ANN-MARIE BELLANTUONO v. FRANCESCO BELLANTUONO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1592-11T4

ANN-MARIE BELLANTUONO,

Plaintiff-Respondent/

Cross-Appellant,

v.

FRANCESCO BELLANTUONO,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

Argued March 6, 2013 Decided May 21, 2013

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1818-10.

John T. Knapp argued the cause for appellant/cross-respondent (Simon & O'Brien, P.C., attorneys; Mr. Knapp, of counsel and on the briefs).

Frank J. LaRocca argued the cause for respondent/cross-appellant (LaRocca Hornik Rosen Greenberg & Blaha, P.C., attorneys; Mr. LaRocca and Valerie Bonventre, on the brief).

PER CURIAM

Defendant Francesco Bellantuono appeals from various provisions of two October 21, 2011 post-judgment matrimonial orders as well as a subsequent enforcement order. Plaintiff Ann-Marie Bellantuono cross-appeals seeking counsel fees. After reviewing the record in light of the contentions advanced on appeal, we affirm all decisions substantially for the reasons expressed by Judge Selser in his thorough oral opinion of October 21, 2011 and written opinion of December 22, 2011.

I.

The parties were married in 1990. They had three children, a son born in 1993 and two younger daughters. Their son is currently a figure skater who is training for the Olympics. He moved in with a family in Michigan to train on a full-time basis while in high school. Francesco1 and Ann-Marie transferred legal guardianship of their son to this family.

During the course of the parties' marriage, Francesco owned and operated a tile company located in New York City. Ann-Marie was the company bookkeeper. Francesco's income fluctuated from year to year.

The parties reached a divorce settlement through mediation, although no formal written agreement was signed. On October 21, 2010, Ann-Marie's attorney sent Francesco's attorney a letter setting forth the agreement. Judge Selser divorced the parties on the record the following day.

Ann-Marie agreed, under oath, with the characterization that the oral property settlement agreement (PSA) was "refined and fine tuned" over the course of multiple mediation sessions and resulted from compromises between the parties. She further agreed that the terms were "fair, just, and equitable[.]" After Ann-Marie finished her testimony, her attorney added that "there's no modification to this agreement for a period of three years until we revisit the issues of their income when we exchange . . . the financial information . . . in three years." Francesco's attorney agreed.

Francesco confirmed that the oral PSA encompassed "all the terms that pertain to a settlement in this matter[,]" that there were no hidden side agreements, that the deal was "a fair and equitable resolution of all the issues in this case[,]" and that he could "live with these terms" even though he did not get everything he wanted. Francesco agreed that he "had enough time to consider the resolution of these issues" and that he wanted to settle the case because it was in his best interest to do so. Finally, Francesco acknowledged that he was asking the court to make the oral PSA a part of the judgment of divorce. Additionally, Francesco testified on cross-examination that he understood the negotiated alimony was "permanent alimony," but that the amount would be revisited in three years.

Judge Selser entered a final judgment of divorce, incorporating the parties' oral PSA. He found that the parties were represented by competent counsel, entered into the agreement voluntarily, and that the parties considered that "the agreement represent[ed] a fair disposition of the issues in their matter." Judge Selser then directed the parties to execute an amended judgment of divorce (AJOD) to include the terms of the oral PSA.

Francesco's counsel prepared an AJOD incorporating the terms of the oral PSA and submitted it under the five-day rule, Rule 4:42-1(c). Judge Selser signed the AJOD on January 12, 2011. We discuss only those provisions of the parties' agreements that are in dispute in this appeal.

Pursuant to the AJOD, Francesco agreed to make the following payments. He agreed to pay $750 per week in alimony, based on Ann-Marie's weekly income of $481 and his weekly income of $2740. He agreed to pay $302 per week in child support.2 He agreed to pay $1000 per month to support his son's skating career. The oral PSA noted that this sum would be paid by both parties into a dedicated bank account. Paragraph 11 of the AJOD added that Ann-Marie would control the account and provide Francesco with information on all account transactions.

Francesco also agreed to pay $1400 per month for Ann-Marie's outstanding car loan and $200 per month for her auto insurance. Thus, in the AJOD prepared by his attorney, Francesco agreed to pay a total base amount of $7124 per month.

Additionally, Francesco was to continue to provide health insurance for the children and share in the cost of sending their son to college. The parties agreed that after Ann-Marie paid the first $250 per child in unreimbursed medical expenses, Francesco would pay two-thirds of any remaining unreimbursed medical costs.

