SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2112-18T4

GARY EDDEY,

Plaintiff-Respondent,

v.

ILENE EDDEY,

Defendant-Appellant.

_______________________________

Submitted March 17, 2020 – Decided April 29, 2020

Before Judges Hoffman, Currier and Firko.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Morris County, 

Docket No. FM-14-0795-02.

Simon, O'Brien & Knapp, attorneys for appellant (John 

T. Knapp, of counsel and on the briefs; Sarah E. 

Kapitko, on the brief).

Greenbaum, Rowe, Smith & Davis LLP, attorneys for 

respondent (Mark H. Sobel and Barry Scott Sobel, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Ilene Eddey appeals from a December 11, 2018 Family Part 

order that granted plaintiff Gary Eddey's motion to terminate his alimony and 

life insurance obligations. Applying N.J.S.A. 2A:34-23(j)(3), the Family Part 

judge concluded the factors weighed in favor of terminating plaintiff's alimony 

and life insurance obligations, and his retirement was undertaken in good faith. 

We affirm.

I.

The following factual history is derived from the motion record. After 

almost twenty-seven years of marriage, plaintiff and defendant divorced in 2003. 

The final judgment of divorce (JOD) incorporated their property settlement 

agreement (PSA). It required plaintiff to "pay [defendant] permanent alimony 

in the sum of $40,000 per year. Said payments shall be paid weekly at the rate 

of $770 per week." The PSA also provided that plaintiff maintain life insurance 

for the benefit of defendant "for so long as his alimony obligation lasts." The 

PSA did not address the consequences of plaintiff's retirement. 

Both parties were actively employed when they divorced. Plaintiff 

worked as a medical doctor and defendant was employed as a teacher. Their 

three children are now emancipated.
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Under the JOD, defendant kept the marital residence, although she was 

required to refinance the existing mortgages and buy-out plaintiff's equity

interest in the home. The parties equitably divided their retirement accounts and 

two defined benefit plans, including defendant's pension. They evenly divided 

their $5700 credit card debt, and plaintiff agreed to pay the $11,000 IRS debt 

for the 2001 tax year.

In January 2017, defendant retired from her teaching position. Later that 

year, in October, plaintiff advised defendant he planned to retire at the end of 

the year, when he turned sixty-six years old. At the time, plaintiff worked as an 

"on call" physician for a special education hospital for individuals with 

developmental disabilities. Plaintiff chose to retire partly because of the 

"stressful and physically and mentally demanding schedule" his position 

entailed. In April 2016, plaintiff was terminated from a different position and 

found it difficult to become re-employed. After obtaining the new position for 

the one-and-a-half-year period, he decided to retire.

In an effort to avoid litigation upon plaintiff's imminent retirement, the 

parties exchanged financial information in December 2017. No agreement was 

reached. On January 5, 2018, plaintiff retired at the age of sixty-six. While 
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plaintiff presently has no known health conditions, defendant has significant 

medical issues.

On May 30, 2018, plaintiff filed a motion to permanently terminate his 

alimony and life insurance obligations and for an award of counsel fees. In his 

moving certification, plaintiff contended he was entitled to relief because he 

reached a good faith retirement age and met the statutory factors required by 

N.J.S.A. 2A:34-23(j)(3). He also was eligible for social security benefits.

Defendant opposed plaintiff's motion on the basis that he failed to 

completely disclose his income information and she cross-moved for counsel 

fees. On August 9, 2018, the prior Family Part judge denied plaintiff's motion 

"due to the lack of information provided by [p]laintiff, which . . . prevents the 

[c]ourt from determining if a prima facie case of changed circumstances has 

been established." Specifically, the judge noted that plaintiff failed to include a 

current case information statement (CIS) with his motion.

On September 27, 2018, plaintiff re-filed his motion and included an 

updated CIS and documents pertaining to his social security benefits. Defendant 

again opposed the motion, contending that plaintiff failed to disclose all of his 

assets and anticipated income streams from his annuities and other sources, and 
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cross-moved for counsel fees. In reply, plaintiff certified that his only current 

source of income is his social security payments.

On December 7, 2018, the subsequent Family Part judge heard oral 

argument on the motions. In his statement of reasons, the judge concluded that 

"the totality of the factors . . . weigh in favor of terminating alimony and no 

factor, either individually or cumulatively, weighs against terminating 

[p]laintiff's alimony obligation."

In reaching his decision, the judge considered the factors under N.J.S.A. 

2A:34-23(j)(3) in holding that plaintiff's alimony and life insurance obligation 

be terminated. Notably, the judge found plaintiff's desire to retire after facing 

termination from his previous job and upon attaining retirement age was 

reasonable and did not reflect an improper motive. Defendant's expectation that 

plaintiff would continue to work in perpetuity was deemed unreasonable by the 

judge.

The judge based his decision on a number of findings. Post-retirement, 

plaintiff's income is $2545 per month from social security benefits. Excluding 

real estate, plaintiff has liquid assets of $1,770,467, including his retirement 

annuity of $683,931, which does not vest for another five years. While 

defendant claims plaintiff should have included his New York condominium in 
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his list of assets, the judge did not find the omission fatal because "it is clear 

that over the proximate years [p]laintiff's [s]ocial [s]ecurity income will be 

inadequate to cover his alimony obligation . . . requir[ing] [him] to deplete his 

liquid assets in order to subsidize . . . payments alone (before paying any of his 

own monthly expenses)." 

The judge found plaintiff spends $13,914 per month, including $3333 in 

alimony payments and $688 in life insurance premiums. The judge noted that 

"[p]laintiff will be unable to afford his current lifestyle" if his alimony 

obligations continued post-retirement.

The judge found that defendant continued to work until her retirement in 

January 2017. During the latter stages of her career, defendant earned $143,244 

in 2015 and $136,402 in 2016, and has total assets of $1,222,959.

1

 The judge 

noted that defendant's monthly net pension and social security benefits totaled 

$4072. With estimated monthly expenses of $6206.35, like plaintiff, defendant's 

income will not sufficiently cover her current lifestyle without depleting her 

retirement assets. 

Given those facts, the judge concluded:

Overall, while there is a disparity in the parties' assets, 

and [p]laintiff could liquidate assets to continue 

 

1 Excluding estimated real estate value, defendant has assets worth $794,959.01.
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alimony payments, the court finds that both parties have 

sufficient assets to supplement their own monthly 

incomes to support and maintain their own lifestyles for 

the indefinite future. 

. . . Based upon [d]efendant's current income from her 

pension and social security as well as the assets she has 

amassed, the court does not find that she is financially 

dependent upon [p]laintiff or that the retirement and 

termination of alimony will be materially detrimental 

to [d]efendant. Rather, the court finds that she has 

adequate assets to supplement her retirement income so 

as to sustain her lifestyle. 

. . . [T]he court does note that [p]laintiff has paid 

[d]efendant alimony for more than [seventeen-and-ahalf years], which equates to a[t] least $700,000 in nontaxable payments to [d]efendant. The court finds that 

based upon [d]efendant's continued employment 

following the parties' 2003 divorce until January 2017 

and the alimony she received, [d]efendant had the 

opportunity to adequately save for retirement. While 

perhaps [d]efendant could have save[d] more for 

retirement, the court finds that she has adequate assets 

to supplement her retirement income so as to sustain her 

lifestyle.

The judge granted plaintiff's motion thereby terminating his alimony and life 

insurance obligations, and denied both parties' motions for counsel fees.

On appeal, defendant contends the judge improperly concluded that: (1) 

plaintiff established changed circumstances warranting termination of his 

alimony and life insurance obligations; (2) discovery and a plenary hearing were 

unnecessary; (3) plaintiff could no longer afford to pay alimony and defendant 
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no longer needed alimony; (4) plaintiff could terminate life insurance for 

defendant; (5) alimony received by defendant was tax-free; and (6) plaintiff had 

disclosed all relevant sources of income.

II.

We accord "great deference to discretionary decisions of Family Part 

judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in 

recognition of the "family courts' special jurisdiction and expertise in family 

matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 

(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We are bound by 

the trial court's factual findings so long as they are supported by sufficient 

credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 

279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. 

Div. 1993)). "A trial court's interpretation of the law and the legal consequences 

that flow from established facts are not entitled to any special deference." 

Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting Manalapan Realty, 

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The court is required to examine and weigh a list of objective 

considerations when it reviews an alimony termination or modification request 

for an obligor who has retired. Landers v. Landers, 444 N.J. Super. 315, 321
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(2016). If the alimony order pre-dates September 10, 2014, the request for 

modification or termination must be reviewed under N.J.S.A. 2A:34-23(j)(3). 

That section expressly requires "[i]n making its determination, the court shall 

consider the ability of the obligee to have saved adequately for retirement . . . 

[and] 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). The obligee's ability to have adequately saved is set "apart from other 

considerations and require[s] . . . explicit analysis." Landers, 444 N.J. Super. at 

324.

The statute requires the court to consider other factors, which include:

(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;
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(e) The reasonable expectations of the parties regarding 

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)(3)(a) to (h).]

Importantly, alimony orders define "only the present obligations of the 

former spouses," and therefore, are always subject to "review and modification" 

upon a showing of "changed circumstances." Crews v. Crews, 164 N.J. 11, 24

(2000) (quoting Lepis v. Lepis, 83 N.J. 139, 146 (1980)); see also N.J.S.A. 

2A:34-23 ("[Alimony orders] may be revised and altered by the court from time 

to time as circumstances may require."). The moving party "bears the burden of 

making a prima facie showing of changed circumstances" to initiate this 

modification. Crews, 164 N.J. at 28 (quoting Miller v. Miller, 160 N.J. 408, 420 

(1999)). Changed circumstances generally means a recent inability to support 

himself or herself. Lepis, 83 N.J. at 157.
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Defendant argues the Family Part judge improperly determined that 

plaintiff established a prima facie case of changed circumstances. She also 

contends the judge failed to consider relevant factors.

We do not agree that the judge improvidently weighed the statutory 

factors. The judge's ruling considered each of the factors under N.J.S.A. 2A:34-

23(j)(3). Moreover, the judge correctly noted that regardless of whether 

"retirement" was specifically included in the PSA, "the current state of the law 

. . . recognizes [plaintiff's] ability to make this application based upon goodfaith retirement." Further, the judge found there was no generally accepted age 

for retirement in plaintiff's field.

In addition, the judge made detailed findings about the parties' financial 

situations. He found plaintiff has social security income of $2545 per month 

and liquid assets of $1,770,467, excluding real estate, but inclusive of $683,931 

in annuities, which will not vest for another five years. Saliently, the judge

considered plaintiff's age, health, and reasons for retiring in making his findings.

The judge also explained that defendant failed to state her income. Her 

CIS reflected she had total assets of $1,222,959. Her monthly net pension and 

social security income is $4072.
12 A-2112-18T4

Subsection (j)(3) emphasizes that the court "shall consider the ability of 

the obligee to have saved adequately for retirement . . . ." This section "elevates 

the ability of the obligee to have saved adequately for retirement [over the other 

factors] . . . setting it apart from other considerations and requiring its explicit 

analysis." Landers, 444 N.J. Super. at 324 (citing N.J.S.A. 2A:34-23(j)(3)). 

This consideration is a primary factor in the analysis.

Defendant had a clear ability to make appropriate retirement 

arrangements. The judge found not only that "[d]efendant had the opportunity 

to save for retirement" but that she, in fact, had "adequate assets to supplement 

her retirement income so as to sustain her lifestyle." The judge was correct in 

his analysis.

Despite defendant's contention that she has health conditions requiring 

treatment and monitoring, the judge aptly found "she provide[d] no evidence 

that any treatments since retirement have been uncovered or that she has had to 

pay for any treatments out-of-pocket causing any material depletion of her 

financial resources." Her health issues did not justify denying plaintiff's motion 

on account of his changed circumstances.

The judge also made findings under the balance of the (j)(3) factors as 

follows:
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Based upon [d]efendant's current income from her 

pension and social security as well as the assets she has 

amassed, the court does not find that she is financially 

dependent upon [p]laintiff or that the retirement and 

termination of alimony will be materially detrimental 

to [d]efendant. Rather, the court finds that she has 

adequate assets to supplement her retirement income so 

as to sustain her lifestyle.

There was ample, credible evidence in the record to terminate alimony on 

the basis of plaintiff's retirement. We are satisfied the judge did not abuse his 

discretion in balancing the relevant factors. The judge's decision was based 

upon a thorough analysis of the statutory factors set forth in N.J.S.A. 2A:34-

23(j)(3), with proper consideration given to the entire record.

Furthermore, the judge did not err by not conducting a plenary hearing. It 

is not "required or warranted in every contested proceeding for the modification 

of a judgment or order relating to alimony." Murphy v. Murphy, 313 N.J. Super. 

575, 580 (1998). Otherwise, "courts would be obligated to hold hearings on 

every modification application." Lepis, 83 N.J. at 159. Hearings must only be 

held where "affidavits show that there is a genuine issue as to a material fact, 

and . . . the trial judge determines that a plenary hearing would be helpful . . . ." 

Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

Here, the judge determined that plaintiff's alimony obligation should be 

terminated "[b]ased upon the preponderance of the evidence" without the need 
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for additional information. As a plenary hearing was unnecessary, the judge did 

not abuse his discretion in denying the request. See Costa v. Costa, 440 N.J. 

Super. 1, 4 (App. Div. 2015).

Lastly, we address defendant's argument that the judge mischaracterized 

her alimony payments as tax-free, warranting reversal. Specifically, she 

challenges the judge's finding that "[p]laintiff has paid [d]efendant alimony for 

more than [seventeen-and-a-half years], which equates to a[t] least $700,000 in 

non-taxable payments to [d]efendant." In defendant's view, the judge 

erroneously concluded she was thereby able to adequately save for retirement. 

Again, we reject defendant's argument.

Our careful review of the record shows the judge properly noted 

"[d]efendant's continued employment following the parties' 2003 divorce until 

January 2017 and the alimony she received . . . ." Put into context, the judge 

considered defendant's earned income in tandem with the alimony she received. 

The judge's conclusion was not dependent on whether the alimony was taxable. 

Moreover, there is sufficient, credible evidence in the record to show defendant 

has adequate assets to augment her retirement income. Therefore, we reject 

defendant's argument.
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Other arguments raised by defendant lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.