April 17, 2009
CATHERINE LOMBARDI, N/K/A CATHERINE ANDERSON, PLAINTIFF-RESPONDENT,
RONALD LOMBARDI, DEFENDANT-APPELLANT.
On appeal from Superior Court, Chancery Division, Family Part, Somerset County, Docket No. FM-18-537-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2009
Before Judges Skillman and Graves.
Defendant appeals, by leave of this court, from a post-judgment order in this matrimonial action entered on April 15, 2008.*fn1 Defendant's arguments on the appeal are directed solely at the provisions of that order relating to his application for a termination of alimony, the insurance on his life provided to secure that obligation and the court's award of counsel fees to his wife.
After a six-day trial, the parties were divorced in December 1997. The judgment of divorce required defendant to pay plaintiff $200 per week permanent alimony. This alimony obligation was based upon defendant's earnings of $45,000 per year and plaintiff's earnings of $25,000 per year.
Defendant's motion to terminate alimony, which was filed in February 2008 after plaintiff had filed a motion for enforcement of litigant's rights, was based on a stroke that he suffered in July 2007, which allegedly caused him to be unable to work, and on his application to the Social Security Administration for disability benefits.
The factual material defendant submitted in support of the motion was sparse. He submitted a note from a doctor, dated July 23, 2007, which reported that defendant had experienced a "brainstem hemorrhage" on July 11, 2007 and was unable to read at that time "due to an ocular paralysis." Defendant also submitted a note from a psychologist, dated September 25, 2007, which stated that defendant "is presently suffering from an acute anxiety disorder, general depression, post-traumatic stress, dysthymia, and some panic regarding his stroke and his unemployment," and consequently there should be a "long term postponement or a mediated resolution" of his dispute with plaintiff.*fn2 Defendant also submitted a note from a third doctor, dated February 12, 2008, which stated:
Ronald Lombardi has been under my care for neurosurgical treatment since July of 2007.
Ronald may not return to work until he has his 6 month MRI in June. Mr. Lombardi has been diagnosed with a brainstem hemorrhage.
Any questions or concerns regarding this matter may be directed to me at the above telephone number.
In opposing defendant's motion, plaintiff relied upon the inadequacy of the supporting factual materials submitted by defendant and the fact that defendant's case information statement indicated he had a total income in 2007, the year of his stroke, of $88,299, of which $74,763 was earned income.
In denying defendant's motion, the trial court noted that none of the doctors' notes upon which defendant relied in support of his motion were certified. Moreover, two of those notes were dated less than three months after defendant's stroke and more than six months before the court heard defendant's motion. The only note that was reasonably recent, quoted previously, was conclusionary in nature and did not contain any details concerning defendant's prognosis and diagnosis. Based on its review of these documents, the court concluded that "there is no competent evidence before this Court of [an] inability to work." Insofar as defendant's motion was based on his application for social security disability benefits, the court concluded that it was premature because the Social Security Administration had not yet acted upon that application. In addition to denying defendant's motion to terminate alimony and the life insurance that secures that obligation, the trial court also awarded plaintiff's counsel $1500 for services performed in connection with the motion.
We affirm the denial of defendant's motion to terminate alimony substantially for the reasons set forth in the trial court's oral opinion. Insofar as defendant's appeal challenged the counsel fee award memorialized by the April 5, 2008 order, we affirm substantially for the reasons set forth in the trial court's March 28, 2008 written opinion.
We note that subsequent to the denial of alimony challenged on this appeal, the Social Security Administration granted defendant's application for disability benefits by letter dated September 28, 2008. If he has not already done so, defendant may file a new motion for the termination of alimony based on that administrative action. We of course express no opinion regarding the effect of the Social Security Administration's decision upon defendant's alimony obligation. The trial court may review the terms and conditions of any incarceration of defendant for failure to comply with his alimony obligations in light of current circumstances.