VIJAYAKUMAR PAUL VALSALEN VS. VALSA PAUL (FM-08-0585-06, GLOUCESTER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0655-19T1
VIJAYAKUMAR PAUL
VALSALEN,
Plaintiff-Appellant,
v.
VALSA PAUL,
Defendant-Respondent.
________________________
Submitted November 30, 2020 – Decided December 21, 2020
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FM-08-0585-06.
Smedley Law Group, Inc., attorneys for appellant
(AllynMarie Smedley and Ryan D. Foran, on the
briefs).
Valsa Paul, respondent pro se.
PER CURIAM
In this post-judgment matrimonial case, an ex-husband, plaintiff
Vijayakumar Paul Valsalen, appeals the Family Part's August 30, 2019 order
granting the motion of his ex-wife, defendant Valsa Paul, to terminate her
alimony payments to him. The court's ruling was predicated on a finding of
changed circumstances, essentially stemming from the ex-wife’s serious
medical issues and her resulting retirement from work. We affirm.
Since the parties themselves are familiar with the facts, we recount only a
limited amount of that background here. The parties divorced in 2006, after a
twenty-six-year marriage. With the assistance of their respective counsel at the
time, the parties negotiated a Property Settlement Agreement ("PSA"). The
court approved the PSA as part of the divorce judgment.
The parties agreed in their PSA to award primary custody of their sixteen-
year-old child to Valsalen, with child support payable by Paul.1 The PSA
imputed Paul’s annual income to be $110,000 and Valsalen’s to be $50,000.
Pursuant to the PSA, Paul agreed to pay Valsalen $300 per week in
alimony. She also agreed to maintain a life insurance policy, with Valsalen as
the beneficiary.
1
Child support is no longer an issue because the child is emancipated.
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Several years later, Paul experienced several significant medical issues,
including a brain tumor. Consequently, she retired from her nursing job in mid-
2018, and ceased making alimony payments to Valsalen. Approximately a year
later, Paul moved in the Family Part to terminate her alimony obligation.
Valsalen opposed the motion. Among other things, he argued that: the
PSA called for his ex-wife to pay him alimony on a permanent basis; she failed
to establish a sufficient change in circumstances to justify relief from that
obligation; he still needed the alimony to sustain his lifestyle; and that Paul had
improperly stopped paying the monthly sums unilaterally without the court's
authorization.
Following oral arguments, the trial court terminated Paul's alimony and
life insurance obligations without a plenary hearing. As part of its detailed
analysis, the court concluded that Paul had a good faith reason for retiring at the
age of sixty-six in light of her diminished health, and that she had established a
sufficient change in circumstances to terminate alimony. The court further
observed that Valsalen was now receiving Social Security benefits as a result of
Paul's retirement, and that the parties now have roughly equal incomes when
their respective Social Security payments are considered. However, the court
did order Paul to make back payments for the alimony she withheld prior to
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filing the motion, covering the period from July 13, 2018 through June 10, 2019.
The judge declined to award either party counsel fees.
Valsalen now appeals. He challenges substantially all of the trial court's
factual findings, and requests a plenary hearing on multiple issues. Among other
things, he argues the trial court erred by failing to consider his comparative
inability to have saved for retirement, by overlooking or subordinating his
expectations under the PSA to continue to receive permanent alimony, and by
analyzing the alimony issues with an improper consideration of assets subject to
equitable distribution. He contends the trial court's decision was arbitrary and
capricious, and that, at the very least, the case should be remanded for a plenary
hearing with testimony.
Paul, who is now self-represented, opposes the appeal. However, she has
not cross-appealed the court's mandate that she pay the sums she had unilaterally
withheld.
Our scope of review of these post-judgment financial issues is guided by
well-established principles. In reviewing the Family Part's rulings in
matrimonial cases, we generally accord considerable deference to that court's
expertise in family matters and its exercise of discretion. See Cesare v. Cesare,
154 N.J. 394, 411-12 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33
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(1988). We are bound by the trial court's factual findings so long as they are
supported by sufficient credible evidence. Gnall v. Gnall, 222 N.J. 414, 428
(2015). That said, we review de novo a trial court's interpretations of law and
its legal conclusions. Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div.
2016) (citing D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
Applying those familiar principles here, we affirm the trial court's
determination, substantially for the sound reasons expressed by Judge John C.
Eastlack. We add a few comments by way of amplification.
It has been long recognized that our courts have "broad equitable powers
. . . to review and modify alimony and support orders at any time." Weitzman
v. Weitzman, 228 N.J. Super. 346, 353 (App. Div. 1988); see also N.J.S.A.
