I received this today from Bruce Eden.  I share his outrage with regard to this case.  I wish I knew a bit more about the history of this case, though.  Why, with her history, was she granted custody?  Evidently, the father had some money… the original award was over $3000 per month permanent alimony.  Generally, in a case like this, modification is not generally allowed, since the judges assume that the guy got some kind of consideration (property or something) to account for the agreement to the alimony.  That said, I still agree with everything Eden points about……. (full text of decision included below…

Bruce Eden said…..

It’s amazing that the NJ Appellate Division can’t figure out what egregious circumstances for noneconomic fault to eliminate alimony is:

“But we do not read the present statute nor the analogous case law to create that automatic disqualification. Rather, whether noneconomic fault constitutes “egregious circumstances” sufficient to deny or terminate alimony must be decided on a case-by-case basis. We hold that in the factual complex of this case Linda’s conduct, dreadful as it was, does not fit the Mani standard for non-economic “egregious circumstances” sufficient to deprive her of needed support. The contrary result would simply add additional punishment to her criminal conviction and incarceration.”

Amazing!!!!!  They do it for adultery, which is an egregious noneconomic fault.  What’s worse than a parent killing her child and making the other parent pay for her largesse afterwards?!?!?!

Maybe it’s time to seek impeachment of these appellate judges.

Bruce Eden, Civil Rights Director
DADS (Dads Against Discrimination)–New Jersey & New York Chapters

“Christopher certified that Linda was an active and violent alcoholic who abused and assaulted him, at times with a kitchen knife and a hammer.”

Automatic, no brainer, child custody for mother by courts in New Jersey.

