a-0528-13t1 david s. lodge, jr. vs. robin a. lodge

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0528-13T1
DAVID S. LODGE, JR.,
Plaintiff-Appellant,
v.
ROBIN A. LODGE,
Defendant-Respondent.
__________________________
Submitted December 9, 2014 - Decided January 12, 2015
Before Judges Reisner and Higbee.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Camden County, Docket No. FM-04-1055-12.
David S. Lodge, Jr., appellant pro se.
Ferro and Ferro, attorneys for respondent
(Nancy C. Ferro and Nancy C. Hayes, on the
brief).
PER CURIAM
Plaintiff David S. Lodge, Jr., appeals from a November 16,
2012 order, entered after a plenary hearing, denying his motion
to terminate alimony but reducing his alimony obligation.1
We
affirm.
The relevant facts and procedural history are set forth in
a written opinion issued by Judge Edward J. McBride, Jr., on
November
16,
2012,
and
in
our
prior
opinion
parties' April 8, 2004 divorce judgment.
2722-04 (App. Div. May 17, 2006).
The
parties
Throughout
were
the
married
marriage,
in
affirming
the
Lodge v. Lodge, No. A-
We add the following summary.
1972
defendant
and
was
divorced
a
in
2004.
homemaker,
while
plaintiff worked in the telecommunications industry.
At the
time of the divorce, defendant was disabled and unable to work,
while plaintiff earned a middle-class income.
Based on the
parties' circumstances at the time, alimony was set at a level
1
Plaintiff's notice of appeal also lists orders dated March 30,
2012, temporarily reducing alimony from $394 to $100; February
1, 2013, denying reconsideration but clarifying plaintiff's
obligation to apply for regular retirement benefits at age
sixty-five; March 8, 2013, denying plaintiff's cross-motion for
clarification; and September 13, 2013, denying plaintiff's
motion to modify spousal support and ordering the probation
department to review the calculation of plaintiff's support
arrears.
We
review
a
trial
court's
decision
of
a
reconsideration motion for abuse of discretion.
Palombi v.
Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010).
To the
extent that plaintiff's brief addresses those additional orders,
his arguments are without sufficient merit to warrant discussion
in a written opinion.
R. 2:11-3(e)(1)(E).
We affirm for the
reasons stated in the trial court's oral opinions of March 30,
2012, February 1, 2013, March 8, 2013, and September 13, 2013.
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that would give the parties each approximately 61% of their
respective financial need.
There is no dispute that plaintiff was laid off in August
2009 due to the economic downturn.
Plaintiff received eighty
weeks of severance pay from his former employer, but he was
unable to find another job despite his best efforts.
became physically disabled.
motion
to
terminate
or
He also
In November 2011, plaintiff filed a
modify
alimony
based
on
his
changed
circumstances.
Recognizing that plaintiff's financial circumstances had
changed for the worse, but that defendant had no income beyond
the
alimony
she
received,
the
court
temporarily
reduced
plaintiff's alimony obligation from $394 per week to $100 per
week.
Following the plenary hearing, the court made further
adjustments
to
factors
forth
set
the
alimony
in
schedule
N.J.S.A.
after
2A:34-23(b).
considering
Based
on
the
those
factors, as well as the dates on which each party had begun or
would begin receiving Social Security benefits, the court set an
alimony schedule of $100 per week from November 1, 2011 to June
1, 2012; $163 per week from June 1, 2012 to March 1, 2014; and
$81
per
defendant
week
effective
would
qualify
March
to
1,
begin
2014,
the
receiving
date
Social
on
which
Security
benefits.
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A-0528-13T1
In
arriving
at
those
figures,
the
trial
court
accepted
defendant's calculation of her living expenses as set forth in
her case information statement (CIS)2, but found that plaintiff's
CIS
expenses
were
either
significantly
overstated
unreasonable in light of his financial situation.
or
For example,
plaintiff was paying $400 per month to rent two storage lockers.
At the hearing, he admitted that most of the stored items were
things
he
no
longer
needed.
Plaintiff
also
admitted
that
various additional items listed as monthly expenses on his CIS
were, in fact, non-recurring expenses.
Contrary to plaintiff's argument on this appeal, the trial
court
did
not
require
plaintiff
pension or 401k benefits.
to
pay
alimony
out
of
his
Rather, the trial court directed that
alimony be paid from plaintiff's Social Security income.
The
trial court's opinion also addressed plaintiff's argument that
he should not have been required to pay $100 per week in alimony
during the time when his unemployment benefits had ceased and
his
Social
Security
reasoned
that
November
1,
settlement
although
2011
of
benefits
a
to
plaintiff
June
lawsuit
had
2012,
as
well
not
yet
had
no
he
as
did
begun.
regular
have
proceeds
The
court
income
money
from
from
a
from
the
workers
2
The judge noted that plaintiff did not challenge the accuracy
of defendant's CIS at the plenary hearing.
4
A-0528-13T1
compensation petition.
On the other hand, defendant had the
same financial need then as at the time of the plenary hearing
and had no income beyond alimony.
The
court
equitable"
obligation
However,
concluded
to
completely
during
by
that
making
the
it
"would
eliminate
November
"retroactive
not
be
fair
plaintiff's
2011-June
2012
adjustments"
to
time
the
or
alimony
frame.
alimony
schedule, as previously described, the court reduced plaintiff's
outstanding alimony arrears "from the current level of nearly
$13,000 to about $5,600."
Thus, while plaintiff was required to
pay approximately $2800 (seven months of alimony at $100 per
week) to which he objected, his alimony arrears were reduced by
almost $7500.
We will not disturb the trial court's decision of a Lepis3
motion, unless the court abused its discretion:
Whether an alimony obligation should be
modified based upon a claim of changed
circumstances rests within a Family Part
judge's sound discretion.
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 v. Larbig, 384 N.J. Super. 17, 21
(App. Div. 2006) (citations omitted).]
3
Lepis v. Lepis, 83 N.J. 139 (1980).
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A-0528-13T1
Moreover, in reviewing a trial court decision issued after
a bench trial, we are bound by the judge's factual findings so
long
as
they
are
supported
by
sufficient
Cesare v. Cesare, 154 N.J. 394, 412 (1998).
credible
evidence.
We owe particular
deference to the trial court's credibility determinations, and
to decisions of the Family Part due to its expertise.
Ibid.;
Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013).
On this appeal, plaintiff's brief lists the following point
of argument for our consideration:
DEFENDANT'S WILLFUL RELUCTANCE AND DEFIANCE
TO MINIMIZE HER EXPENSES AND PLAINTIFF'S
INVOLUNTARY CHANGE IN CIRCUMSTANCE WHERE HIS
EXPENSES EXCEED[] HIS INCOME SHOULD BE JUST
CAUSE
FOR
TERMINATION
OF
ALIMONY
AND
ELIMINATION OF ARREARAGES.
In arguing that point, plaintiff contends that the trial court
made a number of procedural errors in the conduct of the plenary
hearing and in several motion hearings.
He also contends that
the
inequitable,
trial
court's
alimony
decision
was
inconsistent with the 2004 divorce judgment.
without
opinion.
sufficient
R.
merit
to
warrant
2:11-3(e)(1)(E).
was
His arguments are
discussion
Judge
and
McBride's
in
a
written
decision
is
supported by sufficient credible evidence and does not
6
A-0528-13T1
constitute an abuse of discretion.
We affirm substantially for
the reasons stated in his thorough written opinion.
Affirmed.
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