PATRICIA SETTINERI v. THOMAS SETTINERI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PATRICIA SETTINERI,

Plaintiff-Respondent,

v.

THOMAS SETTINERI,

Defendant-Appellant.

____________________________________________________

June 4, 2015

Submitted May 19, 2015 Decided

Before Judges Fisher, Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-517-12.

Caruso Smith Picini, attorneys for appellant (Richard D. Picini, of counsel; Mr. Picini and John Anello, on the brief).

Simon, O'Brien and Knapp, attorneys for respondent (John T. Knapp, of counsel and on the brief).

PER CURIAM

Defendant Thomas Settineri appeals an order that denied his motion to vacate a default judgment in this matrimonial action. We find no merit in his arguments and affirm.

The parties were married in 1970; both their children are emancipated. Plaintiff Patricia Settineri filed her divorce complaint on August 26, 2011, and, through counsel, defendant filed an answer and counterclaim. By motion, on February 8, 2012, the judge ordered defendant to pay plaintiff $1800 per month in pendente lite support.

In these early stages of the litigation, the judge also conducted a case management conference and provided parameters for pretrial discovery; plaintiff served interrogatories and a notice to produce documents. Soon thereafter, plaintiff's counsel advised defense counsel that responses were overdue and advised a motion to compel would be filed. Defendant then filed a pro se motion to be relieved of the economic provisions of the February 8, 2012 order, and his attorney moved to be relieved based on an unsupported contention that defendant was unable to pay counsel's fees. Plaintiff moved for aid in litigant's rights and for suppression of defendant's answer and counterclaim for failing to provide timely responses to her discovery requests. On May 10, 2012, the judge denied plaintiff's motion to suppress defendant's pleadings, denied defendant's motion to suspend his pendente lite support obligation, and relieved defense counsel.

Defendant failed to appear for a status conference on August 13, 2012. And, by January 2013, defendant still had not provided the discovery sought by plaintiff. By order entered January 2, 2013, the judge entered default against defendant due to his failure to provide discovery; defendant was also ordered to pay fifty percent of the pendente lite arrears. A proof hearing was scheduled for March 4, 2013, but adjourned until July 8, 2013, in order to give defendant an additional opportunity to provide long overdue discovery and to allow plaintiff additional time to attempt to ascertain defendant's financial status through other means.

On July 8, 2013, the judge conducted a default hearing; defendant appeared and was permitted to cross-examine plaintiff. On August 13, 2013, the judge issued a letter opinion containing his rulings. Among other things, the judge made the following findings

The [parties] are each 66 years of age. They were married on August 2, 1970[, and have] two . . . children who are both emancipated[.] . . . Thus, we are dealing with a long-term marriage which is 41 years in duration.

. . . .

This court has presided over this case since the filing of the initial complaints. There have been numerous case management conferences, as well as motions filed by the plaintiff. Defendant is self[-]represented, and has failed to comply with numerous discovery orders . . ., motion orders and case management orders of the [c]ourt. On January 2, 2013, this [c]ourt entered default[] against [d]efendant based upon a failure to provide discovery. The [c]ourt then directed that the matter be scheduled for a default hearing.

Plaintiff's counsel served[] 12 subpoenas on various bank institutions in an attempt to discover the income and assets of the [d]efendant. However, according to the report of plaintiff's investigator . . . there were only two small accounts located in Morristown, each of which had less than $1000 balances. . . . The [d]efendant has continually maintained, and contended at the time of the default judgment hearing[,] that his businesses are defunct, and that the only income he receives is Social Security income in the amount of $2056 a month. Defendant claims that the businesses known as A&T Investments, Avanti Alliance, LLC, and Strategic Strategies have suffered severe losses since the economic recession in 2008, and thus, are worthless at the present time. In addition thereto, the [d]efendant claims that he receives no income from the Settineri family trust, as no income will be received by the [d]efendant until his mother passes away. Presently, his mother, Marie G Settineri is 98 years of age.

[Plaintiff] is seeking permanent alimony and the sum of $10,000 a month based upon the former marital standard of living. The parties sold their home in Cedar Grove in 2006, and purchased a penthouse at Claridge House worth $1.2 million. Plaintiff testified that the [d]efendant owned expensive cars, including a Bentley. He would give her approximately $10,000 a month to pay the household bills, towards credit cards, the plaintiff's expenses, as well as vacations, food, etc. The parties sold the penthouse, and then purchased a regular condo at the Claridge House. The mortgage with respect to this condominium . . . is currently in default, and there are foreclosure proceedings pending[.]

Plaintiff testified as to the marital standard of living, which was reflected in her case information statement . . . . She has the joint marital lifestyle . . . at approximately $17,000 per month. Her current lifestyle . . . . [amounts to] the sum of $12,993. Plaintiff testified that the Settineri family trust provided income to her and to [d]efendant prior to the date of the complaint. Plaintiff and [d]efendant were entitled to 50% of the income from the trust, and thus she claims that she is entitled to half of that share, or 25% of the monthly income. She testified that it has been that way since April of 2007 until the complaint was filed. Indeed, the [c]ourt reviewed . . . P-2 in evidence[, which is] a disclaimer of income from the Ramsey property, which is the property from which the trust earns its income. The disclaimer states that Marie G Settineri disclaims any income from the trust, and it is divided 50% to the [p]laintiff and [d]efendant, and 50% to the [d]efendant's brother.

As to the marital residence, the parties were living [at the Claridge House] when they separated May of 2011. There is currently a contested complaint in general equity. The [p]laintiff is on the deed . . . but not on the note with respect to the property. She claims that the [d]efendant forged her signature on the mortgage and the home equity loan with respect to the property. Thus, if the foreclosure is defeated, [p]laintiff wants the property free and clear. If the foreclosure complaint is not defeated, she wants the defendant held solely responsible for any monetary judgments.

. . . .

As to retirement funds, [p]laintiff testified that [d]efendant has not provided her with any itemization of same. She requested he disclose the retirement funds, and they be split 50-50 during the period of coverture, with 100% of the cost for the domestic relations orders to be assessed to the [d]efendant. Plaintiff claimed she does not have any retirement funds.

. . . .

Defendant's position is that the [p]laintiff has diverted and dissipated assets during the course of the marriage. Specifi-cally, he claims that she managed their finances, he would give her a monthly allocation for which she would pay the bills to run the household and take care of her needs. The money came from the [d]efendant, and she states that when he began questioning her diversion of monies, he then stopped paying the bills in 2010. Because he had experienced tremendous financial difficul-ties, during the recession in 2008 through 2010, he told the [p]laintiff to pay bills from her personal accounts. . . . He claims that they reached an agreement in 2008 that she would manage the monies and pay the bills from her personal accounts. Toward the end of their marriage, [d]efendant claims that the [p]laintiff cashed his social security checks to pay marital bills like insurance, medical bills, etc. He also claims that the [p]laintiff liquidated stock, and took the monies from those stock sales. Plaintiff claims that she gave the stock certificates back to the [d]efendant and does not know what he did with [them], or any monies from cashed in stocks.

After considering this and other evidence, the judge determined that the marital standard of living was "approximately $15,000 per month."

For a number of reasons, including the "huge gaps" in defendant's case information statement, the judge concluded that defendant's factual assertions were not accurate. The judge also observed that defendant's personal income tax return listed approximately $75,000 income, which included more than $50,000 from the trust, but that defendant also failed to turn over any 2012 tax returns for A&T Investments, Avanti Alliance, Strategic Strategies, and Wall Street Goddesses. And the judge found that defendant's claim that he does not receive any funds from the family trust "cannot be true." Ultimately, however, the judge recognized that he could not "get a clear picture of [defendant's] income without a true accounting from his business[es] of Avanti, A&T Investments, Strategic Strategies, and[] Wall Street Goddesses."

Guided by the marital standard of living that existed prior to the filing of the complaint, the judge found plaintiff entitled to $7500 per month in permanent alimony. He also determined that defendant "is receiving and has received monthly income generated by the Settineri family trust" and found plaintiff entitled to half of that income; the judge directed that defendant "supply evidence of the full amount of the [trust] income on a monthly basis" subject to his arrest for noncompliance. For these and other reasons more fully discussed in the judge's written opinion, judgment was entered on September 16, 2013.

