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Rusconi v. Rusconi


August 14, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-378-05.

Per curiam.


Submitted May 2, 2007

Before Judges A. A. Rodríguez and Lyons.

Marie Renee Rusconi (defendant), appeals from the April 4, 2006 post-divorce judgment order that denied reconsideration of the January 10, 2006 order denying a request for a plenary hearing on the allegation of non-disclosure and misrepresentation of the assets of Bruce Lawrence Rusconi (plaintiff). We affirm.

The parties were married in April 1997 and divorced on September 1, 2005. They reached a property settlement agreement (PSA), which they placed on the record, and represented that a written version of the PSA would be submitted and incorporated by reference as part of the judgment.

One of the marital assets was a BMW Z4 Roadster leased in plaintiff's name. At the divorce hearing, plaintiff's counsel placed on the record that the parties agreed that defendant would keep this vehicle, which would be leased in her name. She would be responsible for all future lease payments. Furthermore, plaintiff's counsel agreed that his client would supply the documents needed to effectuate this transfer. However, the lessor's credit agency would not execute the transfer based on defendant's credit rating. BMW refused to accept lease payments from defendant. Therefore, plaintiff was assessed a $25 late payment fee. Plaintiff re-possessed the BMW.

A written version of the PSA was prepared by plaintiff's counsel. However, defendant had revisions and objections to certain terms. She challenged paragraph 9.2 of the PSA, which provided that both parties had full knowledge of their financial situation and had chosen to execute the agreement without availing themselves of further discovery, other than the Case Information Statements and limited depositions that have already occurred.

Plaintiff moved to enforce litigant's rights. Defendant opposed the motion. In a certification, she explained her efforts towards assuming the BMW lease. She also certified that it had come to her attention that plaintiff may not have made full disclosure of his assets at the time of the settlement negotiations. Specifically, she alleged that about $80,000 in bank deposits had not been disclosed. Plaintiff certified that these funds were post-marital assets: jointly owned with his mother; or proceeds from a pension loan.

Judge Heidi Willis Currier ordered defendant to execute the written PSA and declared that because the BMW transfer was impossible to achieve, the issue was moot and defendant had no further obligation with respect to the vehicle. Defendant did not appeal this decision.

Represented by new counsel, defendant moved for reconsideration and sought a plenary hearing. Plaintiff cross-moved to enforce litigant's rights. The judge denied the motion for reconsideration and the request for a plenary hearing. The judge found, in pertinent part:

[T]hat there was discovery that was done, tremendous amount of discovery done [sic] in this case by the defendant's attorney at that time and that subpoenas were, in fact, sent regarding all bank accounts, et[c].

The plaintiff has provided information as to these new accounts, one of wh[ich]om is an account set up with his mother. Another account was opened after the divorce.

These parties even took one another's depositions and still chose to come to this agreement with it being clearly stated on the record that they had not completed discovery and yet they were willing to enter into this agreement, despite that fact.

In this case, the Court does not find that the defendant has set forth that there was any fraud in the dealings between the parties or overreaching by a party -- by the plaintiff in the negotiation of this agreement.

Both parties were represented by counsel. Defendant was represented by competent counsel. She prepared subpoenas, they exchanged documents, interrogatories, took each other's depositions, spent many hours to negotiate the issues between the parties, came to the courthouse prepared for trial and spent a number of hours in the courthouse prior to reaching a settlement.

The Court finds that both parties mutually consented to this agreement and that it was specifically pointed out to the defendant several times that she was entitled to additional discovery or that the discovery might not have been completed. She was aware of that and, nevertheless, she intended to enter into the agreement.

Furthermore, she has not shown that the terms of this agreement are unfair or unjust. The Court finds that there was no overreaching in the negotiations of the settlement. There was no fraud. There's [sic] not an unconscionable agreement. The Court does not feel it requires a plenary hearing on the facts and defendant's motion to vacate the [PSA] and to undergo a plenary hearing is denied.

On appeal, defendant contends that the judge abused her discretion by enforcing a PSA that was no longer fair and equitable with respect to the BMW lease. She also contends that "because of the assets hidden by plaintiff, the [PSA] should not have been enforced as written, and a plenary hearing should have been held." We disagree and affirm substantially for the reasons expressed by Judge Currier in her March 31, 2006 oral decision.

At the outset, we note that this is only an appeal from the denial for reconsideration, not from the underlying order entered on January 10, 2006. Such an appeal is judged against a limited standard of review, i.e., whether in the underlying decision the judge has overlooked controlling principles or has misconstrued the facts. R. 1:7-4(b). Judged against that standard, we find no error here.

Moreover, even if the underlying order were properly before us, we would still affirm. Judge Currier concluded, based on the certifications of the parties, that defendant had not made a prima facie showing of fraud or misrepresentation. Parker Precision Prods. v. Metropolitan Life Ins. Co., 407 F.2d 1070, 1086 (3rd Cir. 1969); Conforti v. Guliadis, 128 N.J. 318, 327 (1992); see also Jewish Ctr. v. Whale, 86 N.J. 619, 624 (1981). From our careful review, we find no evidence that the PSA, as modified by the judge, was "no longer fair and equitable." See Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Therefore, it was proper to enforce the PSA. We find no abuse of discretion by the judge. See Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

The April 4, 2006 order is affirmed.


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