LLOYD WIDNEY v. DIANE WIDNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0128-09T30128-09T3

LLOYD WIDNEY,

Plaintiff-Appellant,

v.

DIANE WIDNEY,

Defendant-Respondent.

______________________________________

 

Submitted August 10, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-478-04S.

Lloyd Widney, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Lloyd Widney appeals from an order of the Family Part dated July 24, 2009, which denied his motion for reconsideration and granted defendant Diane Widney's motion for enforcement of a prior order pertaining to modification of plaintiff's obligation to pay alimony and other expenses. Defendant has not filed a brief in opposition to this appeal.

Having reviewed the record, including the written reasons provided for each of the Family Part's orders of March 6, June 19, and July 24, 2009, ruling upon plaintiff's several motions to reduce or terminate his alimony payments, we now remand to the Family Part to consider plaintiff's medical evidence of his disability and any other evidence pertinent to his capacity to earn income.

The parties were married in 1984 and divorced in August 2004. Two sons were born of the marriage, both of whom are now emancipated. The parties also raised defendant's daughter from a prior marriage. Throughout the marriage, plaintiff operated a tree trimming business as a sole proprietor. His work included substantial physical exertion in climbing and cutting trees and other manual tasks of the job. Plaintiff suffered injuries to his back, and also was admitted to a psychiatric hospital near the end of the marriage.

At the time of their divorce in 2004, the parties negotiated a property settlement agreement with the assistance of counsel and an accountant, who also served as mediator. Relevant to the current appeal, plaintiff agreed to pay defendant a total of $4,000 per month in alimony and child support. This amount consisted of permanent alimony of $2,500 per month and child support of $1,500 per month. The support obligation was based on gross income of $110,000 per year attributed to plaintiff and $15,000 per year to defendant. More than half of plaintiff's income at the time of the property settlement agreement consisted of disability benefits he was receiving in lieu of business income through insurance policies he had obtained on himself and his business. The property settlement agreement also required plaintiff to pay defendant, as part of equitable distribution, fixed amounts in cash in exchange for his retention of the tree trimming business, his Boston Whaler boat, and the five snowmobiles they owned.

Soon after the final judgment of divorce in August 2004, plaintiff moved to reduce his alimony obligation on the ground that his business income was substantially less than $110,000 per year. His motions were twice denied in 2005.

As the parties' two sons became emancipated, plaintiff's support obligation was reduced by August 2008 to the $2,500 per month for alimony. However, because he had fallen into arrears on his support payments, his monthly obligation also included additional installment payments to reduce the arrears. Also, plaintiff was ordered in the ensuing years to pay amounts he owed on the cash payments for equitable distribution.

In early 2009, plaintiff moved to terminate alimony payments on the ground that he was permanently disabled and could no longer earn sufficient income to make those payments. In support of his motion, he submitted a report of Dr. Gordon Donald, an orthopedic spinal surgeon, stating:

patient has debilitating symptoms of lumbar spondylosis and discogenic disease that are managed with a light exercise program. He is medically incapable of performing the core physical duties of his tree service business and is permanently disabled from such due to his spinal pathology.

Plaintiff's motion was denied without prejudice by order of March 6, 2009, the motion judge citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950), and Gertcher v. Gertcher, 262 N.J. Super. 176, 177 (Ch. Div. 1992), and finding that plaintiff had only shown that his disability was temporary.

Plaintiff re-filed a motion to terminate or reduce alimony, which was heard on June 19, 2009. In support of the motion, plaintiff submitted a short letter dated April 20, 2009, from the State of New Jersey Department of Labor and Workforce Development, Division of Vocational Rehabilitation Services (DVRS). The letter stated that plaintiff had been found eligible for the services of the agency, meaning that he had a disability and was in need of rehabilitative services to return to work. On the morning of oral argument on his motion, plaintiff attempted to submit additional documents, but the motion judge declined to consider the late submissions.

By order dated June 19, 2009, the motion judge again denied without prejudice plaintiff's motion on the ground that he had not shown changed circumstances warranting a modification of alimony. The order stated:

Plaintiff does not provide the Court with any new information other than he is eligible for the services of the Division of Vocational Rehabilitation Services which supports the Court's finding that plaintiff's disability, if any, is temporary. The Court notes plaintiff's Vocational Rehabilitation Counselor has not determined plaintiff to be permanently disabled. Plaintiff has not established a prima facie case of changed circumstances based on a Social Security determination notwithstanding being advised by his State Vocational Rehabilitation Counselor to reapply. Golian v. Golian, 344 N.J. Super. 341 (App. Div. 2001).

The order also stated that "Dr. Donald's determination notes plaintiff continues to operate his business in a managerial position."

Plaintiff promptly filed a motion for reconsideration. He attached to the motion four new documents in response to the court's prior rulings. He attached a letter and a certification from Cheryl Shankle, a manager at DVRS, explaining the agency's rehabilitation program and stating that, based on the medical documentation provided by plaintiff, DVRS had found he was unable to work in his tree trimming business and was unlikely to find a position with similar income. He also provided a certification and a follow-up report of Dr. Donald based on examination of plaintiff on June 18, 2009. Dr. Donald stated in his certification:

4. Based upon my assessment of Lloyd Widney, he suffers from neck and low back pain with cervical and lumbar radiculopathy to his known multilevel cervical disc herniation, multilevel disc degeneration with stenosis and Raynaud's syndrome.

