MARLEENA OLSSON VS. JOHN ROMEO (FM-03-0674-18, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4566-19
MARLEENA OLSSON
(f/k/a MARLEENA
ROMEO),
Plaintiff-Respondent,
v.
JOHN ROMEO,
Defendant-Appellant.
_______________________
Submitted September 13, 2021 – Decided September 24, 2021
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-0674-18.
Berg & Pearson, PC, attorneys for appellant (Michael
H. Berg, on the briefs).
Patricia Ronayne, PC, attorneys for respondent (Jaclyn
Kusmaul, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant John Romeo appeals
from an August 21, 2020 Family Part order denying his motion to terminate
alimony; reducing his alimony obligation from $1200 per week to $150 per
week; and denying his request to suspend payments pending a decision on his
Social Security Disability (SSD) application. Defendant also appeals the judge's
decision granting plaintiff Marleena Olsson's cross-motion designating her as
the beneficiary of defendant's retirement accounts up to the amount of $380,000
in order to secure his alimony obligation. We affirm.
I.
The following facts are derived from the record. The parties married in
November 1997, divorced in November 2018, and have two emancipated
children. In their property settlement agreement (PSA) incorporated into the
dual final judgment of divorce (FJOD) on November 15, 2018, defendant agreed
to pay open durational alimony of $1200 per week to plaintiff after the former
marital home was sold. The PSA provided that defendant was self-employed,
operating RomeoPhoto, LTD (RomeoPhoto),1 with a stipulated gross annual
income of $200,000. RomeoPhoto was established in 1989 and specialized in
1
RomeoPhoto is referred to as RomeoPhoto, LTD and Romeo Photography,
LTD interchangeably throughout the record. We refer to the business as
RomeoPhoto.
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commercial photography. For purposes of calculating alimony, plaintiff was
imputed a gross annual income of $25,000. Defendant agreed to maintain his
life insurance policy with a death benefit of $120,000 naming plaintiff as the
beneficiary and designating her as the beneficiary for the full value of his
retirement accounts to secure his alimony obligation since the life insurance
coverage was insufficient to cover the total alimony obligation . At the time the
FJOD was entered, defendant was fifty-four years old, and plaintiff was fifty-
one years old. Article I, Section J, paragraph twelve of the PSA provides in
pertinent part: "[Defendant's] alimony obligation shall . . . be subject to review
based upon a substantial change of circumstances."
Following the parties' divorce, defendant was diagnosed with various
medical conditions. On February 12, 2020, defendant applied for SSD benefits
and was found eligible to receive benefits beginning in June 2020. Since March
26, 2020, defendant has been on continuous oxygen therapy and asserted he can
no longer work "due to his physical limitations." On July 16, 2020, defendant
filed a post-judgment motion seeking to terminate his alimony obligation or
alternatively, a temporary suspension of his alimony payments and obligations
to secure alimony under the PSA, and for counsel fees.
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Defendant argued that his alimony obligation should be terminated or
suspended retroactive to December 6, 2019, the date he was deemed disabled
and therefore eligible for long-term disability benefits by his private insurer,
Northwestern Mutual. He also claimed his last RomeoPhoto project ended in
early December 2019. The business was dissolved, and defendant certified he
was being evicted from his residence and his studio.
On August 3, 2020, plaintiff filed opposition to defendant's motion and a
cross-motion for enforcement of his obligation to pay $1200 per week in
alimony or alternatively, for a modification of the alimony amount if the judge
found a sufficient basis to suspend payments. In her certification in opposition
to defendant's motion and in support of her cross-motion, plaintiff asserted that
his application was "premature" because he did not present any evidence
confirming his ailment is "permanent."
Plaintiff also contended defendant "has not established that he is
completely unable to work in any capacity" and defendant can earn $14,640
annually without jeopardizing his disability benefits. According to plaintiff, the
alimony arrearages were $21,600, and she certified that defendant transferred
$68,613.99 to his girlfriend in Italy. In addition, plaintiff cross-moved to be
designated as the beneficiary of defendant's retirement account, up to the sum
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of $380,000, in order to secure the alimony obligation. Plaintiff did not seek
discovery and neither party requested a plenary hearing.
