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La Venuta v. La Venuta

February 4, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-853-01D.

Per curiam.


Submitted January 14, 2008

Before Judges Lintner and Sabatino.

Arthur La Venuta ("the ex-husband"), pro se, appeals an order of the Family Part filed in this matrimonial case on January 8, 2007. The order denied the ex-husband's post-judgment motion to decrease his alimony obligations to Maria La Venuta, now known as Maria Isabel Vecchio ("the ex-wife"), and to adjust the parties' percentage shares of their two minor children's unreimbursed medical expenses. The order also granted counsel fees to the ex-wife. We affirm.

The parties were divorced after a trial in 2002. As part of the terms of the final judgment, the ex-wife was awarded limited duration alimony of $260 per week, plus child support calculated according to the state guidelines. The judgment also allocated to the ex-husband 55% of the children's unreimbursed medical expenses, with 45% allocated to the ex-wife. The ex-wife was awarded primary residential custody.

As noted by Judge Currier in the transcript, the present application evidently represents the eighteenth post-judgment motion filed with the Family Part since the parties were divorced in 2002. The parties were most recently before this court in the ex-husband's unsuccessful appeal of a September 2006 order denying his motion to transfer custody of the children. See La Venuta v. La Venuta, No. A-0711-06T3 (App. Div. Oct. 23, 2007).

In his present appeal, the ex-husband argues that the Family Part should have reduced his alimony because he is earning less than he was earning in 2002, and his ex-wife is earning more than she did at that time. He therefore alleges a change of circumstances. He also contends that Judge Currier mistakenly viewed his motion as replicating a previous unsuccessful motion to reduce his alimony that he filed in 2004. Lastly, he argues that the judge erred in granting counsel fees.

Limited-duration alimony ("LDA"), also known as term alimony, consists of alimony payable for a specific period of time. The Legislature has expressly authorized LDA as a permitted form of alimony, along with "rehabilitative" and "reimbursement" alimony. N.J.S.A. 2A:34-23(c). The statute obligates a court to consider whether alimony is appropriate "for any or all" of those three categories. Ibid.

LDA is generally appropriate in cases, such as this one, involving marriages of intermediate or shorter length, in which the spouse seeking support has an economic need, but also possesses "the skills and education necessary to return to the workforce" at some time in the immediate future. Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005) (citing Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)). The judge who presided over the divorce trial determined, based upon the parties' earnings history and other considerations, that the record justified an LDA award to the ex-wife of $260 weekly, for a period of seven years.

At the time of trial in 2002, the ex-husband's annual gross income was determined to be $69,665, consisting of $66,000 in salary and $3,665 in rental income. By comparison, the ex-wife was earning far less, approximately $29,000 annually, working in a university office. According to the Case Information Statement ("CIS") he submitted on the present motion, the ex-husband had earned $53,208 in gross income in the first ten months of 2006, placing him on a course to earn approximately $62,000 that year. His federal tax return for 2005 similarly reflected $62,328 in W-2 earnings. Meanwhile, the ex-wife's CIS form and corresponding 2005 tax return showed gross wages of $34,461.

The record thus shows that the ex-husband's wages have slightly fallen since 2002 and the ex-wife's wages have slightly risen. The ex-husband still earns almost double the salary of the ex-wife. We agree with Judge Currier that this scenario does not represent a sufficient change in circumstances under Lepis v. Lepis, 83 N.J. 139 (1980), to compel a reduction in the LDA. Modest fluctuations in income, particularly over a short period of time, do not automatically require alimony to be recalibrated. See Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006). Moreover, as Judge Currier observed, the seven-year LDA period will expire next year. Nor is there any reason to alter the 55/45 percent split of unreimbursed medical costs, which remains substantially equitable.

We therefore affirm Judge Currier's denial of the exhusband's motion,*fn1 bearing in mind the substantial degree of deference we customarily accord to the expertise of the Family Part. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We also defer to the motion judge's sound discretion in ordering the ex-husband to reimburse the ex-wife for legal fees that she incurred in ...

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