2A:34-23; Reese v. Weis, 430 N.J. Super. 552, 569-70 (App. Div. 2013).
The relevant statute governing the termination of Paul's alimony is
N.J.S.A. 2A:34-23(j)(3). With respect to post-divorce retirement, the statute
directs:
j. Alimony may be modified or terminated upon the
prospective or actual retirement of the obligor. . . .
(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
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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
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;
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(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.
[Ibid. (emphasis added).]
Although the alimony statute was substantially amended by the
Legislature in 2014, subsection (j)(3), the relevant subsection here, follows the
procedural framework of the Supreme Court's seminal opinion of Lepis v. Lepis,
83 N.J. 139 (1980). See Landers, 444 N.J. Super. at 323 (holding that subsection
(j)(3) "follows the prior principles outlined in Lepis and its progeny").
Under Lepis, the moving party seeking to modify or terminate a support
obligation must first make a threshold prima facie showing that "changed
circumstances have substantially impaired the ability to support himself or
herself." Lepis, 83 N.J. at 157. 2 In considering a proffer of changed
2
Notably, the PSA does not contain a so-called anti-Lepis provision that can
nullify the ordinary application of the "changed circumstances" doctrine. Cf.
Amzler v. Amzler, 463 N.J. Super. 187, 190 (App. Div. 2020).
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circumstances, it is often necessary for the court to delve into the financial status
of both parties. Id. at 158.
When a prima facie showing is made, the court next must determine if a
plenary hearing is warranted. Id. at 159. To obtain such a hearing, the moving
party must "clearly demonstrate the existence of a genuine issue . . . [of] material
fact." Ibid. In making this determination, the court should look to the
certifications and supporting documents of the parties. Ibid.
The Family Part adhered to these principles in ruling to terminate Paul's
alimony here, after considering the parties' financial circumstances. The court's
determination that Paul was entitled to retire in 2016 at the age of sixty-six,
particularly given her brain tumor and other serious health issues, is
unassailable. Indeed, subsection (j)(3) of the alimony statute declares that a
person who reaches "full retirement age" is deemed to have retired in "good
faith." N.J.S.A. 2A:34-23(j)(3). "Full retirement age" is defined as "the age at
which a person is eligible to receive full retirement for full retirement benefits
under section 216 of the federal Social Security Act (42 U.S.C. § 416)."3 Under
the federal statute, Paul reached "full retirement age" at sixty-six. 42 U.S.C. §
3As we noted in Landers, 444 N.J. Super. at 322 n.5, the statute appears to
contain a typo, and actually refers to section 416, not section 216, of the federal
statute.
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416(l)(1)(c). It was thus appropriate for the trial court to hold she had retired in
good faith and, in light of her poor health, not require her to search for some
other form of work outside of the nursing field.
The trial court was mindful that Valsalen himself also has serious health
problems. Even so, the court reasonably noted that Vansalen receives rental
income from properties he owns. Moreover, he is receiving derivative Social
Security benefits as the result of his ex-wife's retirement 4, which helps
compensate for the loss of alimony payments. We do not second-guess the
court's assessment of Valsalen's financial circumstances, including treating as
non-recurring certain bed bug remediation costs in his claimed expenses for
2018.
There is also reasonable support in the record for the court's assessment
that Valsalen could have made more prudent decisions to save and prepare for
retirement. The law does not disallow the court's observations that Valsalen
could have made sounder investments with his post-divorce share of equitable
distribution. See Miller v. Miller, 160 N.J. 408, 420-21 (1999).
4
See 20 C.F.R. § 404.331 (concerning the eligibility of certain former spouses
to receive Social Security benefits upon their ex-spouse's retirement).
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There was no need for a plenary hearing, since the trial court had sufficient
financial documents from the parties to evaluate the totality of pertinent
circumstances. No material facts of consequence concerning the parties'
respective finances were genuinely disputed. Lepis, 83 N.J. at 159. The court
also did not err in terminating the life insurance coverage that was logically tied
to the alimony obligation.
Lastly, the court did not misapply its broad zone of discretion in declining
to award counsel fees to either Valsalen, who was the non-prevailing party on
the central issue of termination, or Paul. Gotlib v. Gotlib, 399 N.J. Super. 295,
314-15 (App. Div. 2008) (reiterating the court's broad discretion on fee-shifting
requests in matrimonial litigation).
Having fully considered them, we conclude all other points and sub-points
raised on appeal lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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