NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3931-14T3
NANCY E. LANDERS,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
February 22, 2016
v. APPELLATE DIVISION
PATRICK J. LANDERS,
Defendant-Respondent.
_______________________________
Argued January 11, 2016 - Decided February 22, 2016
Before Judges Lihotz, Fasciale and Higbee.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FM-08-5949-91.
Allison H. Lamson argued the cause for
appellant (Adinolfi and Lieberman, P.A.,
attorneys; Ms. Lamson, on the brief).
Charles A. Fiore argued the cause for
respondent (Law Offices of Charles A. Fiore,
attorneys; Mr. Fiore, on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
In this matter, we clarify the application of the newly
enacted alimony statute amendments, addressing modification of
alimony when an obligor retires. N.J.S.A. 2A:34-23(j).
Plaintiff Nancy E. Landers appeals from a March 27, 2015 Family
Part order terminating the alimony obligation of defendant
Patrick J. Landers as a result of his retirement. Plaintiff
argues the motion judge incorrectly applied N.J.S.A. 2A:34-
23(j)(1), which is limited to awards entered after the effective
date of the amended statute, rather than subsection (j)(3),
which governs review of final alimony awards established prior
to the effective date of the statutory amendments. We agree and
conclude the order must be vacated and the matter remanded for
further review.
The facts are not disputed. A final judgment of divorce
(FJOD) was filed on June 24, 1991, ending the parties' twenty-
two year marriage. In addition to dissolving the marriage, the
FJOD addressed the collateral issues arising upon divorce that
were resolved by consent of the parties.
Among the provisions in the FJOD, defendant was ordered to
pay a declining amount of unallocated support for plaintiff and
the unemancipated children.1 As of December 1, 2001, defendant's
obligation was $1000 per month.2 Defendant paid as ordered and
accumulated no arrearages. Post-judgment litigation was minimal
1
The FJOD does not include information regarding the
parties' income or lifestyle. Nor does it explain the
methodology underpinning the support calculations.
2
The FJOD provided: "Alimony shall automatically terminate
upon the death of either party, or the remarriage of plaintiff."
No reference is made to defendant's retirement.
2 A-3931-14T3
and there is no evidence either party filed to enforce
litigant's rights.
Following defendant's sixty-sixth birthday, he moved to
terminate his alimony obligation, which lasted for twenty-four
years. Defendant explained his income consisted of social
security retirement (SSR) benefits and the pension he received
as part of the equitable distribution of marital assets at the
time of divorce.3 Defendant asserted plaintiff remained employed
and was collecting social security retirement, qualifying as his
former spouse.
Defendant outlined his medical conditions, which directly
impacted his decision to retire, including surgery, described as
one of a series of procedures to preserve his ability to walk
after suffering a foot and leg injury. Additionally, he is a
cancer survivor and takes medication for chronic conditions.
Defendant attached documentation supporting his income prior to
retirement, his retirement receipts, and monthly expenses
3
Plaintiff's certification acknowledges defendant's pension
solely was earned during a prior period of employment, which
terminated before entry of the FJOD. We conclude no portion of
this asset may be considered when reviewing alimony. N.J.S.A.
2A:34-23(b) ("When a share of a retirement benefit is treated as
an asset for purposes of equitable distribution, the court shall
not consider income generated thereafter by that share for
purposes of determining alimony.").
3 A-3931-14T3
incurred for himself and his current spouse that were set forth
in a Family Part case information statement (CIS).
Plaintiff responded and filed a cross-motion, seeking
continuation of alimony and maintenance of a life insurance
policy, insuring defendant's life for her benefit. She detailed
her chronic medical conditions, attached documentation, and
identified her ongoing surgery needs to address these
conditions. Plaintiff's monthly income consisted of her
derivative share of SSR as defendant's former spouse and a
social security disability (SSD) award, effective May 1, 2009.4
She attached 1099s from 2014, recording earnings of
approximately $2500 as a consultant, a partially completed CIS,
a 2009 residential lease agreement with her son, and proof of a
car payment. Plaintiff acknowledged she realized $113,000 from
the sale of the former marital home, awarded to her under the
terms of the FJOD, but explained her subsequent realty purchase
using the funds resulted in a loss.
Plaintiff urged the need for alimony remained and argued
the award was not modifiable, citing the legislative statement
accompanying recent statutory amendments and suggesting the
4
The SSD award was issued on August 22, 2012. Plaintiff
also should have received a lump sum payment for the period
representing the date of disability, May 1, 2009, to the date of
the award, August 22, 2012. This document was not included in
the record.
4 A-3931-14T3
provisions do not affect the terms of a FJOD entered prior to
September 10, 2014, the effective date of the amendments.