http://www.judiciary.state.nj.us/opinions/a5053-05.pdf

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5053-05T1
CHRISTOPHER P. CALBI,
Plaintiff-Appellant,
v.
LINDA J. CALBI,
Defendant-Respondent.
_____________________________
Submitted January 18, 2007 – Decided
Before Judges Stern, Collester and Sabatino.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
FM-02-2855-00.
Christopher P. Calbi, appellant pro se.
Linda J. Calbi, respondent pro se.
The opinion of the court was delivered by
COLLESTER, J.A.D.
This sad case raises the issue as to whether a change of
circumstances resulting from the wrongful death of a child
caused by an alimony recipient terminates or reduces the alimony
obligation.
November 21, 2007
APPROVED FOR PUBLICATION
November 21, 2007
APPELLATE DIVISION
2 A-5053-05T1
As gleaned from the record submitted to us, the facts are
as follows. Plaintiff Christopher Calbi and defendant Linda
Calbi were married on July 26, 1986. They had two children,
both boys: Matthew, born on December 29, 1988, and D.1, born on
July 29, 1994. After fifteen years of marriage, Christopher
filed a complaint for divorce. The marriage was dissolved with
a judgment on July 25, 2001. That judgment apparently
incorporated a property settlement agreement (PSA) which awarded
physical custody of the two children to Linda and permanent
alimony of $3,183 per month. Since the record on appeal
includes neither the agreement nor the divorce judgment, we are
unaware of any agreed amount of child support and are unable to
consider whether some portion of child support is denominated as
alimony for purposes of a tax advantage to Christopher.
Christopher certified that Linda was an active and violent
alcoholic who abused and assaulted him, at times with a kitchen
knife and a hammer. Although he claims police responded to his
home on two occasions, the record before us does not reference a
domestic violence complaint or restraining order. Christopher
also said that after he moved out in September 1999, Linda
focused her violent behavior on Matthew. He states that after
1 The youngest child is referred to by initial because of his
age and this court’s policy to preserve the privacy of children.
3 A-5053-05T1
teachers or officials in Matthew’s school saw bruises on
Matthew’s arms and legs, the Division of Youth and Family
Services (DYFS) conducted an investigation, but the record does
not include the result of any investigation. Christopher
certified that Linda was involved in an automobile accident in
2002 while driving the children to school, and a police officer
at the scene told him that he believed Linda was under the
influence of alcohol. But the record is barren as to whether
Linda received a summons for driving under the influence.
Nonetheless, it is undisputed that Linda had a severe alcohol
addiction, and in September 2002 she was arrested and later
convicted of drunk driving.
Things came to a head on April 30, 2003, when Linda
overdosed on a mixture of alcohol and prescription drugs. DYFS
placed the children with Christopher while Linda attended a
residential rehabilitation center. When she left the facility,
the children remained with Christopher, but they visited with
Linda after school and overnight on weekends. Despite this
change in residential custody, it appears that there was no
reduction in support paid by Christopher.
The relationship between Linda and her son Matthew was very
strained, and they both attended therapy sessions to deal with
the problem. During an overnight visitation on Saturday, August
4 A-5053-05T1
16, 2003, the short life of young Matthew came to a violent and
tragic end. That night Matthew remained in his room at Linda’s
house watching television until he went to bed at about 11 p.m.
D. was already asleep. Linda admittedly consumed a bottle of
brandy before falling asleep, and she awoke at about 5 a.m. She
walked her dog and then turned on the television. Matthew came
downstairs about 5:30 a.m. to ask her to turn the volume down
and then went back to bed. Sometime later that morning an
argument between Linda and Matthew turned violent. Linda had
little recollection of the incident other than the fact that
Matthew bit her, but she believed Matthew’s statements that she
struck him first with her hands and then kicked him.
After the fight, Matthew called his father to say he was
hurting. He locked himself in his room and called 9-1-1 for
help. He was taken by ambulance to the Pascack Valley Hospital
emergency room where he continued to complain of pain in the
area of his neck and right shoulder. Hospital personnel
observed that the right side of Matthew’s neck was grossly
swollen, and the intensity of his pain continued to increase.
When his aunt arrived at the hospital, Matthew told her his
mother kicked him three times, twice in the head and once in the
right shoulder. A CT of his neck showed active internal
bleeding from the right subclavian artery with extensive
5 A-5053-05T1
hemorrhaging. Concerned about diagnosis and treatment in this
unusual case, emergency room doctors arranged to transfer
Matthew by Univac to Westchester Medical Center for more
specialized treatment and surgery. But the transfer was aborted
when Matthew’s pain dramatically increased. He began sweating
profusely, and his respiration became labored. An emergency
median sternotomy was performed by breaking the sternum to gain
access to the heart and lung area. About 200 cc of blood was
removed from the area around his pericardium, and another 2.5
liters of blood from his right pleural cavity. The surgery
revealed bleeding in the internal jugular and subclavian veins
and a tear in the mid subclavian artery. Although Matthew
received blood and blood products during the surgery, he bled to
