RODDY R. ENNICO v. LOUISE M. ENNICO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6525-06T26525-06T2

RODDY R. ENNICO,

Plaintiff-Appellant,

v.

LOUISE M. ENNICO,

Defendant-Respondent.

_________________________________________

 

Argued October 7, 2008 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-1399-95.

Albert L. Cohn argued the cause for appellant (Cohn Lifland Pearlman Herrmann & Knopf, L.L.P., attorneys; Mr. Cohn and Jason C. Tuchman, of counsel; Audra DePaolo, on the brief).

Douglas J. Kinz argued the cause for respondent.

PER CURIAM

Plaintiff Roddy R. Ennico appeals from the order of July 12, 2007, denying his request to terminate his alimony obligation to his former wife, defendant Louise M. Ennico.

After a twenty-six year marriage, the parties were divorced in 1997. Three children were born to the marriage, all of whom are now emancipated. In the Property Settlement and Support Agreement dated March 18, 1997, reached at the time of the divorce, plaintiff agreed to pay defendant permanent alimony in the sum of $6,000 per month. At the time, he was employed in the securities industry on Wall Street, and he was earning a salary of about $200,000 per year.

Thereafter, in 1998, plaintiff lost his job, and he had to deplete his savings and sell assets in order to meet his daily living expenses and pay his alimony obligation. As a result, he applied to the court for a reduction in his alimony payments. Plaintiff's employment expert at that time indicated that plaintiff's future employment prospects were likely to result in earnings of between $50,000 and $100,000 per year. Plaintiff indicated that his net worth was only $188,399. The parties reached a settlement of that application, memorialized in the Order Modifying Final Judgment dated August 25, 2000, in which defendant's alimony obligation was reduced to $2,500 a month.

Defendant, who was a full-time homemaker for most of the marriage, states that she modified her lifestyle in light of this reduction in her alimony. She sold what she describes as a luxury town home in favor of a smaller, older and less expensive home in a retirement community. She was able to obtain a position earning $12 an hour which she held until the company went out of business in late 2000. She now does some babysitting to supplement her income. In her certification to the court, she indicated that her monthly income consists of alimony, her share of plaintiff's pension totaling $329 a month, babysitting income totaling $430 a month, and payments from her individual retirement account (IRA) totaling $500 a month. These sums cover her expenses of $3,364 a month, with a few hundred dollars to spare. At the time of the application below, she had assets, including the equity in her house, of $489,600.

Since the modification agreement, plaintiff relocated to California with his second wife. He suffered a major heart attack and has been diagnosed with triple vessel disease, although there is no medical opinion in the record that he is medically unfit to work. He was able to secure employment earning $90,000 per year, but that employment ended in 2004. The next year plaintiff and his second wife established a mortgage business, investing their personal assets in that business. Unfortunately, the business failed a year later in 2006. Their gross income for 2006, as reflected on their personal federal income tax return was $80,949. Defendant and his second wife have a personal obligation of $200,000 arising from the business. In addition, defendant has been named personally in three lawsuits arising from his involvement in the mortgage business, and he has paid attorney fees of $70,000 in his defense. He and his second wife undertook legal guardianship of his second wife's grandson, causing them to incur additional expenses for the child's care.

Due to these financial setbacks, plaintiff filed this second post-judgment application seeking to terminate his obligation to make alimony payments. At the time of the application, plaintiff was unemployed and invading assets to meet his alimony obligation and living expenses. A review of plaintiff's 2007 Case Information Statement (CIS) reflects that plaintiff's monthly household expenses total $17,045, exclusive of the alimony payments. These expenses include a mortgage payment of about $3,600 a month on a $1.1 million home in California, lease payments for two Mercedes Benz vehicles for plaintiff and his second wife, debt service of $3,918 per month, and expenses for his second wife's grandchild. Plaintiff's expenses are in stark contrast to defendant's living expenses of only $3,364 per month. Plaintiff's 2007 CIS indicates that his net assets are valued at $265,200, including his share of the equity in his home. While this sum is substantially less then defendant's assets, this sum is actually more than the amount of net assets plaintiff had when his alimony payments were reduced in 2000.