The Family Part judge issued a tentative disposition after
reviewing the written submissions. See R. 5:5-4(e) (describing
tentative disposition procedure). He considered oral arguments
advanced by the parties and issued an order accompanied by a
written memorandum. The judge rejected plaintiff's argument
suggesting modification was precluded and analyzed defendant's
request by applying the rebuttable statutory presumption and
factors outlined in N.J.S.A. 2A:34-23(j)(1). Concluding
plaintiff failed to overcome the presumption that alimony
terminates when an obligor attains full retirement age, the
judge noted plaintiff did not supply her income tax returns,
listed no assets on her CIS, and did not address her ability to
save for retirement during the twenty-four years following the
divorce.
The order memorializing the decision granted defendant's
motion and denied plaintiff's cross-motion. Plaintiff moved to
stay the order, which was also denied, as was her request for
emergent relief filed with this court.
In our review of a Family Part judge's motion order, we
defer to factual findings "supported by adequate, substantial,
credible evidence" in the record. Gnall v. Gnall, 222 N.J. 414,
5 A-3931-14T3
428 (2015). Reversal is warranted when we conclude a mistake
must have been made because the trial court's factual findings
are "manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to
offend the interests of justice. . . ." Rova Farms Resort, Inc.
v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting
Fagliarone v. Twp. of N. Bergen,
78 N.J. Super. 154, 155 (App.
Div.), certif. denied,
40 N.J. 221 (1963)). However, when
reviewing legal conclusions, our obligation is different; "[t]o
the extent that the trial court's decision constitutes a legal
determination, we review it de novo." D'Agostino v. Maldonado,
216 N.J. 168, 182 (2013).
On appeal, plaintiff argues the judge improperly followed
the statutory provisions of N.J.S.A. 2A:34-23(j)(1), which
incorrectly placed the burden of proof on her, rather than
defendant, and also omitted the necessary analysis of important
applicable factors. This statutory interpretation question is
a legal issue subject to our plenary review. Reese v. Weis, 430
N.J. Super. 552, 568 (App. Div. 2013).
The award of "[a]limony in New Jersey is primarily governed
by statute." Gayet v. Gayet, 92 N.J. 149, 150 (1983); see also
N.J.S.A. 2A:34-23(b). Similarly, the authority of the Family
6 A-3931-14T3
Part to modify an existing alimony order is expressed in the
preamble to N.J.S.A. 2A:34-23, which provides 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 circumstances may require.
Prior to recent amendments, which became effective on
September 10, 2014, "[o]ur courts have interpreted this statute
to require a party who seeks modification to prove 'changed
circumstances[.]'" Spangenberg v. Kolakowski, 442 N.J. Super.
529, 536 (App. Div. 2015) (alteration in original) (quoting
Lepis v. Lepis,
83 N.J. 139, 157 (1980)). More specifically,
the party moving for modification "must demonstrate that changed
circumstances have substantially impaired the ability to support
himself or herself."
Lepis, supra,83 N.J. at 157.
An income reduction resulting from a "good faith
retirement" after age sixty-five is a well-recognized change of
circumstances event, prompting a detailed review of the
financial situation facing the parties to evaluate the impact
retirement has on a preexisting alimony award. Silvan v.
Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993) (identifying
factors to be considered in analyzing whether retirement
7 A-3931-14T3
justifies alimony modification); see also Deegan v. Deegan, 254
N.J. Super. 350, 357-58 (App. Div. 1992).
The 2014 amendments added a new subsection (j), which 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 newly
enacted provisions state, in pertinent part:
Alimony may be modified or terminated upon
the prospective or actual retirement of the
obligor.
(1) There shall be a rebuttable presumption
that alimony shall terminate upon the
obligor spouse or partner attaining full
retirement age, except that any arrearages
that have accrued prior to the termination
date shall not be vacated or annulled. The
court may set a different alimony
termination date for good cause shown based
on specific written findings of fact and
conclusions of law.
The rebuttable presumption may be overcome
if, upon consideration of the following
factors and for good cause shown, the court
determines that alimony should continue:
(a) The ages of the parties at
the time of the application for
retirement;
(b) The ages of the parties at
the time of the marriage or civil
union and their ages at the time
of entry of the alimony award;
(c) The degree and duration of
the economic dependency of the
8 A-3931-14T3
recipient upon the payor during
the marriage or civil union;
(d) Whether the recipient has
foregone or relinquished or
otherwise sacrificed claims,
rights or property in exchange for
a more substantial or longer
alimony award;
(e) The duration or amount of
alimony already paid;
(f) The health of the parties at
the time of the retirement
application;
(g) Assets of the parties at the
time of the retirement
application;
(h) Whether the recipient has
reached full retirement age as
defined in this section;
(i) Sources of income, both
earned and unearned, of the
parties;
(j) The ability of the recipient
to have saved adequately for
retirement; and
(k) Any other factors that the
court may deem relevant.
