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Lauria v. Grassi

March 4, 2010


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hunterdon County, Docket No. FM-10-283-06.

Per curiam.


Submitted: February 3, 2010

Before Judges Cuff and Payne.

Defendant Joseph T. Grassi appeals from a post-judgment matrimonial order requiring him to pay $1800 each month in permanent alimony to his former wife, plaintiff Mary Lauria. He argues that plaintiff's application for alimony could not have been resolved without a plenary hearing due to disputed issues of fact as to the marital lifestyle. We affirm.

Plaintiff and defendant married in 1981 and divorced in June 2007. At the time of the divorce defendant had retired from his position as a New York City Corrections Officer. Plaintiff received a 50% share of defendant's pension as part of her equitable distribution award. The pension was in pay status due to defendant's retirement; therefore, the monthly benefit for plaintiff would have been $1368.90. Defendant agreed to pay plaintiff her share of the pension pending submission of the Qualified Domestic Relations Order (QDRO) that would have effectuated the agreed equitable distribution of defendant's pension. In contemplation of receipt of her share of defendant's pension, plaintiff did not seek alimony.

Defendant returned to work as a corrections officer following the divorce. Therefore, plaintiff did not receive her share of the pension. In addition, defendant never remitted to plaintiff her share of his pension prior to his return to work.

Plaintiff filed a motion seeking permanent alimony. Defendant opposed plaintiff's application for alimony arguing that she had relinquished her right to alimony and that she had no need for it. Both parties submitted Case Information Statements (CISs) with all appropriate documents appended to them.

By order dated May 12, 2009, the motion judge ordered defendant to pay to plaintiff $1800 monthly in permanent alimony retroactive to July 1, 2007. In addition, the judge ordered preparation and submission of the QDRO to effectuate equitable distribution of defendant's pension and also ordered defendant to pay plaintiff half of the pension benefits received by him for two months in 2007. In this order, the motion judge provided reasons for the relief granted to plaintiff. In eight pages, the motion judge recited the operative facts, identified the statutory factors governing an award of alimony, and discussed each factor with specific reference to the certifications and the CISs submitted by each party. In her analysis of each party's CIS, the motion judge reduced various expenditures "to approximate the marital lifestyle."

On appeal, defendant has abandoned his initial argument that plaintiff is not entitled to alimony. Rather, he argues that a plenary hearing should have been conducted because there were disputed issues of fact concerning the marital lifestyle. Defendant also argues that the motion judge failed to make findings of fact as to the parties' health, education and the equitable distribution received by each party. Plaintiff has not filed a brief.

Evidentiary hearings are required only when there are factual issues relevant and critical to the resolution of one or more issues. Lepis v. Lepis, 83 N.J. 139, 159 (1980). Here, we have reviewed the documents submitted by the parties in support of and in opposition to plaintiff's motion for alimony and determine that there are no disputed issues of fact that required an evidentiary hearing. As noted, the principal source of contention between the parties was whether plaintiff should receive any alimony at all not the amount of alimony. We have scoured the certifications and documents submitted by the parties and have not been able to identify a single fundamental dispute of fact that required an evidentiary hearing.

To be sure, Judge Bartlett amended various Schedule C expenditures reported by both parties on the post-judgment CISs. She did so, however, with express reference to the undisputed Schedule C expenses in the CISs submitted by both parties during the proceedings prior to entry of the Judgment of Divorce and the Property Settlement Agreement. For example, the judge reduced defendant's monthly cleaning expense from $240 a month to $100 because the lower amount more closely approximated the $130 spent on that item during the marriage. Judge Bartlett also reduced plaintiff's monthly food allowance from $400 to $300 because the monthly food allowance for the family pre-divorce was $475. The judge also reduced plaintiff's monthly budget for contributions from $82 to $35 because during the marriage the couple only contributed $65 each month.

Judge Bartlett's analysis also directly refutes defendant's contention that she did not consider the statutory factors governing an award of alimony. The judge identified the factors set forth in N.J.S.A. 2A:34-23(b) and discussed each factor. The judge expressly considered the property received by each in equitable distribution. Admittedly, she did not specifically reference the health and education of each party; however, the record submitted by the parties is barren of any information on these subjects or any suggestion that either factor is pertinent to the current and future employment situations of each and the amount of money each earns and may earn in the future.

In short, Judge Bartlett was presented with a record from which she could discern the marital lifestyle and the current income*fn1 and expenses of each. The record contained no genuine issues of fact material to resolution of the issue of the amount of ...

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