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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 had proposed the terms that were included in the MOU. She said that "nobody" proposed those terms.

The trial court issued a written opinion dated June 4, 2010, in which it found that plaintiff's testimony concerning the events of the mediation session and of the specific terms agreed upon was "emphatic, direct, specific, and reliable." The court wrote that plaintiff "made good eye contact and presented as a sincere and honest individual who cannot understand why the [d]efendant is reneging on terms that she herself proposed." The court found that plaintiff's testimony was credible.

The court additionally found that defendant's testimony "was not at all credible." The court stated that defendant's testimony was frantic and self-contradictory. On one hand, she testified that she only vaguely recalls appearing at the mediator's office and has no recollection of speaking to anyone or of any of the events. However, [defendant] also testified emphatically that the mediation had occurred and the proposed written agreement was not what the [parties] agreed to, going on to recite the specific details of their disagreements at the [mediation].

She also maintained that although she reluctantly attended at the mediator's office, no mediation occurred. Her contradictory factual recitations of the same event were stunning.

The court determined that based on plaintiff's credible testimony and "total lack thereof" by defendant, the parties had entered into a global settlement of the all of the issues of their divorce at the June 30, 2009 mediation session. The court stated that defendant had proposed the terms to which plaintiff agreed. The court also stated that the mediator had "clearly and specifically" reviewed the terms with the parties "and the parties left the mediation with the understanding that their case was settled." The court concluded that the settlement was enforceable.

The court entered a final judgment of divorce on June 4, 2010, which dissolved the parties' marriage. The court thereafter filed an amended final judgment of divorce dated June 29, 2010, which incorporated the terms of the parties' settlement.

On July 7, 2010, plaintiff filed a motion to enforce the parenting and visitation schedule established by the court, hold defendant in contempt for violating the court's orders, and award him counsel fees. On August 19, 2010, the court granted plaintiff's motion in part and enforced the previously-established visitation schedule. The court denied all of the other relief sought by plaintiff.

At some point thereafter, defendant filed a motion to amend the final judgment to require, among other things, that plaintiff: pay all or a significant part of the past-due mortgage payments and various property-related expenses; pay certain medical and insurance costs for the child; maintain life insurance in the amount of $1,000,000 with defendant named as sole beneficiary; bear the cost of the child's education and certain activities; and 5) pay permanent alimony to defendant.

The trial court entered an order dated October 15, 2010, denying the motion. In the order, the court noted that defendant's application was essentially a motion seeking reconsideration of the final judgment, which had not been filed within the time prescribed by Rule 4:49-2. The court also stated that because defendant had filed a notice of appeal from the final judgment, it did not have jurisdiction to consider the relief requested.

On this appeal, defendant raises the following arguments for our consideration: 1) the trial court's finding that defendant appeared at trial was erroneous; 2) the court erred by entering an order on February 19, 2010, dismissing the parties' then-pending motions; 3) the court erroneously found that the parties had reached a settlement; 4) the court failed to consider that "just days" before the court-ordered mediation on June 30, 2009, the Division of Youth and Family Services (DYFS)*fn1

had commenced an action against defendant; 5) the court's decision is not supported by the record and the court's opinion erroneously cites facts and "describes proceedings that have or have not taken place for over two and a half years"; 6) DYFS achieved "tremendous success" in the action against defendant and that case had "judicial and factual supremacy" over the "attempt" at mediation in this matter; 7) the "American Legal System does not work as originally intended" and defendant's rights were not protected in this case; 8) defendant was denied adequate representation by her attorney of record; and 9) plaintiff's attorney attempted "to defraud" the court by having the court sign an order granting plaintiff legal fees.

We have carefully reviewed the record and conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.

Defendant argues that there was insufficient competent and credible evidence to support the trial court's finding that the parties reached a settlement at the June 30, 2009 mediation session. We disagree.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's factual findings "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Furthermore, deference to the trial court's factual determinations is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

We are satisfied that there is sufficient credible evidence in the record to support the trial court's determination that the parties reached a settlement at the June 30, 2009 mediation. As we explained previously, the court's determination was based in large part on its finding that plaintiff's testimony regarding the settlement was credible, while defendant's testimony was not. We must defer to the trial court's assessment of the veracity of the witnesses since the court observed the witnesses and heard them testify. Ibid. (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

Defendant further argues that she was denied proper representation in the matter because her attorney had a conflict of interest. She maintains that such a conflict of interest arose because her attorney was concurrently representing one of plaintiff's friends. Again, we disagree.

Defendant has not established that counsel's purported representation of another client was "directly adverse" to her interests. RPC 1.7(a)(1). She also has not shown that there was a "significant risk" that the attorney's representation of her would be "materially limited" by his representation of another client. RPC 1.7(a)(2).


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