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Capuzzo v. Capuzzo

Decided: November 14, 1990.

JOSEPH CAPUZZO, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
FRANCES CAPUZZO, DEFENDANT-RESPONDENT, CROSS-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.

Petrella, Bilder and Brochin. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

These are cross-appeals from certain of the provisions of a Final Judgment of Divorce. Plaintiff, former-husband, appeals the alimony, support and equitable distribution provisions. Defendant, former-wife, cross-appeals from the denial of counsel fees.

The parties were divorced July 12, 1989 following over 27 years of marriage which produced two children, Guy, now 20, and Paul, now 17. Although the parties never lived apart, their marital history included a 1985 divorce and a 1986 remarriage. In her oral decision of March 13, 1989 and the resulting judgment of divorce, the trial judge treated the marriage as a continuing one and dealt with the incidents of the divorce, i.e. custody, alimony, support and equitable distribution, accordingly.

Plaintiff's initial contention is directed at the refusal of the trial judge to give effect to a stipulation of settlement which

was incorporated in the 1985 judgment of divorce.*fn1

At the time of the filing of both complaints for divorce (the first by the wife, the second by the husband), the party's principal assets consisted of the matrimonial home (valued at about $225,000), the husband's vested pension plan (valued at about $109,000) and some $20,000 in bank accounts, principally IRAs (about $15,000 in his name; $5000 in hers).

The 1985 stipulation of settlement only divided the jointly held property. Defendant wife was to receive by way of equitable distribution a $35,000 lump sum payment (presumably as her share of the pension plan), to be obtained by a mortgage loan on the marital residence, and a 41% interest in the marital residence, subject to deferred payments.*fn2 Each party was to retain the assets owned in their own names. This included the bank accounts and pension. Defendant-wife was to vacate the residence within 90 days and would thereafter receive alimony of $100 per month.

The provisions of the agreement were never complied with. Defendant-wife never left the premises; no mortgage was obtained; no payments were made. As noted, a reconciliation was followed by remarriage.

In her decision, the trial judge found the earlier agreement unfair and inequitable. She treated the marriage as one of 27 years duration and made equitable distribution on the basis of the facts as they existed at the time of the second proceeding. Plaintiff contends this action unlawfully deprived him of vested rights which arose from the agreement and the 1985 judgment. He characterizes it as a constitutional impairment of contract.

Although the factual situation facing us is unique and therefore not referable to case law precisely on point, we entertain no doubt as to the propriety of the trial judge's action. The lack of precise precedent does not mean that there is not significant judicial guidance. Judge Stark's actions find support in well-established principles of divorce law as to ...


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