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Cicero v. Natolia

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2008

TINDARA DIGIORGIO CICERO, PLAINTIFF-RESPONDENT,
v.
SALVATORE CICERO NATOLIA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2016-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 23, 2008

Before Judges Lihotz and Simonelli.

In this matrimonial matter, defendant Salvatore Cicero Natolia appeals from the portion of the Final Judgment of Divorce, entered June 29, 2007, which equitably distributed an annuity that had been solely titled to defendant. Defendant contends that the annuity proceeds are partially exempt from equitable distribution because they represent the permanent disability portion of a workers' compensation award. The trial judge determined defendant failed to satisfy his burden of persuasion that the annuity represented an asset immune from equitable distribution. We affirm.

Defendant and plaintiff Tindara DiGiorgio Cicero were married on September 23, 1948, in Italy. They were in their eighties when plaintiff filed a complaint for divorce in 2006, and their three children were emancipated.

In 1996, defendant received a $119,000 workers' compensation award. He claimed he used all of the award proceeds to fund the annuity. Defendant liquidated the annuity shortly after he received service of plaintiff's complaint.*fn1 The annuity had a value of $130,374.12 at the time of liquidation. Defendant received $122,160.55 after paying surrender charges. He testified that he used all the money to pay medical bills,*fn2 home and car repairs, and loans from a relative and friends.*fn3

The trial judge rejected this testimony because defendant failed to submit supporting documentation,*fn4 and because the judge "did not find [defendant's] testimony on the issue of the annuity believable." The judge concluded the annuity was subject to equitable distribution.

Our review of a trial judge's findings is a limited one. Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone, supra, 78 N.J. Super. at 155. We must defer to the trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding and conclusions which flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div.) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)), rev'd o.g., 180 N.J. 261 (2007). We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 483-84); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

With these standards in mind, and based upon our review of the record, we discern no reason to disturb the judge's factual findings and credibility determinations. Defendant failed to disclose the annuity; he did not establish the award, in fact, funded the annuity; and he did not establish the award was for permanent disability. See Lentini v. Lentini, 236 N.J. Super. 233, 235 (App. Div. 1989) (to immunize a workers' compensation award from equitable distribution, the injured spouse must show what portion of the award represents compensation for pain, suffering and disabilities). Also, defendant did not prove he used the annuity proceeds to pay expenses.

Affirmed.


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