AMELIA P. CANTELME v. LOUIS J. ARCHETTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1031-09T3

AMELIA P. CANTELME,1 f/k/a

AMELIA ARCHETTI,

Plaintiff-Respondent,

v.

LOUIS J. ARCHETTI,

Defendant-Appellant.

____________________________________

April 1, 2011

Submitted November 17, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-00972-02.

Janet L. Porro, attorney for appellant (Ms. Porro and Janet S. Del Gaizo, on the brief).

Amelia P. Cantelme, respondent pro se.

PER CURIAM

Defendant Louis Archetti appeals from an order of the Family Part denying his motion for a downward modification of his alimony and child support obligations to former wife and plaintiff, Amelia Cantelme. Defendant argues that due to changed circumstances, including his loss of employment and plaintiff's increase in salary and altered standard of living, a downward modification is warranted. We reverse and remand for further proceedings.

The parties were married in 1971 and divorced in 2002. At the time defendant filed his motion, the only child born of the marriage, a daughter, was twenty-two years old and an unemancipated college student. Pursuant to a Property Settlement Agreement (PSA) the parties executed on October 28, 2002 and incorporated into the Final Judgment of Divorce, defendant was required to pay plaintiff permanent alimony in the amount of $1436.20 per month and $747.50 per month in child support based on the parties' respective 2002 annual incomes of $80,000 for defendant and $16,000 for plaintiff. Both parties acknowledged that they would be able to maintain a lifestyle reasonably comparable to that which they enjoyed during the marriage based on the alimony and equitable distribution of the marital assets.

On September 22, 2008, defendant was laid off from his union job in New York where he had been employed as a sheet metal worker for over thirty years. Defendant received $405 per week in unemployment benefits from the State of New York, as well as $125 per week in supplemental unemployment benefits from his union. His union benefits terminated at the same time as his State benefits in August 2009. As of June 30, 2009, his union no longer paid his medical insurance premiums. Consequently, he purchased COBRA coverage for himself and his daughter.

On July 21, 2009, defendant filed a motion seeking, among other relief, a reduction or termination of alimony and child support based on changed circumstances. On August 28, the court conducted an initial hearing. The motion judge denied defendant's application without prejudice and suggested that he re-file the motion after showing more effort in finding employment outside his field. The court acknowledged that "[i]t's impossible for a gentleman [who is] 59 [who is] doing physical labor to get a new job in that type of a situation[,]" namely, earning over $45 per hour as a union sheet metal worker.

On September 25, at a second hearing, defendant testified about his efforts to find employment not only in union shops, but also in other places outside of his field, including in retail, construction, carpentry, welding, and in the service industry. However, the motion judge once again denied his motion, finding that defendant had not done enough to warrant a modification of his support obligations. The court indicated that defendant should file another motion once he could demonstrate that he had put forth diligent efforts to secure employment, or if he in fact found another job, the court would consider a reduction retroactive to the initial filing date of July 21, 2009. The present appeal followed.

"Each and every motion to modify an alimony [and child support] 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 v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341 (1956)); see also Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such findings are entitled to great deference and will only be overturned if the court is "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, however, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).

An initial alimony award is calculated based on the lifestyle to which the supported spouse has become accustomed during marriage and is set at a level that will best allow the supported spouse to continue to live at that same level. Crews v. Crews, 164 N.J. 11, 24-25 (2000). Once the alimony awards are set, the supported spouse should "receive continued enforcement without modification only so long as they remain fair and equitable." Lepis v. Lepis, 83 N.J. 139, 149 (1980).

A court may modify an alimony award if it finds a change in circumstances. Innes v. Innes, 117 N.J. 496, 503 (1990); N.J.S.A. 2A:34-23. General factors that courts must consider in determining whether modification is proper include "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Lepis, supra, 83 N.J. at 152. Accordingly, a decrease in the financial resources or income of the supporting spouse may qualify for a change in circumstances warranting modification of a support order. Martindell, supra, 21 N.J. at 355.

Additionally, a change in circumstances can also be established if a movant demonstrates "a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). However, where a modification of child support is sought, the guiding principle is the "best interest of the [child]." Lepis, supra, 83 N.J. at 157 (quoting Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971)).

The party seeking a modification has the burden of establishing changed circumstances that would warrant such relief. Ibid. The moving party must first present a prima facie case of changed circumstances, and if this burden is met, courts may then order further discovery of the parties' financial statuses. Ibid. A determination is then made as to whether changed circumstances have "'substantially impaired'" the moving party's ability to "support himself or herself." Crews, supra, 164 N.J. at 28 (quoting Lepis, supra, 83 N.J. at 157).

Here, defendant's income had substantially decreased, as he had been unemployed for nearly one year at the time he filed his motion. On the other hand, plaintiff's income had doubled since the parties executed the 2002 PSA. Based upon this record, we are satisfied defendant established a prima facie showing of changed circumstances sufficient to warrant an order directing the exchange of discovery and, if necessary, further proceedings. Lepis, supra, 83 N.J. 157.

The motion judge made no express finding of fact as to whether defendant's unemployment was temporary or permanent. Innes, supra, 117 N.J. at 504 (noting that temporary changes in circumstances are an insufficient basis for modification of support obligations). Rather, the judge simply denied modification, expressing only her dissatisfaction with defendant's effort to find other employment. However, she failed to make specific findings as to why she rejected his explanation of the efforts he undertook to secure employment, or make any findings relative to plaintiff's changed circumstances, most notably her purchase of a home for which defendant claimed she was incurring expenses four times more than the living expenses incurred during the marriage. Nor did the court address the fact that plaintiff's income had doubled since the divorce.

Under Lepis, a supporting spouse is as much entitled to a reconsideration of alimony where there has been a significant change for the better in the circumstances of the dependent spouse, as where there has been a significant change for the worse in the supporting spouse's own circumstances. Stamberg, supra, 302 N.J. Super. at 42 (noting that "Lepis does not stand for the proposition that a prima facie showing of changed circumstances by an applicant must relate solely to his or her own finances"); see also Donnelly, supra, 405 N.J. Super. at 131. Having presented a prima facie case of changed circumstances, the court should have ordered the parties to exchange discovery. Upon completion of discovery, the court would then determine whether defendant is entitled to relief or whether a hearing is required to resolve genuinely disputed factual issues. Barrie v. Barrie, 154 N.J. Super. 301, 303 (App. Div. 1977), certif. denied, 75 N.J. 601 (1978) (holding that plenary hearing is not necessary where genuinely disputed issues of fact are not presented).

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

1 Also spelled Cantame in the record.