CARMELLA KAISER v. SANTO BONELLI

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3847-04T53847-04T5

CARMELLA KAISER (formerly known

as CARMELLA BONELLI),

Plaintiff-Respondent,

v.

SANTO BONELLI,

Defendant-Appellant.

_______________________________________

 

Submitted December 21, 2005 - Decided January 18, 2006

Before Judges Stern and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family

Part, Ocean County, FM-15-849-96C.

The Law Offices of John A. Patti,

attorneys for appellant (John A.

Patti, on the brief).

Silvi, Fedele & Honschke, attorneys

for respondent (Ralph F. Fedele, on

the brief).

PER CURIAM

Defendant Santo Bonelli appeals from an order denying his motion for a modification of the equitable distribution provisions of a property settlement agreement incorporated in a final judgment of divorce terminating his marriage with plaintiff Carmella Bonelli, now known as Carmella Kaiser. Because defendant submitted a certification in support of his post-judgment application that does not set forth a valid basis for vacating the final judgment, we affirm.

The parties were married on January 4, 1977, and there were two children born of their marriage, the first in 1979 and the second in 1980. The parties entered into a property settlement agreement on December 2, 1997. That agreement was incorporated into a final judgment of divorce terminating plaintiff's marriage to defendant on December 11, 1997.

The agreement included mutual waivers of alimony and provided for distribution of all marital assets. The parties waived their right to a "formal evaluation" of the marital residence. Defendant agreed to deed his interest in that property to plaintiff, and she relinquished any and all right or interest in his business. They each retained one car, divided the personalty in the marital residence by agreement and kept the savings and checking accounts in his or her name. Defendant received United States Savings Bonds in the principle amount of $30,000, but the parties agreed to divide the accrued interest on the bonds and the proceeds from an insurance policy and a tax refund equally.

Paragraph 5.1 of the parties' agreement provides:

Each party is adequately informed of the financial and asset structure of the marriage and has given full, mature thought to the making of this Agreement and of the obligations contained herein. . . . The parties acknowledge that their respective attorneys have fully advised them of their rights as litigants to use pretrial discovery such as [i]nterrogatories, depositions, accountants and other experts in order to verify and confirm the nature and extent of their respective assets and financial conditions. Both parties have communicated to their respective attorneys that they do not wish to engage in any further pretrial discovery, and that they are satisfied with the disclosures set forth in this Agreement. Further, each party represents to the other that the assets set forth in this Agreement represent the assets of the marriage as known to each of them which are subject to equitable distribution in accordance with the laws of the State of New Jersey.

Paragraph 5.3 provides:

The parties each acknowledge and represent that this Agreement has been executed by them, and each of them, free from persuasion, fraud, undue influence, or economic, physical, or emotional duress of any kind whatsoever exerted by the other or by [any] other person.

On January 5, 2005, defendant filed this motion for "modification." In support he submitted a certification alleging that: his wife had "dissipated assets prior to the marriage" without his knowledge; he "did not have knowledge that these assets were dissipated as [he] was not only going through a divorce with (sic) a business failure and did not have the capacity nor the time to determine if in fact certain assets were used by [his] ex-wife"; the decline in interest income reported on the parties' tax returns from tax year 1987 to tax year 1995, which led him to suspect dissipation; and his former wife made major purchases. In addition, defendant complained that he had winning lottery tickets in 1987, ten years prior to the final judgment.

The trial judge found that the tax records defendant introduced demonstrated that interest income had declined to $655 in 1994, which was two years prior to the filing of the complaint for divorce and that defendant must have known in 1997 that he had won the lottery in 1987. The judge found no mistake, inadvertence, surprise or excusable neglect, no newly discovered evidence, and no showing of fraud, misrepresentation or other misconduct or exceptional circumstances that would warrant relief from the final judgment. R. 4:50-1. The judge also noted the absence of a showing that would permit vacating the judgment so long after its entry. R. 4:50-2.

Defendant raises two issues on appeal. He argues that court erred in denying the motion without a plenary hearing and that the matter should be assigned to a different judge on remand. Our review of the record in light of the arguments presented convinces us that the judge did not abuse his discretion in denying this application.

Defendant's motion was a request for relief from the equitable distribution provisions of a property settlement agreement and such applications may be granted only if the party establishes a basis for relief from a final judgment under the standards of R. 4:50-1. Miller v. Miller, 160 N.J. 408, 418 (1999). The question whether there are grounds to set aside a judgment is left to the sound discretion of the trial judge, who is to exercise that discretion sparingly. Housing Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994).

 
Defendant's argument that the certification he submitted in support of his motion was adequate to raise a factual issue that required a hearing lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Our resolution of that claim makes it unnecessary to address defendant's second argument.

Affirmed.

(continued)

(continued)

5

A-3847-04T5

 

January 18, 2006


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