DAVID PIPITONE v. DINA PIPITONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0449-08T3

DAVID PIPITONE,

Plaintiff,

V.

DINA PIPITONE,

Defendant-Appellant.

_____________________________

 

Submitted October 13, 2009 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-1068-03.

Peter A. Ouda, L.L.C., attorney for appellant.

Jeney, Jeney & O'Connor, L.L.C., respondent pro se (Robert J. Jeney, Jr., on the brief).

PER CURIAM

Defendant Dina Pipitone appeals from three orders entered by the Family Part: an order dated August 11, 2008 granting defendant's former attorneys, Jeney & Jeney, L.L.C., a charging lien in the amount of $23,266.64; an order dated August 12, 2008 granting the parties a judgment of absolute divorce, insofar as that order also declares defendant's limited duration alimony award to commence nunc pro tunc on September 15, 2004, the date of the parties' bed and board divorce; and an order dated November 7, 2008, requiring defendant to vacate the marital home, which was being sold.

We affirm the August 11 and November 7 orders. However, we conclude that the trial court mistakenly construed the bed and board divorce statute, N.J.S.A. 2A:34-6, as requiring that, upon the grant of an absolute divorce, an arbitrator's award of limited duration alimony must be deemed retroactive to the date of the bed and board divorce. Since the arbitrator's 2007 award, issued in connection with the action for an absolute divorce, contemplated a prospective alimony award, we reverse the order dated August 12, 2008.

I

We begin by addressing the alimony issue. The parties were married in 1996. They have two children. Plaintiff is a dentist. Defendant was trained as a cosmetologist but was a homemaker during the marriage. The parties obtained a bed and board divorce on September 15, 2004. Thereafter, plaintiff paid defendant what both parties agreed was "unallocated support."

In October 2007, plaintiff filed an application to convert the judgment from a bed and board divorce to an absolute judgment of divorce. The parties agreed to submit their economic disputes to binding arbitration before a retired judge, William D'Annunzio. In the arbitration, defendant sought limited duration alimony; plaintiff did not object. On December 28, 2007, the arbitrator rendered his decision.

After a detailed consideration of the applicable statutory factors, N.J.S.A. 2A:34-23(b)(1)-(13), including the parties' respective current and future economic needs and their future earning capacities, the arbitrator awarded defendant "limited duration alimony in the amount of $4,000 per month or $48,000 per year for three years." Although he did not specify that the award was prospective, nothing in the arbitrator's decision suggested that the award was anything but prospective. In fact, the arbitrator indicated that "[a]limony will be income to [defendant] and a deduction for [plaintiff]." He further stated that plaintiff "will enjoy a substantial tax benefit from that deduction" (emphasis added). Nor is there any indication in the arbitrator's decision that plaintiff contended that an award should be retroactive.

Nonetheless, construing N.J.S.A. 2A:34-6, the trial judge held that "by operation of law, the provisions of the absolute judgment of divorce, which now include the findings of [the arbitrator], become effective nunc pro tunc to the date of granting of the judgment from bed and board, September 15, 2004." We conclude this was incorrect.

Although we generally defer to decisions of the Family Part due to its expertise in matrimonial issues, Cesare v. Cesare, 154 N.J. 394, 412 (1998), we do not defer to the trial court's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Divorce from bed and board is New Jersey's statutory version of legal separation. See Mueller v. Mueller, 95 N.J. Super. 244, 247 (App. Div. 1967). Upon later application to the court, either party has an absolute right to convert the bed and board divorce into a "divorce from the bonds of matrimony." N.J.S.A. 2A:34-3. The portion of the statute on which the trial judge relied provides in relevant part:

For and during the time that any judgment for divorce from bed and board . . . shall remain in force and effect all property rights of the parties shall be as though a judgment of absolute divorce or dissolution had been entered.

[N.J.S.A. 2A:34-6.]

As we indicated in Muller, supra,

N.J.S. 2A:34-6, was enacted to clarify the property rights of parties to a judgment of divorce from bed and board. The statute provides that while such a judgment remains in force all property rights of the parties shall be as though a judgment for absolute divorce had been entered.

[Muller, supra, 95 N.J. Super. at 248.]

In other words, while they are divorced from bed and board, each party may acquire property free of the rights that the other party would have in that property if they were not divorced. For example, in Lavino v. Lavino, 23 N.J. 635 (1957), the Supreme Court rejected a wife's claim to inchoate dower rights in property her husband purchased after the parties obtained a divorce from bed and board:

N.J.S. 2A:34-6 represents a statutory alteration [from the common law]. It seeks to abolish any marital property rights of spouses who have obtained a limited divorce. In brief, dower and curtesy are barred "for and during the time that any judgment for divorce from bed and board shall remain in force and effect."