The judge heard oral argument on August 21, 2020, and issued his order
and written statement of decision later that day. In his detailed order and
decision, the judge found "a complete termination of [d]efendant's alimony
obligation is [not] appropriate given the parties' agreement providing for open
durational alimony." The judge determined that defendant established a
substantial change of circumstances because as of June 2020, he began receiving
SSD benefits of $3,030.80 per month and long-term disability payments of
$4775 per month or $4,409.71 (after the social security automatic withdrawal)
from Northwestern Mutual effective December 6, 2019.2 Applying offsets, the
judge concluded defendant's income is now $57,300 per year, and that in 2019,
plaintiff earned $31,646.
Based on the record presented, the judge emphasized that defendant's
business is "now permanently closed"; he has no other current sources of
income; neither party can maintain the marital lifestyle; and defendant's alimony
obligation should be modified, not terminated. The judge addressed the
2
Defendant's long-term disability payments from Northwestern Mutual were
reduced by his SSD payments.
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modification of alimony issue by self-employed persons governed by N.J.S.A.
2A:34-23(l), which states:
When a self-employed party seeks modification of
alimony because of an involuntary reduction in income
since the date of the order from which modification is
sought, then that party's application for relief must
include an analysis that sets forth the economic and
non-economic benefits the party receives from the
business, and which compares these economic and non-
economic benefits to those that were in existence at the
time of the entry of the order.
The judge explained that both parties "[are] not able to maintain a standard
of living reasonably comparable to the standard enjoyed during the marriage,"
citing Crews v. Crews, 164 N.J. 11, 28 (2000). Based upon the parties'
matrimonial case information statements (CIS), the judge found defendant
reported monthly expenses of $10,408 and plaintiff's CIS reported monthly
expenses of $6035. In light of these circumstances, the judge reduced
defendant's alimony obligation from $1200 per week to $150 per week
retroactive to the filing date of his motion, without prejudice to plaintiff's right
to file a motion to modify the revised alimony award in the event defendant's
"health improves in the future." The judge granted defendant's request to
terminate his life insurance obligation to secure alimony payments.
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With regard to plaintiff's cross-motion, the judge granted her application
to require defendant to designate her as the beneficiary of his retirement amounts
up to $380,000 in order to secure his alimony obligation. In considering both
parties' requests for counsel fees, the judge considered the factors under N.J.S.A.
2A:34-23, Rules 4:42-9(a)(1) and 5:3-5(c), and RPC 1.5(a). He concluded "the
[c]ourt has not been presented with sufficient evidence to establish that either
party acted in bad faith" and found no counsel fees should be awarded. A
memorializing order was entered.
On appeal, defendant challenges the judge's order denying his application
to terminate alimony and directing that he secure the alimony obligation with
his retirement account monies.
II.
Our scope of review of Family Part orders is limited, as we accord
deference to the family courts due to their "special jurisdiction and expertise in
family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the
judge's findings are binding so long as its determinations are "supported by
adequate, substantial, credible evidence." Id. at 411-12. A "[motion] judge's
legal conclusions, and the application of those conclusions to the facts, are
subject to our plenary review." Spangenberg v. Kolakowski, 442 N.J. Super.
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529, 535 (App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568
(App. Div. 2013)).
An agreement and order to pay permanent or open durational alimony are
"subject to review or modification by our courts based upon a showing of
changed circumstances." Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.
2004) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)); see also N.J.S.A.
2A:34-23 (providing support orders "may be revised and altered by the court
from time to time as circumstances may require"). "The party seeking
modification has the burden of showing such 'changed circumstances' as would
warrant relief from the support or maintenance provisions involved." Lepis v.
Lepis, 83 N.J. 139, 157 (1980) (citation omitted). Only after the party seeking
modification has satisfied its burden will the court consider the second prong
under Lepis, whether "changed circumstances have substantially impaired the
ability to support himself or herself." Crews, 164 N.J. at 28 (citing Lepis, 83
N.J. at 157).
A permanent involuntary decrease in a supporting spouse's income
typically constitutes a "changed circumstance" permitting a modification or
termination of alimony. Innes v. Innes, 117 N.J. 496, 504 (1990); see also
Petersen v. Petersen, 85 N.J. 638, 643 (1981) (holding a change in an obligor's
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income typically warrants modification of alimony). The court must determine
"whether the change in circumstance is continuing and whether the agreement
or decree has made explicit provision for the change." Lepis, 83 N.J. at 152.
