Deegan v. Deegan

Decision Date05 March 1992
Citation603 A.2d 542,254 N.J.Super. 350
PartiesEdna DEEGAN, Plaintiff-Appellant, v. Ross J. DEEGAN, Defendant-Respondent.
CourtNew Jersey Superior Court — Appellate Division

Drazin & Warshaw, Red Bank, for plaintiff-appellant (Vincent L. Stripto, on the brief).

Donington, Karcher, Leroe, Salmond, Luongo, Ronan & Connell, Tinton Falls, for defendant-respondent (James J. McGuire, Jr., on the letter brief).

Before Judges LONG, BAIME and THOMAS.

The opinion of the court was delivered by

LONG, J.A.D.

We are called upon here to address the question of what standard should apply in determining whether unanticipated early retirement, or any other voluntary life style alteration, constitutes a change in circumstances warranting a support modification pursuant to Lepis v. Lepis 83 N.J. 139, 416 A.2d 45 (1980).

I

Plaintiff, Edna Deegan and defendant Ross Deegan were divorced in 1985. The Judgment of Divorce, which incorporated an oral property settlement agreement, provided, among others, that defendant would pay alimony to plaintiff in the amount of $250.00 per week. The agreement also provided that plaintiff would receive one-third of defendant's annual vacation pay and one-third of the value of his pension from the proceeds of the sale of the marital home.

The parties honored the judgment until 1990 when defendant decided to retire and advised plaintiff by letter that he wished to amicably resolve the issue of alimony. For reasons unknown, plaintiff did not respond to his inquiry. On April 27, 1990, defendant retired, four months short of his 62nd birthday. On August 22, 1990, he moved for an order terminating alimony. In support of the motion, the 62-year old defendant filed a certification stating that he had previously shared his pension with his former wife thus eliminating that asset as a source for alimony. He set forth the reasons for his decision to retire:

In reaching the decision to retire I considered many factors. First of all, the steamfitter's union, for whom I had worked for 42 years, offered a single sum pension option which was quite attractive. Secondly, work at the time was very slow and there was a real possibility that I would be laid off. Thirdly, working as a steamfitter involves a great deal of physical labor, including bending, lifting, climbing, and working in the elements. On August 14, 1989, I turned 60 years of age and this sort of labor has become increasingly more difficult for me over the years.

According to defendant's certification, he received a lump sum pension distribution of $189,801.03 which he placed into an IRA for a total annual income of $13,106.25. He also stated that plaintiff, who had been unemployed at the time of the divorce was, at the time of the motion, earning $20,000.00 per year at Brookdale Community College.

Plaintiff responded to defendant's motion and filed a cross-motion to enforce the judgment of divorce as to alimony and vacation pay. She filed a certification indicating that defendant's decision to retire prior to the availability of social security benefits, left the parties with inadequate income. According to plaintiff, defendant had additional rental income and could have invested his pension to yield a better return. She characterized his decision to retire as totally voluntary and asked the court not to allow him to stop the support she needed to survive. Without a plenary hearing, the judge denied defendant's motion, and granted plaintiff's cross-motion reasoning as follows:

The plaintiff,--the defendant seeks to terminate his alimony obligation pursuant to a judgment of divorce dated November the 12th of 1985 which is $250.00 a week because he has decided to retire at age sixty. He suggests to the court that he took a lump-sum pension benefit and has now invested that which generates income of approximately $13,100.00 per year and that is the extent of his income vis a vis his 1989 income of $54,000.00.

Individuals who have obligations and in particular alimony and child support obligations cannot voluntarily retire and then say to the court, we have a substantial change of circumstances, I don't have the income to comply with the previous judgment of divorce. When he retired, he knew he had this obligation to this woman and he continues to have this obligation to this woman, and he will continue to pay the alimony of $250.00 per week.

He'll just have to secure some other additional work to supplement his pension of $13,100.00 which I'm sure will not be difficult for him. He's been in the labor market for forty-two years. He is a healthy individual. There's no allegations that he is in bad health. So he does have the ability. He'll just have to go out and find a job to generate the income. So his application to terminate alimony will be denied.

Defendant appeals, claiming that the trial judge erred in determining that he had failed to meet the burden of establishing that he had undergone changed circumstances within the meaning of Lepis, supra. In addition, he argues that in no event could such a conclusion have been reached in the absence of a plenary hearing. We agree and reverse.

