Man’s End-Of-Life Situation Did Not Give Rise To Alimony Termination
- March 27, 2015
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Rizzolo v. Jones is a New Jersey Appellate Division case in which the Plaintiff appealed from a Family Court denial of his post-judgment Motion to modify or terminate his alimony obligation to the Defendant due to his severely ill health. The Appellate Court reversed the decision of the Family Court. Whether or not an alimony award can be modified is “based upon a claim of changed circumstances . . . . ” Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Such determinations will not be overturned “unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.” Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). The parties in this case were married in 1982, were separated in 1989, and divorced in 2006. The Plaintiff was 58 years old and the Defendant was 38 years old when they got married. The judge who heard their divorce trial concluded that the Plaintiff, who was “in remarkably good health” at 84, had worked as an attorney for 50 years and was entitled to retire. Although the parties had not lived together for many years at the time of their divorce, the Plaintiff had continued to support the Defendant. The judge concluded that based upon this fact that the parties had a long term marriage and the Defendant was entitled to permanent alimony. The judge awarded the Defendant $300 a week in alimony. The Plaintiff was 89 years old and in ill health when he submitted a Motion to the court to terminate his alimony obligation. He was suffering from prostate cancer, renal failure, and a bone infection at the time. The Family Court found that the Plaintiff had established a prima facie case of changed circumstances and ordered discovery. Miller v. Miller, 160 N.J. 408, 420 (1999). Relying on Miller, Donnelly v. Donnelly, 405 N.J. Super 117, 130-31 (App. Div. 2009), and Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991), all which stand for the proposition that a supporting spouse cannot choose to remain in a position of diminished earning capacity and ignore the obligations of support to one’s family, the court found that the Plaintiff did not do enough to meet his alimony obligation because he was a veteran entitled to veteran’s benefits and he could have entered himself into a VA facility to address his health needs instead of paying for a relative to care for him at home. The Plaintiff appealed. The Appellate Court agreed with the Plaintiff’s argument that no evidence was presented by the Defendant that a bed was ready and available at the VA facility or that the quality of care at the facility compared in any way to the care he was already receiving. The court held that it was not aware of any published cases suggesting that the Plaintiff should have prepared to justify his choice to remain at home receiving end-of-life care instead of entering into a VA facility so that he could maintain his alimony obligation. Further, the analysis in the Miller, Donnelly, and Aronson cases do not deal with end-of-life care questions as was pivotal in this case. Therefore, the decision to modify alimony turns on what is equitable and fair upon consideration of all circumstances of both parties. Lepis v. Lepis, 83 N.J. 139, 158 (1980). Therefore, the court reversed the decision of the Family Court. This being the case, the court held that the Family Court, on remand, may conclude that it is equitable to require the Plaintiff to enter a VA facility against his will to ensure that he meets his alimony obligation until his death. Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992). Being that the laws governing the issues involving alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.