Alimony Undiminished for Dying Payer

March 22, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Warning: The following story may be hazardous to your blood pressure.

Currently in Florida, as in other states, there’s a move afoot to make alimony laws more reasonable. In part that means doing away with permanent alimony. I’ve written about alimony before, but mostly in a rather abstract vein. My take is that, in an era in which men and women can both support themselves, it’s not sensible to require one adult to support another adult who otherwise wants nothing to do with him/her. My objection is, with exceptions, to the very existence of alimony.

But this case isn’t at all abstract; it’s all too real (Justicia, 3/2/15). As such, it puts a bit of flesh on the bones of my previous posts. This is the grim reality of permanent alimony. ‘Permanent’ alimony means exactly that. The payer literally goes to his/her grave supporting a disliked and unwanted ex.

Victor and Barbara Rizzolo married in 1982 when he was 58 years old and she was 38. They separated in 1989 but didn’t file for divorce until 2006. That 17-year hiatus between separation and divorce was, I suspect, Victor’s undoing. Their divorce was finalized in 2008. The final order divided their property “equitably” and required Victor to pay Barbara $300 per week in alimony.

At the time, Victor had practiced law for 50 years and the $300 was $100 less per week than he’d been paying Barbara voluntarily since 1989. So, at the time of the original order, it seems likely that Victor’s alimony obligation wasn’t too onerous.

But then things changed for the worse for him and, based on those changed circumstances, in 2013, he asked the court to modify or terminate his alimony payments. The trial court agreed that his circumstances had changed, as I suspect pretty much anyone would.

Plaintiff was eighty-nine and in failing health when he made his motion to terminate defendant’s alimony. He suffered from advanced prostate cancer, acute renal failure and osteomyelitis, a bone infection arising from a combat wound to his left knee suffered in World War II…

Plaintiff’s son testified that plaintiff had come to live with him following plaintiff’s hospitalization and nearly a three-month stay in a rehabilitation facility brought on by plaintiff’s inability to care for himself. Because he lived alone and worked full-time, plaintiff’s son testified he had to hire a full-time caregiver for his father, to whom he paid $1000 a week. When he hired the caregiver, he had to stop his father’s alimony payments to defendant, and to his mother, plaintiff’s first wife, in order to pay for his father’s care…

[The court] found plaintiff’s income was limited to a Veteran’s Administration disability payment and Social Security totaling $5200 a month, and that he was without income producing assets. The court accepted that plaintiff’s health was poor, finding the hospice care he was receiving to be "indicative of a person with less than six months to live." The court concluded that plaintiff’s "economic demise" was permanent and not of his own making.

In short, Victor was apparently on the verge of death from multiple illnesses, conditions and the complications thereof. He was unable to care for himself, relying on his son and a caregiver to see to his needs. He had no assets. His sole income was from his veteran’s pension and social security. That was insufficient to meet his needs and pay alimony too. So what did the court rule?

After hearing the testimony, the court issued a written opinion denying plaintiff’s motion.

That’s right. A man who had served his country in World War II and whose war injury there was still with him some 68 years later, a man with six months to live and no assets was deemed fully capable of continuing to support his ex-wife who hadn’t deigned to live with him for the last 24 years.

How so? The court, relying on several precedents ruled that Victor “had not done all he could to continue to meet his alimony obligations.” It ruled that, because he was a veteran, Victor could check himself into a Veterans Administration nursing home to live out his remaining days instead of living at home with his son. Doing so would have saved the cost of the caregiver which then could be paid to his ex-wife.

Of course Victor and his son had already tried that, about which his son testified to the trial court.

Plaintiff’s counsel: [Has] your dad… ever expressed a wish to go on to some sort of institutionalized care?

Plaintiff’s son: The exact opposite.

Plaintiff’s counsel: He wants to stay at home?

Plaintiff’s son: To stay at home. He begs me not to… let him go back into a nursing home. He calls them worsening homes.

….

Defendant: Is your father a hundred percent disabled from the VA?

Plaintiff’s son: Yes.

Defendant: [H]ave you at any time considered that he might be better off going there?

