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Durso v. Durso

May 6, 2009

BARBARA DURSO, PLAINTIFF-RESPONDENT,
v.
JOSEPH G. DURSO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2294-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2009

Before Judges Parker, Yannotti and LeWinn.

In A-2263-07, defendant Joseph Durso appeals from an order entered by the trial court on November 26, 2007, which granted a motion by plaintiff Barbara Durso to enforce defendant's alimony obligation, and denied defendant's motion to set aside the parties' property settlement agreement (PSA) or terminate his alimony obligation. In A-4674-07, defendant appeals from an order entered on March 28, 2008, awarding plaintiff attorney's fees and costs. We consolidate the appeals for decision and affirm.

The appeals arise from the following facts. The parties were married in 1969. Their marriage was dissolved by a final judgment of divorce entered by the trial court on August 24, 1998. The final judgment incorporated the parties' PSA, which they signed on June 1, 1998. The PSA provides in pertinent part that defendant will pay plaintiff alimony in the amount of $100 per week. It is undisputed that, after the parties executed the PSA, defendant only made five payments of alimony.

On July 19, 2007, plaintiff filed a motion to enforce her right to alimony under the PSA. Plaintiff asserted that, at that time, defendant owed her alimony arrears from July 9, 1998 to July 9, 2007, totaling $47,000. Plaintiff stated that in 1999, she had "hired" an attorney to enforce the PSA but she did not have sufficient funds to proceed with an enforcement motion.

Defendant opposed plaintiff's motion and filed a cross-motion seeking an order setting aside the PSA. Defendant disputed plaintiff's assertion that she did not have sufficient funds to pay an attorney to file a motion to enforce the PSA. Defendant stated that he received a letter dated August 20, 1999, from plaintiff's attorney and he spoke with plaintiff regarding the matter.

Defendant claimed that the parties agreed that he would pay certain monies plaintiff owed to Providian National Bank (Providian) and plaintiff agreed in turn to waive her right to further alimony payments. Defendant conceded, however, that this "agreement" had never been reduced to writing.

Defendant also claimed that attorney Howard J. Schmidt (Schmidt) represented both parties in the divorce proceedings. According to defendant, Schmidt advised him not to retain separate counsel. Defendant asserted that Schmidt assured him "that he would take care of everything" and defendant "would be fine." Defendant said that this "turned out not to be the case."

Defendant claimed that the division of property and apportionment of responsibility for the joint marital debts "were blatantly unfair to" him. Defendant stated that he assumed all of the parties' marital debt, including the credit card debt and student loans. He said that $12,500 was still owed on the student loans, and $15,000 was paid on the credit card debt. Defendant asserted that plaintiff has the means to return to him a portion of her share of the marital property she had received in 1998 and to assume a portion of the outstanding debt.

Defendant also asserted that he presently suffers from "severe heart problems" and had been advised by his physician that he is disabled from employment. He stated that he had been approved for social security disability benefits. Defendant argued that the change in his circumstances warranted termination of his alimony obligation.

Plaintiff filed a certification in response to defendant's cross-motion. Plaintiff denied that she agreed to waive her right to receive alimony in exchange for the assumption by defendant of the debt owed to Providian. Plaintiff noted that defendant had previously agreed to assume the Providian debt when they entered into the PSA.

Plaintiff also disputed defendant's assertion that Schmidt represented both parties in the divorce proceedings. She stated that it was clear from the file that Schmidt only represented her in the proceedings. In addition, plaintiff ...


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