CATHERINE IACOUZZI v. GERALD IACOUZZI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3179-04T13179-04T1

CATHERINE IACOUZZI,

Plaintiff-Respondent,

v.

GERALD IACOUZZI,

Defendant-Appellant.

___________________________

 

Argued January 24, 2006 - Decided March 6, 2006

Before Judges Hoens and Seltzer.

On Appeal from the Superior Court of

New Jersey, Chancery Division, Family Part,

Morris County, FM-14-4767-89.

Vincent Celli argued the cause for

appellant (Celli and Schlossberg, attorneys;

Antonietta L. Milleli, on the brief).

Catherine V. Iacouzzi, respondent pro se.

PER CURIAM

Defendant appeals from a post-judgment order dated December 7, 2004, which determined him to be in arrears on his alimony obligation, fixed the amount of the arrearage, and denied his application to terminate alimony. We affirm.

The parties were married on June 10, 1961, and divorced on March 1, 1990, by a judgment that incorporated a Stipulation of Settlement resolving all of the issues implicated by the divorce. The equitable distribution provisions of the settlement required plaintiff to relinquish her rights in the marital assets, comprising a home and two rental properties, in return for $180,000. In addition, the parties agreed that plaintiff should receive permanent alimony in the amount of $200 per week.

From 1998 until 2004, defendant paid alimony on a sporadic basis. He sustained numerous periods of unemployment, during which he simply stopped paying support. In March 2004, defendant advised plaintiff that he was planning to stop working and that he did not intend to resume his alimony payments. Plaintiff then promptly filed an application to enforce her litigant's rights and to fix the alimony arrearage. Defendant filed a cross-application to terminate alimony. His application was predicated on a belief that plaintiff's income had increased substantially since the date of the divorce judgment.

Judge Barbara Zucker-Zarett conducted a plenary hearing at which the factual bases for the applications were explored. Defendant resisted plaintiff's request for the unpaid alimony, claiming an oral agreement with plaintiff, pursuant to which plaintiff excused him from his alimony payments during his periods of unemployment. He asserted that the agreement was consistent with plaintiff's failure to pursue her right to alimony for some six years.

Plaintiff admitted that, when defendant stopped paying alimony, she took no action to enforce her rights but denied that she had ever agreed to forgo those payments. Rather, she explained, she did not believe it economically feasible to pursue defendant while he was unemployed and that she had no funds to hire an attorney for that purpose in any event. She testified that she always believed defendant would ultimately be responsible for the payments he had failed to make.

The judge resolved the credibility dispute between the parties in favor of plaintiff. She found "that Catherine never agreed to give up her right to demand and receive alimony not paid although required to be paid by the terms of the judgment of divorce." Specifically, the judge found that Catherine was the "more credible on the conversations between the parties." That credibility resolution, and the consequent rejection of defendant's claim of an agreement absolving him of his alimony obligation during periods of unemployment, are entitled to substantial deference from us. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Because the findings are founded on substantial, credible evidence in the record and because the legal determinations drawn from those facts are appropriate, the judge's conclusion may not be disturbed on this appeal. Rova Farms Resort Ins. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); Rolnick v. Rolnick, 262 N.J. Super. 343, 358-59 (App. Div. 1993).

The court also disposed of defendant's claim that, even in the absence of an agreement, plaintiff was barred from pursuing her claim by virtue of her delay, for some six years, in seeking to enforce payment. The judge recognized that the doctrine of laches will estop a party from making a claim after an unreasonable and unexplained delay in seeking relief when the delay results in prejudice to the party against whom the claim is made. Lavin v. Board of Education, 90 N.J. 145, 151-53 (1982). The application of the doctrine "more often than not, will turn on whether a party has been misled to his harm by the delay." Id. at 153. Judge Zucker-Zarett found that "there is no proof of any prejudice to Gerald. There is no proof that he changed his life or took any action as a result of Catherine's failure to insist that he start by repaying back alimony each time that he resumed employment." In the absence of prejudice, there can be no laches or estoppel. See Clarke v. Clarke, 359 N.J. Super. 562, 570-71 (App. Div. 2003). The judge's refusal to bar plaintiff's claim was quite correct.

The judge then turned to defendant's cross-motion. She recognized that plaintiff's income had increased from $26,000 at the time of the divorce in 1990 to approximately $60,000 per year at the time of the motion, but also accepted plaintiff's testimony that she "has been working a second job to make up for the loss of alimony during the periods of time Gerald has failed to pay alimony . . . ." The judge noted that "certainly Catherine is earning more than she earned at the time of the divorce. The increase may be more than modest but there are no proofs that she is living better than the lifestyle she enjoyed during the marriage or that there has been a significant change for the better in her circumstances."

The judge then considered defendant's ability to continue to meet his obligation. She found that defendant was unemployed as the result of his employer's dissatisfaction with defendant's performance. She rejected defendant's claim that he was unable to work as the result of medical conditions, noting that his medical expenses were minimal. Moreover, the judge found that defendant "has been able to increase his net worth to in excess of $1,000,000" and failed to show that he was unemployable. The facts demonstrated that he was an experienced manager and that his termination for poor performance should not excuse his obligation to Catherine "because he elected to perform his duties in an unsatisfactory manner." In fact, in the recent past, the certifications showed that defendant was able to earn as much as $100,000 per year.

Under these circumstances, the conclusion that defendant had failed to show a change of circumstances sufficient to justify a modification or termination of his alimony obligations was unassailable.

 
Affirmed.

Defendant's Notice of Appeal indicates that he also appeals from two later orders that, respectively, enforced the December 7, 2004, order, denied defendant's application for a stay of that order, and required the payment of counsel fees. The validity of the two later orders depends upon the outcome of this appeal. In any event, defendant has failed to brief the issues raised by those orders and, accordingly, those issues are deemed waived. Liebling v. Garden State Idemn., 337 N.J. Super. 447, 456-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).

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A-3179-04T1

March 6, 2006