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Richard K. Cacioppo, Individually and As Guardian of the Person and v. John C. Emolo

August 19, 2011

RICHARD K. CACIOPPO, INDIVIDUALLY AND AS GUARDIAN OF THE PERSON AND PROPERTY OF TRACEY L. DEGROOT, AN INCAPACITATED PERSON, PLAINTIFF/CROSS-APPELLANT,
v.
JOHN C. EMOLO, GAIL BRAUN-EMOLO, DEFENDANTS/CROSS-RESPONDENTS, AND JOSEPH E. COLLINI, EMOLO & COLLINI, ESQS., JOHN EMOLO, SR. AND ROSE EMOLO, DEFENDANTS. JOHN C. EMOLO AND GAIL BRAUN-EMOLO, DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS,
v.
RICHARD K. CACIOPPO, INDIVIDUALLY, THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6381-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2011

Before Judges Axelrad, R. B. Coleman and Lihotz.

This appeal is related to the consolidated appeals arising out of Emolo v. Emolo (Docket Nos. A-2746-08 and A-3836-08). Tracey L. DeGroot, f/k/a Tracey Emolo, is the former wife of defendant John C. Emolo. On July 11, 2008, plaintiff Richard K. Cacioppo was named DeGroot's legal guardian. In this capacity, plaintiff filed a complaint seeking recovery for abusive litigation practices by defendants Emolo, his current wife Gail Braun-Emolo, Emolo's law partner Joseph E. Collini who represented Emolo in the contentious post-judgment matrimonial litigation with DeGroot, the firm Emolo & Collini, Esqs., and Emolo's parents Rose and John Emolo, Sr. In response, defendants filed a counterclaim and a third-party complaint, chiefly attacking the manner in which Cacioppo procured the judgment of guardianship.

On plaintiff's motion, the trial court dismissed the counterclaim/third-party complaint, with prejudice. The cross- motion filed by defendants seeking an order dismissing the complaint with prejudice was also granted.

Emolo and Braun-Emolo appealed from the order dismissing the counterclaim/third-party complaint, arguing the trial court erred in failing to provide an explanation for its conclusion. Cacioppo filed a cross-appeal from the order dismissing his complaint, asserting the court erred in concluding he failed to set forth viable claims for relief.

We have considered the arguments presented on appeal, in light of the record and applicable legal principles. We affirm the orders dismissing the claims of all parties.

As background, Emolo and DeGroot, who are divorced, were embattled in an extensive post-judgment evidentiary hearing on their respective applications to terminate or modify alimony. The hearing began on June 10, 2005. The parties rested on April 17, 2007, and the court rendered its final order on June 17, 2008.

Sometime in June 2008, Cacioppo sought to intervene in the matrimonial matter to join in the action on DeGroot's behalf or be appointed as the guardian ad litem. The Family Part judge denied this application on June 28, 2008.

Cacioppo then filed a complaint, venued in a county different from that where the matrimonial action was pending, seeking guardianship of DeGroot. On July 11, 2008, after review of the matter, Judge Peter E. Doyne entered an order appointing Cacioppo as guardian of the person and property of DeGroot.

In his capacity as DeGroot's guardian, Cacioppo sent a notice to Emolo and Braun-Emolo informing them of the many lawsuits he intended to pursue of behalf of his ward, DeGroot. His correspondence provided an "offer to compromise in settlement" of various claims. On DeGroot's behalf, Cacioppo agreed to accept an agreement that Emolo pay DeGroot permanent alimony of $25,000 per month, a "[o]ne time payment of $5,000,000," and transfer of title of a beach home "free of all encumbrances." Not surprisingly, given the excessiveness of the demands and the animus between all parties, the "settlement" offer was declined.

Cacioppo filed a fifty-five page multi-count complaint against all defendants, wherein he described a "malicious conspiracy with only one purpose[:] to physically, mentally, emotionally and financially injure and damage DeGroot and any other persons they believed were assisting or would in the future assist DeGroot[.]"

Along with an answer, defendants filed a counterclaim against Cacioppo in his capacity as guardian and a third-party complaint against him individually, essentially contending the guardianship was procured by fraud because DeGroot was not incompetent and notice was not given to Emolo as a necessary ...

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