"Temporary circumstances are an insufficient basis for modification" or
termination of an alimony obligation. Innes, 117 N.J. at 504 (citing Bonanno v.
Bonanno, 4 N.J. 268, 275 (1950)).
Defendant first argues that the judge abused his discretion by finding the
submissions supporting his motion did not establish a permanent change of
circumstances necessary to terminate his open durational alimony obligation.
According to defendant, he presented "substantial evidence" of his inability to
work, as evidenced by being eligible for SSD and private long-term disability
benefits. He claims Dr. Kathleen M. Biblowitz of the Jefferson Pulmonary
Institute opined that his CT scan "shows irreversible damage" to his lungs and
his use of supplemental oxygen prohibits him from performing "gainful work
activities." Defendant has been receiving treatment for his condition since 2019
and he contends he "lives with a constant fear of dying" in light of the
coronavirus.
We find no abuse of discretion in the judge's denial of defendant's motion
to terminate alimony. Defendant does not dispute it was his burden to present
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competent evidence of a permanent change in circumstances establishing a
prima facie entitlement to termination of his alimony obligation. See, e.g.,
Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010). He argues
plaintiff's counsel acknowledged on the record that defendant "satisfied the
change of circumstances prong" under Lepis, but he contends that under the
second prong of the analysis, the judge erred by determining defendant had the
ability to pay the reduced amount of $150 per week. See generally Lepis, 83
N.J. at 157-59.
The judge's careful scrutiny and well-reasoned analysis of the reports,
certifications, CIS's, and documents submitted with the motion and cross-motion
support his conclusion that defendant has the ability to pay $150 per week in
alimony under N.J.S.A. 2A:34-23(l), given the disparities in the parties' current
income levels. The judge highlighted that "[b]oth parties are experiencing a
monthly shortfall based on their current [] monthly expenses." Based upon the
substantial credible evidence in the record, the judge was correct in his analysis.
Defendant did not sustain his burden under Lepis to terminate his alimony
obligation under either prong.
We next reject defendant's contention that the judge erred by requiring
defendant to continue to designate plaintiff as his beneficiary for the full amount
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of his retirement accounts up to $380,000. In Article I, Section H, paragraph
ten of the PSA, the parties agreed to secure defendant's alimony obligation with
his retirement accounts because there was an insufficient amount of life
insurance in place. A Family Part judge can order an obligor spouse to maintain
life insurance, or other assets, for the protection of a former spouse. Jacobitti v.
Jacobitti, 135 N.J. 571, 580 (1994); Davis v. Davis, 184 N.J. Super. 430, 439
(App. Div. 1982). "The requirement that defendant obtain life insurance on his
life or create a trust fund to guarantee future alimony payments is appropriate
and plainly within the broad authority conferred upon a judge in a matrimonial
action . . . ."
The post-judgment order is consistent with the JOD, and defendant
provides no evidence of error. Moreover, we cannot overlook the fact that
defendant prevailed on his motion to terminate his life insurance obligation to
plaintiff. We find no abuse of discretion in these rulings and affirm.
III.
We review a trial court's order concerning attorneys' fees under an abuse
of discretion standard. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div.
2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). N.J.S.A. 2A:34-
23 authorizes family courts to award counsel fees in a matrimonial action and
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"further requires the judge consider the factors set forth in the court rule on
counsel fees, the financial circumstances of the parties, and the good or bad faith
of either party." Mani v. Mani, 183 N.J. 80, 94 (2005) (quoting N.J.S.A. 2A:34-
23). Rule 5:3-5(c) states that a court should consider nine factors, including the
"reasonableness and good faith of the positions advanced by the parties."
The judge here referenced the factors enumerated in the court rules and
found that those factors did not support an award of counsel fees. He also
concluded that neither party acted in bad faith. We discern no abuse of
discretion in the judge's determinations. Both parties asserted various claims in
these post-judgment proceedings, with varying degrees of success. The record
does not reflect that either party pursued any claims in bad faith.
To the extent defendant's brief raises any additional arguments, they lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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