BARBARA DURSO v. JOSEPH G. DURSO

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4674-07T22263-07T2

A-4674-07T2

BARBARA DURSO,

Plaintiff-Respondent,

v.

JOSEPH G. DURSO,

Defendant-Appellant.

_______________________________________

 

Submitted March 24, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2294-98.

Nina Rossi, attorney for appellant.

Cheryl E. Connors argued the cause for respondent (Wilentz, Goldman & Spitzer, P.A., attorneys; Jay J. Ziznewski, of counsel; Ms. Connors, Risa A. Kleiner, and Lisa Steirman Harvey, on the briefs).

PER CURIAM

In A-2263-07, defendant Joseph Durso appeals from an order entered by the trial court on November 26, 2007, which granted a motion by plaintiff Barbara Durso to enforce defendant's alimony obligation, and denied defendant's motion to set aside the parties' property settlement agreement (PSA) or terminate his alimony obligation. In A-4674-07, defendant appeals from an order entered on March 28, 2008, awarding plaintiff attorney's fees and costs. We consolidate the appeals for decision and affirm.

The appeals arise from the following facts. The parties were married in 1969. Their marriage was dissolved by a final judgment of divorce entered by the trial court on August 24, 1998. The final judgment incorporated the parties' PSA, which they signed on June 1, 1998. The PSA provides in pertinent part that defendant will pay plaintiff alimony in the amount of $100 per week. It is undisputed that, after the parties executed the PSA, defendant only made five payments of alimony.

On July 19, 2007, plaintiff filed a motion to enforce her right to alimony under the PSA. Plaintiff asserted that, at that time, defendant owed her alimony arrears from July 9, 1998 to July 9, 2007, totaling $47,000. Plaintiff stated that in 1999, she had "hired" an attorney to enforce the PSA but she did not have sufficient funds to proceed with an enforcement motion.

Defendant opposed plaintiff's motion and filed a cross-motion seeking an order setting aside the PSA. Defendant disputed plaintiff's assertion that she did not have sufficient funds to pay an attorney to file a motion to enforce the PSA. Defendant stated that he received a letter dated August 20, 1999, from plaintiff's attorney and he spoke with plaintiff regarding the matter.

Defendant claimed that the parties agreed that he would pay certain monies plaintiff owed to Providian National Bank (Providian) and plaintiff agreed in turn to waive her right to further alimony payments. Defendant conceded, however, that this "agreement" had never been reduced to writing.

Defendant also claimed that attorney Howard J. Schmidt (Schmidt) represented both parties in the divorce proceedings. According to defendant, Schmidt advised him not to retain separate counsel. Defendant asserted that Schmidt assured him "that he would take care of everything" and defendant "would be fine." Defendant said that this "turned out not to be the case."

Defendant claimed that the division of property and apportionment of responsibility for the joint marital debts "were blatantly unfair to" him. Defendant stated that he assumed all of the parties' marital debt, including the credit card debt and student loans. He said that $12,500 was still owed on the student loans, and $15,000 was paid on the credit card debt. Defendant asserted that plaintiff has the means to return to him a portion of her share of the marital property she had received in 1998 and to assume a portion of the outstanding debt.

Defendant also asserted that he presently suffers from "severe heart problems" and had been advised by his physician that he is disabled from employment. He stated that he had been approved for social security disability benefits. Defendant argued that the change in his circumstances warranted termination of his alimony obligation.

Plaintiff filed a certification in response to defendant's cross-motion. Plaintiff denied that she agreed to waive her right to receive alimony in exchange for the assumption by defendant of the debt owed to Providian. Plaintiff noted that defendant had previously agreed to assume the Providian debt when they entered into the PSA.

Plaintiff also disputed defendant's assertion that Schmidt represented both parties in the divorce proceedings. She stated that it was clear from the file that Schmidt only represented her in the proceedings. In addition, plaintiff disputed defendant's assertion that the PSA was unfair to defendant.

