Opinion
DOCKET NO. A-0528-13T1
01-12-2015
DAVID S. LODGE, JR., Plaintiff-Appellant, v. ROBIN A. LODGE, Defendant-Respondent.
David S. Lodge, Jr., appellant pro se. Ferro and Ferro, attorneys for respondent (Nancy C. Ferro and Nancy C. Hayes, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1055-12. David S. Lodge, Jr., appellant pro se. Ferro and Ferro, attorneys for respondent (Nancy C. Ferro and Nancy C. Hayes, on the brief). PER CURIAM
Plaintiff David S. Lodge, Jr., appeals from a November 16, 2012 order, entered after a plenary hearing, denying his motion to terminate alimony but reducing his alimony obligation. We affirm.
Plaintiff's notice of appeal also lists orders dated March 30, 2012, temporarily reducing alimony from $394 to $100; February 1, 2013, denying reconsideration but clarifying plaintiff's obligation to apply for regular retirement benefits at age sixty-five; March 8, 2013, denying plaintiff's cross-motion for clarification; and September 13, 2013, denying plaintiff's motion to modify spousal support and ordering the probation department to review the calculation of plaintiff's support arrears. We review a trial court's decision of a reconsideration motion for abuse of discretion. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). To the extent that plaintiff's brief addresses those additional orders, his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm for the reasons stated in the trial court's oral opinions of March 30, 2012, February 1, 2013, March 8, 2013, and September 13, 2013.
The relevant facts and procedural history are set forth in a written opinion issued by Judge Edward J. McBride, Jr., on November 16, 2012, and in our prior opinion affirming the parties' April 8, 2004 divorce judgment. Lodge v. Lodge, No. A-2722-04 (App. Div. May 17, 2006). We add the following summary. The parties were married in 1972 and divorced in 2004. Throughout the marriage, defendant was a homemaker, while plaintiff worked in the telecommunications industry. At the time of the divorce, defendant was disabled and unable to work, while plaintiff earned a middle-class income. Based on the parties' circumstances at the time, alimony was set at a level that would give the parties each approximately 61% of their respective financial need.
There is no dispute that plaintiff was laid off in August 2009 due to the economic downturn. Plaintiff received eighty weeks of severance pay from his former employer, but he was unable to find another job despite his best efforts. He also became physically disabled. In November 2011, plaintiff filed a motion to terminate or modify alimony based on his changed circumstances.
Recognizing that plaintiff's financial circumstances had changed for the worse, but that defendant had no income beyond the alimony she received, the court temporarily reduced plaintiff's alimony obligation from $394 per week to $100 per week. Following the plenary hearing, the court made further adjustments to the alimony schedule after considering the factors set forth in N.J.S.A. 2A:34-23(b). Based on those factors, as well as the dates on which each party had begun or would begin receiving Social Security benefits, the court set an alimony schedule of $100 per week from November 1, 2011 to June 1, 2012; $163 per week from June 1, 2012 to March 1, 2014; and $81 per week effective March 1, 2014, the date on which defendant would qualify to begin receiving Social Security benefits.
In arriving at those figures, the trial court accepted defendant's calculation of her living expenses as set forth in her case information statement (CIS), but found that plaintiff's CIS expenses were either significantly overstated or unreasonable in light of his financial situation. For example, plaintiff was paying $400 per month to rent two storage lockers. At the hearing, he admitted that most of the stored items were things he no longer needed. Plaintiff also admitted that various additional items listed as monthly expenses on his CIS were, in fact, non-recurring expenses.
The judge noted that plaintiff did not challenge the accuracy of defendant's CIS at the plenary hearing.
Contrary to plaintiff's argument on this appeal, the trial court did not require plaintiff to pay alimony out of his pension or 401k benefits. Rather, the trial court directed that alimony be paid from plaintiff's Social Security income. The trial court's opinion also addressed plaintiff's argument that he should not have been required to pay $100 per week in alimony during the time when his unemployment benefits had ceased and his Social Security benefits had not yet begun. The court reasoned that although plaintiff had no regular income from November 1, 2011 to June 2012, he did have money from the settlement of a lawsuit as well as proceeds from a workers compensation petition. On the other hand, defendant had the same financial need then as at the time of the plenary hearing and had no income beyond alimony.
The court concluded that it "would not be fair or equitable" to completely eliminate plaintiff's alimony obligation during the November 2011-June 2012 time frame. However, by making "retroactive adjustments" to the alimony schedule, as previously described, the court reduced plaintiff's outstanding alimony arrears "from the current level of nearly $13,000 to about $5,600." Thus, while plaintiff was required to pay approximately $2800 (seven months of alimony at $100 per week) to which he objected, his alimony arrears were reduced by almost $7500.
We will not disturb the trial court's decision of a Lepis motion, unless the court abused its discretion:
Lepis v. Lepis, 83 N.J. 139 (1980).
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Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion. Each and every motion to modify an alimony 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) (citations omitted).]
Moreover, in reviewing a trial court decision issued after a bench trial, we are bound by the judge's factual findings so long as they are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to the trial court's credibility determinations, and to decisions of the Family Part due to its expertise. Ibid.; Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013).
On this appeal, plaintiff's brief lists the following point of argument for our consideration:
DEFENDANT'S WILLFUL RELUCTANCE AND DEFIANCE TO MINIMIZE HER EXPENSES AND PLAINTIFF'S INVOLUNTARY CHANGE IN CIRCUMSTANCE WHERE HIS EXPENSES EXCEED[] HIS INCOME SHOULD BE JUST CAUSE FOR TERMINATION OF ALIMONY AND ELIMINATION OF ARREARAGES.In arguing that point, plaintiff contends that the trial court made a number of procedural errors in the conduct of the plenary hearing and in several motion hearings. He also contends that the trial court's alimony decision was inequitable, and was inconsistent with the 2004 divorce judgment. His arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge McBride's decision is supported by sufficient credible evidence and does not constitute an abuse of discretion. We affirm substantially for the reasons stated in his thorough written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION