DIANNE E. MAZZOLA v. SALVATORE MAZZOLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DIANNE E. MAZZOLA,

Plaintiff-Respondent,

v.

SALVATORE MAZZOLA,

Defendant-Appellant.

____________________________________

April 1, 2014

Argued December 2, 2013 Decided

Before Judges St. John and Leone.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-327-10.

Joseph V. Maceri argued the cause for appellant (Snyder & Sarno, LLC, attorneys; Mr. Maceri, on the brief).

Arthur Del Colliano argued the cause for respondent.

PER CURIAM

Defendant Salvatore Mazzola appeals from the order of the Family Part awarding 50% of certain insurance proceeds to his former wife, plaintiff Dianne E. Mazzola. We affirm.

I.

Plaintiff and defendant were married in 1969. They jointly owned the marital home in North Arlington. Eventually, the parties got into an extended argument about defendant's desire to do major construction work on the house. As a result, plaintiff moved out in 2009, moving with their adult disabled son into a house she had inherited from her parents. Defendant changed the locks on the marital home and commenced the construction.

In November 2010, during the construction, a fire swept through the house. The blaze rendered the marital home uninhabitable and severely damaged its contents. The parties sought reimbursement under their joint homeowners' insurance policy from Encompass Insurance Company (insurer).

Without telling plaintiff, defendant entered into an arrangement under which the insurer would pay for his temporary housing. Days after the fire, defendant signed agreements with Temporary Housing Directory, Inc. (THD). THD initially billed the insurer for defendant's hotel accommodations. Thereafter, THD billed the insurer for defendant's rent, furniture, appliances, and housewares at an apartment. Defendant agreed that the insurer would pay THD directly for those expenses, and that THD would also pay his security deposit for the apartment from the "contents" portion of the insurance claim. For defendant's benefit, the insurer paid a total of $41,223.34 from November 2010 through May 2012.

Meanwhile, plaintiff filed for divorce. Defendant did not disclose these insurance payments in his case information statement, during the parties' settlement negotiations, or to his own matrimonial counsel. Plaintiff was unaware of defendant's arrangements with THD and the insurer.

On October 25, 2011, the parties entered into a consent Final Judgment of Divorce and placed their oral settlement agreement on the record. During the colloquy, defendant stated that he supported himself on Social Security and by doing odd jobs, but did not mention the payments by the insurer.

As part of the oral settlement, the parties agreed that the $275,960 check the insurer had issued for damage to the building should be used to pay off the mortgage and other expenses, with the balance split evenly between them.1 The parties also represented that they had negotiated a deal with the insurer for reimbursement for "use and contents," under which they expected to receive $70,000 to $75,000. As later incorporated into an Amended Final Judgment of Divorce, the parties agreed as follows:

the Plaintiff and the Defendant have represented to their respective legal counsel, and to the Court, that there may be additional insurance funds payable to the parties for certain use and contents. The Plaintiff and the Defendant have represented to their respective legal counsel and to the Court that the insurance proceeds may be in the amount of $70,000.00. The Plaintiff and the Defendant agree to split equally the aforesaid insurance proceeds in the amount of $70,000.00, or whatever the amount of the insurance check, except that the Plaintiff will receive an additional $1,000.00.

[(emphasis added).]

After the divorce, plaintiff learned about a check from the insurer to THD. She filed a motion seeking discovery and 50% of any additional payments the insurer may have made. The family court ordered defendant to detail any insurance funds he had received, allowed plaintiff to subpoena the insurer and THD, and ordered the parties not to cash the insurer's "final payment" check for $29,860.46 for contents. After discovery, the court held a plenary hearing.

On September 26, 2012, the Family Part issued its decision. In an oral opinion, the court found that plaintiff was very forthright and "much more credible" than defendant, and that defendant was very disingenuous, evasive, and inconsistent. The court found that defendant failed to disclose the housing payments from the insurer before the divorce settlement, and that his surreptitious receipt of these insurance proceeds prejudiced plaintiff. The court then found that the contents of the marital home would have been subject to equitable distribution had they not been destroyed, that both parties deserved compensation for the living expenses, and that the insurance payments on defendant's behalf were part of the marital estate. The court concluded that it would be inequitable for defendant to keep all of the insurance proceeds, and that plaintiff should share in them.

In the September 26, 2012 order, the Family Part required defendant to pay plaintiff $20,611.67. That amount represented 50% of the $41,223.34 paid by the insurer for defendant's benefit, namely the $38,688.84 housing payments and the $2,534.50 security deposit. The court ordered the amount to be paid from the $29,860.46 being held by the insurer.

II.

Defendant appeals. We must hew to our standard of review:

The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses. Therefore, an appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.

[Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citations and quotation marks omitted).]

Moreover, "[w]e accord particular deference to the judge's factfinding because of 'the family courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413). We may reverse only if there is "a denial of justice because the family court's conclusions are clearly mistaken or wide of the mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quotation marks omitted). "To the extent that the trial court's decision constitutes a legal determination, we review it de novo." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013).

In settling their divorce, the parties agreed they would split equally "additional insurance funds payable to the parties for certain use and contents," estimated at up to $70,000. Defendant contends that the parties' agreement was referring only to the $29,860.46 check for contents, not to the $41,223.34 being paid by the insurer for his benefit. However, the court credited plaintiff's testimony and found that she entered into the divorce settlement reasonably believing that she would get her share of money for living expenses and contents.

The record supports the court's credibility and factual findings. It is undisputed that the parties were unaware of the amount of the $29,860.46 check, issued but not yet received by them. Defendant does not and cannot contest that he failed to inform plaintiff that he was already receiving the insurer's payments for his living expenses due to loss of use of the marital home. Further, the parties' $70,000 estimate indicates that they expected more than the $29,860.46.

"'New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies.'" J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "Courts recognize the contractual nature of those matrimonial agreements," which "should be enforced according to the original intent of the parties." Ibid. We read the parties' agreement to include insurance payments both for the "contents" and the loss of "use" of the marital home. Indeed, defendant orally affirmed that they were splitting the insurer's payments for "use and contents."

The insurer's payment of $38,688.84 for rent and replacement furniture, appliances, and housewares was plainly payment for defendant's loss of "use" of the marital home and its contents. The insurer's payment of defendant's $2,534.50 security deposit was expressly taken from the "contents" proceeds, which the parties otherwise would have received. Those payments thus fell within the plain terms of the agreement's "use and contents" proceeds, which the parties agreed to split evenly.

Defendant argues that plaintiff is trying to void or modify the parties' agreement, but it is defendant who is trying to escape its terms. Defendant cannot argue that, in entering into the agreement, he had no intention of disclosing or splitting the use and contents payments he was receiving from the insurer. "'In interpreting a contract, [i]t is not the real intent but the intent expressed or apparent in the writing that controls.'" Flanigan v. Munson, 175 N.J. 597, 606 (2003). Defendant's unexpressed subjective intentions are therefore not a valid basis to interpret the agreement contrary to the objective meaning of the terms.

Moreover, defendant's promise to split the insurer's "use and contents" payments helped obtain plaintiff's acceptance of the marital settlement. In that settlement, plaintiff agreed to split evenly the other insurance payments; to waive her interest in defendant's business; to waive alimony in a forty-year marriage; to allow defendant to buy out her interest in the marital home; to assume responsibility for most of the credit card debt; and to use the anticipated insurance proceeds to cover any deficit in defendant's contributions to the credit card debt and home buyout. The $41,223.34 received by defendant was a substantial asset in this divorce.

A marital settlement agreement "'must reflect the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages.'" J.B., supra, 215 N.J. at 326. "[I]f found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004); see also Petersen v. Petersen, 85 N.J. 638, 642 (1981). Further, the court has "'greater discretion'" when interpreting agreements in the domestic arena. Sachau v. Sachau, 206 N.J. 1, 5 (2011). Here, given the importance of defendant's "use or contents" promise, it was fair and just to enforce the parties' agreement and split the $41,223.34. The Family Part thus did not abuse its discretion in so ordering.

We recognize the different situations of plaintiff and defendant regarding loss of use and contents. Plaintiff moved into her inherited house before the fire; however, the family court found she "made a very compelling argument" that she was constructively evicted by defendant's construction plans to remove the roof and second floor and to move the second-floor furniture to the first floor. Plaintiff paid no rent in the inherited house; however, the court found that plaintiff lost rental income by living in rather than renting out that house. Plaintiff's need for furniture, appliances, and housewares at the inherited house may have been different than defendant's need at an apartment.2 Nonetheless, defendant agreed to split the insurer's payments for "use and contents," and the differences between their situations did not make that agreement inequitable.

Defendant argues that he simply sought and received a benefit from the insurer, and plaintiff did not. Defendant states that neither party was happy with the $29,860.46 amount. He asserts that plaintiff's complaints should be directed to the insurer. Nonetheless, defendant chose to agree to split the payments for "use and contents" that the insurer did make, and the Family Part properly enforced that agreement.

1 The insurer also issued a $5,000 initial payment for the contents, of which defendant received $3,000 and plaintiff $2,000.

2 We note that the furniture and other items provided by THD may only have been rented, and that there was no evidence that THD paid the utilities at defendant's apartment.