Plaintiff also furnished the court with a certification by Schmidt, in which Schmidt stated that he had been retained by plaintiff to file an uncontested divorce. Schmidt stated that at no time did he represent defendant nor did he ever give him legal advice of any kind. Schmidt stated that defendant's assertions to the contrary were "utterly and totally false."

Schmidt added that the parties had worked out a settlement before plaintiff retained him. According to Schmidt, this was the reason defendant "did not get an attorney and did not file an answer" to the complaint that Schmidt had filed and served upon defendant.

The trial court entered an order on November 26, 2007, granting plaintiff's motion and denying defendant's cross-motion. The trial court set forth on the order the reasons for its decisions on the motions.

The court rejected defendant's contention that plaintiff had waived her right to alimony in 1999. The court found that plaintiff's claim for the past-due alimony arrears was not barred by the doctrine of laches. The court ordered defendant to pay a total of $46,800, but allowed defendant to do so in monthly payments of $1,000.

In addition, the court found no merit in defendant's assertion that Schmidt had represented both parties in the divorce proceedings. The court noted that plaintiff had submitted documentation which established that Schmidt did not represent both parties in the matter. The court also rejected defendant's contention that the agreement should be set aside on the basis that the agreement is unconscionable.

The court additionally denied without prejudice defendant's application to terminate his alimony obligation, finding that defendant had not presented sufficient evidence to support his application. The court stated that defendant could file a new motion to terminate his alimony obligation but would have to present further evidence concerning the parties' financial situation in order to prevail. The court ordered defendant to continue to pay plaintiff $100 per week in alimony.

On January 14, 2008, defendant filed a notice of appeal from the trial court's November 26, 2008 order. Thereafter, defendant filed a motion for a stay of the order pending appeal. Plaintiff filed a cross-motion seeking attorney's fees and costs incurred to oppose the stay application.

On March 28, 2008, the court entered an order denying defendant's motion for a stay and granting plaintiff's motion for attorney's fees and costs. The court awarded plaintiff $3,533.50. On June 2, 2008, defendant filed a notice of appeal from the March 28, 2008 order.

In A-2263-07, the appeal from the trial court's order of November 26, 2007, defendant raises the following contentions:

POINT I

Plaintiff waived alimony in 1999. [Plaintiff's] application eight years later is barred by laches[.]

POINT II

The division of property and debt was unconscionable. Defendant was never advised to consult independent counsel[.]

POINT III

Defendant's obligation for alimony must be eliminated based on changed circumstances.

In A-4674-07, the appeal from the trial court's order awarding plaintiff attorney's fees and costs incurred in responding to defendant's motion for a stay pending appeal, defendant raises the following argument:

POINT I

The trial court's analysis of the factors relevant to counsel fees was fatally flawed.

For the reasons that follow, we conclude that defendant's arguments are entirely without merit.

Defendant first argues that the trial court erred by finding that plaintiff did not agree in 1999 to waive her right to alimony payments under the PSA. The scope of our review of the trial court's factual finding is strictly limited. We must defer to the trial court's finding if it is "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). In addition, appellate courts must afford particular deference to the findings of the Family Part because of its expertise in family matters. Id. at 412-13.

As defendant concedes, the alleged agreement was never reduced to writing. Moreover, as the trial court pointed out on the November 26, 2007 order, at the time of the divorce, defendant had agreed to assume all marital debts, including the debt to Providian. Thus, as the court found, defendant's argument that plaintiff agreed in 1999 to waive her right to alimony in exchange for defendant's assumption of the Providian debt defies logic and common sense. We are satisfied that the trial court's finding that plaintiff did not agree in 1999 to waive her right to alimony payments is amply supported by the record.

Defendant next argues that the trial court erred by finding that the doctrine of laches did not bar plaintiff from pursuing her claim for unpaid alimony. Again, we disagree. The doctrine of laches is an equitable principle that bars a party from asserting a right when that party has neglected or failed to assert the right "'for an unreasonable and unexplained length of time,'" and "'the adverse party would be prejudiced by the enforcement of'" the claim. Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 151-52 (1982) (quoting Atl. City v. Civil Serv. Comm'n, 3 N.J. Super. 57, 60 (App. Div. 1949)). In considering whether to apply the laches doctrine, the court must consider "[t]he length of the delay, reasons for delay, and changing conditions of either or both parties during the delay[.]" Id. at 152 (citing Pavlicka v. Pavlicka, 84 N.J. Super. 357, 368-69 (App. Div. 1964)).

