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Colello v. Colello

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 5, 2008

CARL A. COLELLO, PLAINTIFF-APPELLANT,
v.
ANGELA S. COLELLO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1183-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2007

Before Judges Axelrad and Messano.

Plaintiff Carl A. Colello appeals from the April 2, 2007, order that denied his motion to terminate the permanent alimony he pays to his former wife, defendant Angela S. Colello, and for reimbursement of past alimony paid to her. Because of the complete inadequacy of plaintiff's brief and appendix, and his significant violation of our procedural rules, an issue we discuss in greater detail below, we must glean the essential facts and procedural history from the brief and appendix filed by defendant.

The parties were married on September 20, 1969, and in March 1998, plaintiff commenced divorce proceedings. Various pendente lite orders were entered, and the matter was tried before Judge Thomas J. Critchley over several dates in 2002. On October 3, 2002, the judge entered his decision orally on the record. We gather from the incomplete copy of the transcript of those proceedings furnished by plaintiff that among other things, Judge Critchley imputed an annual income of $35,000 to plaintiff based upon the testimony of various vocational experts who appeared at trial. Noting plaintiff's poor physical health, Judge Critchley nevertheless determined that based upon his "life experience and professional skills," plaintiff should pay $300 per month to defendant as permanent alimony.

Although the record does not include any order that immediately resulted from the judge's determination, a dual judgment of divorce (JOD) entered on October 9, 2003, included the alimony award. On October 16, 2003, the judge entered a second order requiring the Division of Pensions and Benefits to withhold the alimony payments from plaintiff's "gross monthly retirement allowance."

On September 16, 2004, plaintiff moved for a reduction in alimony. In support of the motion, he argued that the judge's use of imputed income to determine the alimony amount was unrealistic given plaintiff's age, sixty-one at the time, and because it assumed he could return to college and obtain a degree. Furthermore, plaintiff claimed that his health, which was poor at the time the JOD was entered, had deteriorated further.

As support for this assertion, he attached two letters from insurance companies, one from 1999 and the other from 2001, that rejected his application for life insurance based upon his medical condition. He also attached an undated note from his doctor indicating he was unable to walk and should receive a handicapped parking space, as well as medical reports that were received well before the JOD was entered. Lastly, plaintiff attached a July 2004 letter from American Education Services indicating that he qualified for the discharge of his loan obligations based upon "total and permanent disability." Apparently, because he failed to include a Case Information Statement with the motion, plaintiff was required to supplement the application with financial information.

Defendant opposed the motion and claimed that she was unable to support herself without the monthly alimony. She noted that plaintiff failed to indicate that he could not work, and failed to include any evidence that he had applied for disability benefits. Defendant also claimed that she recently had broken her ankle and was unable to work at the present time.

On November 19, 2004, Judge Thomas V. Manahan denied plaintiff's motion as well as his subsequent motion for reconsideration.*fn1 In the order dated January 11, 2005, denying reconsideration, Judge Manahan noted that plaintiff failed to show "changed circumstances" requiring modification. The judge found that although plaintiff's "disability had changed, the financial ability to pay had not."

Plaintiff attempted to appeal from the order denying reconsideration, but did not do so in a timely fashion. We denied his motion to file the appeal nunc pro tunc. Colello v. Colello, A-004568 (June 9, 2005).

Plaintiff then filed another motion seeking to terminate alimony and the return of alimony previously paid to defendant. Plaintiff has failed to include copies of his motion or any supporting documents on appeal. We therefore do not know whether he requested oral argument on the motion, however, we gather from the April 2, 2007, order that Judge Manahan denied the motion on the papers. In a brief written statement of reasons for the decision, the judge noted that Carl failed to demonstrate a "change in circumstance from the time of . . . the decision on October 3, 2002." This appeal followed.

To the extent plaintiff argues it was error to require that his alimony payments be made directly from his pension benefits, we conclude the argument is without sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(1)(E). Contrary to plaintiff's argument, Judge Critchley did not determine that plaintiff's pension was subject to equitable distribution, nor did he make his alimony determination based upon plaintiff's receipt of his pension benefits as income. Judge Critchley's determination of the alimony award was based solely upon the income he imputed to plaintiff. Thus, the judge's order did not violate the Supreme Court's holding in Innes v. Innes, 117 N.J. 496, 505-06 (1990), and plaintiff's attempt to have previously paid alimony returned is entirely without merit.

Plaintiff's other contention, we gather, is that his circumstances have significantly changed since the original award and he therefore is entitled to modification. On this point, plaintiff's appellate submissions are so wholly inadequate and in violation of our procedural rules that we must dismiss his appeal.

Plaintiff's statement of the procedural history is deficient under Rule 2:6-2(a)(3); his statement of facts fails to incorporate "all pertinent evidence" and is not in the form of a "narrative chronological summary" as required by Rule 2:6-2(a)(4); and there is no legal argument as required by Rule 2:6-2(a)(5). Plaintiff's appendix includes documents ostensibly pertaining to his medical condition and claimed disability; however, there is no way to determine whether these were ever submitted with any of his motions previously filed, much less whether they were part of the motion record before Judge Manahan.

Defendant has urged the dismissal of plaintiff's appeal based upon these numerous procedural violations. Pursuant to Rule 2:8-2, we may dismiss an appeal because of procedural defects, particularly when the deficiencies make it impossible to review the issues on their merits. In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000); Pressler, Current N.J. Court Rules, comment 1.2.8 on R. 2:8-2 (2008).

Moreover, plaintiff has failed to demonstrate whether his 2007 motion was demonstrably different from the motion he made on similar grounds in 2005. If it was not, then he has clearly tried to circumvent the denial of the untimely appeal he filed in 2005 by re-filing the subsequent motion and this current appeal.

The appeal is dismissed.


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