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Amelia P. Cantelme,*Fn1 F/K/A Amelia Archetti v. Louis J. Archetti

April 1, 2011

AMELIA P. CANTELME,*FN1 F/K/A AMELIA ARCHETTI, PLAINTIFF-RESPONDENT,
v.
LOUIS J. ARCHETTI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-00972-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2010

Before Judges Fisher and Sapp-Peterson.

Defendant Louis Archetti appeals from an order of the Family Part denying his motion for a downward modification of his alimony and child support obligations to former wife and plaintiff, Amelia Cantelme. Defendant argues that due to changed circumstances, including his loss of employment and plaintiff's increase in salary and altered standard of living, a downward modification is warranted. We reverse and remand for further proceedings.

The parties were married in 1971 and divorced in 2002. At the time defendant filed his motion, the only child born of the marriage, a daughter, was twenty-two years old and an unemancipated college student. Pursuant to a Property Settlement Agreement (PSA) the parties executed on October 28, 2002 and incorporated into the Final Judgment of Divorce, defendant was required to pay plaintiff permanent alimony in the amount of $1436.20 per month and $747.50 per month in child support based on the parties' respective 2002 annual incomes of $80,000 for defendant and $16,000 for plaintiff. Both parties acknowledged that they would be able to maintain a lifestyle reasonably comparable to that which they enjoyed during the marriage based on the alimony and equitable distribution of the marital assets.

On September 22, 2008, defendant was laid off from his union job in New York where he had been employed as a sheet metal worker for over thirty years. Defendant received $405 per week in unemployment benefits from the State of New York, as well as $125 per week in supplemental unemployment benefits from his union. His union benefits terminated at the same time as his State benefits in August 2009. As of June 30, 2009, his union no longer paid his medical insurance premiums. Consequently, he purchased COBRA coverage for himself and his daughter.

On July 21, 2009, defendant filed a motion seeking, among other relief, a reduction or termination of alimony and child support based on changed circumstances. On August 28, the court conducted an initial hearing. The motion judge denied defendant's application without prejudice and suggested that he re-file the motion after showing more effort in finding employment outside his field. The court acknowledged that "[i]t's impossible for a gentleman [who is] 59 [who is] doing physical labor to get a new job in that type of a situation[,]" namely, earning over $45 per hour as a union sheet metal worker.

On September 25, at a second hearing, defendant testified about his efforts to find employment not only in union shops, but also in other places outside of his field, including in retail, construction, carpentry, welding, and in the service industry. However, the motion judge once again denied his motion, finding that defendant had not done enough to warrant a modification of his support obligations. The court indicated that defendant should file another motion once he could demonstrate that he had put forth diligent efforts to secure employment, or if he in fact found another job, the court would consider a reduction retroactive to the initial filing date of July 21, 2009. The present appeal followed.

"Each and every motion to modify an alimony [and child support] obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341 (1956)); see also Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such findings are entitled to great deference and will only be overturned if the court is "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, however, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).

An initial alimony award is calculated based on the lifestyle to which the supported spouse has become accustomed during marriage and is set at a level that will best allow the supported spouse to continue to live at that same level. Crews v. Crews, 164 N.J. 11, 24-25 (2000). Once the alimony awards are set, the supported spouse should "receive continued enforcement without modification only so long as they remain fair and equitable." Lepis v. Lepis, 83 N.J. 139, 149 (1980).

A court may modify an alimony award if it finds a change in circumstances. Innes v. Innes, 117 N.J. 496, 503 (1990); N.J.S.A. 2A:34-23. General factors that courts must consider in determining whether modification is proper include "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Lepis, supra, 83 N.J. at 152. Accordingly, a decrease in the financial resources or income of the supporting spouse may qualify for a change in circumstances warranting modification of a support order. Martindell, supra, 21 N.J. at 355.

Additionally, a change in circumstances can also be established if a movant demonstrates "a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). However, where a modification of child support is sought, the guiding principle is the "best interest of the [child]." Lepis, supra, 83 N.J. at 157 (quoting Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971)).

The party seeking a modification has the burden of establishing changed circumstances that would warrant such relief. Ibid. The moving party must first present a prima facie case of changed circumstances, and if this burden is met, courts may then order further discovery of the parties' financial statuses. Ibid. A determination is then made as to whether changed circumstances have "'substantially impaired'" the moving party's ...


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