NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 6, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1818-10.
John T. Knapp argued the cause for appellant/cross-respondent (Simon & O'Brien, P.C., attorneys; Mr. Knapp, of counsel and on the briefs).
Frank J. LaRocca argued the cause for respondent/cross-appellant (LaRocca Hornik Rosen Greenberg & Blaha, P.C., attorneys; Mr. LaRocca and Valerie Bonventre, on the brief).
Before Judges Koblitz and Accurso.
Defendant Francesco Bellantuono appeals from various provisions of two October 21, 2011 post-judgment matrimonial orders as well as a subsequent enforcement order. Plaintiff Ann-Marie Bellantuono cross-appeals seeking counsel fees. After reviewing the record in light of the contentions advanced on appeal, we affirm all decisions substantially for the reasons expressed by Judge Selser in his thorough oral opinion of October 21, 2011 and written opinion of December 22, 2011.
The parties were married in 1990. They had three children, a son born in 1993 and two younger daughters. Their son is currently a figure skater who is training for the Olympics. He moved in with a family in Michigan to train on a full-time basis while in high school. Francesco and Ann-Marie transferred legal guardianship of their son to this family.
During the course of the parties' marriage, Francesco owned and operated a tile company located in New York City. Ann-Marie was the company bookkeeper. Francesco's income fluctuated from year to year.
The parties reached a divorce settlement through mediation, although no formal written agreement was signed. On October 21, 2010, Ann-Marie's attorney sent Francesco's attorney a letter setting forth the agreement. Judge Selser divorced the parties on the record the following day.
Ann-Marie agreed, under oath, with the characterization that the oral property settlement agreement (PSA) was "refined and fine tuned" over the course of multiple mediation sessions and resulted from compromises between the parties. She further agreed that the terms were "fair, just, and equitable[.]" After Ann-Marie finished her testimony, her attorney added that "there's no modification to this agreement for a period of three years until we revisit the issues of their income when we exchange . . . the financial information . . . in three years." Francesco's attorney agreed.
Francesco confirmed that the oral PSA encompassed "all the terms that pertain to a settlement in this matter[, ]" that there were no hidden side agreements, that the deal was "a fair and equitable resolution of all the issues in this case[, ]" and that he could "live with these terms" even though he did not get everything he wanted. Francesco agreed that he "had enough time to consider the resolution of these issues" and that he wanted to settle the case because it was in his best interest to do so. Finally, Francesco acknowledged that he was asking the court to make the oral PSA a part of the judgment of divorce. Additionally, Francesco testified on cross-examination that he understood the negotiated alimony was "permanent alimony, " but that the amount would be revisited in three years.
Judge Selser entered a final judgment of divorce, incorporating the parties' oral PSA. He found that the parties were represented by competent counsel, entered into the agreement voluntarily, and that the parties considered that "the agreement represent[ed] a fair disposition of the issues in their matter." Judge Selser then directed the parties to execute an amended judgment of divorce (AJOD) to include the terms of the oral PSA.
Francesco's counsel prepared an AJOD incorporating the terms of the oral PSA and submitted it under the five-day rule, Rule 4:42-1(c). Judge Selser signed the AJOD on January 12, 2011. We discuss only those provisions of the parties' agreements that are in dispute in this appeal.
Pursuant to the AJOD, Francesco agreed to make the following payments. He agreed to pay $750 per week in alimony, based on Ann-Marie's weekly income of $481 and his weekly income of $2740. He agreed to pay $302 per week in child support. He agreed to pay $1000 per month to support his son's skating career. The oral PSA noted that this sum would be paid by both parties into a dedicated bank account. Paragraph 11 of the AJOD ...