The disputed areas of their agreement relating to equitable distribution are the following. The oral PSA and paragraph 16 of the AJOD provided that Francesco would acquire the marital home after paying Ann-Marie $150,000. He also agreed to pay her $50,000 for the business. Francesco agreed that these sums would be transferred to Ann-Marie within sixty days of October 22, 2010. The parties owned two timeshares, both located at the same Florida resort. Ann-Marie received the "yearly timeshare" and Francesco was to receive the "bi-yearly timeshare."

II.

In February 2011, Ann-Marie filed a motion seeking to compel Francesco to pay the $200,000 he had agreed to pay for her share of the marital home and business. She also sought arrears for alimony, child support, auto payments, auto insurance and their son's skating account. Additionally, she sought an order requiring Francesco to pay two-thirds of their son's college application fees and appointing her as attorney-in-fact for the immediate sale of the marital home and liquidation of the marital accounts and retirement accounts in order to satisfy past and future obligations. She sought counsel fees for her enforcement efforts.

Francesco filed a motion seeking to modify the terms of the settlement. The application sought to set aside the AJOD subject to a post-judgment plenary hearing to determine his ability to make the required payments. Francesco certified that he had listed the marital home for sale at $1,050,000, had received one verbal offer of $800,000, and requested that the court postpone payment to Ann-Marie of the $200,000 he owed her in equitable distribution until the home could be sold. Francesco also certified that his net income would not exceed $50,000 for 2010.

On April 7, 2011, a Family Part judge denied Francesco's applications in their entirety and granted Ann-Marie's motion, finding Francesco in violation of the AJOD.

On August 22, 2011, the parties entered into a consent order requiring Francesco to transfer $62,225.02 into a trust account in satisfaction of his "remaining obligation for the home and business buy-out, their son's college application fees, [a daughter]'s unreimbursed medical bills, counsel fees, skating arrears, pendente lite payment due, and automobile and insurance arrears pursuant to the [AJOD] and the [o]rder of April 7, 2011." Francesco agreed to fund a Lynn Trust3 in the amount of $66,704.00 within ninety days, which would be used to pay Ann-Marie alimony and child support, and contribute to the skating fund in the event Francesco was late with any payments. The consent order stated,

If [Francesco] does not cause the need to use the Lynn Trust for a period of one (1) year, the trust shall be refunded to him. In the event that [Francesco] causes the use of the Lynn Trust at any time during the first year, the trust shall be replenished to the original amounts (all amounts may be adjusted, if applicable) and the Lynn Trust shall be extended for an additional year. This review and replenishment procedure shall continue each year hereafter.

In September 2011, Francesco filed a motion seeking to compel Ann-Marie to execute all documents necessary to transfer the bi-yearly timeshare and reimburse him $2500 for her improper use of that timeshare; vacate the portion of the AJOD regarding car payments and require Ann-Marie to refund any car payments made by Francesco; change the effective date when Ann-Marie would be required to cover her own health insurance premiums to the date of the divorce and reimburse Francesco for the cost of the health insurance premiums he made on her behalf after the divorce; and require Ann-Marie to account for all distributions from the skating account and refund his payments made to the skating account. Francesco also sought to retroactively modify his child support obligation in light of errors in the Guidelines worksheet; relieve him of his obligation to contribute to the skating account; vacate the provision of the AJOD that makes the alimony payments non-modifiable for the first three years; and grant counsel fees.

Ann-Marie filed a cross-motion to enforce litigant's rights seeking, in part, to compel Francesco to reimburse her $6444.19 for their son's college expenses, pay monthly into the skating fund and provide his account information to Ford Motor Credit Corp so that her car loan payments could be automatically deducted from his bank account.

Francesco certified that his business was severely impacted by the economy, and his net income was $79,803 in 2010. In response, Ann-Marie certified that Francesco's individual 2010 tax return reflected an income of $64,800, while the 2010 business return reflects a profit of $79,803. She argued that because Francesco was the sole owner of the business, his actual income for 2010 was $144,603, more than the base salary used originally to calculate child support and alimony.

Francesco certified that he paid a total of $18,069.40 toward Ann-Marie's car loan that he should not have had to pay. Ann-Marie relied on the certifications of her previous attorney and the mediator in arguing that the omission of Francesco's obligation to pay for her car from the oral PSA was merely an oversight.

Francesco certified that he maintained Ann-Marie's health insurance until June 30, 2011 at the cost of $613.684 per month, or $5,093.54 in total payments. Francesco noted that Ann-Marie had refused to provide reimbursement because Francesco was in arrears on his other obligations. Ann-Marie certified that Francesco told her:

not to worry about it, and that the plan had to be in place until June, 2011. I never agreed to pay for my portion of health insurance. I certainly would have had [Francesco] cancel my insurance immediately if I had known that he would have sought over $600.00 per month. . . . To date, I do not have any healthcare coverage as I was never aware that [Francesco] cancelled my insurance. Further, as I was unaware of the cancellation, I was not afforded the opportunity to apply for COBRA[5]. My ability to apply for COBRA has expired.

