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Joseph Fusaro v. Dorota Fusaro

October 1, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-000653-09-J.

Per curiam.


Submitted September 11, Before Judges Yannotti and Harris.

Defendant Dorota Fusaro appeals from a final judgment of divorce entered in this action on June 4, 2010, and an amended final judgment entered on June 29, 2010. We affirm.

The parties were married on August 28, 1993. One child was born of the marriage. On September 18, 2008, plaintiff filed a complaint for divorce, alleging that the parties had irreconcilable differences. On January 20, 2009, defendant filed a counterclaim for divorce, in which she alleged that plaintiff had subjected her to extreme cruelty. On May 13, 2009, the court referred the parties to the early settlement program for mediation.

The mediator met with the parties on June 30, 2009, and thereafter issued a Memorandum of Understanding (MOU), which summarized the agreement the parties reached. According to the MOU, plaintiff agreed to transfer his interest in the former marital home to the parties' child, to be held in trust. Defendant agreed to refinance or recast the existing note and mortgage on the former marital property to relieve plaintiff of any liability on this obligation.

The MOU also stated that the parties had agreed that if defendant failed to refinance or recast the note and mortgage by June 29, 2011, the property would be sold and the proceeds from the sale would be divided equally between defendant and the trust established for the child. Plaintiff further agreed to pay defendant alimony in the amount of $20,000 per year for three years and child support in the amount required by the child support guidelines. The parties additionally agreed to bear responsibility for their respective personal debts, including legal fees.

Thereafter, counsel for plaintiff forwarded a consent order to defendant's attorney to memorialize the agreement reached by the parties. By letter dated July 2, 2009, defendant's attorney wrote to plaintiff's attorney and stated that defendant rejected the consent order. According to counsel, defendant "does not agree to three (3) years of alimony." Counsel stated that defendant was seeking permanent alimony.

On July 14, 2009, plaintiff filed a motion to enforce the settlement, which defendant opposed. The trial court conducted an evidentiary hearing commencing on February 5, 2010, and concluding on February 24, 2010. At the hearing, plaintiff testified that the parties had both been represented by counsel at the mediation. Plaintiff and his attorney left the conference room while the mediator met with defendant and her attorney. Shortly thereafter, the mediator presented plaintiff and his attorney with a proposal, which included the terms spelled out in the MOU.

Plaintiff said that he did not propose any of the terms in the offer. Plaintiff and his attorney returned to the conference room. Defendant did not object to the terms proposed, nor did she offer any other terms. Plaintiff stated that defendant wanted to go over the proposal again to ensure the parties "were all on the same page[.]"

Plaintiff testified that there was nothing unusual about defendant's behavior during the mediation, and he had no reason to believe she was under the influence of any medication. He also testified that he believed defendant understood the terms of the agreement.

Defendant testified that, in her mind, she was not going into mediation but rather a meeting she had to attend. Defendant stated that she was "a mess at that time." According to defendant, "[t]here was just too much pending . . . at that time." She said that she had difficulty sleeping and was concerned about her financial condition.

Defendant additionally testified that, when she entered the meeting, she wanted to receive permanent alimony. Defendant stated she did not consider $20,000 per year for three years to be sufficient alimony, and she also wanted plaintiff to pay the mortgage on the former marital home.

On cross-examination, defendant testified that she only "vaguely" recalled attending the mediation. She claimed that she did not understand the purpose of mediation but acknowledged that she did not inform the mediator of her lack of understanding. Defendant asserted that she did not have the opportunity to speak to the mediator. On redirect examination, defendant was asked who ...

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