Here, plaintiff waited nine years to assert her claim for unpaid alimony. In that period, defendant failed to pay $46,800 in alimony payments. As we stated previously, plaintiff asserted that she could not afford to pay an attorney to bring a motion to enforce her rights under the agreement. Defendant disputes plaintiff's assertion. He argues that plaintiff's delay in pursuing the matter was unreasonable and inexcusable.

We are convinced, however, that the trial court correctly determined that the laches doctrine did not bar plaintiff's claim. We recognize that plaintiff waited a considerable period of time to pursue the claim. Even so, the trial court properly found that plaintiff had provided a reasonable explanation for her failure to bring an enforcement application earlier.

Defendant contends that plaintiff had sufficient funds to pursue the matter, but plaintiff stated in her reply certification that in 2006, her wages were about $16,000. Plaintiff also stated that her children have been supporting her for the past nine years and, without their support, she "would never have been able to survive."

Defendant additionally contends that plaintiff could have sought the award of counsel fees and costs in any enforcement motion; however, there was no guarantee that the court would have awarded her counsel fees and costs. Any such award is subject to the discretion of the court. Rule 1:10-3 provides that a court has discretion to award counsel fees to party who is accorded relief in a motion in aid of litigant's rights.

Defendant further argues that he has been prejudiced by the delay in enforcing the right to alimony. He claims that he has been prejudiced by the delay because the arrears now total $46,800 and, due to his alleged disability, he cannot bear that expense at this time. We are not persuaded by these arguments.

Defendant has been able to retain the $46,800 in alimony payments that he should have paid to plaintiff. If defendant is prejudiced by having to pay the accumulated arrearages at the present time, the prejudice does not arise from plaintiff's delay. It arises from his own failure to make the alimony payments in a timely manner.

Defendant additionally argues that the trial court erred by denying his application to set aside the division of property and debt in the PSA. He contends that these terms of the agreement are unconscionable. He also contends that Schmidt improperly represented both sides in the divorce proceedings and he was never advised to retain his own attorney.

In our judgment, the trial court properly rejected these arguments. As the trial court noted, Schmidt's certification made abundantly clear that he did not represent defendant in the divorce proceedings and defendant chose to proceed without an attorney. Schmidt's certification was confirmed by the transcript of the trial court proceedings, which indicated that Schmidt was plaintiff's counsel.

Moreover, the trial court found that defendant failed to establish that the agreed-upon division of marital property and debts was unfair or inequitable. Notwithstanding defendant's arguments to the contrary, we are satisfied that there is sufficient credible evidence in the record to support the trial court's finding on that issue. R. 2:11-3(e)(1)(A) and (E).

In addition, defendant argues that the trial court erred by denying his motion to terminate his alimony obligation on the basis of changed circumstances. In our judgment, this contention is entirely without merit. The court wrote on the order that defendant had presented a prima facie case of changed circumstances "as a result of his disabled status." The court found, however, that defendant had not presented sufficient evidence concerning his "financial circumstances" in order to determine whether his alimony obligation should be terminated.

The court noted that defendant had not submitted his W-2 statement for the previous calendar year. We are satisfied that, despite the court's statement that defendant had made a prima facie showing of changed circumstances, denial of his motion to terminate alimony payments without prejudice was warranted under the circumstances.

Last, defendant argues that the court erred by awarding plaintiff counsel fees and costs for responding to defendant's motion for a stay of the November 26, 2007 order pending appeal. Defendant argues that the court considered "improper factors" and its "analysis was skewed" in favor of plaintiff. These contentions are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Counsel did not appear for argument. She thereafter waived argument of the appeal.

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A-2263-07T2

May 6, 2009