July 13, 2009
ROBERT LOMBARDO, PLAINTIFF-APPELLANT,
SUSAN LOMBARDO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2031-04E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 benefits of her current position in raising the parties' daughter. However, there was insufficient proof for the Court to conclude that similar positions are not available elsewhere that would compensate the Defendant in the amount previously imputed.
2. Child Support. Child support is amended effective March 1, 2007, the day the minor child began receiving benefits as a result of the Plaintiff's disability. The Court has found the figure provided by the Defendant to be credible based upon the testimony of the Plaintiff, the argument of counsel, and the other memorandums and attachments submitted. The Plaintiff's financial information provided was deficient. Child support from the Plaintiff shall be adjusted to be in the amount of $8.00 per week, effective March 1, 2007, the date the Defendant began receiving social security benefits for the minor child.
3. Life Insurance. Recognizing the present condition of the Plaintiff's health, the need for alimony by the Defendant and the possibility that the minor child may continue post-secondary education, the requirement that the Plaintiff continue his life insurance obligation is essential. The Court was not persuaded by the Plaintiff's argument that the minor child (currently age 9) may not go to college because her parents did not. Further, the maintenance of the life insurance policy is necessary to cover the Plaintiff's alimony obligation. Susan Lombardo is to be the beneficiary of any life insurance policies that arise out Robert Lombardo's pension and/or former employment with the State of New Jersey Depart of Corrections.
This appeal followed.
Because of the special expertise of Family Part judges, "we do not second-guess their findings and the exercise of their sound discretion" and we recognize that "'[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citing Higgins v. Polk, 14 N.J. 490, 493 (1954)). Our scope of review of a Family Part judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
The issue of whether a payor is entitled to modification or termination of his or her support obligation is fact sensitive. Kuron v. Hamilton, 331 N.J. Super. 561, 572 (App. Div. 2000). Among factors to be considered by a court on such an application to reduce or suspend support obligations because of a reduction in income are: "the motives of the payor, the timing of the conduct that brought about the reduction in income, the payor's ability to meet the mandated support obligations even after the reduction in income, and the ability of the payee to provide for himself or herself." Id. at 571.
Applications for modification of established support obligations are informed in part by the payors "'ability to pay' the amount set, or agreed to." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). "The party moving for modification 'bears the burden of making a prima facie showing of changed circumstances.'" Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (quoting Miller v. Miller, 160 N.J. 408, 420 (1999)), certif. denied, 180 N.J. 354 (2004).
As noted, the support amounts set in the JOD were based upon income calculations attributing $91,000 per year to Robert and $30,000 per year to Susan, a differential of approximately $60,000. The weekly alimony payments required by the JOD shifted approximately $20,000 in yearly income from Robert to Susan, lowering the differential to approximately $20,000.
There appears to be no dispute that Robert is physically disabled and cannot work to supplement his income. From the testimony at the hearing, it appears that, at that time, Robert was receiving approximately $50,000 per year from his pension, but without implementation of the QDRO. The amount of pension income that will be shifted from Robert to Susan was not known at that time. Robert was also receiving approximately $25,500 per year from Social Security. He testified that his current wife has a "minimum-wage" job. Consequently, Robert's total income is approximately $75,500 per year, from which he is obligated to pay approximately $20,000 to Susan, leaving him with approximately $55,500. But, as noted, these amounts do not reflect the implementation of the QDRO.
Susan testified that her actual income from employment by Middlesex County was approximately $21,000 per year. As noted, it is not clear what additional income she will receive once the QDRO is implemented. The Social Security benefits she receives on behalf of her daughter cannot be considered income to her for the purposes of computing alimony. The motion judge's finding that Susan is appropriately employed and that her "eBay business" was not a significant source of income is supported by the record. Consequently, Susan's total income is approximately $41,000 per year, plus her share of the pension.
Although it is clear from the above that Robert's income has significantly declined from its pre-disability level, his proofs with respect to his own financial needs were inadequate to permit the motion judge to perform a complete analysis of whether there was a sufficient change in circumstances to warrant a modification of his alimony obligation. During the hearing, the motion judge made it clear to counsel that his decision would be based on the testimony offered, rather than documents submitted in support of the motion. Robert did not offer direct testimony with respect to his expenses, nor did he introduce his case information statement (CIS) into evidence. During cross-examination, he was vague about financial details and did not even have a copy of his CIS in front of him when he testified. He also failed to account for substantial increases in debt, including the disposition of the proceeds of a mortgage loan taken out on the Nevada property he inherited. There were conflicting assertions about whether Robert's expenses decreased or increased when he moved from New Jersey to Nevada.
Based upon our review of the record, we cannot find that the motion judge abused his discretion in denying the motion with respect to Robert's alimony obligation. Although Robert successfully demonstrated a reduction in his own income, he did not demonstrate a reduction in his ability to pay because of the missing information about his expenses, debts, and assets. We affirm the motion judge's decision, but without prejudice to a renewal of Robert's application if he provides a complete picture of his finances, including the nature and extent of his expenses, his debts, and the disposition of the assets about which there was some testimony at the hearing. In addition, at that point, implementation of the QDRO should have been completed.
We also determine that the motion judge correctly reduced the child support obligation in light of the Social Security payments on behalf of the parties' daughter. See Burns v. Edwards, 367 N.J. Super. 29, 46 (App. Div. 2004); Pressler, Current N.J. Rules, Appendix IX-A at P10(c), "Adjustments to the Support Obligation" (2009). Finally, we affirm the motion judge's determination not to vacate the life insurance requirements of the JOD for the reasons expressed.
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