Plaintiff’s son: Into their nursing home?

Defendant: Yes.

Plaintiff’s son: No. I checked it out. It’s not bad as nursing homes go. But, no. Mentally, he would not be better there, by far. And — and, physically, he’s getting his needs taken care of at home. And he’s going to continue to get them [taken care of], as long as he lives… with me.

Like most people, Victor Rizzolo wanted to die at home with loved ones and not in some sterile, impersonal institution. He’d supported his ex out of the goodness of his heart from 1989 to 2006 and by court order since then. But when he was near to death and wanted nothing more than to die at home, the court and New Jersey alimony law wouldn’t allow it. And of course his ex hadn’t the decency to finally say “enough, I don’t need any more.”

But apart from the astonishing callousness of the trial court, what’s interesting about the case is that the behavior of the recipient spouse apparently has nothing to do with the award of spousal support.

Relying on Miller, supra, 160 N.J. at 423, 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 standing for the proposition that a supporting spouse cannot choose to remain in a position of diminished or non-existent earning capacity and ignore the obligations of support to one’s family, the court found that plaintiff had not done all he could to continue to meet his alimony obligations.

I’m going to assume that the trial court, for all its inhumanity to a dying man, could figure out that Victor Rizzolo did not “choose to remain” suffering from “advanced prostate cancer, acute renal failure and osteomyelitis.” I may be wrong.

But isn’t it odd that, while a payer of alimony may not, under New Jersey law, “choose” to earn less than he/she is capable of, the recipient thereof is under no such obligation? Although the appellate court’s opinion isn’t completely clear on the subject, it appears that Barbara has never worked for pay since the two were married in 1982. Not a day.

The parties had not lived together for a long time, but plaintiff continued to support defendant, who was not employed, and pay all of the household expenses for their homes in New Jersey and Florida, which defendant used exclusively, throughout the long period of their separation.

Yes, not only had Victor paid alimony to Barbara from 1989 to 2013, he’s also paid all the expenses of two houses that she had exclusive use of. And during all that time, Barbara, who is 20 years his junior, never lifted a finger to contribute to her own support. When they separated, she was 45 years old. Did she attempt to find work? Did she go to school to improve her job qualifications? Did she submit an application for employment any time anywhere?

If she did, neither the trial nor the appellate court saw fit to mention it. And I suspect that’s because whether she did or didn’t do any of those things is legally irrelevant. According to the cited cases, whether Victor was voluntarily un- or underemployed is of great legal importance. But Barbara’s choice to remain unemployed isn’t.

But that’s not all. Recall that when their divorce was finalized in 2008, the court divided their assets “equitably.” In the event, that meant that she got the two houses that were valued at $650,000. Would it not have been possible for her to sell one of those and use the proceeds to help with her own support? Or perhaps she could have placed one for lease and realized the income.

She did neither and wasn’t required to. Had she “done all she could” to support herself? Apparently she’d done nothing at all, and yet her behavior merited a mere four words in the appellate court’s decision.

Victor appealed the ruling of the trial court and, in what looks more like an act of mercy than a legal ruling, the appellate court reversed the trial court and remanded the case for further evidentiary hearings. It didn’t reverse the trial court because the judge was wrong on the law, but only because he/she ruled without a complete record.

Although we acknowledge the thoughtful consideration the trial court gave this difficult case, we conclude that there is insufficient competent evidence in the record to support its decision refusing to modify or terminate alimony.

That looks very much like a court that recognizes that the trial court was right on the law but that the law produced a plainly unjust result. I suspect that the appellate judges knew that Mr. Rizzolo hadn’t long to live and so simply drew out the proceedings to allow him to die in peace and at home. If so, good for them.

Whatever motivated the judges, the Victor Rizzolo case shouts “J’accuse!” to all those who seek to justify the unjustifiable – permanent alimony. Wherever there is permanent alimony there are cases like Victor Rizzolo’s. There are ex-spouses who have paid and paid and paid and paid to support adults who despise them and who would never dream of supporting themselves. Death is the only respite these people have from the obligation to pay; the grave is their only rest.

The law on permanent alimony is a disgrace.

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