On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-478-04S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2010
Before Judges Sabatino and Ashrafi.
Plaintiff Lloyd Widney appeals from an order of the Family Part dated July 24, 2009, which denied his motion for reconsideration and granted defendant Diane Widney's motion for enforcement of a prior order pertaining to modification of plaintiff's obligation to pay alimony and other expenses. Defendant has not filed a brief in opposition to this appeal.
Having reviewed the record, including the written reasons provided for each of the Family Part's orders of March 6, June 19, and July 24, 2009, ruling upon plaintiff's several motions to reduce or terminate his alimony payments, we now remand to the Family Part to consider plaintiff's medical evidence of his disability and any other evidence pertinent to his capacity to earn income.
The parties were married in 1984 and divorced in August 2004. Two sons were born of the marriage, both of whom are now emancipated. The parties also raised defendant's daughter from a prior marriage. Throughout the marriage, plaintiff operated a tree trimming business as a sole proprietor. His work included substantial physical exertion in climbing and cutting trees and other manual tasks of the job. Plaintiff suffered injuries to his back, and also was admitted to a psychiatric hospital near the end of the marriage.
At the time of their divorce in 2004, the parties negotiated a property settlement agreement with the assistance of counsel and an accountant, who also served as mediator. Relevant to the current appeal, plaintiff agreed to pay defendant a total of $4,000 per month in alimony and child support. This amount consisted of permanent alimony of $2,500 per month and child support of $1,500 per month. The support obligation was based on gross income of $110,000 per year attributed to plaintiff and $15,000 per year to defendant. More than half of plaintiff's income at the time of the property settlement agreement consisted of disability benefits he was receiving in lieu of business income through insurance policies he had obtained on himself and his business. The property settlement agreement also required plaintiff to pay defendant, as part of equitable distribution, fixed amounts in cash in exchange for his retention of the tree trimming business, his Boston Whaler boat, and the five snowmobiles they owned.
Soon after the final judgment of divorce in August 2004, plaintiff moved to reduce his alimony obligation on the ground that his business income was substantially less than $110,000 per year. His motions were twice denied in 2005.
As the parties' two sons became emancipated, plaintiff's support obligation was reduced by August 2008 to the $2,500 per month for alimony. However, because he had fallen into arrears on his support payments, his monthly obligation also included additional installment payments to reduce the arrears. Also, plaintiff was ordered in the ensuing years to pay amounts he owed on the cash payments for equitable distribution.
In early 2009, plaintiff moved to terminate alimony payments on the ground that he was permanently disabled and could no longer earn sufficient income to make those payments. In support of his motion, he submitted a report of Dr. Gordon Donald, an orthopedic spinal surgeon, stating: patient has debilitating symptoms of lumbar spondylosis and discogenic disease that are managed with a light exercise program. He is medically incapable of performing the core physical duties of his tree service business and is permanently disabled from such due to his spinal pathology.
Plaintiff's motion was denied without prejudice by order of March 6, 2009, the motion judge citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950), and Gertcher v. Gertcher, 262 N.J. Super. 176, 177 (Ch. Div. 1992), and finding that plaintiff had only shown that his disability was temporary.
Plaintiff re-filed a motion to terminate or reduce alimony, which was heard on June 19, 2009. In support of the motion, plaintiff submitted a short letter dated April 20, 2009, from the State of New Jersey Department of Labor and Workforce Development, Division of Vocational Rehabilitation Services (DVRS). The letter stated that plaintiff had been found eligible for the services of the agency, meaning that he had a disability and was in need of rehabilitative services to return to work. On the morning of oral argument on his motion, plaintiff attempted to submit additional documents, but the motion judge declined to consider the late submissions.
By order dated June 19, 2009, the motion judge again denied without prejudice plaintiff's motion on the ground that he had not shown changed circumstances warranting ...