5. Mr. Widney has spinal conditions which will not improve over time and many will progressively worsen. Mr. Widney has failed conservative treatment regimens. Mr. Widney has a permanent disability due to diagnoses as listed above.

6. Mr. Widney is unable to function in any physical capacity in a tree service and landscape business. Mr. Widney remains medically debilitated from the necessary functions incumbent upon performing tree service and maintenance.

7. Mr. Widney is restricted to perform only very limited, part-time employment in a managerial/supervisory capacity for a tree service and landscape business due to his debilitating spinal pathology. Part-time employment is medically appropriate, necessary and permanent due to his permanent debilitating spinal pathology and permanent activity restrictions.

By order dated July 24, 2009, the motion judge rejected plaintiff's motion, stating that it failed to establish a basis for reconsideration under Rule 4:49-2 and Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996). This appeal followed.

We apply an abuse of discretion standard of review to the Family Part's ruling on a motion for termination or reduction of alimony. See Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). "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.'" Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).

In Lepis v. Lepis, 83 N.J. 139 (1980), the Court set forth a procedural framework for the Family Part's consideration of a motion to modify support payments. The party seeking modification has the burden of showing "changed circumstances" warranting relief. Id. at 157. The moving party must show that the changed circumstances have "substantially impaired" his or her financial means. See ibid. Upon such a prima facie showing, the court may permit discovery, and it may subsequently hold an evidentiary hearing if genuine issues of material fact exist. Id. at 157-59; see also Miller v. Miller, 160 N.J. 408, 420 (1999) (party moving for modification bears the burden of making a prima facie showing of changed circumstances); Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998) (plenary hearing necessary only if party moving for modification makes prima facie case of changed circumstances warranting modification).

We find no abuse of discretion in the Family Part's denials of plaintiff's earlier motions by the court's orders of March 6 and June 19, 2010. The judge correctly analyzed the law and evidence submitted and determined that plaintiff had not made a prima facie showing of permanent disability that affected his capacity to earn sufficient income to pay alimony as he had agreed to do at the time of divorce. Although there was no dispute that plaintiff's back injuries prevented him from climbing trees as he had done in the past and otherwise engaging in intensive manual labor in the field, his reduction of income was deemed to be temporary because he had the ability to alter the manner of conducting his business. See Larbig, supra, 384 N.J. Super. at 23. Nothing in his earlier submissions indicated that he could not hire employees and manage the business to produce income comparable to earlier years.

Furthermore, we agree with the Family Part judge that plaintiff's eligibility for DVRS rehabilitation did not demonstrate that his ability to earn income through his business had diminished. Unlike Dorfman, supra, 315 N.J. Super. at 516, the court in this case found that plaintiff was voluntarily underemployed because he had the ability to perform managerial tasks in his tree trimming business. Furthermore, the transfer of the business to the woman with whom plaintiff lives did not change his interest in the income potentially derived from the business.

However, after denial of the two earlier motions without prejudice, plaintiff submitted additional documentation that established a prima facie showing of permanent disability including limitation on his ability to perform full-time managerial and supervisory services for the business. We do not suggest that the certification and letter from the DVRS manager are of the same effect as an adjudication of permanent Social Security disability, which in Golian, supra, 344 N.J. Super. at 342-43, we held constitutes prima facie evidence of disability and unemployability. We also do not hold that plaintiff proved he is entitled to modification of his support obligation by submitting documents attesting to his disability. But the DVRS documentation, together with the certification and report of Dr. Donald, established a prima facie showing of permanent disability that warranted a further hearing to determine plaintiff's ability to earn income.

In such a hearing, the Family Part should consider all medical and related evidence of disability, including any contrary evidence presented by defendant. If appropriate, the court may require testimony by doctors or other qualified expert witnesses to establish the full nature and scope of plaintiff's disability. In that regard, the court can also consider what alternative employment is available to plaintiff, including managing the business and hiring helpers to perform the manual and skilled labor in the field. It can also consider other issues, such as whether plaintiff's continued possession and use of a boat and snowmobiles refute the level of disability that he now claims.

As stated in Miller, supra, 160 N.J. at 420, "the central issue is the supporting spouse's ability to pay." However, "[a]lthough the supporting spouse's current income is the primary source considered in setting the amount of the award, his or her property, capital assets, and 'capacity to earn the support awarded by diligent attention to his [or her] business' are also proper elements for consideration." Innes, supra, 117 N.J. at 503 (quoting Bonanno, supra, 4 N.J. at 275); see also Miller, supra, 160 N.J. at 420-21 ("Real property, capital assets, investment portfolio, and capacity to earn by diligent attention to . . . business are all appropriate factors for a court to consider in the determination of alimony modification." (internal quotation marks omitted)).

The court may also, in its discretion, permit such discovery as it determines might be helpful to develop the relevant issues. The burden of proof remains on plaintiff to prove that changed circumstances impair his ability to pay the amount of alimony he agreed to pay. If plaintiff prevails on the merits of his application, the trial court has discretion to order modification of alimony retroactive to the date of the original motion, or any date deemed appropriate under all the circumstances.

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

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A-0128-09T3

August 31, 2010