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Calcaterra v. Calcaterra

Decided: January 9, 1986.

MARGARET CALCATERRA, PLAINTIFF-RESPONDENT,
v.
SALVATORE CALCATERRA, DEFENDANT-APPELLANT



On appeal from the Superior Court, Family Part, Bergen County.

Pressler, Dreier and Bilder. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

This is a post-judgment matrimonial action in which defendant, Salvatore Calcaterra, appeals from an order reducing his monthly alimony obligation but affording him less modification relief than he had sought. He also appeals from the court's subsequent denial of his motion for reconsideration.

The parties were married in 1958 and divorced by a judgment entered in 1981 which incorporated their property settlement agreement. Pursuant thereto, defendant undertook to pay plaintiff, Margaret Calcaterra, monthly alimony in the amount of $1,500 and apparently did so until she began to cohabit with another man. Insofar as we can determine from the record, defendant withheld the alimony payments when he learned of this relationship and ultimately filed a cross-motion seeking termination of his alimony obligation or, alternatively, [206 NJSuper Page 401] a reduction thereof based both on the cohabitation and on plaintiff's allegedly improved circumstances resulting from her employment. The cross-motion, filed in October 1983 in response to plaintiff's motion for arrearages, was dismissed without prejudice to the parties' rights to engage in discovery in respect of the financial issues raised by defendant. Indeed, the order prescribed a discovery schedule.*fn1 Thereafter, defendant filed a second motion seeking termination or reduction of alimony, and a plenary hearing was ordered both on the cohabitation question and on other alleged changed circumstances. The hearing was held on September 17, 1984, a letter opinion was

issued on October 15, 1984, and a conforming order was entered on November 24, 1984. Thus, over a year had elapsed between the date of the original application for relief and its final disposition.

With respect to the meritorious issues, the trial judge applied the principles of Gayet v. Gayet, 92 N.J. 149 (1983), and Lepis v. Lepis, 83 N.J. 139 (1980), to the facts as he found them. He concluded that plaintiff's rather modest earnings in the context of the respective financial situations of the parties did not justify a reduction of alimony on that ground. As to the Gayet issue, however, he concluded that plaintiff's cohabitant made a monthly cash contribution to the household in the amount of $500. Finding that $150 of this sum was used to defray the cohabitant's own living expenses, the judge ordered a reduction in the monthly alimony of $350. Both the letter opinion and implementing order provided that the modification was to be prospective only. In lieu of appealing directly from that provision of the order, defendant sought, by a motion promptly brought under R. 4:50-1, to effect its modification so that the relief would be retroactive. That motion was denied January 21, 1985, without consideration of the merits, on the ground that defendant's exclusive recourse was by way of appeal. On March 6, 1985 defendant appealed from the original order of November 24, 1984.

Plaintiff, although not having moved for dismissal of this appeal on jurisdictional grounds, nevertheless argues that the appeal is untimely. R. 2:4-1(a) requires an appeal from a final judgment to be filed within 45 days after its entry. A maximum 30-day extension of time is permitted by R. 2:4-4(a). Consequently, the time for filing a notice of appeal from the order entered on November 24, 1984 expired on February 7, 1985, a month before the filing date here. The March 6, 1985 date was, however, timely for the filing of a notice of appeal

from the January 21, 1985 order denying the motion for relief from judgment. In the interests of justice, we will regard the notice of appeal as amended nunc pro tunc to include an appeal from the January 21, 1985 order, and it is only the merits of that order which we will consider.

With respect to the motion for reconsideration, which we have thus concluded is the only matter properly before us, we are satisfied that the R. 4:50-1 technique was not available to defendant for the purpose of challenging either the amount of the Gayet reduction or the trial judge's conclusion that there were no changed circumstances other than the financial consequences of plaintiff's cohabitation warranting modification. These issues were fully tried, the parties were given fair opportunity to be heard thereon, and they were carefully and thoughtfully considered by the trial judge, who made explicit factual findings. Nor, as to these issues, was there any allegation suggesting a ground for relief encompassed by R. 4:50-1. In these circumstances, we are satisfied that defendant's sole recourse as to these issues was by appeal and that resort to R. 4:50-1, as a substitute for appeal, was not available.*fn2 See, e.g., Hodgson v. Applegate, 31 N.J. 29 (1959).

We are, however, satisfied that a motion pursuant to R. 4:50-1 was available in respect of the retroactivity problem. Insofar as we are able to determine from this record, the judge gave no explanation for this decision and the parties never had an opportunity to be heard by the trial court on this issue. Hence, that provision of the order was ...


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