JANET D. SAMMARTINO v. VINCENT J. SAMMARTINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3100-04T13100-04T1

JANET D. SAMMARTINO,

Plaintiff-Respondent,

v.

VINCENT J. SAMMARTINO,

Defendant-Appellant.

_____________________________________________________________

 

Submitted December 20, 2005 - Decided

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1342-00C.

Mackevich, Burke & Stanicki, attorneys for appellant (Robert R. Stanicki, on the brief).

Central Jersey Legal Services, Inc., attorneys for respondent (Russell Gale, of counsel and on the brief).

PER CURIAM

Defendant Vincent Sammartino appeals from an order denying his motion to modify his alimony and child support obligations. We affirm the order from which defendant appeals.

On July 20, 1978, plaintiff Janet Sammartino and defendant were married. Three children were born of the marriage. While married, defendant worked as a warehouseman for A&P Supermarket. Plaintiff was unable to work during the marriage due to her health problems, which included congestive heart failure, asthma and diabetes.

On April 3, 2002, plaintiff and defendant divorced. At the time, the two oldest children were emancipated and the third child was 14 years-old. The parties agreed to joint legal custody of the unemancipated child with plaintiff being the primary residential custodian. The Final Judgment of Divorce incorporated a Property Settlement Agreement (PSA) that set defendant's child support obligation at $100 per week and permanent alimony at $375 per week. Defendant's average income for the four years prior to the divorce was approximately $66,996 per annum.

In October 2002, defendant had to undergo surgery for his right shoulder due to a workplace injury. Defendant collected workers' compensation benefits while recovering from the surgery. In August 2003, defendant was laid off by A&P and he collected unemployment compensation. Three months later on November 3, 2003, defendant was rehired; however, shortly after his return, he re-injured his shoulder and underwent a second surgery on January 29, 2004.

On March 18, 2004, defendant filed a motion to reduce his child support and alimony obligations. The motion judge granted defendant's motion and reduced his alimony obligation by $25 per week and his child support obligation from $100 to $99. The judge ordered plaintiff to apply for Social Security Disability and allowed defendant to take additional discovery from plaintiff concerning her employability.

Plaintiff alleges she is unable to work due to her poor health. She has been prescribed the following medications to treat her medical conditions: Coumadin, Digoxin, Lasix, Slow K (Potassium) and Albuterol. According to plaintiff, the alimony and child support from defendant are her only source of income to survive because she is not able to work due to her failing health. Plaintiff applied for Social Security Disability benefits in accordance with the judge's order, however, the Social Security Administration denied her application. She did not satisfy the requirement for length of time employed in order to qualify for benefits.

On December 20, 2004, defendant filed another motion to modify his child support and alimony obligations. By that time, defendant had undergone a third surgery and continued to be out of work and collecting workers' compensation benefits, which provided an amount less than his normal salary. The judge denied defendant's motion, ruling that defendant had failed to demonstrate that plaintiff is not disabled or that she is, in fact, employable. In rendering his decision the judge observed:

While the court understands that there has been a reduction of [defendant's] income, at this point all we know is that the reduction is temporary, it may or may not be permanent. If it turns out to be permanent, the application can obviously be remade by the defendant. But at this point it appears only temporary, at least from the proofs submitted.

Ordinarily, the scope of our review of a trial court's findings of fact is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). An appellate court should not disturb the trial judge's factual findings and legal conclusions unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412. Additionally, family courts are given greater deference since they have special jurisdiction and expertise in family matters. Ibid.

Courts can "modify alimony and support orders at any time." Lepis v. Lepis, 83 N.J. 139, 145 (1980); N.J.S.A. 2A:34-23. Consequently, "alimony and support orders define only the present obligations of the former spouses." Lepis, supra, 83 N.J. at 146. Thus, alimony and support obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Ibid. (citations omitted). Examples of such "changed circumstances" warranting modification include:

(1) an increase in the cost of living;

(2) increase or decrease in the supporting spouse's income;

(3) illness, disability or infirmity arising after the original judgment;

(4) the dependent spouse's loss of a house or apartment;

(5) the dependent spouse's cohabitation with another;

(6) subsequent employment by the dependent spouse; and

(7) changes in federal income tax law.

 
[Id. at 151 (internal citations omitted).]

Another factor is "whether the change in circumstance is continuing." Id. at 152. Temporary circumstances are an insufficient basis for modification. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)) (temporary unemployment not sufficient). "If it were otherwise, a [spouse], by deliberate intent or disinclination to work, might defeat or avoid [their] marital obligation of support." Bonanno, supra, 4 N.J. at 275 (quoting Robins v. Robins, 106 N.J. Eq. 198, 200 (E. & A. 1930)).

Defendant's medical proofs, except for his own certification, do not include any evidence to support his claim of permanent disability. During oral argument in the trial court, defendant contended that he had been out of work since November 2003 and remained out of work to the present date due to another workplace injury and the resulting two surgeries in 2004. He alleged that he would still be out of work in 2005 "because he's still continuing to be out of work under his orthopedist's care, receiving physical therapy. [Defendant] doesn't anticipate even having a return date . . . until at least May."

Therefore, as the motion judge found, the record does not support that defendant met his burden of proving a permanent disability. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). Without any showing of permanence, the judge did not abuse his discretion in denying defendant's motion, particularly in light of the fact that plaintiff's only income is derived from defendant's alimony and child support obligations. Under such circumstances, defendant is obliged to come forward with persuasive medical evidence, other than his own personal proffer, to show he is permanently disabled. As the judge stated, defendant is not precluded from re-filing another motion for reduction if he can properly provide objective evidence that his disability is permanent.

 
Affirmed.

The child's date of birth is January 4, 1988. Accordingly, she will attain the age of eighteen on January 4, 2006. The PSA provides that she will be deemed emancipated unless she enrolls in undergraduate college or trade school.

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A-3100-04T1

 

January 4, 2006