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Galtieri v. Galtieri


February 26, 2009


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, Docket No. FM-13-1018-00C.

Per curiam.


Submitted: January 29, 2009

Before Judges Axelrad and Messano.

Plaintiff John F. Galtieri appeals from three post-judgment orders of the Chancery Division, Family Part: (1) a June 27, 2007 order entering judgment in favor of Patricia Kane, the parties' daughter, as administratrix of defendant's estate,*fn1 for outstanding alimony arrears and other monies due defendant under the final judgment of divorce; (2) an amended July 11, 2007 order that clarifies that the outstanding life insurance premiums and loans for Patricia's college education are deemed alimony and support obligations and thus subject to continued garnishment from plaintiff's Social Security Disability (SSD) benefits; and (3) an amended January 28, 2008 order, modifying the two prior orders following a bankruptcy order and our remand, that adds into the judgment attorney's fees paid by defendant at the closing of the marital residence. We affirm.

We need not recite at length the litigious history of state and federal proceedings on both trial and appellate levels that plaintiff pursued pre- and post-divorce, referenced in detail in the trial court's June 27, 2007 memorandum decision and our prior opinions. See Galtieri v. Galtieri (Galtieri I), No. A-5141-02T5, No. A-6147-02T5 (App. Div. Feb. 17, 2004); Galtieri v. Kane (Galtieri II), No. A-2651-03T1 (App. Div. Aug. 19, 2004); Galtieri v. Kane (Galtieri III), No. A-5865-03T1 (App. Div. May 25, 2005); Galtieri v. Kane (Galtieri IV), No. A-4026-04T1 (App. Div. Oct. 26, 2005).

Briefly, the parties were married in l976, and their daughter is emancipated. Plaintiff is a former New York City police officer who retired on disability in l980. The parties separated around November l999, when defendant obtained a temporary restraining order, which was dismissed on March 27, 2000. A divorce complaint and counterclaim were filed in 2000, and interim support orders and bench warrants were entered by the Family Part. Following a trial, on May 19, 2003, a judgment of divorce (FJD) was entered on defendant's counterclaim and obligated plaintiff to pay defendant, among other items, $2,200 per month in permanent alimony and $30,000 representing equitable distribution of her 50% interest in jewelry plaintiff took from the business known as "Jeanne's Jewelry." The FJD further provided for defendant to receive 50% of the net proceeds as equitable distribution from the sale of the former marital home upon application to the bankruptcy court, and awarded defendant a $400,000 compensatory and punitive damages judgment on her Tevis*fn2 spousal abuse claim. As noted in the FJD, plaintiff had pendente lite arrears at that time of $25,945.48, and was placed on bench warrant status. We affirmed plaintiff's appeal of the FJD and related orders, as well as subsequent orders directing payment of alimony through garnishment of plaintiff's N.Y.C.P.D. pension and SSD benefits.

During the state litigation, on November 30, 2000, plaintiff filed a Chapter l3 Bankruptcy, which was converted to a Chapter 7 proceeding on May 23, 200l, and a discharge order was entered on September 4, 200l. Various matters were referred to the state court for resolution. There were also several bankruptcy court proceedings, including a December 15, 2003 order including findings of fact that: (1) plaintiff's 11 U.S.C. § 522(d)(1) debtor's property exemption of $16,150 should be made to defendant "in partial satisfaction of her pendente lite support and alimony judgment amount of $25,945.48[]" (paragraph 62); and (2) plaintiff "disputes the Superior Court's finding that he has $60,000 worth of jewelry; and no such asset was scheduled in the bankruptcy case. . . . This court will thus deem the jewelry not subject to distribution at this time[]" (paragraph 39); further explaining that defendant's $30,000 post-petition equitable distribution claim would persist because no jewelry had been found to distribute (paragraph 45).

Numerous post-judgment motions were filed in state court, and on several occasions plaintiff was found in violation of litigants rights or sanctioned.

According to Judge Guadagno's memorandum decision, in December 2006 plaintiff filed another motion to terminate the garnishment of his SSD payments, which was denied in a December l4, 2006 written decision and order. Pursuant to defendant's cross-motion, Judge Guadagno fixed alimony arrearages at $35,705.88; increased the amount of garnishment withheld by SSD to pay the premium on the $200,000 Zurich Life Insurance Policy, which plaintiff was obligated to pay; and imposed an additional monetary sanction against plaintiff for nonpayment of a prior sanction. Plaintiff neither appealed nor sought reconsideration of this order.

