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Abbate v. Abbate

May 8, 2008

GRACE L. ABBATE, PLAINTIFF-APPELLANT,
v.
ROSARIO S. ABBATE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1226-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 14, 2008

Before Judges Parrillo and Gilroy.

Plaintiff Grace L. Abbate appeals from the May 24, 2007 order of the Family Part, which reduced defendant Rosario S. Abbate's alimony obligation from $650 per week to $350 per week. We affirm.

On May 3, 2006, the parties were divorced by a dual judgment of limited divorce (JOD), which memorialized the parties' settlement of certain marital issues, including defendant's alimony obligation. Pursuant to the JOD, defendant was obligated to pay plaintiff $650 per week alimony, commencing May 1, 2006. Alimony was based on defendant earning $120,000 per year in salary, commissions, bonuses and profit sharing; and by imputing to plaintiff an annual income of $25,000.

On October 26, 2006, defendant filed a motion seeking a reduction of his alimony obligation based on a change of circumstances, asserting that post-divorce he was involuntarily terminated from employment. On December 1, 2006, the trial court entered an order, which among other matters, "scheduled a plenary hearing on the narrow issue of defendant's voluntary or involuntary termination from his employment." On March 26, 2007, the plenary hearing was conducted with only defendant and David Theodore Bow, the Vice President of Sales and Service for North America at Dionex Corporation, defendant's former employer, testifying.

The following uncontested facts are adduced from the certifications filed by the parties, and from the testimony presented at the plenary hearing.

At time of the divorce, defendant was employed by Dionex, a California-based company that develops, manufactures, sells, and services chromatography and extraction systems used to separate, isolate, and identify the components of chemical mixtures. In 1974, defendant began working for Dionex at its regional office in Marlton, New Jersey, as a sales representative, and rose to the position of Area Service Manager of the Marlton Office after thirty-two years of employment. In 2005, defendant's annual income included a base salary of $86,769.79 and bonuses, commissions, and profit sharing of $32,264.99 for an annual income of $119,034.78. This figure was rounded to $120,000 for the purpose of determining defendant's alimony obligation.

In November 2005, prior to the parties reaching a property settlement agreement, Bow advised defendant that Dionex was in the process of restructuring its corporate organization, which would include the closing of its Marlton Regional Office and the elimination of defendant's position. Bow also informed defendant that Dionex was interested in maintaining its long-term employees and that the company was considering creating a new strategic Account Manager position in Chicago, Illinois, and that defendant would be considered for that position. Bow believed defendant was a "good fit" for the new position.

On January 19, 2006, Dionex issued an official announcement to its employees, advising that it would be opening a North American headquarters in Chicago, and closing its regional offices over the next six to twelve months. However, an exact closing date of the Marlton office was not provided, nor was any information contained in the announcement concerning the company's retention of the employees at its regional offices, including defendant.

On the following day, January 20, 2006, defendant's attorney forwarded a letter to plaintiff's attorney to keep plaintiff apprised concerning defendant's employment: "Mr. Abbate has informed me that all regional facilities for his company are being closed, and as a result, Mr. Abbate's future with the company is now influx, but soon to be resolved. I will keep you advised." At the time of Dionex's reorganization announcement, defendant, based on his previous discussions with Bow, believed that he would be offered a new position with the company in Chicago.

On March 8, 2006, defendant received a letter from Bow advising that his position at Dionex would be terminated on or before July 1, 2006, and that although he was "being considered for other positions within the company," "there are currently no definite decisions regarding his future employment opportunities and there are no positions available for Mr. Abbate that would not require him to relocate." Notwithstanding the letter's content, defendant believed that Dionex was proceeding with creating a new position for him in Chicago, and he began making arrangements to travel to Chicago to look for a new home.

On March 21, 2006, the parties appeared in court and placed the terms of their settlement, including defendant's agreement to pay plaintiff $650 alimony per week. Although defendant was aware that his position at the Marlton office was going to be terminated on or before July 1, 2006, he neither informed the trial court nor plaintiff's counsel of that fact because no one had questioned him concerning the termination of his employment at the Marlton Office, and at ...


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