JOSEPH FUSARO v. DOROTA FUSARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSEPH FUSARO,

Plaintiff-Respondent,

v.

DOROTA FUSARO,

Defendant-Appellant.

_____________________________________________

July 20, 2016

Submitted June 7, 2016 Decided

Before Judges St. John and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-000653-09.

Dorota Fusaro, appellant pro se.

Joseph Fusaro, respondent pro se.

PER CURIAM

Defendant Dorota Fusaro appeals from the Family Part's June 27, 2014 order granting plaintiff Joseph Fusaro's motion to terminate his limited duration spousal support obligation and denying her motion for reconsideration. We affirm.

The parties were married in 1993 and had one child, a daughter, in 2001. In 2008, plaintiff filed a complaint for divorce; in 2009, defendant filed a counterclaim for divorce. The parties were referred to the early settlement program for mediation and met with a mediator on June 30, 2009. The mediator prepared a memorandum of understanding (MOU) summarizing the parties' agreement. The MOU provided that plaintiff would transfer his interest in the former marital home to the parties' daughter, to be held in trust, and defendant would refinance or recast the existing note and mortgage on the former marital property to relieve plaintiff of any liability on this obligation. Plaintiff also agreed to pay defendant alimony in the amount of $20,000 per year for three years and child support in the amount required by the child support guidelines.

After plaintiff's counsel forwarded a consent order to defendant's attorney to memorialize the agreement, defendant's attorney responded that defendant rejected the consent order because she was seeking permanent alimony.

Plaintiff moved to enforce the agreement, and the judge conducted a hearing. Both parties testified, and the judge found plaintiff's testimony credible, and defendant's testimony "not at all credible." The judge found that the parties entered into a settlement of all of the issues of their divorce at the mediation session and concluded that the settlement was enforceable. The judge entered a final judgment of divorce (JOD) on June 4, 2010, which dissolved the parties' marriage, and an amended JOD on June 29, 2010, which incorporated the terms of the parties' settlement.

Defendant appealed, challenging the judge's conclusion that the parties reached a settlement. We affirmed, finding

sufficient credible evidence in the record to support the trial court's determination that the parties reached a settlement at the June 30, 2009 mediation. . . . [T]he court's determination was based in large part on its finding that plaintiff's testimony regarding the settlement was credible, while defendant's testimony was not.

[Fusaro v. Fusaro, No. A-4700-10 (App. Div. Oct. 1, 2012) (slip op. at 9-10).]

We also rejected defendant's contention that she was denied proper representation by her attorney at the time. Id.at 10.

Following that appeal, defendant filed a motion to enforce litigants' rights; increase child support payments; increase the amount and extend the length of spousal support payments; cover the cost of medical expenses of the parties' minor child; and obtain various other forms of financial relief under the parties' JOD. Plaintiff filed a cross-motion, seeking to decrease or terminate his limited duration spousal support obligation.

At oral argument on the motions, defendant claimed the agreement was "illegal" because it established a trust for the parties' child in the former marital home when the home was a multi-family dwelling. Defendant also argued that the JOD "was obtained behind my back in a fraudulent way," and characterized her divorce as "illegal and . . . fraudulent," stating that nothing in the JOD was "accurate, legal, or . . . true."

When asked by the judge whether she agreed to the terms of the MOU at the mediation, defendant responded: "I don't really want to talk about it, but at that time, I was in a horrible shape."

The judge found that defendant's motion was "largely . . . an attempt to re-litigate, and reopen the parties' divorce proceeding, which . . . has been litigated extensively since the [JOD] was entered." The judge noted that the JOD was affirmed on appeal and stated that it was "defendant who proposed the terms to which the plaintiff agreed." The judge concluded that "this matter has been litigated [on] multiple occasions," referencing defendant's filing of an application in January 2011 to a different judge that denied her request for additional support payments. The judge denied defendant's request for increased child support, stating that defendant "failed to provide a case information statement as well as other financial documentation to show . . . a change in circumstances."

The judge denied defendant's request to increase the term and the amount of spousal support obligations, stating that he was going to enforce the JOD, which provided for "limited duration support" in the amount of $20,000 per year for three years.

Finally, the judge denied defendant's request to compel plaintiff to pay past-due mortgage and property taxes on the former marital home, noting that the JOD provided that defendant had exclusive control of the residence and was solely responsible for costs associated with it.

Defendant moved for reconsideration. On June 27, 2014, the judge denied defendant's motion and granted a cross-motion filed earlier by plaintiff to terminate his spousal support obligation. The judge noted that the JOD provided for limited duration spousal support, which ended on June 29, 2013, three years after it was entered.

On appeal, defendant argues that the motion judge erred in denying her request to increase and extend the spousal support award in the JOD because he did not make any findings with respect to the parties' marital standard of living and did not consider whether the alimony award enabled defendant to reach a level of economic self-sufficiency "reasonably comparable to the marital standard of living." Defendant urges that we use our equitable powers to revise the alimony award provided for in the parties' JOD because she has made a showing of "changed circumstances."