The motion that led to this appeal was plaintiff's motion to vacate an order dated May 20, 2005 that garnished $1,222 from his monthly SSD benefits, and to restore these benefits to him "in full" as a result of defendant's death. The administratrix sought to intervene on behalf of the estate, opposed plaintiff's motion and requested the monthly payment be made to the estate to satisfy the arrears and other monies due defendant at the time of her death under the FJD, and filed a cross-motion to enforce the FJD for the benefit of the estate. Plaintiff replied, asserting that, at the time of defendant's death, there was actually a balance due him.

By order of June 27, 2007, plaintiff's relief was denied, the administratrix's motion to intervene was granted, and judgment was entered in favor of the estate in the amount of $672,582.06, explained in detail in the accompanying memorandum decision as follows:

a. property proceeds of former marital home ($147,000);

b. equitable distribution of defendant's jewelry business claim ($30,000);

c. Tevis claim ($400,000);

d. half the outstanding loans for Patricia's college education ($6,462.53);

e. premium payments that defendant made to Zurich Life Insurance that plaintiff was obligated to pay ($1,559.35);

f. alimony arrears ($35,705.88);

g. interest ($51,854.30).

In the July 11, 2007 amended order, the court sua sponte responded to the Social Security Adminstration's request for clarification, directing that the life insurance premiums and outstanding loans for college education were considered part of plaintiff's alimony and support obligation and thus subject to garnishment under 42 U.S.C. § 659(a). This appeal ensued.

On January 31, 2008, the court entered an amended order, pursuant to our September 18, 2007 remand, for the limited purpose of modifying its orders of June 27, 2007 and July 11, 2007, consistent with the August 17, 2007 order of U.S. Bankruptcy Judge Morris Stern. The amended order vacated the portions of the June 27 order awarding the estate $400,000 on defendant's Tevis claim and $147,000 on the marital home equitable distribution claim.*fn3 After deleting those figures and their respective interest calculations, the court entered an amended judgment figure of $108,098.92, consisting of plaintiff's above-mentioned outstanding obligations for jewelry equitable distribution, college loans, life insurance premiums, and alimony arrears, an additional designation of "$26,500, representing attorney's fees paid by the decedent at the closing of the marital residence, which is considered 'alimony' under 42 U.S.C. § 659(i)(3)(A)," and recalculated interest. The amended order further provided that all portions of the two prior orders, not specifically modified, remained in full force and effect.

On appeal, plaintiff argues: (1) the $30,000 equitable distribution jewelry claim was either discharged in bankruptcy or paid by the trustee as a property claim; (2) the $6,462.53 reimbursement of his one-half share of his daughter's college tuition and $1,559.35 obligation for Zurich Life Insurance premiums were already addressed in the motion and granted by Judge Guadagno in his December 14, 2006 order, so re-listing them in these orders constitutes "double dipping"; (3) the court erred in granting $35,705.88 in arrears to defendant on December 14, 2006, and failed to explain or document the calculation; (4) the court violated the bankruptcy court orders by denying him credit for the $16,150 attributable to his claimed homestead exemption that defendant received from the trustee pursuant to a December 15, 2003 bankruptcy order; and (5) defendant and her estate have been overpaid via payments from the bankruptcy trustee and garnishment. In his supplemental brief, plaintiff challenges the additional award to the estate of the $26,500 attorney's fee, deemed alimony, paid by defendant at closing of the former marital residence.

After an extensive review of the briefs and record provided on appeal, we are not persuaded by any of plaintiff's arguments and affirm substantially for the reasons articulated by Judge Guadagno in his memorandum decision. We are satisfied the Family Part's January 31, 2008 amended order accurately reflects and is consistent with the bankruptcy court's determination.

