Silvan v. Sylvan

• Decision Date: 06 October 1993
• Citation: 267 N.J.Super. 578,632 A.2d 528
• Parties: Leon O. SILVAN, Plaintiff-Appellant, v. Rita M. SYLVAN, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 578

267 N.J.Super. 578

632 A.2d 528

Leon O. SILVAN, Plaintiff-Appellant, v. Rita M. SYLVAN, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted Sept. 21, 1993.

Decided Oct. 6, 1993.

Skoloff & Wolfe, Livingston, for plaintiff-appellant (Francis W. Donahue, of counsel, Mr. Donahue and Beatrice Kandell, on the brief and the reply brief).

Sunshine, Atkins, Minassian & Tafuri, River Edge, for defendant-respondent.

Before Judges MICHELS, KESTIN and WEFING.

The opinion of the Court was delivered by

WEFING, J.S.C. (temporarily assigned).

Plaintiff-husband appeals from an order of the trial court which denied his post-judgment motion to modify his alimony obligations following his retirement. The parties were married for twenty-seven years and were divorced in 1981. They negotiated a property settlement, the terms of which were incorporated in the judgment of divorce and provided for alimony of $10,400 annually. In 1988, that alimony was ordered increased by the court to $15,600. The reasons for that court-ordered increase do not appear in the record before us.

Plaintiff-husband retired at age sixty-three and one-half years and he sought to reduce his alimony obligations at that time. A reduction was denied by the trial court, and affirmed on appeal. By the time of affirmance, however, plaintiff-husband had reached age sixty-five and he renewed his motion, which was again unsuccessful. This further appeal resulted.

Plaintiff-husband argues here, as he did below, that he is financially unable to continue with alimony payments at the same level due to his change in income; if ordered to do so, he contends, he would be required to consume his principal. Defendant-wife, however, argues that she requires the alimony to continue to meet her obligations.

Although it seems clear that plaintiff-husband's financial situation is far better than that of his former wife, the reasons for that are not entirely obvious. According to the materials presented in this matter, plaintiff-husband received assets totalling $139,505.60 and defendant-wife received assets valued at $133,881.70 in the equitable distribution which was accomplished in conjunction with their divorce. She now receives an income, through pension and social security, of $18,000 per year. That is in addition to the alimony of $15,600. Plaintiff-husband asserts that his income consists of $900 per month in social security benefits and approximately $900 per month in investment income.

We are satisfied that in certain circumstances, good faith retirement at age sixty-five may constitute changed circumstances for purposes of modification of alimony and that a hearing should be held to determine whether a reduction in alimony is called for.

There are a variety of factors which should be considered in analyzing whether such changed circumstances do, in fact, exist as would justify a modification of alimony. A court may consider, for instance, the age gap between the parties; whether at the time of the initial alimony award any attention was given by the parties to the possibility of future...