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Filomena Moriello v. Pietro Moriello

July 17, 2012

FILOMENA MORIELLO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
PIETRO MORIELLO, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-472-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2012

Before Judges Axelrad and Ostrer.

The divorced parties jointly own two income-producing properties pursuant to their 2006 property settlement agreement (PSA). Citing discord with her former husband over the properties' management, plaintiff moved to modify the PSA and partition the properties. Defendant cross-moved for an order appointing himself or a person he selected to manage the two properties. The trial court denied both motions. The parties appeal, and we affirm.

I.

The parties were divorced in 2006 after a marriage of more than thirty years. Pursuant to their extensive PSA made a part of the final judgment of divorce (FJD), they became joint tenants without rights of survivorship of a sixteen-unit apartment building and a rented single family home, both in Elizabeth. The PSA provided that, instead of alimony, plaintiff would receive $3000 a month of the net income from the two properties, with any shortfall covered by defendant. Defendant was entitled to receive the next $3000 a month in net income, and the parties were to split any net income over $6000.

Under the PSA, the parties' adult son Peter Joseph Moriello (PJ) was to serve as property manager, earning a commission of ten percent of gross revenue. The PSA also required the parties to execute irrevocable wills, which they did, providing that if one party predeceased the other as well as PJ, then PJ would inherit the deceased party's interest, but the surviving ex-spouse would retain a lifetime interest in the properties' income. PJ executed an irrevocable will leaving his interest to a surviving parent in the event he predeceased that parent.

The PSA contemplated the possibility that PJ would cease his role as property manager.

In the event PJ renounces his role as manager . . . the parties shall discuss and hopefully agree upon a replacement manager.

In the event they cannot agree, either may make application to the Superior Court of New Jersey for the appointment of a manager or for direction as to how a manager should be selected.

Both parties were represented by counsel in entering the PSA. They acknowledged "the issue of Equitable distribution would be foreclosed from reopening, absent a demonstration of fraud by either of them."

It became apparent shortly after entry of the FJD that PJ was unwilling or unable to manage the properties effectively. Lacking a third-party intermediary to manage the property, the parties experienced significant discord over the properties' management. Plaintiff claimed defendant subjected her to extreme verbal abuse, causing her great stress and emotional turmoil, much as she experienced during her marriage.

Claiming that her emotional distress constituted a changed circumstance, she filed a motion with the court to partition the properties and to require defendant to buy her interest or sell the properties to a third party and divide the proceeds, while retaining his obligation to pay $3000 a month alimony. PJ filed a certification formally renouncing his position as property manager and ...


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