Disabled Vet Ordered Into VA Nursing Home Against His Wishes So His Limited Income Can Be Used To Pay Alimony

New Jersey’s Appellate Court ruled that, under the appropriate circumstances, it is equitable to require a disabled 89 year old veteran to receive end-of-life care in a VA facility against his wishes rather than at home in order to use his limited income to continue paying alimony to his ex-wives. .Rizzolo v. Rizzolo, 2015 NJ Super Unpub. LEXIS 409 (App. Div., March 2, 2015)
Victor Rizzolo married Barbara Jones in 1982. The couple separated in 1989 and divorced in 2006. Plaintiff Victor Rizzolo was 58 years old and defendant 38 years old at the time of their marriage. After a divorce trial, the court ruled that the parties had a long-term marriage, and that defendant was entitled to permanent alimony as a result. The court awarded defendant $300 a week in alimony. The court also awarded assets to defendant in equitable distribution of the marital estate.
Many years later, when he was 89 years old and in failing health, plaintiff filed a motion to terminate defendant’s alimony. At that time, plaintiff suffered from advanced prostate cancer, acute renal failure and a bone infection arising from a combat wound to his left knee suffered in World War II.
The court held a hearing on the motion. At the hearing, plaintiff’s son, a practicing attorney, testified that plaintiff lived with him due to his poor health. Because he was employed full-time, plaintiff’s son had to hire a full-time caregiver for his father, to whom he paid $1000 a week. When he hired the caregiver, plaintiff’s son 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. Defendant presented evidence that her sole income was the alimony she received from plaintiff.
After the hearing, the court denied plaintiff’s motion. The court found that plaintiff had not done all he could to continue to meet his alimony obligations. Specifically, the court noted that, although he had insufficient income and assets to pay alimony to his two ex-wives and provide for all of his care needs, plaintiff could do so if he entered a VA nursing home:

[Plaintiff’s] monthly income would be used to help defray the cost of the facility, and there would be no additional cost to him to provide his needed care that currently is being provided by his son and care giver. The outstanding court orders for alimony to his two ex-wives would remain in effect. Thus, the Plaintiff would receive the care that he needs, and the Defendant would continue to receive her $300 weekly alimony. By failing to seek his VA benefits the Plaintiff is essentially having his ex-wives bear the cost of his care to his benefit and their detriment.

Plaintiff appealed, arguing that he should have been permitted to present evidence justifying his decision to remain at home receiving end-of-life care instead of entering a VA facility so that he could continue to meet his alimony obligation, and he did not do so at the hearing because no law or case suggested that he should have been prepared to do so, The appellate court agreed, reversing the judgment and remanding the case back to the trial judge. However, the appellate court left open the possibility that, under appropriate circumstances, plaintiff could be ordered to enter a VA nursing home against his will so he could continue to meet his alimony obligation:

The decision to modify alimony turns on what is equitable and fair upon consideration of all circumstances of both parties. Accordingly, although the court may on remand conclude that it is equitable to require defendant to enter a VA facility against his wishes in order to use his limited income to continue to pay alimony, allowing defendant to preserve her assets until plaintiff’s death makes alimony no longer available, it may only do so upon consideration of competent evidence and a qualitative analysis of both parties’ circumstances. [Citations Omitted]

The case is annexed here – Rizzolo v. Rizzolo, 2015 NJ Super Unpub. LEXIS 409 (App. Div., March 2, 2015)
UPDATED ON JULY 9, 2015 – Other States apparently agree with New Jersey on the issue raised in the Rizzolo v. Rissolo case requiring the payment of alimony to an institutionalized ex-spouse. In that regard, Nebraska’s highest court determined that a 94-year-old husband must pay alimony to his 95-year-old ex-wife in order to help offset her nursing home costs, even if doing so puts his income below the poverty level. Binder v. Binder (Neb., No. S-14-783, June 26, 2015).

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