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Barbato v. Barbato

January 13, 2009

JUDITH W. BARBATO, PLAINTIFF-RESPONDENT,
v.
RICHARD BARBATO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1626-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 19, 2008

Before Judges Parrillo, Lihotz and Messano.

Defendant Richard Barbato appeals from that portion of the Family Part's order of August 21, 2007 denying his request for counsel fees, and two subsequent orders of March 3, 2008 that granted plaintiff's request for child support and arrearages, and denied his request for credit for alleged overpayments of child support and college expenses. We have considered the arguments raised by the parties in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

Defendant and plaintiff Judith Barbato were married for twenty-five years and had two daughters, one born on June 30, 1980, and a second on January 23, 1987. Plaintiff filed for divorce alleging extreme cruelty by defendant, and on April 29, 2005, represented by counsel, she obtained a default judgment of divorce (JOD). The JOD incorporated by reference a property settlement agreement (PSA) executed by both parties on July 22, 2004. Plaintiff was represented by counsel and defendant, although having initially retained counsel, had discharged him and signed the PSA pro se.

On April 27, 2006, defendant moved to set aside the PSA claiming it was the product of duress, coercion, and undue pressure which rendered his execution of it involuntary. The judge conducted a trial, commencing on June 25, 2007 and extending over several days thereafter. As stated in her comprehensive, supplementary written opinion, the judge identified the three issues to be resolved at the trial as:

1. Whether the parties' property settlement agreement should be set aside because of the husband's mental illness at the time he entered into the [PSA] and the unconscionabiity of that agreement[;]

2. If the agreement is set aside, what portion of the marital assets should each party receive[;]

3. Whether either party should pay the other party's counsel fees.

The judge concluded that "[g]iven the [defendant's] mental illness, pro se status at the time the agreement was entered into, and the extreme one-sided nature of th[e] agreement for a 25 year marriage . . . the [PSA] [was] not enforceable." On August 21, 2007, she entered an order that vacated the PSA, equitably divided the parties' property, and, in paragraph twelve, denied "[b]oth parties' requests for counsel fees[.]" Defendant filed his notice of appeal.

In January 2008, plaintiff moved for an order 1) "[d]irecting [d]efendant to pay $169.00 per week in child support for the unemancipated child of the marriage, retroactive to August 21, 2007"; 2) "[d]irecting [d]efendant to pay 100% of uncovered and unreimbursed medical, dental, prescription, hospital, counseling, and any other such expenses of the unemancipated child of the marriage"; and 3) counsel fees for the application. Defendant responded and cross-moved seeking a credit "for overpayment of support" made while the PSA was in effect and an order directing plaintiff to pay that amount from the proceeds of the sale of the former marital home, or applying the overpayment to any current support obligations the court might otherwise order.

On March 3, 2008, after oral argument, the judge entered two orders. One denied defendant's cross-motion for credits. The other granted plaintiff's motion and set defendant's child support obligations at $118 per week, retroactive to August 21, 2007, the date the PSA was vacated; fixed defendant's arrears at $3304, and ordered payment toward same at $50 per week; ordered defendant to pay one-half of all uncovered medical and associated expenses for his youngest daughter after the first $250 per year; and denied plaintiff's counsel fee request. We granted defendant's ...


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