VICTOR RIZZOLO v. BARBARA JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VICTOR RIZZOLO,

Plaintiff-Appellant,

v.

BARBARA JONES, f/k/a

BARBARA RIZZOLO,

Defendant-Respondent.

___________________________________

March 2, 2015

Submitted October 7, 2014 Decided

Before Judges Fisher, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-751-06G.

Drew M. Hurley, attorney for appellant.

Barbara Jones, respondent pro se.

PER CURIAM

Plaintiff Victor Rizzolo appeals from the denial of his post-judgment motion to modify or terminate his alimony to defendant Barbara Jones following a plenary hearing. We reverse.

The parties married in 1982, separated in 1989 and divorced in 2006. Plaintiff was fifty-eight years old and defendant thirty-eight at the time of their marriage. This was a second marriage for each of them. Both alimony and equitable distribution were tried, and both parties were represented by counsel.

The judge presiding over the divorce trial concluded in a written opinion that plaintiff, although "in remarkably good health" at eighty-four, had worked as an attorney for fifty years and was entitled to retire. The parties had not lived together for a long time, but plaintiff continued to support defendant, who was not employed, and pay all of the household expenses for their homes in New Jersey and Florida, which defendant used exclusively, throughout the long period of their separation. The judge concluded on the basis of those facts that the parties had a long-term marriage and defendant was entitled to permanent alimony.

The judge awarded defendant $300 a week, $100 less than plaintiff had voluntarily paid for many years. Although acknowledging that the amount left defendant with a shortfall, the judge noted defendant was awarded both houses in equitable distribution, which together were estimated to have a value of $650,000, thus providing her with "assets to sustain herself." A supplemental amended dual final judgment of divorce was entered accordingly in 2008.1

Plaintiff was eighty-nine and in failing health when he made his motion to terminate defendant's alimony. He suffered from advanced prostate cancer, acute renal failure and osteomyelitis, a bone infection arising from a combat wound to his left knee suffered in World War II. Finding plaintiff had established a prima facie case of changed circumstances, the court ordered discovery and set a date for a plenary hearing. Miller v. Miller, 160 N.J. 408, 420 (1999).

At the hearing, plaintiff, represented by counsel, presented the testimony of his son, a practicing attorney, and the caregiver he had hired for his father. Defendant, representing herself, called plaintiff's son and then plaintiff. Although sworn, she did not testify.

Plaintiff's son testified that plaintiff had come to live with him following plaintiff's hospitalization and nearly a three-month stay in a rehabilitation facility brought on by plaintiff's inability to care for himself. Because he lived alone and worked full-time, plaintiff's son testified he had to hire a full-time caregiver for his father, to whom he paid $1000 a week. When he hired the caregiver, he had to stop his father's alimony payments to defendant, and to his mother, plaintiff's first wife, in order to pay for his father's care.

After hearing the testimony, the court issued a written opinion denying plaintiff's motion. It found plaintiff's income was limited to a Veteran's Administration disability payment and Social Security totaling $5200 a month, and that he was without income producing assets. The court accepted that plaintiff's health was poor, finding the hospice care he was receiving to be "indicative of a person with less than six months to live." The court concluded that plaintiff's "economic demise" was permanent and not of his own making.

Although defendant did not testify, she asked plaintiff's son whether he was aware that her sole income was $671 a month and that her Bridgewater taxes were in arrears. She moved her 2011 and 2012 tax returns into evidence at the hearing, but has not included them in the record on appeal. It is apparently on the basis of that information that the court found that defendant "provide[d] testimony as to her current standard of living."

Relying on Miller, supra, 160 N.J. at 423, Donnelly v. Donnelly, 405 N.J. Super 117, 130-31 (App. Div. 2009), and Aronson v. Aronson, 245 N.J. Super 354, 361 (App. Div. 1991), all standing for the proposition that a supporting spouse cannot choose to remain in a position of diminished or non-existent earning capacity and ignore the obligations of support to one's family, the court found that plaintiff had not done all he could to continue to meet his alimony obligations. Specifically, the court noted that although plaintiff has no other assets with which he could maintain his level of support, "he is a veteran entitled to all available benefits through the Veteran's Administration, including care in a VA facility." The court found that by entering a VA facility,

[h]is monthly income would be used to help defray the cost of the facility, and there would be no additional cost to him to provide his needed care that currently is being provided by his son and care giver. The outstanding court orders for alimony to his two ex-wives would remain in effect. Thus, the Plaintiff would receive the care that he needs, and the Defendant would continue to receive her $300 weekly alimony. By failing to seek his VA benefits the Plaintiff is essentially having his ex-wives bear the cost of his care to his benefit and their detriment.

Plaintiff appeals.

"Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super 17, 21 (App. Div. 2006). "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.'" Ibid. (quoting Martindell v. Martindell, 21 N.J 341, 355 (1956)). We do not overturn such discretionary decisions "unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004).

Although we acknowledge the thoughtful consideration the trial court gave this difficult case, we conclude that there is insufficient competent evidence in the record to support its decision refusing to modify or terminate alimony. The following testimony is the extent of the evidence in the record regarding plaintiff's consideration of a VA facility

Plaintiff's counsel: [Has] your dad . . . ever expressed a wish to go on to some sort of institutionalized care?

Plaintiff's son: The exact opposite.

Plaintiff's counsel: He wants to stay at home?

Plaintiff's son: To stay at home. He begs me not to . . . let him go back into a nursing home. He calls them worsening homes.

. . . .

Defendant: Is your father a hundred percent disabled from the VA?

Plaintiff's son: Yes.

Defendant: [H]ave you at any time considered that he might be better off going there?

Plaintiff's son: Into their nursing home?

Defendant: Yes.

Plaintiff's son: No. I checked it out. It's not bad as nursing homes go. But, no. Mentally, he would not be better there, by far. And -- and, physically, he's getting his needs taken care of at home. And he's going to continue to get them [taken care of], as long as he lives . . . with me.

Plaintiff argues, and we agree, that no evidence was presented regarding whether there was a bed available at a VA facility, the quality of care compared to that his son was providing and whether plaintiff's VA disability payments would be affected were he admitted to such a facility. The parties did not present testimony on the point because neither viewed the issue as pivotal. As we are aware of no published case suggesting that plaintiff should have been prepared to justify his choice to remain at home receiving end-of-life care instead of entering a VA facility so that he could continue to meet his alimony obligation, we do not find fault with his failure to present such evidence. Once the court identified the issue as critical to its resolution of the motion, it should have asked for additional proofs on the point.

Further, although we agree that the analysis in Miller, Donnelly and Aaronson is appropriate in considering the question presented, it is important to note that none of those cases dealt with the end-of-life care questions presented in this case. The decision to modify alimony turns on what is equitable and fair upon consideration of all circumstances of both parties. Lepis v. Lepis, 83 N.J. 139, 158 (1980). Accordingly, although the court may on remand conclude that it is equitable to require defendant to enter a VA facility against his wishes in order to use his limited income to continue to pay alimony, allowing defendant to preserve her assets until plaintiff's death makes alimony no longer available, it may only do so upon consideration of competent evidence and a qualitative analysis of both parties' circumstances. See Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Although not relevant to the issues on this appeal, defendant appealed from the judgment of divorce entered in 2006 and we remanded for a new trial, resulting in the supplemental amended dual final judgment of divorce entered in 2008.