death. When he did not respond to resuscitation, he was
pronounced dead at 12:50 a.m. on Monday, August 18, 2003.
An autopsy performed by the Bergen County Deputy Medical
Examiner noted severe injuries to Matthew’s neck as well as
evidence of head trauma and contusions on his torso and
extremities. The cause of death was blunt force trauma to the
neck, and his death was listed as a homicide. At the request of
the Bergen County Prosecutor’s Office, Dr. Kenneth G. Swan, a
professor of surgery at UMDNJ/New Jersey Medical School,
reviewed the information concerning Matthew’s death and
6 A-5053-05T1
concluded that he had sustained a “variant of scapulothoracic
dissociation” resulting from severe blunt trauma and traction to
the shoulder girdle. Dr. Swan explained that scapulothoracic
dissociation is an uncommon injury with fewer than sixty cases
reported since its first description in 1984 by orthopedic
surgeons. Even with proper medical attention, the result is
often amputation. He said the overall mortality rate for this
injury is about twenty percent. Survival depends upon timely
recognition of the condition and appropriate surgical
intervention. He concluded as follows:
I believe the force generated by Matthew
Calbi’s mother, Linda Calbi, in extending
her thigh upon her hip and her leg at the
knee, striking Matthew with the plantar
surface of her foot on the right side of his
neck, while at the same time immobilizing,
in her grasp, his right upper extremity, to
be sufficient to cause the injury which
resulted in his death.
After Matthew’s death, Christopher fell behind in his
alimony payments. In October 2003, two months after his son’s
death, he filed a motion to reduce or terminate alimony. The
motion was denied by the Family Part judge without prejudice to
reconsideration after criminal proceedings against Linda were
concluded. On January 24, 2006, about two and a half years
after Matthew’s death, Linda filed a motion to enforce
litigant’s rights for payment of accumulated alimony arrears.
7 A-5053-05T1
Christopher again filed a cross-motion to reduce or terminate
alimony. The Family Part judge granted Linda’s application for
payment of arrearages and directed that alimony be continued in
the same amount set in the divorce judgment. He declined to
rule on Christopher’s motion to terminate or reduce alimony
pending financial discovery and a plenary hearing.
On March 1, 2006, the Bergen County assistant prosecutor in
charge of the case against Linda wrote a letter to the Family
Part judge at Christopher’s request to advise that Linda was to
plead guilty on April 17, 2006 to second-degree aggravated
assault under N.J.S.A. 2C:12-1(b)(1) for causing serious bodily
injury to Matthew. Under the plea agreement, the prosecutor was
to recommend a sentence of three years in New Jersey State
Prison with eighty-five percent parole ineligibility under the
No Early Release Act, meaning Linda was to serve a minimum of
about thirty months. After reviewing the letter, the Family
Part judge moved up the plenary hearing date to May 10, 2006.
Christopher filed an amended motion on short notice to
permanently terminate alimony and to vacate the arrearages that
had accrued from the date of Matthew’s death.
On May 10, 2006, the judge decided that any application as
to support should await Linda’s release from prison. No
testimony was taken at that time. The judge suspended alimony
8 A-5053-05T1
while Linda was incarcerated and directed that no arrears accrue
during this time. He also held that after Linda’s release, she
could apply to reinstate alimony, and the court would determine
what spousal support, if any, was necessary. Christopher’s
request to vacate arrears was denied and he was ordered to
reduce the accumulated arrearage by paying $400 per month to
Linda’s prison account during her incarceration. Christopher
has appealed that portion of the court’s May 10, 2006 order
denying his application to terminate alimony and vacate the
arrearage as well as the provision that he must make payments to
reduce the arrearage while Linda remains in jail.
We first address the denial of Christopher’s motion to
permanently terminate his alimony obligation to Linda based on
her conduct in causing the death of Matthew. The applicable
statute states that a court may make an order for alimony or
maintenance “as the circumstances of the parties and the nature
of the case shall render fit, reasonable and just . . .” and
that such orders “may be revised and altered by the court from
time to time as circumstances may require.” N.J.S.A. 2A:34-23.
Nearly three decades ago in Lepis v. Lepis, 83 N.J. 139 (1980),
the Supreme Court reviewed the standards and procedures when
considering post-judgment modification of support orders based
on a showing of changed economic circumstances. The Court
9 A-5053-05T1
focused on maintaining the marital standard of living in the
context of a dependent spouse’s needs and the financial ability
of the supporting spouse to maintain the amount previously
ordered. Id. at 152-53. The court stated that the request of a
supporting spouse to decrease support would be granted “when
circumstances render all or a portion of support received
unnecessary for maintaining that standard.” Id. at 153. In
this case, Christopher argues that his alimony obligation should
be terminated without assessment of Linda’s needs or his ability
to pay because Linda’s wrongful actions make any alimony award
contrary to the statutory requirement in N.J.S.A. 2A:34-23 that
it be “fit, reasonable and just.”
To resolve the issue we must consider the concept of fault
and how it relates to an award of alimony or its modification.
Marital fault is excluded as a consideration in an award of
