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Digiacomo v. Digiacomo

Decided: May 19, 1992.

MARY ROSE DIGIACOMO, PLAINTIFF-RESPONDENT,
v.
RICHARD DIGIACOMO, DEFENDANT-APPELLANT



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

King, Dreier and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

DREIER, J.A.D.

Defendant appeals from a final judgment of divorce entered March 25, 1991 after a hearing on November 27, 1990. He further appeals from the striking of his counterclaim and from the decision of the court to proceed in his absence when he allegedly became ill on the day the divorce was to be heard. The issue presented on this appeal is the effect of the filing of the petition of bankruptcy upon the final judgment of divorce.

The parties were married in 1979. They purchased a two-family home where they continued to live throughout the divorce proceedings. They jointly borrowed money to open a video store which the husband co-owned with a partner. The husband kept a job as a trucker until 1988, while the wife held a full-time clerk's position at a shipping company. She worked nights and weekends at the video store but she did not receive a salary. Eventually, the husband was bought out by his partner.

The parties used the money from their share of the video business to open a tanning and toning salon, California Concepts. It was owned by the husband and a new partner, but the names of husband and wife were printed on the business card. Again, the wife worked evenings and weekends training employees and cleaning without receiving a salary, while maintaining her other full-time job as a clerk.

Plaintiff, Mary Rose DiGiacomo filed her complaint for divorce from Richard DiGiacomo on January 4, 1990. Defendant made no request for alimony, nor did she request child support for a child from a previous marriage. However she sought counsel fees for her attorney.

An order was entered on August 17, 1990 directing that defendant's answer and counterclaim would be stricken if interrogatories were not answered by September 15, 1990. On October 1, 1990 the Judge entered an order suppressing the answer and dismissing the counterclaim for failure to serve answers to interrogatories. Defendant's motion to reinstate the answer and counterclaim was denied on October 26, 1990. There was, however, conflicting testimony at the trial of November 27, 1991 concerning whether the interrogatories had been timely served. Finding that defendant had "continuously avoided producing discovery in this matter," the trial Judge denied defendant's request to have his answer reinstated at that time.

Before the November 27, 1990 trial, the Judge and opposing counsel were told in chambers that the husband had filed a bankruptcy petition at 11:00 a.m. that morning in the United States Bankruptcy Court, although no copy of the petition was furnished by the husband's attorney. The husband had been previously requested by court order to produce a copy of the petition in the event that he filed for bankruptcy. He asserts that he made a request in chambers to have the trial stayed and that it was denied. Furthermore, the husband's request for an adjournment was denied. Counsel had requested the adjournment

because during lunch time the husband had gone home and had never returned.

The court heard testimony from the wife and allowed cross-examination by the husband's attorney. See Jugan v. Pollen, 253 N.J. Super. 123, 133, 601 A.2d 235 (App.Div.1992). Judgment was reserved. The Judge signed the final judgment of divorce and a qualified domestic relations order ("QDRO") on March 25, 1991. The final judgment of divorce gave the husband the family business and the wife the marital residence. The wife was responsible for paying the first mortgage on the marital residence and the husband was responsible for paying the second mortgage. (The second mortgage had secured the money borrowed for the first business, the ...


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