Piccione v. Piccione
| Decision Date | 23 February 2021 |
| Docket Number | DOCKET NO. A-5086-18 |
| Parties | GALE L. PICCIONE, Plaintiff-Respondent, v. CHARLES S. PICCIONE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-0304-08.
William E. Mandry, attorney for appellant.
Florio Perrucci Steinhardt Cappelli Tipton & Taylor, LLC, attorneys for respondent (Donald E. Souders, Jr., of counsel and on the brief).
In this post-judgment matrimonial matter, defendant Charles S. Piccione appeals from a Family Part order denying his motion to terminate his permanent alimony obligation to his former spouse, plaintiff Gale L. Piccione.1 Based on our review of the record, we are convinced the court correctly determined defendant failed to present sufficient competent evidence establishing a permanent substantial change in circumstances warranting a hearing on his application for termination of his alimony obligation. We therefore affirm.
Plaintiff and defendant married in 1976 and divorced in 2008. Their dual judgment of divorce incorporates a property settlement agreement requiring that defendant pay plaintiff permanent alimony of $2,500 per month. The agreement also provides for modification of alimony "upon [a] significant change in circumstances as same is then-defined by applicable law." At the time of the parties' divorce, defendant was employed as a lineman for Jersey Central Power & Light Company, and, under the property settlement agreement, it was "assumed that [defendant] earn[ed] or [was] presently capable of earningapproximately $125,000[] per year and [plaintiff was] capable of earning $34,000[] per year."
In May 2019, defendant moved to terminate his alimony obligation.2 He claimed his circumstances had substantially changed since the 2008 property settlement agreement established his monthly support obligation. In support of the motion, he submitted a May 1, 2019 certification and a certification of his counsel, both of which annexed multiple exhibits, including medical records and reports from defendant's medical care providers and psychologist, and correspondence from his employer's Workers' Compensation insurance carrier.
In his certification, defendant stated that on November 6, 2018, he was electrocuted and sustained injuries while performing his job duties. Defendant averred that, as a result of his injuries, he had "excruciating pain in [his] left arm" and underwent "a surgical distal tendon repair to [his] left arm" on December 14, 2018. Defendant noted he was also scheduled for a May 17, 2019 "carpal tunnel surgery on [his] left arm due to nerve damage from the electrocution." He further explained he had been going to weekly physicaltherapy since the accident, had been "unable to work and ha[d] not worked since the . . . accident," and that his only source of income since the accident was a weekly $903 Workers' Compensation benefit.
Defendant asserted "[t]he time frame" for his return to work was "unclear," and that one of his doctors, Dr. Eugene Cullen, stated he is "permanently" disabled. Defendant claimed his inability to work and the concomitant reduction in his income "constitute[] a serious change in circumstances" justifying termination of his permanent alimony obligation.
Defendant also listed the names of physicians treating him for the physical injuries he claimed were caused by the accident. He further noted he was being treated by a psychiatrist, Dr. Sanjeevani Jain, for anxiety, depression, and post-traumatic stress disorder.
The exhibits annexed to defendant's and his counsel's certifications include an April 10, 2019 handwritten note from Dr. Cullen stating that "[d]ue to traumatic brain injury, [defendant] is permanently disabled and thus qualifies for a handicapped placard." Defendant also relied on a June 14, 2019 handwritten note from Dr. Cullen stating No additional medical records or documentation were provided concerning Dr. Cullen's findings.
In support of his motion, defendant also relied on medical reports from orthopedist Dr. Frank J. Corrigan that summarized defendant's injuries and treatment, stated defendant suffered a left distal biceps tendon rupture in his left arm, and explained that surgery to treat the rupture was discussed with defendant. The records reflect defendant opted to proceed with the surgical repair of the tendon. In his records, Dr. Corrigan described the physical limitations that would be imposed following the surgery, defendant's anticipated course of physical therapy, and the timing of defendant's anticipated return to full duty at work:
Dr. Corrigan performed the surgical repair of defendant's ruptured tendon on December 14, 2018. In a January 15, 2019 report, Dr. Corrigan stated he anticipated defendant's physical therapy would continue "for another 4-5 months, which is when [defendant] may be able to be released [for] full duty." Three months later, Dr. Corrigan's April 9, 2019 report indicated defendant was advised to "[c]ontinue no lifting, pushing[,] or pulling with the left arm."
Also annexed to defendant's counsel's certification was a June 6, 2019 letter from psychologist Dr. Charles J. Most, stating "that in [his] opinion, within a reasonable degree of psychological certainty," defendant "has been severely traumatized and is suffering from severe depression/anxiety and [post-traumatic stress disorder]." Dr. Most also explained defendant "is on disability and unable to work for the foreseeable future."
Plaintiff filed opposition to defendant's motion to terminate alimony, and she cross-moved to compel defendant to pay alimony arrears and for a counsel fee award. Plaintiff did not dispute that defendant had a workplace accident. She instead "question[ed] his subjective version of the event and its impact on his employability." Plaintiff challenged the accuracy of defendant's case information statement, claimed it was incomplete, and argued defendant failedto fully disclose his assets and income. Plaintiff also claimed the medical reports and records upon which defendant relied did not constitute competent evidence establishing he suffered from a disability that permanently prevented him from continuing employment. Plaintiff asserted defendant did not present competent evidence establishing a substantial change in circumstances warranting a hearing on his request to terminate alimony.
In his opposition to the cross-motion, defendant relied on the exhibits submitted in support of his motion to support his claim that he suffered from various physical injuries as a result of the accident, as well as other psychological issues. Defendant noted he had undergone the tendon rupture repair and carpal tunnel surgeries, and that Dr. Cullen required that he walk with a cane due to "problems with [his] balance." Defendant reported he suffers from tinnitus and that his left thumb and top of his hand are numb. Defendant also certified he was treating with his psychiatrist, Dr. Jain, for anger issues, anxiety, and depression, but his conditions had improved because of medication Dr. Jain had prescribed.
Defendant declared he "no longer ha[d] income coming in from" his employer, he is "physically and mentally unable to work," and he has been informed by his doctors that his injuries are permanent. He also asserted theWorkers' Compensation carrier paid him $903 per week because he "was disabled." Defendant further cited and described the medical reports and records he submitted in support of his motion, claiming the information "confirm[ed his] disability and . . . inability to work."
After hearing argument on the motions, the court entered an order denying defendant's motion to terminate his permanent alimony obligation and granting plaintiff's cross-motion to compel defendant to pay alimony arrears and for counsel fees. In a written statement of reasons accompanying the order, the court found defendant failed "to prove he is permanently disabled and unable to resume work at some level."
The court rejected defendant's reliance on the doctors' reports to establish he suffered from an injury that will permanently prevent him from resuming employment. The court found Dr. Corrigan's note stating defendant is permanently disabled did not "elaborate on the basis of [his] finding, apart from listing [defendant's] diagnoses," and that the note was otherwise untethered to "documentation to support its finding."
The court also determined the letters from the Workers' Compensation carrier did not establish a permanent disability because they "classified [defendant's] condition as a 'temporary total disability,'" and that a...
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