LOUIS MONICO v. HEIDI MONICO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LOUIS MONICO,

Plaintiff-Appellant,

v.

HEIDI MONICO,

Defendant-Respondent.

February 18, 2015

Submitted February 3, 2015 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2696-06.

Arthur Del Colliano, attorney for appellant.

Law Offices of David M. Watkins, attorney for respondent (Marc A. Greenberg, on the brief).

PER CURIAM

Plaintiff Louis Monico appeals from a February 21, 2014 Family Part order denying his motion to modify his alimony obligation based on changed circumstances. For the reasons that follow, we affirm.

I.

Plaintiff and defendant, Heidi Monico, divorced in 2007. The terms of their property settlement agreement (PSA) were incorporated into their dual judgment of divorce. In the PSA, plaintiff agreed to pay defendant $2500 per month in permanent alimony. Citing health issues, on January 31, 2013, plaintiff ended employment with his towing company, Merger Towing, but retained a fifty-percent interest in the business.

On June 7, 2013, plaintiff filed a motion seeking a "[r]eduction and/or termination of alimony based on changed circumstances." The motion judge found that plaintiff established a prima facie case of changed circumstances and scheduled a plenary hearing.

On November 12, 2013, the same judge presided at the plenary hearing and heard testimony from both parties. Each party also presented various financial documents and plaintiff presented a "work release form" dated June 5, 2013, indicating that plaintiff "[m]ay not return to work until further notice." Plaintiff testified that he had successfully applied for disability benefits from the Social Security Administration (SSA), and started receiving a monthly disability benefit of $2386 in August 2013. Plaintiff explained that he has "back problems," which make him "unable to lift heavy things," or sit or stand "for long periods of time."

On cross-examination, plaintiff testified that in 2010 he owned seventy-five percent of Merger Towing and the business had gross sales of $1,347,159. For 2011, gross sales were $1,649,003, and for 2012, gross sales were $1,444,324. In 2011 or 2012, plaintiff transferred twenty-five percent of Merger Towing to his son as a gift. Plaintiff also acknowledged that he made gifts to his children in the previous two years totaling $100,000.

In a written decision issued on February 21, 2014, the judge first found there was no change in circumstances in relation to plaintiff's disability because plaintiff failed to prove that his disability was permanent. The judge noted that plaintiff offered no expert testimony, but only a document from a doctor indicating that he "[m]ay not return to work until further notice." The judge also noted that none of the doctors listed on that form's letterhead matched any of the doctors plaintiff testified treated him concerning his disability. Consequently, the judge found plaintiff's proofs were insufficient "without further corroboration in the form of expert reports or testimony."

The judge also found no change of circumstances regarding plaintiff's income. He noted that plaintiff received income from four sources: (1) SSA disability payments; (2) his fifty-percent interest in the towing company; (3) income from renting the land to the towing company on which it is located; and (4) income from renting a billboard also located on that property. When examining changed circumstances relating to plaintiff's income, the judge considered plaintiff's 2012 income concerning the towing company because, at the time of the hearing, plaintiff's earnings for 2013 from the towing company had "not yet occurred."

Consequently, using plaintiff's 2012 tax return, the judge calculated plaintiff's income totaled $153,370, which he noted had increased from $107,380 in 2006. The judge, thus, did "not find changed circumstances which substantially impair the plaintiff's ability to comply with his existing alimony obligation[,]" and entered an order denying plaintiff's motion.

This appeal followed with plaintiff arguing that the motion court erred by considering his 2012 income, rather than his 2013 income, and by failing to conclude that he is permanently disabled.

II.

Our review of the trial court's decision 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). Due to the Family Part's special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. Because "[e]ach and every motion to modify an alimony obligation 'rests upon its own particular footing,'" we "'must give due recognition to the wide discretion'" afforded to trial judges dealing with these matters. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). Therefore, the trial judge's findings concerning

alimony should not be vacated unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.

[Gnall v. Gnall, 432 N.J. Super. 129, 148 (App. Div. 2013) (quoting J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012)), certif. granted, 217 N.J. 52 (2014).]

Alimony orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Thus, alimony obligations "are always subject to review and modification on a showing of 'changed circumstances[,]'" Lepis v. Lepis, 83 N.J. 139, 146 (1980), and the determination of whether changed circumstances exist rests within the Family Part's "sound discretion." Larbig, supra, 384 N.J. Super. at 21 (citing Innes v. Innes, 117 N.J. 496, 504 (1990)).

It is well established that the party seeking modification of a support obligation must show a change of circumstances that warrants relief, and that this change is permanent. Lepis, supra, 83 N.J. at 151, 157. Examples of changed circumstances that may warrant support modifications include an "increase or decrease in the supporting spouse's income," or "illness, disability or infirmity arising after the original judgment[.]" Id. at 151.

Plaintiff argues the trial judge erred in considering his 2012 tax return, instead of his projected earnings for 2013, when considering if changed circumstances existed. The judge considered how plaintiff's income had increased since the PSA in 2006 and his multiple additional sources of income besides the towing company, including his remaining ownership interest in the company. As plaintiff's 2013 financial information from the towing company had not yet been finalized, and looking at the proofs as a whole, we discern no reason to disturb the judge's finding that there was insufficient evidence of changed financial circumstances to warrant relief.

We also reject plaintiff's contention that the judge erred in finding an insufficient change in circumstances to warrant a modification related to his disability. Plaintiff had the burden of proof to produce evidence that he was permanently disabled. See Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). However, plaintiff failed to provide any expert testimony and simply presented a form from a doctor indicating that plaintiff could not return to work "until further notice," which the judge reasonably interpreted as indicating plaintiff would be able to return to work at some point.

While a determination of disability by the SSA may constitute a prima facie showing that plaintiff is disabled in certain circumstances, see id. at 342-43, in this case, the adjudication occurred after the parties were divorced and the record does not indicate defendant assisted plaintiff in obtaining his disability determination. See Villanueva v. Zimmer, 431 N.J. Super. 301, 319-20 (App. Div.) (distinguishing Golian's holding that an SSA disability adjudication constituted a prima facie showing of disability by stating it was limited to the facts of that case, where a family court decided alimony issues and the party disputing disability assisted the disabled party in obtaining the award), certif. denied, 216 N.J. 430 (2013). Rather than confirming permanent disability, the form from plaintiff's own doctor clearly suggested that plaintiff's disability may not be permanent. Thus, plaintiff failed to provide sufficient evidence to prove his claimed permanent disability.

Based upon our review of the record from the plenary hearing, we discern no indication that the court abused its discretion in denying plaintiff's motion to reduce or terminate his alimony obligation.

Affirmed.