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Wendy L. Crescenzo v. John Crescenzo

August 15, 2011

WENDY L. CRESCENZO, PLAINTIFF-APPELLANT,
v.
JOHN CRESCENZO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1973-06E.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 13, 2011

Before Judges Fuentes, Ashrafi and Nugent.

Plaintiff Wendy Crescenzo appeals from a December 23, 2009 order of the Family Part that modified the amount of permanent alimony defendant John Crescenzo must pay, declined to compel him to obtain additional life insurance coverage to protect future alimony payments, and denied reimbursement of her attorney's fees. Although the Family Part's decisions relevant to modifying alimony indicate the court considered several of the relevant statutory factors of N.J.S.A. 2A:34-23b, the record does not show that all factors were adequately addressed. Furthermore, the amount of alimony ordered has led the parties to conclude that the court used a simplified mathematical formula to set alimony based only on earned income of the parties. We reverse in part and remand for further proceedings in conformity with the statutory requirements.

This case unfortunately illustrates continuing involvement of the Family Part in the divorced parties' financial affairs after a final judgment of divorce has been entered. An award of permanent alimony that was properly granted after a thirty-six year marriage, followed by immediate changed circumstances in the available earned income to pay that alimony, has resulted in almost continuous litigation in which neither party can find satisfaction and accumulating attorney's fees deplete the parties' financial resources.

Wife and husband in this case were married in 1971 and divorced after a two-day trial in 2007.*fn1 At the time of divorce, the parties were in their late fifties, and their two children were emancipated. Relevant to issues of financial support, the Family Part determined that husband earned about $221,600 per year from his executive position at Sanofi Aventis Pharmaceutical, and the court imputed income of $14,870 per year to wife. A judgment of divorce was entered on June 27, 2007, awarding wife permanent alimony of $95,000 per year, payable in monthly installments of $7,916.66.

Even before the entry of the judgment, however, husband was laid off from his job at Sanofi Aventis in April 2007. Consequently, the parties filed motions pertaining to alimony and other matters, which the court denied at that time by orders dated October 22, 2007. In accordance with the court's instructions following trial, the parties negotiated and submitted an Amended Dual Judgment of Divorce incorporating their agreement on additional issues.

The amended judgment, dated December 17, 2007, repeated the permanent alimony obligation as previously stated, and it required that husband secure a life insurance policy of $500,000 for the purpose of protecting wife's alimony payments. The judgment required that wife be named as the owner and beneficiary of the policy. It permitted a policy with a decreasing face amount, reducing the benefit payable upon husband's death over a period of years based upon life expectancy tables.*fn2 The judgment further stated that if husband could not reasonably procure $500,000 in life insurance coverage, the court would entertain a motion to modify that obligation based on costs. Also, the amount of life insurance coverage could be modified if in the future the court reduced husband's alimony obligation.

On January 18, 2008, the Family Part denied husband's renewed motion to recalculate his alimony obligation because of his unemployment and health problems. On appeal, we ordered a limited remand concerning the alimony obligation, and the Family Part scheduled a plenary hearing for May 2008. Before the hearing occurred, the parties reached agreement and presented a consent order that was eventually filed on August 12, 2008. The consent order reduced husband's alimony obligation to $36,000 per year because of his unemployment. The appeal pending before us at that time was dismissed.

After the consent order, husband remained unemployed and did not make timely payments of $3,000 per month. In 2009, the parties again filed motions pertaining to alimony. On March 6, 2009, the Family Part denied without prejudice husband's request to modify his alimony obligation, stating that husband had not demonstrated a substantial and permanent change in circumstances that would warrant a plenary hearing. In addition, the court granted wife's request for proof of life insurance but modified husband's obligation, reducing the amount of required insurance benefit to $189,000 because of his reduced alimony obligation.

The parties then filed yet another set of motions. After hearing oral argument on July 16, 2009, the Family Part denied without prejudice husband's request to modify his alimony obligation and wife's request for proof of life insurance. Instead, the court scheduled a plenary hearing to be held in August 2009: 1) to address whether husband's unemployment status constituted a permanent change in circumstances warranting a reduction in his alimony obligation; 2) to require husband to provide proof that he attempted to secure a life insurance policy pursuant to the March 6, 2009 order; and 3) to address both parties' request for counsel fees.*fn3

After conducting the plenary hearing, the Family Part issued its decision in a letter-opinion of September 9, 2009.

The court concluded that husband's unemployment and ill health demonstrated a significant change of circumstances under Lepis v. Lepis, 83 N.J. 139, 151 (1980), warranting a reduction of his alimony obligation. The court imputed income to husband of $65,000 based on his prior work history and job search and made ...


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