equitable distribution of marital property. Chalmers v.
Chalmers, 65 N.J. 186, 193 (1974). It is also not a
consideration in determining the amount of child support. Ionno
v. Ionno, 148 N.J. Super. 259, 260-62 (App. Div. 1977). And,
unless fault is independently determined to be proof of parental
unfitness, it is not determinative of custody. Fantony v.
Fantony, 21 N.J. 525, 538 (1956). However, fault has
historically played a role in the award or denial of alimony.
10 A-5053-05T1
See generally, Skoloff & Cutler, New Jersey Family Law Practice,
§ 5.3A(6), at 5:75 (12th Ed. 2006).
N.J.S.A. 2A:34-23(b), enacted as part of the 1971 Divorce
Reform Act, lists thirteen relevant factors in awarding or
denying alimony, twelve of which related to economic
considerations including the needs of a dependent spouse and the
supporting spouse’s ability to pay support. Fault was not
listed as a factor. Nonetheless, courts have considered fault
under the statute’s catch-all factor thirteen which includes
“any other factors which the court may deem relevant.” See
Greenberg v. Greenberg, 126 N.J. Super. 96, 99-108 (App. Div.
1973) (reversing an increase in alimony based on extreme
cruelty); Mahne v. Mahne, 147 N.J. Super. 326 (App. Div. 1977)
(denying alimony because of the “lurid” and flagrant adultery of
the wife); see also Nochenson v. Nochenson, 148 N.J. Super. 448,
449-50 (App. Div. 1977).
Consideration of fault in alimony determinations was
significantly limited in Lynn v. Lynn, 165 N.J. Super. 328, 333
(App. Div. 1979), in which we held that the post-separation
adultery by the wife did not constitute such “egregious fault”
to enter into the calculus of alimony. Similarly, in Gugliotta
v. Gugliotta, 164 N.J. Super. 139 (App. Div. 1978), we affirmed
an alimony awarded to a wife guilty of adultery because we found
11 A-5053-05T1
that marital fault was only one factor for consideration and
that it was outweighed by economic factors such as the earning
capacity of the parties and the length of the marriage. See
also Ruprecht v. Ruprecht, 252 N.J. Super. 230, 240 (Ch. Div.
1991) (permitting discovery limited to the economic aspects of
wife’s adulterous acts). In Kinsella v. Kinsella, 150 N.J. 276,
314-15 (1997), which dealt with disclosure of psychological
records, the Supreme Court said by way of dictum that “the focus
of the decision regarding alimony is generally on the financial
circumstances of the parties.” Id. at 314.
The question of fault and its effect on alimony was
clarified in Mani v. Mani, 183 N.J. 70 (2005). The opinion by
Justice Long held that marital fault was irrelevant to alimony
except in two narrow instances: cases in which fault has
affected the economic life of the parties, and “cases in which
the fault so violates societal norms that continuing the
economic bonds between the parties would confound notions of
simple justice.” Id. at 72. The fault capable of affecting an
alimony award was also described as “egregious fault,” defined
as follows:
[E]gregious fault is a term of art that
requires not simply more, or even more
public acts of marital indiscretion, but
acts by their very nature, are different in
kind. By way of example but not limitation,
California has legislatively barred alimony
12 A-5053-05T1
payments to a dependent spouse who has
attempted to murder the supporting spouse.
Cal. Fam. Code § 4324. Deliberately
infecting a spouse with a loathsome disease
also comes to mind. Underlying these
examples is the concept that some conduct,
by its very nature is so outrageous that it
can be said to violate the social contract,
such that society would not abide continuing
the economic bonds between the parties. In
the extremely narrow class of cases in which
such conduct occurs, it may be considered by
the court, not in calculating an alimony
award, but in the initial determination of
whether alimony should be allowed at all.
[Id. at 92.]
An example of the “egregious circumstances” as defined in
Mani was in D’Arc v. D’Arc, 164 N.J. Super. 226 (Ch. Div. 1978),
aff’d in part, rev’d in part, 175 N.J. Super. 598 (App. Div.
1980), certif. denied, 85 N.J. 487 (1980), cert. denied, 451
U.S. 971, 101 S. Ct. 2049, 68 L. Ed. 2d 350 (1981). In that
case the husband sought alimony from the wife after a dual
judgment of divorce on no fault grounds. The wife stated she
received information that her husband was negotiating for her
murder. The husband denied the charge and countered that his
wife had solicited someone to murder him. The trial judge made
factual and credibility findings in favor of the wife. The
court then disallowed alimony to the husband based on his
insufficient showing of need but added that principles of equity
would also preclude any alimony award based on his marital
13 A-5053-05T1
fault. Similarly, in Brabec v. Brabec, 510 N.W.2d 762 (Wisc.
Ct. App. 1993), a Wisconsin case resembling D’Arc, the wife
attempted to hire someone to kill her husband. The Wisconsin
court held that while marital misconduct is normally not
considered in ordering support, it was fundamentally unfair to
require a husband to pay maintenance to the person who tried to
have him killed. Id. at 282.
Domestic violence toward the supporting spouse was also
held to constitute special circumstances permitting termination
of alimony even though a provision of the PSA provided that
spousal support was not subject to modification or termination.
In re Marriage of Cauley, 41 Cal. Rptr.3d 902 (Ct. App. 2006).
In Cauley the former wife was convicted of domestic violence and
violating a restraining order. Relying upon a California
statute that an award of spousal support should not be made to a
spouse convicted of interspousal domestic violence, the court
