ADRIANA F. CAPAWANA v. ANTHONY CAPAWANA

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0069-06T30069-06T3

ADRIANA F. CAPAWANA,

Plaintiff-Respondent,

v.

ANTHONY CAPAWANA,

Defendant-Appellant.

_____________________________

 

Submitted November 5, 2007 - Decided

Before Judges Weissbard and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-49-05.

Steven B. Lieberman, attorney for appellant.

Stephen D. Williams, attorney for respondent.

PER CURIAM

Defendant appeals from the July 12, 2006, order of the Family Part, declaring the ante-nuptial agreement (Agreement) signed by the parties on December 10, 1994, void as a matter of law. Defendant also appeals from the July 21, 2006, amended final judgment of divorce that contained the terms of an oral Property Settlement Agreement (PSA), which had been placed on the record at the time of the divorce proceeding. For reasons that follow, we dismiss the appeal.

Following ten-and-one-half years of marriage, plaintiff filed for divorce in September 2005. Prior to commencement of trial on July 11, 2006, plaintiff moved to have the Agreement declared void. After hearing argument of counsel, but not taking any testimony from the parties, the trial judge determined that the Agreement was void as a matter of law because it did not contain a monetary value for the assets listed therein. Following the judge's ruling, the parties negotiated a PSA, settling the issues of equitable distribution and alimony. Under the PSA, defendant agreed to pay plaintiff limited duration alimony of $15,000 per year for six years, and $182,500 in settlement of her equitable distribution claim.

On July 12, 2006, the parties were divorced, placing the terms of their PSA on the record. Each party testified that they understood the terms of the PSA and voluntarily agreed to them. On the same day, the court entered two orders: 1) a confirming order declaring the Agreement "void as a matter of law as it fail[ed] to comply with the statutory criteria set out in N.J.S.A. 37:2-38"; and 2) a final judgment of divorce referencing the PSA. An amended final judgment of divorce was entered on July 21, 2006, which contained the terms of the PSA.

On appeal, defendant argues that the trial judge erred when he ruled the Agreement was void as a matter of law. Defendant contends the order, invalidating the Agreement, should be vacated and the matter remanded for a plenary hearing. Plaintiff counters that the appeal should be dismissed as moot because subsequent to the judge's ruling declaring the Agreement void, "the parties negotiated a settlement of all issues which were placed on the record before the trial court." We agree.

We have considered defendant's arguments in light of the record and are satisfied that neither of them are of sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). Following the trial judge's oral decision, voiding the Agreement, the parties voluntarily negotiated a PSA that addressed the issues of equitable distribution and alimony, the same issues that were addressed in the Agreement. The record is clear that defendant understood the terms of the PSA and voluntarily agreed to those terms. Because our decision would not have any practical affect on the existing controversy, concerning the trial court's decision to void the Agreement, we conclude that the appeal from the order of July 12, 2006, should be dismissed as moot. Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). "Issues that have been rendered moot by subsequent developments render legal issues abstract and outside the proper realm of courts." In re Petition for a Declaratory Ruling Regarding the City of Plainfield's Park Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005). "We will not render advisory opinions or function in the abstract . . . ." Zamboni v. Stamler, 199 N.J. Super. 378, 383 (App. Div. 1985). Such is the case here.

Moreover, because the parties voluntarily agreed to the terms of the PSA and incorporated those terms into the July 21, 2006, Amended Final Judgment of Divorce, we consider that order a consent judgment. Parties cannot consent to a judgment and then appeal the judgment. The rule allowing an appeal as of right from a final judgment contemplates a judgment entered involuntarily against a party. Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 2d 638 (1950); Cooper Medical Ctr. v. Boyd, 179 N.J. Super. 53, 56 (App. Div. 1981). Accordingly, we dismiss the appeal.

Appeal dismissed.

(continued)

(continued)

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A-0069-06T3

November 16, 2007