. . . [T]he right is simply prevented from arising upon property acquired after the enactment [of the statute].

[Id. at 639-40.]

Likewise, we have held that a divorce from bed and board precludes a wife from inheriting her husband's property when he dies intestate. See In re Friedman's Will, 83 N.J. Super. 116, 119 (App. Div. 1964).

In light of its purpose, as well as its wording, N.J.S.A. 2A:34-6 does not mandate that an award of alimony, entered years after the bed and board divorce, must be deemed retroactive to the date of the bed and board divorce order. See Blaine v. Blaine, 96 N.J. Super. 460, 462 (Ch. Div. 1967) ("Alimony is for the personal support of the wife. It is not a property right.") In fact, to the very limited extent that the issue of alimony has been addressed in this context, our decision in DeAngelis v. DeAngelis, 122 N.J. Super. 48 (App. Div. 1973), suggests that an alimony award entered upon conversion of a limited divorce into an absolute divorce, will be prospective. There, we held that an action to convert must be filed through a new complaint and not by motion in the old "bed and board divorce" docket. We also indicated that if one party files a conversion action, the other party may seek to revisit alimony and other financial issues:

If defendant John DeAngelis desires to convert the judgment for present limited divorce entered against him into one of absolute divorce under N.J.S.A. 2A:34-3, he must institute a plenary action to do so. Of course, if he elects to move under the statute in this manner, plaintiff Louise DeAngelis will be free to establish that she is entitled to a revision of whatever property agreement exists between the parties, including such items as alimony, dower and equitable distribution of property.

[Id. at 49-50.]

Our review of the arbitrator's decision leaves us with no doubt that the arbitrator intended the alimony award to be prospective. We find no basis in law to interfere with that decision. We therefore reverse the August 12, 2008 order insofar as it awards alimony retroactive to September 15, 2004 and remand for the limited purpose of entering an order awarding prospective alimony. In his oral opinion of August 12, 2008, the trial judge indicated in the alternative that if his decision were to be overturned on appeal, the alimony award would run prospectively from October 17, 2007, the date on which the court should have granted the application for an absolute divorce. Defendant has not objected to that alternative ruling, or suggested any other date from which the award should run. We remand this matter to the trial court for entry of an order awarding three years of alimony beginning October 17, 2007.

II

We turn next to the counsel fee award. Defendant filed a brief on this issue, and so did her former attorneys, Jeney & Jeney. However, defendant did not provide us with transcripts of the plenary hearing on the counsel fee issue or the transcript of the trial judge's oral opinion on that issue. Hence, on this appeal, defendant is bound by the findings included in the court's August 11, 2008 order, determining the fees to be reasonable and awarding the charging lien. Further, her challenge to the charging lien is primarily an appeal to equity in light of the trial court's decision to deny her any prospective alimony. Our determination to reverse the latter decision renders the equitable argument moot, and no further discussion of the attorney fee issue is warranted here. R. 2:11-3(e)(1)(E). We affirm the August 11, 2008 order.

III

Finally, we turn to defendant's contention that the trial judge erred in ordering her to vacate the marital home pending its sale. Defendant has not appealed from the court's order (referenced in the arbitrator's decision) excluding the issue of the marital home from arbitration. Nor has defendant provided us with the record concerning that decision. The record defendant has provided to us concerning the court's eventual decision to order defendant to vacate the house persuades us that the judge's decision was not an abuse of discretion. The home was encumbered with a very substantial mortgage, on which plaintiff was the sole obligor, and neither party was in a financial position to continue paying the mortgage. Accordingly, the judge ordered that the house be sold. We find no error in the court's subsequent conclusions that the house could not be successfully marketed while defendant was occupying it, that defendant needed to make other living arrangements, and that she would not do so as long as she was permitted to go on occupying the house. Accordingly, we affirm the November 7, 2008 order requiring defendant to vacate the marital home.

Affirmed in part, reversed in part, and remanded to the trial court for entry of an order in conformance with this opinion.

 

The firm is currently known as Jeney, Jeney & O'Connor, L.L.C.

Plaintiff David Pipitone did not file a brief on this appeal.

The trial judge directed that the arbitrator not address the issue of the possible sale of the marital home.

Plaintiff and the judge thereafter both indicated that the award should run from the date plaintiff filed his conversion motion. However, since no specific date was mentioned, and plaintiff has not filed a brief or provided us with any pertinent records, we choose to use the October 17, 2007 date.

(continued)

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A-0449-08T3

October 27, 2009