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Olga Cadavid (F/K/A Nieto v. Zoilo Nieto

December 29, 2010

OLGA CADAVID (F/K/A NIETO), PLAINTIFF-RESPONDENT,
v.
ZOILO NIETO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2182-00.

The opinion of the court was delivered by: Graves, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 26, 2010 - Decided Before Judges Stern, Graves and Sabatino.

The opinion of the court was delivered by GRAVES, J.A.D.

Plaintiff Olga Candavid and defendant Zoilo Nieto were married in 1997 and divorced on May 10, 2000. They are the parents of three sons. Defendant appeals from an order dated July 2, 2009, denying his request to vacate monetary sanctions imposed as a result of his failure to make an equitable distribution payment to plaintiff.*fn1 For the reasons that follow, we affirm.

In a property settlement agreement (PSA) incorporated into the judgment of divorce, the parties agreed "that $100,000 per year can satisfy all of the wife's and children's annual expenses," and defendant agreed to pay that sum for a period of seven years following the divorce. The PSA specified that defendant would pay approximately $3000 per month for the mortgage, real estate taxes, and homeowners insurance on the marital home, and the remaining $64,000 would be paid directly to plaintiff in monthly installments of $5333.33. Pursuant to the PSA, the $64,000 payment included limited duration alimony in the amount of $20,000 per year for seven years. With regard to the marital home, paragraph twenty-three of the PSA provided as follows:

The wife shall be permitted to remain in the marital residence for a period of seven (7) years commencing from the date of the execution of the Judgment of Divorce. At the time of the expiration of said seven (7) year period, the marital residence will either be sold and the net proceeds divided by the parties at a 60/40 ratio in favor of the husband or the wife shall purchase the husband's interest at 60% of the appraised value of the property at the time. At present, the parties estimate the fair market value of the property to be approximately $375,000.00 and there is a present mortgage balance of approximately $284,000.00, leaving a net equity of approximately $100,000.00. The husband represents that he shall place no liens or encumbrances on the property during the next seven (7) years and will continue to pay the mortgage as aforesaid and upon the expiration of said seven (7) year period, the wife shall be entitled to forty percent (40%) of the net equity in the property at that time.

On December 9, 2003, the parties signed an addendum to the PSA that allowed defendant to refinance the marital residence. However, the addendum stated that the terms of the original agreement were to "remain in full force and effect."

In 2007, prior to the expiration of her alimony, plaintiff filed a motion to increase child support. The court scheduled a plenary hearing and while the matter was pending, plaintiff and the children moved out of the marital home in Ridgefield. The plenary hearing was held in November 2007, December 2007, and January 2008. On March 25, 2008, the trial court ordered defendant to pay child support for the three children in the amount of $8839 per month and awarded counsel fees to plaintiff in the amount of $40,000.

Defendant appealed the trial court's decision. In an unpublished opinion, we affirmed the counsel fee award but reduced defendant's monthly child support obligation to $7488.15 effective March 25, 2008. Olga Cadavid, f/k/a Olga Nieto v. Zoilo Nieto, No. A-4270-07 (App Div. Apr. 13, 2009) (slip op. at 17). In our prior opinion, we noted that defendant is a successful businessman:

The parties are both immigrants from Columbia. The father, who came to the United States in 1982, is the successful founder and president of eight schools that teach English as a second language. The schools are located in New Jersey, New York, Florida, and Canada. Through limited liability companies unrelated to the schools, the father also owns interests in several commercial properties in New Jersey and Florida. In a June 2007 loan application, the father valued his various business interests at $8 million and the fair market value of his real estate holdings at $5.2 million. The Family Part calculated the father's annual income for purposes of child support at approximately $2 million annually, a figure which is uncontested on appeal. [Id. at 2.]

We also found that the motion judge did not err in declining to impute net positive earnings to plaintiff:

The mother was nineteen years old when she emigrated to the United States in 1997. At that time she enrolled in one of the father's schools to learn English. Approximately two months later, she married him. She then gave birth to three children in the short span of three years. The youngest of those children was six years old at the time of the hearings in this case. Throughout the marriage, the mother never obtained employment but cared for the children. She obtained an associate's degree from a community college only two years before the hearings began in this case. The mother drives the children to school, their extracurricular activities, their sporting events, and medical appointments. She also frequently drives the boys to meet their father for his parenting time.

At the time of the hearings, the mother was seeking employment as a daycare worker or as a teacher's assistant, positions for which she could expect to be paid only about ten to twelve dollars per hour. However, ...


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