for modification or
termination of alimony and the obligee's
response to the application shall be
accompanied by current Case Information
Statements or other relevant documents as
required by the Rules of Court, as well as the
Case Information Statements or other documents
from the date of entry of the original alimony
award and from the date of any subsequent
modification. In making its determination, the
court shall consider the ability of the
obligee to have saved adequately for
retirement as well as the following factors
in order to determine whether the obligor, by
a preponderance of the evidence, has
demonstrated that modification or termination
of alimony is appropriate:

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

(b) The obligor's field of
employment and the generally

9 A-1158-15T2
 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;

(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.

Here, the Family Part judge did not look to N.J.S.A. 2A:34-

23(j)(3) for his analysis, instead incorrectly applying the

factors under N.J.S.A 2A:34-23(b). Nevertheless, the findings

10 A-1158-15T2
associated with the court's N.J.S.A. 2A:34-23(b) analysis overlap

and support the denial of plaintiff's application for termination

of his alimony obligations under N.J.S.A. 2A:34-23(j)(3).

The court adequately discussed factors (a) through (d), as

they relate to the parties' ages, health, and plaintiff's good

faith motivations for retirement. See N.J.S.A. 2A:34-23(j)(3)(a)

to (d). At the time of the hearing, plaintiff was seventy years

old, whereas defendant was sixty years old, and although neither

party provided medical evidence demonstrating that they were

suffering from poor physical or emotional health, both testified

that they were declining in health.

Next, the court here made sufficient findings, supported by

credible evidence in the record, to support a denial of plaintiff's

application for termination of alimony obligations under

subsection (j)(3) (e) to (h) of N.J.S.A. 2A:34-23. For example,

the court found plaintiff is in the superior economic position.

Defendant does not possess any marketable skills to earn income

and could not obtain Social Security benefits at the time of the

hearing. Defendant also did not have a driver's license or own a

car, and, therefore, she was severely limited in her prospective

employment. Further, as the court emphasized, defendant was almost

entirely dependent on S.D. for housing and other necessities.

11 A-1158-15T2
Finally, the court credited defendant's testimony that she has not

been able to save for her own retirement.

Consequently, there was sufficient substantial, credible

evidence in the record to support the court's decision to deny

plaintiff's request to terminate his alimony obligation. Gnall,

supra, 222 N.J. at 428.

We also reject plaintiff's argument that the court improperly

considered his liquidated 401(k) account. While the trial court

mentioned that plaintiff liquidated the proceeds of his 401(k)

account, it did so primarily in discussing plaintiff's arrears,

not his ability to continue his obligation in the future.

Accordingly, we discern no violation of N.J.S.A. 2A:34-23(j)(4).

That subsection directs: "The assets distributed between the

parties at the time of the entry of a final order of divorce or

dissolution of a civil union shall not be considered by the court

for purposes of determining the obligor's ability to pay alimony

following retirement." Ibid.

Finally, plaintiff argues that the court abused its

discretion in using the date plaintiff filed his motion, rather

than the date of his retirement, as the date to modify his alimony

obligation. Subsection (j)(3), which governs plaintiff's

application, does not expressly state when alimony shall be

modified or terminated. Nevertheless, as we have already

12 A-1158-15T2
explained, that subsection addresses an application that is filed

in a case with an existing alimony order that predates the

effective date of the 2014 amendment. Subsection (j)(1), however,

gives the court discretion to set a date different from the date

of retirement. In that regard, the statute provides: "The court

may set a different alimony termination date for good cause shown

based on specific written findings of fact and conclusions of

law." N.J.S.A. 2A:34-23(j)(1). This is also true of alimony

modifications that result from retirement.

Here, following a plenary hearing, the court found that

plaintiff's alimony obligation should be reduced as of the date

that he filed his application. In making that finding, the court

noted that plaintiff had incurred over $15,600 in arrears and he

had not offered any justification for why he waited to make his

application. Accordingly, the court reasoned that it would be

unfair to reduce retroactively the arrears. We discern no abuse

of discretion in that decision. Accordingly, good cause existed

to use the motion date as the date of modification.

Affirmed.

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