New Jersey Court Considers Modification of Alimony
January 31, 2017
In the unpublished opinion of Tomicki v. Tomicki, a New Jersey appellate court considered rulings related to alimony and property division in a divorce. The couple had married in 1994 and had one child. They divorced in 2010, and their divorce judgment incorporated a property settlement agreement that required the husband to pay $800 each month in alimony to the wife.
The husband appealed various rulings related to the divorce. He argued that the trial court should have granted his request for termination of alimony, emancipated his daughter, provided relief regarding the ex-wife’s failure to reimburse her share of maintenance for their time share, and ordered reimbursement of $4,604 as compensation for the overpayment of his ex-wife’s share of his pension.
The husband argued that his ex-wife’s yearly income had gone up by almost $30,000. Although the trial judge had concluded that this was a claim that represented a chance in circumstances that needed examination, the judge denied relief because the husband didn’t submit a case information statement. The husband tried to provide an updated statement, in which he claimed that he suffered from chronic pain and that his wife’s annual income had increased, while her expenses decreased, and in which he claimed that she was coming into an inheritance.
The former wife claimed these allegations were untrue but didn’t provide evidence to support her claim. Discovery and an evidentiary hearing were denied, since apparently the lower court didn’t believe the ex-husband would be able to obtain the evidence to prove his former wife’s changed circumstances.
The appellate court found that the husband had established there was a prima facie case of changed circumstances and that the trial judge should have allowed an examination of the parties’ financial circumstances. It explained that after discovery was exchanged, it could be determined whether there were conflicts about what the facts are, and then an evidentiary hearing could be conducted.
The ex-husband had also claimed that the couple’s daughter was emancipated. Their settlement agreement had defined this event as happening when she reached 18 or finished high school, whichever was later, unless she went to some further educational institution. He said that the daughter was over 18 and not going to attend college after high school. The court explained that a child’s 18th birthday is prima facie proof of emancipation, but the issue is whether she’s moved out of her parents’ sphere of influence.
The ex-wife told the court that the child was enrolled in a university and was still dependent on her. The lower court judge wanted more proof of the child’s enrollment. The appellate court was satisfied that there was enough doubt about the child actually being enrolled in college to warrant further examination. The court vacated the order that denied emancipation and sent the case back for discovery and an evidentiary hearing.
In the settlement agreement, the parties agreed to jointly own the timeshare and divide the monthly fees that resulted, with either party having the right to force a sale or be the sole user of the timeshare in the defaulting party’s designated year if the other defaulted. The appellate court explained that these obligations were simply restated in the order. For these and other reasons, the appellate court partly affirmed the order and partly reversed it.
If you are considering a divorce in Bergen County, and you are concerned about alimony and child support, it is important to retain an experienced and aggressive attorney to seek an appropriate outcome. Contact the lawyers at Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce.