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Family Part judges must make detailed findings of the marital standard of living before alimony is awarded or altered, the New Jersey state Supreme Court ruled Wednesday. “This case illustrates the pitfalls associated with the failure to establish the marital standard of living,” Justice Jaynee LaVecchia wrote for the 5-0 Court in Crews v. Crews, A-20-99. The Court remanded the case since the trial judge had not established a marital standard of living before the initial ruling or before another judge denied the wife’s request for increased alimony. “Without this information, [Mrs. Crews'] motion for modification could not be properly analyzed,” LaVecchia wrote. The proper standard for that analysis, she said, is “whether the supported spouse can maintain a lifestyle that is reasonably comparable to the standard of living enjoyed during the marriage.” LaVecchia added that although the Court normally doesn’t revisit issues that should have been resolved below, “basic fairness requires that we act to remedy this lack of essential fact-finding in order to be assured that Mrs. Crews’ motion for modification of her alimony award is evaluated properly now.” LaVecchia said the ruling is an extension of the doctrine of Lepis v. Lepis, 83 N.J. 139 (1980), that the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is “reasonably comparable” to the one existing during the marriage. “The Lepis standards and procedures have stood the test of time well,” she wrote. “The importance of establishing the standard of living experienced during the marriage cannot be overstated.” Says Barbara Crews’ lawyer, Dale Elizabeth Console: “This is like Lepis II. It’s a victory for dependent spouses.” Until now, says Console, a Kingston solo practitioner, trial judges rarely set or articulated the marital standard of living. “Ninety-nine percent of the judges don’t do that,” she says. “This is a verification of the requirement that they have to make a finding of the standard of living.” Robert Crews’ lawyer, Francis Donahue, sees it differently. “It’s going to lead to more litigation and make it more difficult to settle cases,” says Donahue, a partner at Short Hills, N.J.’s Donahue, Braun, Hagan, Klein & Newsome. “Now, you’re going to have protracted litigation over just what was the marital standard of living. “This just adds more problems in resolving any case.” Robert and Barbara Crews were married in 1977 and divorced in 1994. They had two children. Bergen County Superior Court Judge Roger Kahn, now sitting on the Tax Court, awarded Barbara Crews $800 a month for three years in rehabilitative alimony and determined that if she worked full time she eventually could earn up to $26,000 a year by the end of three-year period. Kahn denied a motion for reconsideration. In 1997, at the end of the three-year period of rehabilitative alimony, Barbara Crews said she was not able to earn $26,000 a year because she had to care for the emotional needs of one of her children who was affected badly by the divorce. She asked Superior Court Judge Harold Hollenbeck to increase the rehabilitative alimony award and convert it to permanent alimony. She also noted that her ex-husband’s financial condition had improved considerably after their divorce. Hollenbeck denied the request. The Appellate Division affirmed the alimony award, concluding that statutory factors and Barbara Crews’ needs had been considered. The Supreme Court found, however, that the trial court focused on the monthly expenses for Barbara and the two children but ignored expenses outlined in her Case Information Statement. The Court said it reaffirmed the two-step, changed-circumstances analysis set forth in Lepis. That test requires a prima facie showing of changed circumstances before a court will order discovery of an ex-spouse’s financial status. Only then should the respondent’s ability to pay be a factor for consideration, under Lepis. In her opinion, LaVecchia also set standards judges are to use when determining whether there should be an alteration in alimony based on changed circumstances. A motion to modify alimony, she said, may not be used to enable a dependent spouse to share in the post-divorce good fortune of the supporting spouse, and the improved financial status of a supporting spouse alone does not provide a basis for a finding of changed circumstances. Only in certain circumstances, such as when a supporting spouse requests a change in alimony payments, should his or her financial situation be analyzed and considered, LaVecchia said. Justices James Coleman Jr. and Virginia Long did not participate in the decision and didn’t explain why.

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