On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-2855-00.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2007
Before Judges Stern, Collester and Sabatino.
This sad case raises the issue as to whether a change of circumstances resulting from the wrongful death of a child caused by an alimony recipient terminates or reduces the alimony obligation.
As gleaned from the record submitted to us, the facts are as follows. Plaintiff Christopher Calbi and defendant Linda Calbi were married on July 26, 1986. They had two children, both boys: Matthew, born on December 29, 1988, and D.*fn1, born on July 29, 1994. After fifteen years of marriage, Christopher filed a complaint for divorce. The marriage was dissolved with a judgment on July 25, 2001. That judgment apparently incorporated a property settlement agreement (PSA) which awarded physical custody of the two children to Linda and permanent alimony of $3,183 per month. Since the record on appeal includes neither the agreement nor the divorce judgment, we are unaware of any agreed amount of child support and are unable to consider whether some portion of child support is denominated as alimony for purposes of a tax advantage to Christopher.
Christopher certified that Linda was an active and violent alcoholic who abused and assaulted him, at times with a kitchen knife and a hammer. Although he claims police responded to his home on two occasions, the record before us does not reference a domestic violence complaint or restraining order. Christopher also said that after he moved out in September 1999, Linda focused her violent behavior on Matthew. He states that after teachers or officials in Matthew's school saw bruises on Matthew's arms and legs, the Division of Youth and Family Services (DYFS) conducted an investigation, but the record does not include the result of any investigation. Christopher certified that Linda was involved in an automobile accident in 2002 while driving the children to school, and a police officer at the scene told him that he believed Linda was under the influence of alcohol. But the record is barren as to whether Linda received a summons for driving under the influence. Nonetheless, it is undisputed that Linda had a severe alcohol addiction, and in September 2002 she was arrested and later convicted of drunk driving.
Things came to a head on April 30, 2003, when Linda overdosed on a mixture of alcohol and prescription drugs. DYFS placed the children with Christopher while Linda attended a residential rehabilitation center. When she left the facility, the children remained with Christopher, but they visited with Linda after school and overnight on weekends. Despite this change in residential custody, it appears that there was no reduction in support paid by Christopher.
The relationship between Linda and her son Matthew was very strained, and they both attended therapy sessions to deal with the problem. During an overnight visitation on Saturday, August 16, 2003, the short life of young Matthew came to a violent and tragic end. That night Matthew remained in his room at Linda's house watching television until he went to bed at about 11 p.m.
D. was already asleep. Linda admittedly consumed a bottle of brandy before falling asleep, and she awoke at about 5 a.m. She walked her dog and then turned on the television. Matthew came downstairs about 5:30 a.m. to ask her to turn the volume down and then went back to bed. Sometime later that morning an argument between Linda and Matthew turned violent. Linda had little recollection of the incident other than the fact that Matthew bit her, but she believed Matthew's statements that she struck him first with her hands and then kicked him.
After the fight, Matthew called his father to say he was hurting. He locked himself in his room and called 9-1-1 for help. He was taken by ambulance to the Pascack Valley Hospital emergency room where he continued to complain of pain in the area of his neck and right shoulder. Hospital personnel observed that the right side of Matthew's neck was grossly swollen, and the intensity of his pain continued to increase. When his aunt arrived at the hospital, Matthew told her his mother kicked him three times, twice in the head and once in the right shoulder. A CT of his neck showed active internal bleeding from the right subclavian artery with extensive hemorrhaging. Concerned about diagnosis and treatment in this unusual case, emergency room doctors arranged to transfer Matthew by Univac to Westchester Medical Center for more specialized treatment and surgery. But the transfer was aborted when Matthew's pain dramatically increased. He began sweating profusely, and his respiration became labored. An emergency median sternotomy was performed by breaking the sternum to gain access to the heart and lung area. About 200 cc of blood was removed from the area around his pericardium, and another 2.5 liters of blood from his right pleural cavity. The surgery revealed bleeding in the internal jugular and subclavian veins and a tear in the mid subclavian artery. Although Matthew received blood and blood products during the surgery, he bled to death. When he did not respond to resuscitation, he was pronounced dead at 12:50 a.m. on Monday, August 18, 2003.
An autopsy performed by the Bergen County Deputy Medical Examiner noted severe injuries to Matthew's neck as well as evidence of head trauma and contusions on his torso and extremities. The cause of death was blunt force trauma to the neck, and his death was listed as a homicide. At the request of the Bergen County Prosecutor's Office, Dr. Kenneth G. Swan, a professor of surgery at UMDNJ/New Jersey Medical School, reviewed the information concerning Matthew's death and concluded that he had sustained a "variant of scapulothoracic dissociation" resulting from severe blunt trauma and traction to the shoulder girdle. Dr. Swan explained that scapulothoracic dissociation is an uncommon injury with fewer than sixty cases reported since its first description in 1984 by orthopedic surgeons. Even with proper medical attention, the result is often amputation. He said the overall mortality rate for this injury is about twenty percent. Survival depends upon timely recognition of the condition and appropriate surgical intervention. He concluded as follows:
I believe the force generated by Matthew Calbi's mother, Linda Calbi, in extending her thigh upon her hip and her leg at the knee, striking Matthew with the plantar surface of her foot on the right side of his neck, while at the same time immobilizing, in her grasp, his right upper ...