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Lombardo v. Lombardo

July 13, 2009

ROBERT LOMBARDO, PLAINTIFF-APPELLANT,
v.
SUSAN LOMBARDO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2031-04E.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2009

Before Judges Lyons and Waugh.

Plaintiff Robert Lombardo appeals from an order of the Family Part denying his post-judgment motion for the reduction or elimination of his alimony and child support obligation, as well as elimination of the requirement that he maintain his former wife, defendant Susan Lombardo, and his minor daughter as beneficiaries of his life insurance. We affirm.

I.

We discern the following background from the record. The parties were married in 1989 and divorced on March 24, 2005. They have one daughter, still a minor, who resides with her mother in New Jersey. The parties agreed to the resolution of disputed property issues through binding arbitration, which took place in July and August 2005. A written arbitration award was issued on September 12, 2005, and embodied in an amended judgment of divorce (JOD) entered on December 21, 2005.

Paragraph 10 of the JOD required Robert to pay permanent alimony of $380 per week, effective as of September 1, 2005. Paragraph 3 provided that he pay child support of $172 per week, effective as of the same date. Child support was calculated in accordance with the Child Support Guidelines. The arbitrator calculated the amount of alimony and child support based on Robert's income of $91,000 per year from the New Jersey Department of Corrections, and imputed income to Susan at $30,000 per year.

Following the divorce, Robert was diagnosed with a form of muscular dystrophy. He was granted a disability pension by the State. The JOD provided for the distribution of the marital portion of the pension through a Qualified Domestic Relations Order (QDRO). Following some motion practice by Susan, the QDRO was in the process of being implemented at the time of the plenary hearing on Robert's post-judgment motion in the Family Part.

In addition to his pension, Robert was granted Social Security disability benefits. At the time of the plenary hearing, he was receiving $2,132 per month from Social Security. Susan receives Social Security dependency benefits of $1,100 per month on behalf of the parties' daughter. These benefits will continue until the child turns eighteen, unless she is still in high school, in which case the benefits will continue until she is nineteen or two months after her graduation from high school, whichever is first.

Paragraph 8 of the JOD required Robert to maintain life insurance in the amount of $270,980, with Susan as the beneficiary of $120,000 and the daughter as beneficiary of $150,980. At some point, the beneficiary designations were changed without Susan's or the court's consent. Robert's current wife was named as the sole beneficiary. It appears that the beneficiary designations required by the JOD have been reinstated.

In September 2007, Robert filed a motion to terminate his alimony and child support obligations. Susan opposed the motion. On November 16, 2007, the Family Part entered an order setting the matter down for a plenary hearing, which took place on February 8, 2008. By agreement of the parties, Robert was permitted to testify by telephone from his home in Nevada.

On May 9, 2008, the trial judge issued an order denying Robert's motion. He explained his reasons in the body of the order, as follows:

1. Alimony. Neither party has demonstrated sufficient changed circumstances pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), to warrant an adjustment of the alimony obligation. The Plaintiff failed to produce sufficient financial records for the Court's review to assist the Court in addressing the Plaintiff's request. The Plaintiff is currently receiving social security benefits and pursuant to Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2001), the Plaintiff has made a prima facie showing of disability. The presumption has not been refuted by the Defendant. However, in reviewing the net monies received by the Plaintiff, a change in circumstances has not been demonstrated. There was insufficient proof submitted to support the claim that the eBay business of the Defendant is a viable, revenue generating enterprise. The Defendant has not demonstrated to the Court's satisfaction that the $30,000.00 imputed income should be addressed. The Defendant testified as to the ...


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