In our prior opinion, we found that there was sufficient evidence, based on the parties' testimony at hearings held in February 2010, for the judge to conclude that the parties reached a settlement when they entered into a MOU at a mediation on June 29, 2009. Fusaro v. Fusaro, supra, slip op. at 3, 9. The mediator "clearly and specifically" reviewed the terms of the agreement with the parties, and "the parties left the mediation with the understanding that their case was settled." Id. at 6.

The MOU was incorporated into the parties' June 29, 2010 JOD, which provides, in pertinent part

[Plaintiff] shall make payment of limited duration support to [defendant] in the amount of $20,000.00 per year to be paid in equal weekly amounts of $384.61 for a term of three years commencing upon the entry of the [JOD]. This payment of support shall not be deemed to be permanent. Pursuant to the terms of settlement the parties have waived, now and forever, despite any possible changed circumstances as enumerated below, any right, claim or entitlement that either may now have or may in the future acquire, to receive permanent alimony or any other form of spousal support from the other, except as specifically set forth herein this agreement. The payments to the defendant from the plaintiff shall be deductible to the plaintiff for federal and state income tax purposes and shall be included as income to the defendant.

As an initial matter, we address defendant's claim that this agreement provided "rehabilitative alimony," despite its clear terms providing for "limited duration support" for a "term of three years." "Rehabilitative alimony is a short-term award for the purpose of financially supporting a spouse while he or she prepares to reenter the workforce through training or education." Gnall v. Gnall, 222 N.J. 414, 431 (2015). "It is an award 'from one party in a divorce [to] enable [the] former spouse to complete the preparation necessary for economic self-sufficiency.'" Ibid. (alterations in original) (quoting Hill v. Hill, 91 N.J. 506, 509 (1982)).

By contrast, "limited duration alimony represents a form of limited spousal support for a specified purpose, namely to provide economic assistance for a restricted period of time." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). Limited duration alimony addresses a dependent spouse's post-divorce needs following a "shorter-term marriage where permanent or rehabilitative alimony would be inappropriate or inapplicable but where, nonetheless, economic assistance for a limited period of time would be just." Gnall, supra, 222 N.J. at 431 (quoting J.E.V. v. K.V., 426 N.J. Super. 475, 485-86 (App. Div. 2012)).

Here, the parties specifically agreed to limited duration support for a term of three years. See Gordon v. Rozenwald, 380 N.J. Super. 55, 68 (App. Div. 2005) ("[T]he end date of a term of limited duration alimony is the equivalent of an arrangement to terminate support at a predetermined time or event, regardless of need."). In Gordon, we determined that a limited duration award "is based primarily upon the historical facts of the marital enterprise, not predictions about future events as is a term of rehabilitative alimony." Id. at 67. Although rehabilitative alimony is also usually a short-term award provided after long-term marriages, the agreement in this case did not contemplate a period of economic self-sufficiency for defendant, which is the distinguishing principle between limited duration and rehabilitative alimony. See N.J.S.A. 2A:34-23(d) ("Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur.").

Here, the JOD provided only for termination of alimony after a set number of years, as is consistent with a limited duration award. We are satisfied that the motion judge's finding that the JOD provided for limited duration support, not rehabilitative alimony, which terminated on June 29, 2013, finds ample support in the record.

Because the JOD provided for limited duration support, N.J.S.A. 2A:34-23(c) governs our inquiry of a modification of such an award. That statute provides

An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.

[N.J.S.A. 2A:34-23(c).]

Consistent with this statute, "there is a presumption that the temporal aspect of [a limited duration alimony award] be preserved." Gonzalez-Posse, supra, 410 N.J. Super. at 356.

"[A] party may overcome the presumption and avoid application of N.J.S.A. 2A:34-23(c) by demonstrating, as part of a prima facie case, that the term is a substitute for permanent alimony premised upon a promise or expectation of alternative funds for support that has not been fulfilled or realized." Gordon, supra, 380 N.J. Super. at 70.

"In addressing agreements [providing for limited duration support], courts may and should presume that preservation of an arrangement to terminate alimony will not conflict with the prohibition against substitution of limited duration for permanent alimony and apply the 'unusual circumstances' standard." Ibid.

Defendant relies on Crews v. Crews, 164 N.J. 11 (2000), in arguing that she is entitled to an extension of the term of her alimony because she can no longer maintain a lifestyle comparable to the standard of living she enjoyed during the marriage. In Crews, the Court held that in a contested divorce action, "once a finding is made concerning the standard of living enjoyed by the parties during the marriage, the court should review the adequacy and reasonableness of the support award against this finding." Id. at 26. However, four years after Crews was decided, the Court stated that its "holding in Crews should no longer be read to require findings on marital lifestyle in every uncontested divorce." Weishaus v. Weishaus, 180 N.J. 131, 144 (2004). Rather, uncontested divorce settlement agreements are generally upheld unless the agreement "is plagued by 'unconscionability, fraud, or overreaching in the negotiations of the settlement.'" Ibid. (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).

We are satisfied that defendant entered into a valid and enforceable settlement agreement, which provided her with a limited duration alimony award in addition to various other forms of relief, and has not made a showing that the limited duration support award should be increased or extended.

Affirmed.