After entertaining oral argument on July 12, 2007, the trial court rendered an oral decision that date denying plaintiff's application to terminate the alimony payments. On August 29, 2007, the trial court issued a written decision pursuant to Rule 2:5-1(b). In that written decision, after setting forth the applicable law and the facts of the case, the trial summarized its decision as follows:

At oral argument, the Court found that Plaintiff had failed to make a prima facie showing of a change in circumstances. The court found that in fact, Plaintiff's income had increased from 2000 to 2006. In 2000, Plaintiff had been unemployed, while in 2006, Plaintiff earned $80,949.00 gross, according to his own 1040. Accordingly, the Court found that no plenary hearing was necessary.

Additionally, the Court found that Plaintiff was voluntarily and temporarily underemployed. The Court found that Plaintiff had voluntarily moved to Southern California, had voluntarily invested in Dynamax Mortgage, and had voluntarily assumed guardianship over his new wife's grandson. The Court also found that although Plaintiff had suffered a heart attack, Plaintiff's skill is in the financial field, a field which does not typically require manual or physical labor. The Court found that Plaintiff did not have any bar to employment in the financial field. The Court notes that Plaintiff did not at any time argue that his employment status was now "retired" or that he would be unable to ever work again.

Finally, the Court noted that it was not persuaded by Plaintiff's claims of poverty and found that Plaintiff paid for leases on luxury cars, a mortgage on a luxury home, and childcare for the grandson of his new wife, and his extravagant monthly budget in excess of $17,000.00.

In this appeal, plaintiff contends that the trial court "failed to consider controlling legal principles, made findings that were not supported by the evidence and failed to conduct a plenary hearing." When reviewing a trial court's decision pertaining to the modification of alimony, an appellate court will affirm unless the trial court "clearly abused its discretion" or did not "consider 'all of the controlling legal principles'". Rolnick v. Rolnick, 262 N.J. Super 343, 360 (App. Div. 1993). The findings will also be vacated if the appellate court is well satisfied that the trial court's findings were a mistake or that sufficient credible evidence is not set forth in the record to support the determination. Ibid.

After a careful review of the record and arguments of counsel, we affirm substantially for the reasons set forth by the trial judge in both his oral and written opinions. We note that denial of plaintiff's application was based in part on the trial court's finding that plaintiff's unemployment was only temporary and that he continued to enjoy a lavish lifestyle. Our affirmance of the trial court's decision is based solely on the facts presented to the trial court at the time of the application. This decision does not preclude plaintiff from making another application for modification or termination of his alimony payments, in accordance with existing law under N.J.S.A. 2A:34-23 and Lepis v. Lepis, 83 N.J. 139 (1980), and its progeny, if his unemployment becomes permanent, if he is unable to meet even reasonable monthly living expenses, or if other changed circumstances are present.

We also note that the trial judge properly decided the application without conducting a plenary hearing. A plenary hearing is required "[w]hen a genuine issue of material fact exists." Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); see Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App. Div. 1971) (a plenary hearing should be held on a motion to reduce alimony and support when contested issues of fact are present). Plaintiff contends that material issues of fact were present regarding whether he was fired or voluntarily left his last job, whether he had a heart attack, whether the lawsuits filed against plaintiff reflect wrongdoing on his part and the amount that plaintiff received from the sale of certain stock. We note that the trial court decision assumed that plaintiff had a heart attack, and once plaintiff presented his medical proofs by way of a reply certification, defendant did not contest the fact that he had one. However, plaintiff presented no medical proofs that his health prevented him from working. The other factual questions raised by plaintiff were not material to the trial court's decision. That decision rests in large part upon information plaintiff provided concerning his work history and financial circumstances.

Affirmed.

 

Because the parties separated three years before the divorce, plaintiff notes that the marriage was viable for only twenty-three of the twenty-six years.

The settlement set forth in the order also provides that if plaintiff's taxable employment income exceeds $125,000 per year, defendant may use that as a factor in applying for an increase in alimony. Similarly, if defendant's income exceeds $30,000 per year, plaintiff may use that as a factor in seeking a decrease in alimony.

In his appeal papers, defendant indicates that he has since obtained employment, but at oral argument we were advised that the employment had ended.

(continued)

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A-6525-06T2

November 3, 2008