On November 25, 2013, current counsel moved on defendant's behalf for an order vacating the September 16, 2013 judgment, relying on subsections (a), (b), and (f) of Rule 4:50-1.1 Defendant argued there were "vast complexities" about "corporate structures, compliance with the IRS Tax Code, the formations and administrations of [d]iscretionary [t]rusts[,] [e]state [p]lanning and more" that were not adequately presented when defendant represented himself at the proof hearing.

After thoroughly considering defendant's arguments, the judge denied the motion for reasons set forth in an oral decision on January 31, 2014.2

Defendant appeals, arguing

I. PARAGRAPH ONE OF THE JANUARY 31, 2014[] ORDER MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO CONSIDER THE ALIMONY FACTORS SET FORTH IN N.J.S.A. 2A:34-23.

II. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT[] IS NOT ENTITLED TO RELIEF FROM THE SEPTEMBER 16, 2013 JUDGMENT BECAUSE NEWLY DISCOVERED EVIDENCE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW TRIAL HAS BEEN DISCOVERED.[3]

III. DEFENDANT[] IS ENTITLED TO RELIEF FROM THE DEFAULT UNDER RULE 4:50-1(f) BECAUSE ENFORCING THE JUDGMENT WOULD BE OPPRESSIVE AND UNJUST.

We find no merit in these arguments.

While motions to vacate default judgments are to be liberally indulged, Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993), that standard is not to be equated with permitting relief in all instances. Indeed, it is important to recognize the Rule is based on equitable principles, Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009), and the party seeking relief has a heavy burden to sustain when the record demonstrates his considerable inequitable conduct.

Here, defendant's tactic of stonewalling discovery significantly burdening plaintiff and leaving great uncertainty about his financial condition was succinctly described by the judge in his January 31, 2014 oral decision. The judge stated how defendant had previously been less than forthcoming in describing his business interests and, indeed, defendant revealed, for the first time in his Rule 4:50 moving papers, other corporate interests; indeed, one of those interests was not even disclosed until the submission of defendant's reply papers on the motion.

We need not canvass defendant's many failures in providing the information needed by the trial court to provide a more perfect resolution of the parties' disputes; the judge crafted the best possible disposition under the circumstances when he entered the default judgment. In that regard, the judge had more than ample reasons to doubt the value or credibility of what defendant provided in his Rule 4:50 motion. As the judge correctly observed

[Defendant] still has not produced a single document verifying business values, retirement assets or bank accounts. He basically made himself divorce poor, violated the Court Rules and the [s]tatutes by cashing out a life insurance policy post-complaint for divorce, hidden businesses and basically came into this [c]ourt with unclean hands.

This is a [c]ourt of [e]quity, the decision that the [c]ourt reached was based upon the marital standard of living. Under Rule 4:50-1a, the [c]ourt does not find excusable neglect, rather it finds [un]lawful [] disobe[di]ence with [c]ourt [o]rders regarding discovery. The [c]ourt does not find a reason to vacate the [j]udgment under Rule 4:50-1b because that would require newly discovered evidence which was not discoverable by due diligence. This evidence was available it was discoverable by due diligence.

The defendant is a sophisticated businessman. He may not be a lawyer, but he certainly knows how to obtain documents. He could have obtained documents from prior attorneys that he basically said he turned them over to, from his accountant, from his brother . . . from any alternate source. It should not have been just provided a month after the [c]ourt conducted a trial in this matter.

After carefully examining the record, we find no reason to intervene in the family judge's conclusions, which were based not only on what the record clearly demonstrates but also the judge's "feel of the case" after having dealt with these parties for a considerable period of time.

Affirmed.

1These subsections permit relief from a judgment or order upon: "mistake, inadvertence, surprise, or excusable neglect"; newly-discovered evidence; and "any other reason justifying relief from the operation of the judgment or order," respectively.

2The judge did, however, correct an error in the judgment of divorce regarding the income due plaintiff from the trust, concluding that defendant was obligated to provide plaintiff with fifty percent of what he receives from that source.

3We have eliminated the subheadings for brevity's sake.