We can dispose quickly of plaintiff's first three arguments, challenging inclusion in the judgment of the outstanding monies due defendant for the equitable distribution jewelry claim, college loan, and insurance proceeds. Judge Guadagno stated in his memorandum decision that plaintiff made "no argument and present[ed] no evidence in opposition to . . . [defendant's] Jewelry claim for $30,000; . . . the claim for $1,559.35 for the Zurich Life Insurance payments; and the claim for $6,462.53 for college loans. Thus, the court deems these claims uncontested pursuant to Rule 1:6-2(a)." Any issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see R. 2:6-2. Although plaintiff waived his right to challenge the inclusion of these claims in the judgment, we make the following brief comments. In his August l7, 2007 memorandum opinion, Judge Stern expressly states that "[a]ny claim arising out of jewelry purportedly taken by Debtor (and not included in the estate), was determined to be a post-petition claim. As such, the bankruptcy discharge did not apply to same. No distribution was made against this claim by the Trustee. The claim of $30,000 thus survives [citing to December 13, 2003 order]." As to plaintiff's claim that the December 16, 2006 hearing addressed the issues of the life insurance premium and college loan reimbursement and that such figures were encompassed in the alimony arrearage calculation, we note there is no such mention of such in the hearing transcript or order, and we were not provided a copy of the court's written decision referenced in its recent memorandum decision.*fn4

Plaintiff has also waived his right to challenge Judge Guadagno's December l4, 2006 calculation of the $35,705.88 alimony arrearage by failing to perfect a timely appeal of that order. R. 2:4-1.

In connection with the current motion under appeal, we are convinced the court properly considered the proofs submitted by plaintiff in support of his arguments that he was entitled to credits and that his obligations to defendant have been satisfied, and the court appropriately rejected such arguments for the reasons articulated in its June 27, 2007 memorandum decision. As the court noted, the December l5, 2003 bankruptcy order expressly provided that the $16,150 payment defendant received from the bankruptcy trustee attributable to plaintiff's homestead exemption was distributed in partial satisfaction of pendente lite arrears. Contrary to plaintiff's assertion, he did receive credit for this distribution. It is fair to assume that during the numerous enforcement proceedings following the December 2003 distribution, particularly when facing a bench warrant, plaintiff vociferously argued that the trustee's payment be applied to reduce his significant support arrearage, which at the time of the FJD in May 2003 had been about $26,000. Accordingly, Judge Guadagno properly concluded that this payment could not be applied to reduce the arrearage figure set forth in December 2006.

In his supplemental brief, plaintiff argues that the motion judge exceeded his authority and erred in following the bankruptcy judge's suggestion to award the estate an additional $26,500, classified as alimony and thus garnishable, in his order on limited remand. Although it would have been preferable for the Family Part judge to have provided an explanation for this ruling, R. 1:7-4, considering the award within the context of the totality of the facts of this case, we are not persuaded a remand is warranted or that the judge abused his equitable powers such as to warrant reversal of this provision.

The bankruptcy judge determined that defendant's equitable distribution interest in the former marital home had been accounted for by the trustee and that she appeared to have received the net proceeds of her interest. Accordingly, the judge issued an order voiding the $147,000 claim contained in the Family Part's June 27, 2007 order; in turn, that claim was vacated in the Family Part's amended order of January 31, 2008. In discussing this claim, the bankruptcy judge stated in his August l7, 2007 memorandum opinion that defendant paid an attorney's lien of $26,500 to her attorneys out of the May 23, 2003 sale proceeds, noting that "[w]hether [that amount] is due [defendant] as 'alimony' is an issue left to the Superior Court . . . ." Pursuant to the FJD, plaintiff was obligated to pay defendant's counsel fees in the amount of $118,74l to the law firm of Chamlin, Rosen, Uliano & Witherington, P.A.; $24,390.90 to Mark Steinberg, Esquire; and $1,500 to Joel Kreizman, Esquire, all expressly designated as support for defendant and non-dischargeable in bankruptcy. In his supplemental brief, plaintiff does not assert that these obligations were satisfied, and based on plaintiff's longstanding refusal to voluntarily comply with court orders requiring payments to defendant, it is highly unlikely he made any payments to her attorneys. Thus it is reasonable to conclude that the $26,500 attorneys lien paid at closing was attributable to one of these bills, which was expressly provided by court order to constitute an alimony obligation. Accordingly, the court did not err in including this award in the amended judgment.


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