. . . .
(3) 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
9 A-3931-14T3
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
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
10 A-3931-14T3
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)(1), (3).]
Subsection (j)(2), which we omitted from our discussion,
addresses the circumstances when an obligor "seeks to retire
prior to attaining the full retirement age as defined in" the
statute. N.J.S.A. 2A:34-23(j)(2). "Full retirement age" means
"the age at which a person is eligible to receive full
retirement for full retirement benefits under section [4]16 of
the federal Social Security Act (42 U.S.C.[A.] § 416)."5
N.J.S.A. 2A:34-23. A person is eligible to receive full
retirement benefits when he or she is sixty-six years old,
5
There appears to be a typographical error in the statute,
mistakenly referencing section "216," which we have corrected in
our opinion. We are confident this is a mistake because 42
U.S.C.A. § 216 addresses prescriptions by the President and
promulgations by the Surgeon General.
11 A-3931-14T3
"after December 31, 2004, and before January 1, 2017 . . . ."
42 U.S.C.A. § 416(l)(1)(C).
We recently reviewed the legislative history accompanying
the 2014 amendments to the alimony statute, which states:
This act shall take effect immediately and
shall not be construed either to modify the
duration of alimony ordered or agreed upon
or other specifically bargained for
contractual provisions that have been
incorporated into:
a. a final judgment of divorce or
dissolution;
b. a final order that has concluded post-judgment litigation; or
c. any enforceable written agreement
between the parties.
[L. 2014, c. 42, § 2.]
"This additional statement signals the legislative recognition
of the need to uphold prior agreements executed or final orders
filed before adoption of the statutory amendments."
Spangenberg, supra,442 N.J. Super. at 538.
Unlike other amended provisions of N.J.S.A. 2A:34-23,
subsection (j) distinguishes alimony orders executed prior to
the amendment's effective date and those executed afterwards.
See N.J.S.A. 2A:34-23(j)(1), (3). Therefore, this unambiguous
legislative directive governs a court's examination of alimony
12 A-3931-14T3
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 . . . . " 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.
Notably, the rebuttable presumption included in subsection
(j)(1), which places the burden on the obligee to demonstrate
continuation of the alimony award once an obligor attains full
retirement age, N.J.S.A. 2A:34-23(j)(1), is not repeated, but
replaced by a different standard in subsection (j)(3). The
latter provision follows the prior principles outlined in Lepis
and its progeny, by mandating "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 . . . ." N.J.S.A. 2A:34-23(j)(3) (emphasis added).
Importantly, subsection (j)(3) elevates the ability of the
obligee to have saved adequately for retirement, listed only as
13 A-3931-14T3
a factor under N.J.S.A. 2A:34-23(j)(1)(j), setting it apart from
other considerations and requiring its explicit analysis.
N.J.S.A. 2A:34-23(j)(3). Also, factors identified in the two
subsections are not identical, making the court's focus
different. For example, most apt to plaintiff's arguments are
subsections (j)(3)(f) and (g), mandating an examination of the
obligor's ability to maintain payments upon retirement, and
"[t]he obligee's level of financial independence."6
We understand that subsection (j)(1), if read in isolation,
appears to apply to any motion to modify or terminate alimony
upon an obligor's retirement. However, when construing these
two subsections "together as a unitary and harmonious whole,"
Am. Fire & Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 80
(2006) (quoting St. Peter's Univ. Hosp. v. Lacy,
185 N.J. 1, 15
(2005)), the particular language used in subsection (j)(3)
clarifies the Legislature's intent to apply (j)(1) only to
orders entered after the amendments' effective date.
We cannot ignore defendant's retirement application in this
matter sought to modify an "alimony order . . . established
prior to the effective date of th[e] act," triggering review
pursuant to the factors listed in N.J.S.A. 2A:34-23(j)(3).
6
Several factors listed in subsection (j)(3) are found in
Silvan, supra,267 N.J. Super. at 581, and Deegan, supra,
254
N.J. Super. at 357.
14 A-3931-14T3
Consequently, the judge's mistaken reliance on subsection (j)(1)
cannot be upheld. Courts must abide the Legislature's clear
direction. See In re Kollman, 210 N.J. 557, 568 (2012) ("If the
plain language is clear, the court's task is complete."); N.
Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super.
70, 112 (App. Div.), leave to appeal granted, No. M-00444 (Dec.
8, 2015) (stating every word in a statute must be read as if
deliberate).
Accordingly, we vacate the March 27, 2015 order and remand
to the Family Part judge to conduct proceedings as he deems
necessary and to apply the burden of proof and specific
standards defined in N.J.S.A. 2A:34-23(j)(3).7
Reversed and remanded.
7
Plaintiff's argument that a remand requires reassignment is
rejected. R. 2:11-3(e)(1)(E).
15 A-3931-14T3
