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Mastorio v. Mastorio

June 27, 2007

ROY MASTORIO, PLAINTIFF-APPELLANT,
v.
CHRISTINE MASTORIO,*FN1 DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-2214-98F.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued April 19, 2007

Before Judges Lefelt and Sapp-Peterson.

In this matrimonial matter, plaintiff Roy Mastorio appeals from the entry of a post-judgment order denying his application for an order directing that defendant Christine Mastorio must pay a $78 monthly survivor benefit service fee that was not included in the parties Property Settlement Agreement (PSA). We affirm.

The parties were divorced on June 2, 1999, in New Jersey after a marriage of twenty-seven years. The PSA specifically provided that (1) defendant was entitled to an equal share of plaintiff's pension from his then employer, General Motors, calculated from the date of the marriage to the date of the filing of the divorce complaint, and (2) the pension benefits would be paid pursuant to a Qualified Domestic Relations Order (QDRO) that was to be prepared by William Troyan, Inc.

On September 4, 2002, plaintiff filed a motion to reduce alimony because he was permanently disabled and his income was significantly lower. When plaintiff filed the motion, defendant was also permanently disabled and Social Security was the sole source of her annual $7,380 income. After more than a year of negotiations, the parties entered into a consent order reducing alimony to $125 weekly, retroactive to the date of the filing of the motion.

Within days after the entry of the consent order, plaintiff filed for early retirement based upon his disability. In doing so, plaintiff was no longer entitled to receive payments from his Metropolitan Life Disability policy which, under the consent order, was to be the source for defendant's alimony payments. Consequently, once plaintiff retired, he failed to voluntarily make any support payments.

On June 21, 2004, plaintiff filed a motion to eliminate his obligation to pay alimony altogether. Plaintiff claimed that his income substantially changed and that he could no longer afford the $125 weekly alimony payments. The motion also sought to have defendant pay the $78 monthly survivor benefit servicing fee.

On July 24, 2004, the motion judge, without separately or specifically addressing the $78 monthly survivor benefit servicing fee, denied the motion, noting,

Plaintiff's motion to reduce/terminate alimony is denied, without prejudice, as plaintiff failed to demonstrate a prima facie showing of changed circumstances in accordance with Lepis v. Lepis, 83 N.J. 139 (1980). The Court makes this finding based upon the Consent Order dated December 17, 2003, whereby alimony was reduced by way of agreement between the parties, and, thereafter, less than one month after execution of the Consent Order, plaintiff applied for pension eligibility. Under the circumstances, the Court finds that insufficient time passed for plaintiff to establish changed circumstances to support the request to terminate alimony.

Plaintiff appealed that decision, which we affirmed in an unpublished opinion. Mastorio v. Mastorio, No. A-0012-04T1 (App. Div. June 20, 2005).

On May 25, 2005, slightly less than a month before we issued our June 20, 2005 opinion, Middlesex County Probation initiated an enforcement action against plaintiff to collect accumulated arrears. Plaintiff agreed to pay defendant a lump sum payment of $2,500 towards outstanding arrears and defendant agreed to waive the remainder, which totaled approximately $1,000. The $125 weekly alimony was continued.

On June 16, 2006, plaintiff filed yet another motion to reduce alimony. This time, plaintiff, in his certification, stated that the court's July 24, 2004 decision did not address "my request to have the Defendant reimburse me for the monthly amount of $78.00 being deducted from my pension for HER benefit and HER benefit alone. There was absolutely ...


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