DAVID S. LODGE, JR. v. ROBIN A. LODGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2722-04T22722-04T2

DAVID S. LODGE, JR.,

Plaintiff-Appellant,

v.

ROBIN A. LODGE,

Defendant-Respondent.

______________________________

 

Submitted May 2, 2006 - Decided May 17, 2006

Before Judges Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-480-02C.

David S. Lodge, Jr., appellant, pro se.

Ralph A. Ferro, attorney for respondent.

PER CURIAM

Plaintiff, David Lodge (plaintiff or David), appeals from trial court orders entered in this matrimonial case on April 8, 2004 and January 14, 2005. He objects to the amount and duration of alimony awarded to defendant, to an order directing him to pay defendant $1,000 in counsel fees, and to an award of support arrearages. Following a six-day trial, Judge Franklin issued a detailed written opinion, and subsequently issued a twenty-eight page amended opinion, dated February 27, 2004. We affirm, substantially for the reasons stated in Judge Franklin's February 27, 2004 opinion.

I

Plaintiff and defendant, Robin Lodge, were married in 1972. They had two children, a son born in 1979 and a daughter born in 1983. Plaintiff filed for divorce in 2001. They owned a home at 907 Raleigh Drive, Toms River, where David continued to reside for significant periods of time after the complaint was filed.

David works as a communications technician for the Associated Press. He is the shop steward and "maintains the bid list for overtime." The trial judge found that David admitted that he had turned down overtime due to court appearances, medical appointments and vacation time. His 1999 income was about $68,000. His 2001 income was about $70,000. In 2002 and 2003, his income fell to about $58,000 and $54,000, respectively. The judge concluded that those figures were artificially low due to David's refusal of overtime; he concluded that David's present gross income should be at least $60,000 and that figure should be used to calculate his ability to pay alimony.

Robin did not work during most of the time the parties were married, and she has not worked at all since 1990. She did not earn more than about $4,500 per year when she did work. In his opinion, the trial judge noted that Robin had testified to a long list of medical and psychological problems from which she suffers, including migraines, back and neck problems, fibromyalgia and depression. The judge found that plaintiff acknowledged that Robin has "a symptom of [f]ibromyalgia," "some back and neck problems," "[s]aw a psychiatrist for depression," "[h]as taken medications, including an anti-depressant, for a number of years," and "[h]ad knee surgery around 1994 or 1995." Judge Franklin found Robin, who was then fifty-three years old, to be a credible witness and concluded that she was not capable of working. Robin had applied for Social Security disability benefits, which were denied, but the judge directed her to keep David informed if she received benefits in the future.

Based on his conclusion concerning David's income, and his finding that there was not enough money to pay for all of either party's monthly needs, the judge arrived at a compromise on the issue of alimony. He awarded Robin $394 per week in permanent alimony, which would result in her and David each having enough income to cover sixty-one percent of their respective needs.

After the filing of the divorce complaint, the judge had awarded Robin pendente lite support of $645 based on her needs and those of the daughter, who was not yet emancipated. Robin was required to pay for all of her "roof expenses" (e.g., mortgage payments) from that sum. That amount was reduced to $600 on February 28, 2003, based on David's presenting evidence of a reduction in his income; that determination was made without taking testimony. In his final decision, rendered after the trial, Judge Franklin determined that the reduction should be retroactive to February 1, 2002 to correspond with the date on which the daughter was emancipated; he gave David a credit for amounts paid after that date. In the final decision the judge also addressed David's contention that the amount of pendente lite support was excessive in relation to David's income:

It must be realized that from the support payments, Robin was required to pay the mortgage payments and all other shelter expenses. These expenses [benefited] David as well as Robin. Throughout the divorce proceedings, David has been in and out of the marital home. He testified that he had moved out prior to April 13, 2002; and subsequently moved back in because of financial reasons. Early in the trial, David testified that he was living at the home part time, or "off and on." At one point during trial, David testified that he stays at home about 1 or 2 nights per week.

This conclusion was supported by the record. For example, at a hearing on February 28, 2003, David admitted that he was living in the marital home. Since David owed some arrearages on the pendente lite award, the judge ordered that those be paid from the proceeds of the sale of the marital residence, less the "emancipation" credits to which David was entitled.

He did not award counsel fees to either party, based on a detailed analysis of the applicable factors. He subsequently awarded Robin $1,000 in counsel fees for an extensive reconsideration motion that David filed on April 28, 2004, and another motion David filed to require the daughter to testify with respect to his reconsideration motion and for other relief. With minor exceptions, both motions were denied. Among other things, the judge denied without prejudice David's application to terminate alimony when he eventually retires.

II

Our scope of review of the trial court's decision is limited. We will defer to the findings of a family court judge so long as they are supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). And with respect to an alimony award, we will not disturb the trial court's decision unless we

conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.

[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996)].

Additionally, "substantial weight must be given to the [trial] judge's observations of the parties' demeanor, comprehension and speech and to the fact that the trial judge had the distinct advantage of observing the demeanor of the witnesses and a better opportunity to judge their credibility than a reviewing court." Ibid.

Having reviewed the record, we conclude that Judge Franklin's determinations concerning both pendente lite support and permanent alimony are amply supported by the record, R. 2:11-3(e)(1)(A), and that plaintiff's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Although the alimony award is characterized as permanent, the trial court's order does not preclude plaintiff from filing a future motion to reduce his alimony obligation based on changed circumstances in the event that he retires. See Glass v. Glass, 366 N.J. Super. 357, 373 (App. Div.), certif. denied, 180 N.J. 354 (2004).

We find no abuse of discretion in the $1,000 counsel fee award. We agree with the judge's comments that plaintiff had filed motions that were "absolutely unquestionably not appropriate to be brought to the Court" and that his legal action was "causing Mrs. Lodge to spend money on counsel fees . . . to respond to those unreasonable motions."

Affirmed.

 

The judge noted, as a practical matter, that after the marital residence was sold, Robin planned to live with her mother, and David planned to live with a woman friend, Kathy Baker. But he did not factor this into the alimony calculation.

(continued)

(continued)

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A-2722-04T2

May 17, 2006