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Lucci v. Lucci

January 30, 2009

KATHLEEN J. LUCCI, PLAINTIFF-RESPONDENT,
v.
MICHAEL A. LUCCI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-299-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically January 12, 2009

Before Judges Parker and Yannotti.

Defendant appeals from orders entered by the Family Part on February 1, 2008, which reinstated his alimony obligation, retroactive to June 14, 2004; ordered defendant to pay the arrears in weekly installments; awarded plaintiff counsel fees and costs; and denied without prejudice defendant's motion to terminate alimony. For the reasons that follow, we affirm in part and reverse in part.

The following facts are relevant to our decision. The parties were married on January 8, 1983. Their marriage was dissolved by a final judgment of divorce filed on May 23, 2000. The judgment incorporated the parties' Inter-Spousal Agreement (ISA or agreement), dated May 23, 2000. The ISA provided, among other things, that defendant would pay plaintiff rehabilitative alimony in the amount of $300 per week for ten years and $100 per week for five years thereafter. The ISA further provided that defendant would pay child support for the parties' two children. The child support worksheet attached to the agreement indicated that defendant's gross annual income was $75,556 and plaintiff's gross annual income was $18,356.

On March 28, 2004, defendant filed a motion to terminate his obligation to pay child support and to terminate or reduce his alimony obligation. On April 30, 2004, the trial court entered a consent order that terminated defendant's child support obligation as of March 28, 2004. The order also reduced defendant's alimony payments from $300 to $150 per week, as of March 28, 2004, "as a result of a material change in [defendant's] financial circumstances." The consent order stated that:

[s]aid alimony shall remain at that level without prejudice to the right of either party to file an additional post-judgment motion to restore alimony to its prior level or to reduce alimony to a lower level based upon [d]efendant's future increases or decreases in earned income compared to his level of income at this time. Defendant shall promptly advise [p]laintiff of any changes in his employment compensation in the future and he shall provide her with his W-2 form each year so long as an alimony obligation exists pursuant to the Agreement incorporated in the Final Judgment of Divorce[.]

The order additionally stated that "all further aspects of [the] alimony payments" as contemplated by the ISA, including the reduction as of June 2010 and the elimination of alimony as of June 2015 "shall remain in full force and effect[.]"

In January 2005, defendant filed a motion seeking to terminate temporarily his alimony obligation. In a certification dated January 5, 2005, submitted in support of that motion, defendant asserted that, after the divorce, his "employment situation has steadily deteriorated." He stated that he lost his job at Acupac Packaging (Acupac) in April 2003, and thereafter started to look for another job, while collecting unemployment benefits of $938 every two weeks.

Defendant said that, in August 2003, he was hired by Brisar Industries (Brisar) at a salary of "approximately, $50,000 gross per year." Defendant asserted that he hoped to continue working at Brisar and find another job with a salary comparable to what he had been earning previously; however, defendant was laid off in October 2003, and he began to collect unemployment benefits in the amount of $933 every two weeks.

Defendant additionally stated that, in December 2003, he found a job with Intercos America, Inc. (Intercos) as an inventory analyst earning a gross annual salary of "approximately" $32,000. Defendant noted that, at the time of the divorce, he was working as a plant manager. Defendant asserted that he had been "effectively reduced" to employment as an inventory analyst. He said that he was "certain" that his age and economic circumstances after September 11, 2001 had adversely affected him and the manufacturing industry in which he was employed.

Defendant also stated that he filed his motion to terminate child support and terminate or reduce his alimony obligation in March 2004 because his children were emancipated by that time, and he realized that his then-current employment situation was not going to be temporary. He noted that the court entered a consent order on April 30, 2004, which terminated child support and reduced his weekly alimony obligation from $300 to $150. Defendant asserted that in July 2004, he lost his job at Intercos and, since that time, he had been collecting unemployment benefits in the amount of $933 every two weeks but those benefits were due to run out in January 2005.

On February 4, 2005, the court entered a consent order suspending defendant's alimony obligation as of January 10, 2005 and until such time as Defendant becomes re-employed, self-employed and/or obtains additional unemployment compensation or disability payments, at which time the alimony payable by [d]efendant to [p]laintiff shall be restored to the sum of $150 per week if prior to June, 2010, or the sum of $100 per week if on or after June, 2010, as set forth in the Consent Order filed April 30, 2004. Such automatic restoration of alimony shall be without prejudice to the right of either party to file an additional post-judgment motion to either restore alimony to the ...


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