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Genovese v. Genovese

April 17, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1598-05.



Submitted January 30, 2007

Before Judges Kestin, Graves and Lihotz.

The opinion of the court was delivered by LIHOTZ, J.T.C. (temporarily assigned)

Defendant Mercedes Genovese appeals from certain provisions of the Dual Final Judgment of Divorce, which was filed on April 24, 2006. We are not persuaded the trial court erred in its decision and, accordingly, we affirm.

The parties were married on September 21, 1974. This was the first marriage for each party. No children were born of the marriage. Plaintiff Sebastiano Genovese moved from the former marital home on October 10, 1993, to pursue another relationship. Since that time, the parties have resided in separate residences. Each party also expressed that there existed no reasonable prospect of reconciliation of their marital differences.

Plaintiff filed his first complaint seeking divorce in the State of New York on April 24, 1994. The request was granted and a judgment of divorce (JOD) was entered in December 1997. Plaintiff remarried. Defendant appealed the entry of the JOD, attacking the grounds alleged for divorce. On May 10, 1999, the JOD was reversed and plaintiff's complaint was dismissed by the New York Supreme Court, Appellate Division, because the evidence was legally insufficient to establish constructive abandonment, the divorce grounds plaintiff had pled. Thereafter, plaintiff filed complaints for divorce in New Jersey in 2001, 2002, and 2003, all of which were dismissed for lack of jurisdiction because plaintiff was found not to be a bona fide resident of this state. The present matter commenced on February 24, 2005, when plaintiff filed a complaint for divorce alleging separation. Defendant answered the complaint and filed a counterclaim for divorce alleging, among other bases for relief, desertion.

The parties testified during the three-day bench trial. The only other witness appearing was defendant's treating chiropractor, Albert Yuseffi, D.C., who testified regarding defendant's treatment for injuries sustained after an automobile accident.

The trial court entered findings on the issues of jurisdiction and each party's respective cause of action, determining sufficient statutory proofs were presented to enter a dual final JOD. The collateral issues then resolved by the trial judge included defendant's request for alimony and payment of counsel fees, and the equitable distribution of the former marital home and the parties' retirement assets.

The facts relevant to these issues are taken from the court's oral decision and the parties' trial testimony. Defendant, age fifty-five, suffered injuries in an automobile accident on February 22, 2000. Prior to the accident, defendant had held full-time supervisory positions for various employers. Her last employment consisted of two part-time jobs in the field of merchandizing, working fifty hours per week, earning an average salary of $11 per hour. After the accident, defendant received worker's compensation of $700 per month and recovered a personal injury settlement of $14,000 in 2004. Defendant also recovered a personal injury award of $30,000 in 1996.

Defendant stated she takes prescription medication for neck and jaw pain and felt she was physically unable to work. Defendant explained that due to her limited income, she borrowed funds from family members to aid the payment of expenses, including her legal fees. The trial court fixed defendant's monthly needs at $2500.

After a review of all evidence, the trial court found no evidential support for defendant's claim that she was unable to engage in gainful employment as a result of her automobile accident. The court further concluded defendant was capable of earning approximately $400 per week.

Plaintiff, age fifty-six, remained employed as a construction worker, earning significantly more income than defendant. His expenses of $5000 per month provided for his needs, the needs of his daughter born during his ...

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