II

Spousal support agreements are always subject to modification pursuant to N.J.S.A. 2A:34-23 upon a showing of changed circumstances. Lepis v. Lepis, supra, 83 N.J. at 145, 416 A.2d 45. The Lepis Court carefully outlined a procedure which litigants, as well as courts, must follow to modify support obligations. 83 N.J. at 157, 416 A.2d 45. A party seeking modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157, 416 A.2d 45. An analysis of "changed circumstances" is not limited to what the parties might have contemplated at the time of the divorce. To the contrary, the analysis focuses on "whether the change in circumstances is continuing and whether the agreement or decree has made explicit provision for the change." Id. at 152, 416 A.2d 45.

Whether circumstances have really changed so as to warrant modification requires a court to study the parties' financial condition at the time of the divorce, as well as at the time of the application. Id. at 157, 416 A.2d 45. Where the change is involuntary, all that is required is an analysis of the alterations in the parties' financial circumstances. However, where the change is a voluntary one, other considerations come into play.

The exact mechanics of evaluating a voluntary change in circumstances has not been settled. In Horton, Jr. v. Horton, 219 N.J.Super. 76, 529 A.2d 1034 (Ch.Div.1987), an ex-husband sought relief from an alimony obligation after early retirement at age 56, one and one-half-years subsequent to the property settlement agreement with his former spouse. The trial judge rejected the application concluding that because early retirement took place such a short time after the parties' agreement was entered into, the husband should have specifically provided for such a contingency in the agreement. 219 N.J.Super. at 79, 529 A.2d 1034. More recently, in Dilger v. Dilger, 242 N.J.Super. 380, 576 A.2d 951 (Ch.Div.1990), the trial judge, Judge Bassler, set forth with much more specificity the standards he deemed applicable in such an analysis:

It seems to this court that a better approach in assessing whether early retirement constitutes a change of circumstances is to inquire not only as to whether the retirement was in good faith but also whether, in light of all of the surrounding circumstances, it was reasonable for the supporting former spouse to elect early retirement. Relative to this inquiry are "the age, health of the party, his motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement and the ability of the other spouse to provide for himself or herself." In re Marriage of Smith, 77 Ill.App.3d 858, 33 Ill.Dec. 332, 336, 396 N.E.2d 859, 863 (App.Ct.1979). Also significant are the reasonable expectations of the parties at the time of the agreement, evidence bearing on whether the supporting spouse was planning retirement at a particular age, and the opportunity given to the dependent spouse to prepare to live on the reduced support. [Id. 242 N.J.Super. at 387-88, 576 A.2d 951.]

Many of these factors were gleaned from out-of-state cases which previously addressed the subject of elective retirement. These cases can be broadly characterized as falling into several different categories. The first is what might be denominated a bright line category. In those cases, the voluntariness of the change in circumstances, in itself, is viewed as barring an application for modification. In other words, if a party, not otherwise under compulsion, voluntarily chooses a change in life style which reduces his or her financial circumstances, he or she may not base an application for modification of an alimony award on that voluntary change. See, e.g., Shaughnessy v. Shaughnessy, 164 Ariz. 449, 793 P.2d 1116, 1118 (Ariz.Ct.App.1990); Greene v. Greene, 547 So.2d 1302, 1303 (Fla.Dist.Ct.App.1989); Servies v. Servies, 524 So.2d 678, 680 (Fla.Dist.Ct.App.1988); Ward v. Ward, 502 So.2d 477, 478 (Fla.Dist.Ct.App.1987). This rule has the virtue of simplicity, but...

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  • Pierce v. Pierce
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 9, 2009
    ... ... the duty of self-fulfillment must give way to the pre-existing duty which runs between spouses who have been in a marriage which has failed." Deegan v. Deegan, 254 N.J.Super. 350, 358-359, 603 A.2d 542 (App.Div.1992). See Bassette v. Bartolucci, 38 Mass.App.Ct. 732, 735-736, 652 N.E.2d 623 ... ...
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    ... ... Those provisions must be vacated ...         The case law is clear with respect to retirement as a changed circumstance. In Deegan v. Deegan, 254 N.J.Super. 350, 603 A.2d 542 (App.Div.1992), the supporting spouse elected early retirement and sought to modify his alimony ... ...
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    ... ... Deegan v. Deegan, 254 N.J.Super. 350, 603 A.2d 542, 546 (1992). Third, once the party seeking ... a downward modification provides a seemingly good faith ... ...
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1 firm's commentaries
1 books & journal articles
  • Voluntary Early Retirement as a Factor in Modifying Maintenance
    • United States
    • Colorado Bar Association Colorado Lawyer No. 25-4, April 1996
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