March 9, 2011
DIANE L. VETERI, PLAINTIFF-APPELLANT,
MICHAEL T. GIANCHETTI, DEFENDANT-RESPONDENT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011 - Decided Before Judges Reisner and Alvarez.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-630-09. Diane L. Veteri, appellant pro se. Respondent has not filed a brief.
Plaintiff Diane L. Veteri, pro se, appeals from certain equitable distribution provisions contained in an August 19, 2009 amended final judgment of divorce dissolving her marriage to defendant Michael T. Gianchetti. For the reasons that follow, we reverse in part and remand for the court to conduct a proof hearing, and affirm in part.
Initially, we are not clear as to the precise nature of plaintiff's appeal. She states:
I continued to pay bills the first year to avoid destroying my credit. . . . [Defendant] continued to drive the 1997 truck for 2 years. . . . The 1st year I made the payments. After that I stopped. Eventually it was repossessed.
I took [defendant] to court 3 times after that and so did my dad. [Defendant] never showed up. . . . Eventually I lost track of [defendant] because he moved. I did find him in 2008.
I filed for Divorce. I was seeking half my husband['s] annuity and the bills I paid the first year. . . .
My divorce hearing was on July 27, 2009 . . . . I was awarded $631. [Defendant] was also ordered to pay $17,000 lien that is against my home. [Defendant] took out a loan in April 2000 and I co-signed. [Defendant] never made a payment.
Claimant states she should be reimbursed for the bills that were paid the first year that [defendant] was originally ordered to pay.
The home was lost, I was not able to retrieve all my items, [defendant] never paid for the truck that was eventually repossessed.
My father's credit and mine were destroyed. And 10 years later I am still paying off credit cards that [defendant] used that were not his.
Her case information statement in support of her notice of appeal states:
GIVE A BRIEF STATEMENT OF THE FACTS AND THE PROCEDURAL HISTORY:
[The judge] would not award money owed to me that I paid the first year of our separation and also would not award me any of my exhusband's annuity.
TO THE EXTENT POSSIBLE, LIST THE PROPOSED ISSUES TO BE RAISED ON THE APPEAL AS THEY WILL BE DESCRIBED IN APPROPRIATE POINT HEADINGS PURSUANT TO R. 2:6-2(a)(5). (Appellant or cross-appellant only.): I have canceled checks for all that I paid for the 1st year and a half after we split.
The following facts are drawn from the record provided to us. Plaintiff and defendant lived together for eight years before they married on September 11, 1999. When they separated on September 12, 2000, they lived in a home titled jointly in defendant's name and that of plaintiff's father.
The separation was acrimonious, resulting in the issuance of temporary domestic violence restraining orders. The parties ultimately dismissed the temporary restraints and entered into certain stipulations and "mutual restraints" on September 19, 2000, under the domestic violence "FV" docket, days after their separation. Defendant remained in the marital home; however, certain enumerated items of personal property were supposed to have been made available to plaintiff. Plaintiff was never able to recover those items, but during the uncontested divorce hearing did not testify about their value. Despite being required to pay the mortgage and expenses related to his occupancy of the marital home, defendant did not make a single payment, and the home ultimately went into foreclosure.
At the time of separation, both cars and their respective insurance policies were in plaintiff's name. The FV agreement specified that defendant would continue using the truck and plaintiff the car. No mention was made of the car loans or related costs, except that defendant was ordered to pay one-half of the insurance premiums associated with the vehicle. Because defendant defaulted on both the truck loan and insurance as well, plaintiff testified she paid the truck loan and insurance for over one year as the insurer would not permit a vehicle titled in her name to be dropped from the policy. When plaintiff eventually stopped making the truck payments, the vehicle was repossessed.
Defendant also obtained credit cards in plaintiff's father's name without his knowledge or consent. Plaintiff testified that, between September and December 2001, she paid Bank of America $3400 in order to satisfy one such account in full. Additionally, she paid $875 to close out a Best Buy account opened by defendant.
After the marriage, plaintiff co-signed a loan from Citibank so defendant could consolidate his outstanding premarital credit card balances. Defendant defaulted on that account as well, with the result that plaintiff's title on her current home is encumbered by a judgment in the full amount of the loan. That judgment, J-086774-2001, entered May 15, 2001, had a balance of approximately $17,362.71 at the time of the divorce hearing. The divorce judgment specifically entitles plaintiff to pay the judgment by executing on defendant's $98,000 annuity with the Cement Mason's Union, Local 592.