held that the public policy embodied in the statute outweighed
any interest in the enforcement of the interspousal support
provision because equity would not enforce an agreement that
would support harassment. Id. at 905-06.
In Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div. 1998),
we held that “egregious circumstances” could include financial
defalcations by the spouse seeking alimony. In that case, the
14 A-5053-05T1
husband and wife each had substantial assets. The wife
established a separate residence, wasted significant assets and
eventually filed for bankruptcy protection. The bankruptcy
judge made a finding that the wife embezzled from the husband’s
company. The Family Part judge denied alimony on grounds that
it would be inequitable to order alimony for a spouse who had
misappropriated marital assets. We affirmed, stating that
marital fault rarely is pertinent to an alimony award, but
holding that the facts constitute one of the rare cases
justifying denial of alimony. Id. at 22.
In the instant case, while Linda’s wrongful acts were not
directed at Christopher or intended to cause him harm, the
emotional and psychological consequences to him were
unquestionably grievous. The death of a child is the greatest
tragedy that a parent can endure – in part because it is
shockingly out of the ordinary sequencing of time and of
generations. Anne McCraken & Mary Semel, A Broken Heart Still
Bleeds After Your Child Dies, at p.261 (Hazelden Press 1998).
We acknowledge Christopher’s words that Matthew’s death has
caused a huge hole in his heart that cannot be mended. We can
also understand his resentment toward his ex-wife and any order
directing him to pay her support.
15 A-5053-05T1
However, in assessing Linda’s fault and the terrible
consequences from her contemptible action in beating her son,
the facts negate both premeditation and the intent to kill.
Indeed, the fact that murder or manslaughter charges were not
pursued and the State recommended a third-degree sentence for a
second-degree crime indicates that the prosecutor was satisfied
that there was insufficient proof of an evil intent by Linda to
kill her son so that the charge of assault and causing grievous
bodily harm to Matthew was the proper assessment of Linda’s
criminal culpability. Moreover, while it is no excuse for her
conduct, the fact remains that Linda was an active alcoholic and
most probably under the influence at the time of the tragic
incident. Also not to be ignored is the fact that the rare
injury that caused Matthew’s death was unforeseeable and
unanticipated. Finally, although the record contains little
information as to Linda’s feelings after Matthew’s death, we can
safely assume she is haunted by memories and guilt that will
long outlast her prison sentence, as will her knowledge that she
is responsible for the greatest suffering in the world for a
mother or father.
Nothing in this opinion prevents the Legislature from
amending the alimony statute to specify that a former spouse’s
criminal act in taking the life of one of the parties’ children
16 A-5053-05T1
per se disqualifies the ex-spouse from receiving alimony. But
we do not read the present statute nor the analogous case law to
create that automatic disqualification. Rather, whether noneconomic
fault constitutes “egregious circumstances” sufficient
to deny or terminate alimony must be decided on a case-by-case
basis. We hold that in the factual complex of this case Linda’s
conduct, dreadful as it was, does not fit the Mani standard for
non-economic “egregious circumstances” sufficient to deprive her
of needed support. The contrary result would simply add
additional punishment to her criminal conviction and
incarceration.
We cannot mend the hole in Christopher’s heart anymore than
we can expiate Linda’s guilt. However, what we can and must do
is consider whether the impact of Matthew’s death on Christopher
resulted in an economic change of circumstances such that his
ability to pay alimony was prevented or hindered. He contends
that his son’s death, literally at the hands of his wife,
devastated him not only emotionally and psychologically but also
financially. He claims his business failed because “when my son
died, I sat in my office staring into space.” He says his
income precipitously declined while his debts and financial
obligation to D. increased. He further certifies that because
he has had no relief from his substantial alimony obligation,
17 A-5053-05T1
his arrears increased to over $40,000 despite his desperate
attempt to comply with court orders by borrowing money and thus
creating more debt. In court appearances he was told to put the
tragedy behind him to seek “closure,” and he was repeatedly
threatened with incarceration for non-payment of alimony and
arrears. Yet since October 2003 when he made his first
application for termination or reduction of alimony, he has
never received a ruling or a promised plenary hearing on his
ability to pay due to his changed circumstances resulting from
Matthew’s death.
Christopher was then and is now entitled to a plenary
hearing and a ruling on his motion for reduction of alimony and
arrears as of the date of Matthew’s death as requested in his
initial application as well as subsequently to the present time.
Pending that hearing, his alimony payments are suspended; his
arrears after Matthew’s death are vacated; and the Family Part
court order directing arrears payments while Linda is in prison
is reversed.
After her discharge from prison, Linda may make application
for alimony, which will be determined based on her present needs
and efforts to support herself as well as Christopher’s ability
to pay alimony.
Reversed.

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