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Szczutkowski v. Szczutkowski


May 27, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-823-00.

Per curiam.


Submitted March 10, 2010

Before Judges Stern and Graves.

Plaintiff Harry Szczutkowski appeals from a post-judgment order dated May 8, 2009, denying his motion to suspend or reduce his alimony payments and to eliminate his obligation to maintain life insurance for the benefit of his former wife, defendant Mary Ellen Szczutkowski. We affirm.

After being married for more than thirty years, the parties were divorced in 2001. Paragraph twenty-five of the dual judgment of divorce (JOD) required plaintiff to pay defendant permanent alimony in the amount of $375 per week. That sum was increased to $399 per week pursuant to an order dated October 4, 2005, based upon plaintiff's failure to obtain a life insurance policy as required by the JOD. However, plaintiff's alimony obligation was subsequently reduced to $300 per week in an order dated July 11, 2008.

The court reduced plaintiff's alimony obligation by ninety-nine dollars per week on July 11, 2008, based on plaintiff's "long-term decrease in income and increase in medical bills." The court denied plaintiff's subsequent request for a further reduction, however, because it found plaintiff failed to show a substantial change of circumstances following the entry of the order on July 11, 2008. The court's findings with regard to the order of May 8, 2009, include the following:

Plaintiff's alimony obligation was reduced by $99 per week by way of the July 11, 2008 Order. The Court cited as the basis for the modification at that time Plaintiff's long-term decrease in income and increase in medical bills. Plaintiff has argued the same facts as the basis for his current request for modification. The Court finds that there has been no change of circumstances since the entry of the July 11, 2008 Order. The Court further notes that the parties have been divorced nearly eight (8) years after a thirty-two (32) year marriage, and Plaintiff has filed for a modification of his alimony obligation siX (6) times in . . . less than four (4) years.

Pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), a substantial change of circumstances must have occurred in order for the Court to modify a support award. Plaintiff's current application not only fails to show a substantial change of circumstances, but further appears to fall short of showing any change of circumstances at all since the entry of the last Order modifying support.

A court is authorized to modify alimony orders "from time to time as circumstances may require." N.J.S.A. 2A:34-23. Moreover, as the trial court recognized, "[w]hen the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157; see also Miller v. Miller, 160 N.J. 408, 420 (1999) ("In an application brought by a supporting spouse for a downward modification in alimony, such as the present case, the central issue is the supporting spouse's ability to pay."). In this case, the motion judge found that plaintiff failed to demonstrate there was a substantial change of circumstances since July 11, 2008, when the court reduced his alimony payment, and that determination is amply supported by the record.

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[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. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992).

We conclude from our review of the record that there is sufficient evidence to support the trial court's decision, and the court properly applied well-settled legal principles. We therefore affirm the order under review substantially for the reasons stated by Judge Claypoole.



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