Certo v. Certo, 091120 NJSUP, A-2004-18T2
| Opinion Judge | PER CURIAM. |
| Party Name | JODIE A. CERTO, Plaintiff-Appellant, v. ANTHONY C. CERTO, Defendant-Respondent. |
| Attorney | David Perry Davis, attorney for appellant. Stephanie Jill Zane argued the cause for respondent (Archer & Greiner, PC, attorneys; Stephanie Jill Zane, of counsel and on the brief). |
| Judge Panel | Before Judges Moynihan and Mitterhoff. |
| Case Date | September 11, 2020 |
| Court | New Jersey Superior Court |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically June 1, 2020
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-1025-05.
David
Perry Davis, attorney for appellant.
Stephanie Jill Zane argued the cause for respondent (Archer & Greiner, PC, attorneys; Stephanie Jill Zane, of counsel and on the brief).
Before Judges Moynihan and Mitterhoff.
PER CURIAM.
In this post-judgment matrimonial matter, plaintiff Jodie A. Certo appeals from a January 2, 2019 order that, in part, denied her requests to extend defendant Anthony C. Certo's limited duration alimony obligation and compel defendant to pay child support arrears. After plaintiff developed health problems, she moved to extend the duration of alimony, asserting she was entitled to relief under Rule 4:50-1 and N.J.S.A. 2A:34-23(c). She also sought payment for child support arrears, as several years after the parties' divorce, defendant unilaterally began paying reduced child support without seeking a court order, after the parties' son began living with him.
In declining to extend the duration of alimony, the judge concluded that plaintiff failed to demonstrate relief was warranted under Rule 4:50-1. As to the issue of child support, he determined that because defendant incurred substantial expenses to care for the parties' son in addition to paying part of the child support, it would be inequitable to require him to pay the balance of the child support obligation. Having reviewed the record and in light of the applicable law, we conclude that when considering the alimony issue, the judge neglected to consider and make findings concerning plaintiff's alternative request for relief under N.J.S.A. 2A:34-23(c). Accordingly, we remand to allow the judge to make findings under the statute. Additionally, we reverse the judge's decision denying plaintiff child support arrears.
We discern the following facts from the record. Plaintiff and defendant were married on October 11, 1992. Two children were born of the marriage: a son, born in 1993, and a daughter, born in 2000. During the marriage, defendant worked outside the home, while plaintiff cared for the children, both of whom had health needs requiring special attention.
Plaintiff filed for divorce on January 9, 2004. The marriage was formally dissolved pursuant to a dual final judgment of divorce (JOD) dated February 28, 2006, which incorporated a comprehensive property settlement agreement (PSA) dated November 30, 2005 and effective January 1, 2006. The PSA required defendant to pay limited duration alimony of $2515 per month for twelve years, with the term expiring in January 2018. The PSA included an anti-Lepis[2] provision, providing that "this term cannot be extended under any circumstances, despite any possible changed circumstances, any right, claim or entitlement each may have or in the future acquire, to receive alimony from the other." The PSA further provided that alimony could not be modified after plaintiff obtained employment, and neither party would be entitled to modification, regardless of a change in income, unless defendant lost his job. Plaintiff later explained she did not seek permanent alimony because she planned to pursue a career that would allow her to become self-sufficient. In terms of child support, the PSA required defendant to pay $2000 per month, terminating upon the children's emancipation.
After the divorce, plaintiff attended Mercer County Community College and graduated as a radiologic technologist. Thereafter, she began working at Capital Health Center at Hamilton. Plaintiff was optimistic about building her career, but her plans changed in 2008, when she was diagnosed with Progressive Systemic Sclerosis (PSS), a condition involving excess calcium buildup in the joints and hardening of the skin and tissue. Plaintiff certified that she was subsequently diagnosed with Raynaud's disease and then suffered from several other health problems, including Fibromyalgia, which were believed to be related to her PSS diagnosis. Since her PSS diagnosis, plaintiff has been out of work. Early on, she began working toward obtaining a psychology degree, believing the profession would require fewer physical demands, but her pain and limited movement abilities prevented her from achieving the necessary degree.
Meanwhile, during 2012, the couple's son moved in with defendant. In December 2012, defendant began making monthly child support payments of $1700, and in either January 2015 or January 2016, he began making even further reduced monthly payments of $1000. Defendant reasoned that lower child support was warranted as he was then supporting the son, which included paying significant medical expenses, and he did not seek contribution from plaintiff. However, none of these reductions were pursuant to court order. Plaintiff later explained that she had accepted the lower payments because she was unaware that the reductions were improper. Subsequently, her counsel contacted defendant and requested that he comply with the PSA's child support terms. Defendant agreed, and on January 10, 2018, he wrote plaintiff a check for $26, 020.3
On November 8, 2018,...
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