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Pesce v. Pesce

November 5, 2008

REESA PESCE, PLAINTIFF-RESPONDENT,
v.
JOHN PESCE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1774-03C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 6, 2008

Before Judges Lisa and Alvarez.

Defendant, John Pesce, appeals from the denial of his post-judgment motion to reduce his alimony obligation. He also appeals from the denial of his reconsideration motion and denial of his request for discovery and a plenary hearing. In denying a reduction of alimony, Judge Coogan determined the amount of arrears and entered an order allowing defendant to pay a reduced weekly amount pending appeal, subject to the posting of a bond, and subject to a provision that arrears would continue to accrue as a result of the reduced payments.

On appeal, defendant argues that the judge erred in failing to find changed circumstances based upon his medical condition and alleged reduced income to justify a reduction in alimony. Defendant further argues that, at the very least, he made a sufficient threshold showing to warrant discovery and a plenary hearing on the changed circumstances issue. Finally, defendant argues that if the matter is remanded and a plenary hearing is ordered, the stay entered by the trial court of his obligation to pay the full amount should remain in effect pending the final outcome.

We reject defendant's first two arguments and affirm. In light of that disposition, we need not address defendant's third argument.

The parties married in 1970. Two children were born of the marriage, both of whom were emancipated by the time the parties were divorced by a judgment entered on June 13, 2005. On that date, the parties entered into a property settlement agreement (PSA), which obligated defendant to pay plaintiff $1050 per week in alimony. The PSA contained a provision entitled "BASIC ASSUMPTIONS," which stated in its entirety:

In entering into this agreement, the parties have agreed that the wife has an earning capacity of approximately $15,000 per year and the husband has an earning capacity and/or income of $130,000 per year.

The judgment of divorce incorporated the alimony obligation from the PSA.

About a year later, in the late summer of 2006, defendant was diagnosed with a heart condition. On September 20, 2006, he filed a motion to reduce alimony and requested discovery and a plenary hearing with respect to his asserted changed circumstances. Defendant certified that his doctors told him he would be incapacitated for six to eight weeks after surgery from his condition, that even a successful surgery would result in diminished capacity, and that he would apply for disability benefits. Defendant attached documentation of his hospitalization dates in July and August 2006. He certified that he continued to work for his employer, who was also his brother, and that his annual salary was reduced to $60,000 because of his diminished capacity. According to defendant, he would most likely be unemployed without his brother's generosity.

Defendant submitted paychecks from August 2006 totaling $1500 weekly gross pay, a 2004 tax return showing $88,427 in total income, a 2005 tax return showing $76,361 in total income, and a record of his taxed social security and medicare earnings from 1966 to 2003. In his September 11, 2006 Case Information Statement, defendant stated that his total gross income in 2005 was $76,328 and that he would not longer receive commissions after his surgery.

While the motion was pending, defendant's attorney also filed a letter report from defendant's physician, Dr. Peter M. Scholz, dated October 6, 2006, which contains the only evidence in this record specifying defendant's diagnosis, his required surgical procedure, his recovery from that procedure and prognosis. In its entirety, Dr. Scholz's report stated:

Recently, Mr. John Pesce was seen by me in consultation for worsening mitral valve regurgitation on September 7, 2006. After reviewing all his records and reviewing his most recent echocardiogram, he was found to have severe mitral regurgitation secondary to bileaflet prolapse. There was a question of endocarditis and ...


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