NICOLINA CALAUTTI v. LUIGI CALAUTTI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0167-04T10167-04T1

NICOLINA CALAUTTI,

Plaintiff-Respondent,

v.

LUIGI CALAUTTI

Defendant-Appellant.

_______________________________________

 

Argued October 6, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family

Part, Hudson County, FM-09-1546-91.

Ira C. Kaplan argued the cause for

appellant (Law Offices of Ira C.

Kaplan, attorneys; Mr. Kaplan of

counsel and on the brief).

Christina M. Rivera argued the cause

for respondent (Greenberg, Walden &

Grossman, attorneys; Ms. Rivera, on

the brief).

PER CURIAM

This appeal arises from post-judgment litigation in a matrimonial case. Defendant Luigi Calautti appeals from orders entered on plaintiff Nicolina Calautti's motion to enforce and his cross-motion to terminate the alimony obligation imposed in a final judgment of divorce on January 4, 1993. We affirm substantially for the reasons stated by Judge Sogluizzo.

The relevant historical facts are found in the decision of Judge Schaeffer rendered after trial of the divorce. The Calauttis were married on August 14, 1969. Plaintiff was fifteen years old and defendant was twenty five. There were two children born of their marriage, whom plaintiff cared for throughout the marriage while also assisting her husband in his family business, a pizzeria. On March 15, 1991, after twenty-one years of marriage and having no formal education other than elementary school in Italy, plaintiff filed for divorce.

Pursuant to the final judgment, plaintiff was charged with the responsibility of custody of the parties' unemancipated child and awarded alimony in the amount of $200 per week. The judge based the alimony on plaintiff's limited earning capacity, health problems that precluded her full-time employment and monthly income limited to $1152 from her share of the marital assets. With respect to defendant's income, after noting that defendant claimed to have expenses of $72,000 per year and income of $26,000 per year, the judge found, "there is a big credibility gap." He concluded that defendant had the ability to pay alimony of $200 per week, which left plaintiff with a gross income of $23,000, including the income the court imputed on marital assets.

The post-judgment motions before us are the most recent in a series of applications involving defendant's $200 per week alimony obligation under the final judgment of divorce. The most recent of defendant's prior applications to reduce alimony was decided on January 16, 2003. He sought modification on the ground that the Social Security Administration had awarded him disability benefits. Judge Sogluizzo explained:

What was very disturbing to me -- and I think I sat [on] maybe one, maybe two of the prior motions . . . .

. . . .

What was disturbing to me is that this was the first time, really, that I saw [defendant's] income tax returns, a professed ownership of that pizzeria. He has always been alluded to being someone who is a principal in that pizzeria. But [he] has always said, no, no. It's not mine. It's a family pizzeria. I just work there.

Now, on his 2001 1040, it shows a partnership interest in that pizzeria. On the . . . Sub-chapter S portion . . . it shows a partnership ownership in the pizzeria.

I don't know what the value of that is. Even though he gives me a CIS, in the CIS, he doesn't mention it as something that he has a possessory interest in.

He notes 6508 Palisades Avenue in West New York, that he owns, in the amount of $225,000. And 5404 Park Avenue, West New York, that he half owns with his brother for $85,000.

He shows his Mercury Montero that he shares with his daughter, of $27,000.

He has an IRA of $76,000 and a Keough of $20,000.

. . . .

How does a man, who from 1993 until now, only making $25,000 a year, never making more, never making less, until last year, how does a man with that kind of income pay these kind of bills?

It's what puzzled [the trial judge] back in 1993. It's what puzzled me when I heard it last.

He had expenses of six, $7,000 a month. How does he do this on $25,000 a year?

. . . .

If he's borrowed the money, isn't there a note anywhere that he owes somebody.

And how, when he's got this kind of [expense] and this kind of income, does he now own the pizzeria and own two houses? Two apartment buildings? How does that happen?

I don't believe it. I don't believe it now any more than I believed it then, any more than [the trial judge] believed it ten years ago. I don't believe it.

He has income. Yes, he is disabled, perhaps, now, from his heart. Although he's still working at the pizzeria. Maybe he's not making as much money for his partnership share as he use to. But he certainly has socked a lot of it away and he's got it in assets. And those assets can be valued.

The motion that led to this appeal was filed on May 3, 2004. Defendant again referenced his disability, which was not a change in circumstances from his prior application. In addition, he certified that he and his brother had sold their pizzeria business, but not the property or structure that housed it, for $140,000. He received $62,500 as a result of the sale. Judge Sogluizzo provide the following explanation for her denial of defendant's motion:

Mr. Caluatti and his brother [sold] their pizzeria and nett[ed] $62,500 each after the payment of all closing costs. The brothers still own the building however, and receive $1500.00 per month as rent from the new owner of the business. The building lists as a two-family dwelling - however, there is no rental noted for the other unit.

Mr. Caluatti receives $1000.00 per month rental on his other property (another two-family that he owns alone, but one he [presumably] lives in) and he receives $17,580.00 per year in Social Security Disability payments, which break[s] down to $338.00 per week. He gives no indication where the $62,500.00 from the closing went, and at the time of the divorce he had retirement accounts in the amount of $60,000.00, which after [thirteen] years, have only increased in value to $96,000.00. Mr. Caluatti took out a mortgage on the two-family he lives in in 1993 or 1994 in the amount of $175,000.00, but shows no indication as to where those monies went. He closed on the pizzeria in February of 2004 without paying off his outstanding alimony of almost $6000.00 (a debt that still exists).

Mr. Caluatti has assets that equal $511,000.00 and receives income from those assets monthly. He has taken distributions from his Metropolitan Life Retirement accounts in the amount of $17,000.00. He has sufficient funds to maintain his ex-wife, and his obligations from alimony.

Mrs. Caluatti owns a two-family home with no mortgage and collects rent from the tenant. She has $30,000.00 in the bank and no income, having lost her job over a year ago. She came to the country from Italy as a young girl and married the defendant before she ever had a formal education. Although she is only 49 years old, her abilities are extremely limited. She has need of the $200.00 per week that Mr. Caluatti was ordered to pay.

The Legislature has left applications to modify alimony to the broad discretion of trial judges. N.J.S.A. 2A:34-23; Innes v. Innes, 117 N.J. 496, 504 (1990). Our review is limited. A trial court's rulings are upheld if consistent with controlling legal principles and supported by and not inconsistent with the competent evidence. See Tash v. Tash, 353 N.J. Super. 94, 99 (2002); Rolnick v. Rolnick, 262 N.J. Super. 343, 359-60 (1993). We see no reason to disturb the judge's findings or conclusions in this case, and add only the following brief comment.

One who seeks modification of support must establish a showing of a substantial change in ability to pay support that is not temporary. See Lepis v. Lepis, 83 N.J. 139, 146, 157-59 (1980). The obligor has the burden of persuasion on an application to reduce support. Id. at 157-59.

 
While approval for receipt of social security disability benefits is generally sufficient to establish a prima facie case of disability precluding work, Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001), inability to work is not always equivalent to inability to pay support. In this case, defendant's monthly disability income is not substantially different than the earned income he reported while working. The case information statements defendant submitted in prior proceedings reported his monthly earned income and disability as follows: 1991, $1598 per month; 1996, $1380 per month; 2000, $1439.83 per month; and 2004, $1416.66 per month. Thus, he did not establish a substantial reduction of income. The trial judge's finding of continued ability to pay is based upon income from assets. We note that defendant's assets include rental property that is not rented.

Affirmed.

(continued)

(continued)

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A-0167-04T1

November 9, 2005