Plaintiff also testified that she advanced additional sums "towards the house charges," but she did not explain the nature or amounts of the payments. Other than expressly allowing plaintiff to satisfy the $17,362.71 from defendant's assets, the trial court awarded plaintiff $631 towards post-separation bills she paid on defendant's behalf. The figure was the sum of defendant's $426 cable bill and a $205 loan payment made while he occupied the marital residence, and the court directed it could also be collected from the annuity.
In light of its "special expertise in the field of domestic relations[,]" the findings of the Family Part are reviewed on appeal with particular deference. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Likewise, the trial court has substantial discretion in allocating marital assets subject to equitable distribution. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). Such awards will be affirmed so long as the trial court could reasonably have reached its result from the proofs presented by the litigants, and is legally and factually correct. La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000). We will reverse such findings only where they are not based on adequate, competent evidence in the record. Cesare, supra, 154 N.J. at 411-12.
After our review of the record, we conclude the trial court likely misunderstood plaintiff's testimony regarding defendant's truck payments and insurance. It is apparent from the judge's comments, to the effect that plaintiff could not appeal an order years after entry, that the judge mistakenly assumed plaintiff was mandated to make these payments. While the FV agreement does not explicitly set forth defendant's obligations with respect to the vehicle, it must also be put in context. That agreement was no doubt a stopgap meant to defuse tension and limit conflicts in the immediate future, not to comprehensively address future financial responsibilities. Plaintiff's payments on account of defendant's truck and vehicle insurance, made because she perceived herself to be compelled to do so by the insurance company, were not ordered by a court or agreed to by the parties. In fact, the FV agreement required defendant to pay one-half of the then-outstanding insurance premium, suggesting the opposite. Plaintiff's request for reimbursement was not a belated attempt to appeal the order issued in 2000, but rather an unsuccessful attempt to be made whole after losses resulting from defendant's conduct.
Because the court cut off plaintiff's testimony on the subject of reimbursement, she had no opportunity to identify the precise amounts she was seeking to recover and the basis for each. Additionally, in the initial colloquy with counsel, the court discovered defendant had not been noticed as to plaintiff's claims regarding the truck and the previously referred-to "house charges." As to these, the court properly noted they would not be addressed "today," leaving open the possibility of inclusion after effective service on some future unspecified occasion. We are not aware of the nature of any such future proceedings, as the August 19, 2009 trial was the final divorce hearing.
The judge also found plaintiff had no "standing" to be reimbursed money she paid towards the credit card charges defendant fraudulently incurred in her father's name. Plaintiff does have standing, within the divorce context, to recover sums she advanced on defendant's behalf. This was arguably a debt of the marriage subject to equitable distribution. See N.J.S.A. 2A:34-23.1. We are unclear as to the reason the judge applied the doctrine of standing to bar plaintiff's recovery. Although the cards were issued in her father's name, the court acknowledged it was plaintiff who paid at least some of them. As the law provides that a debt accumulated during the marriage is as distributable as an asset, see N.J.S.A. 2A:34-23.1; Painter v. Painter, 65 N.J. 196, 217 (1974), a balancing of the equities may well entitle plaintiff to prevail on these claims. To find otherwise is to reward defendant for choosing to defraud his father-in-law and his wife.
We affirm the court's decision with regard to any additional debts for which plaintiff now seeks reimbursement on appeal. These debts were not presented to the judge during the hearing at all and plaintiff is not now entitled to a second opportunity to raise them. Therefore, with the exceptions previously described, we affirm the divorce court's judgment. Moreover, we will not address any entitlement plaintiff may or may not have to any portion of defendant's annuity, as no request was made for distribution of that asset during the divorce hearing. Hence, plaintiff cannot now be heard to complain that she was not awarded any portion of it. That is a separate issue from her right to execute against the annuity.
A brief hearing shall accordingly be conducted, within ninety days of the date of this decision, as to whether plaintiff is entitled to additional reimbursement by way of equitable distribution. Plaintiff shall notice defendant of the hearing, pursuant to court rules, of the precise amount of reimbursement she seeks for: payments she made on account of defendant's truck, $3400 to Bank of America and $875 to Best Buy, and the ambiguously referenced "house payments." Any recovery granted to plaintiff by the court shall be reduced to a form of judgment also collectible against defendant's annuity.
To reiterate, we reverse the court's decision with regard to the "house payments," the $3400 Bank of America debt, the $875 Best Buy account, and the truck loan payments and insurance premiums, direct that a hearing after notice be conducted as to these claims, and direct that plaintiff be permitted during the course of such remand hearing to testify about the reasons she believes she is entitled to reimbursement. We affirm the court's decision in every other respect.
Affirmed in part, reversed in part, and remanded for further proceedings.
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