Francesco certified that he agreed to pay child support pursuant to the Guidelines without personally receiving a copy of the Guidelines worksheet. Francesco noted that he later received the worksheet in January 2011 and identified several errors including that child support should have been calculated for two rather than three children. He argued that he should be credited for paying the children's insurance. Ann-Marie responded that Francesco did not exercise his parenting time, which also impacts the child support calculation.

Francesco argued that he should not be required to contribute $1000 per month into the skating fund, because his son excluded Francesco from his life. Francesco also argued that he was not financially capable of contributing, and the account was not used exclusively for skating. Francesco contended that he requested an accounting from Ann-Marie, but she failed to provide one.

Francesco certified that he was not allowed to participate in their son's college choice and therefore should not be responsible for such expenses. Ann-Marie certified that the child enrolled at Oakland University with a full academic scholarship, but still had room and board expenses of $3000 because he needed to live off campus in order to work and train.

III.

Judge Selser decided the motion and cross-motion. He ordered Ann-Marie to execute all necessary documents to transfer the bi-yearly timeshare to Francesco. He found Francesco was not entitled to compensation for Ann-Marie's use of the timeshare because "[t]here's no basis to the $2,500, other than it's [Francesco]'s estimate of what the place could rent for. And that he could have possibly rented it, had it not been occupied by [Ann-Marie] and the children. But that's just mere conjecture . . . ." Moreover, Judge Selser found no provisions in the oral PSA or AJOD justifying compensation.

Judge Selser ordered Francesco to continue paying Ann-Marie's car insurance and provide Ford Motor Credit Corp with his account information so the payments could be automatically deducted. Judge Selser found that the certifications of Ann-Marie's former attorney and the parties' mediator were reliable and supported Ann-Marie's assertions that the parties intended to include car payments in the agreement. Furthermore, Judge Selser found that the AJOD, which contained the provision requiring car payments, was prepared and submitted by Francesco's attorney. Francesco also did not appeal the earlier post-judgment order reaffirming this requirement, making it "the law of the case."

Judge Selser denied Francesco's request for reimbursement for his payment of Ann-Marie's health insurance, finding that, although Ann-Marie was clearly obligated to pay for her own health insurance from the date of the divorce, Francesco continued to pay the insurance premiums until June 2011. Francesco had the sole responsibility to stop the coverage, because it was his business' insurance carrier and only he could notify the carrier that she should be taken off the coverage. Judge Selser noted that this inaction created a tacit agreement to allow the coverage to continue, which he declined to retroactively modify.

Judge Selser ordered Francesco to satisfy his support arrearages in the amount of $14,407, and place the equivalent of one year's child support, alimony, and skating fund payments in a Lynn Trust. Judge Selser found that the Guidelines worksheet attached to the AJOD called for $302 per week in child support. He noted that the worksheet contained some errors, however, $302 was what was agreed to by the parties. Judge Selser found that the cost of the children's health insurance premiums was not included in the $302 calculation as it normally would be, however "paragraph 11 of the AJOD makes it clear that Francesco will supply medical insurance for the children and does not provide for contribution by [Ann-Marie]." The judge also acknowledged that Francesco received a $30 parenting time credit, although he did not spend any overnight parenting time with any of the children. Judge Selser determined that, although their son did not live with the parties, had separate guardians, and received a separate $1000 monthly payment for skating, the parties and their counsel knowingly agreed to calculate child support based on three children. Judge Selser added that Ann-Marie "has to maintain a home for [her son] to come back to when school's not in session" and that the $1000 per month contribution to a skating fund was not meant to be a substitute for child support.

Judge Selser also determined that it was very clear that the parties agreed on the record to maintain the support level for three years and then review it. He noted that the AJOD reiterated this oral agreement.

Judge Selser ordered Francesco to pay Ann-Marie $3000 for missed skating fund contributions and to continue making monthly payments. He directed Ann-Marie to open a dedicated skating account. Judge Selser found that the oral PSA and the AJOD both reflected the parties' agreement to each contribute $1000 per month into a dedicated fund, and, although Ann-Marie failed to set up a dedicated account, that error did not negate either party's responsibility. Judge Selser noted that Francesco's diminished relationship with his son did not justify ending his obligation to contribute to the skating fund.

Judge Selser ordered Francesco to reimburse Ann-Marie $6444.19 for past college expenses for their son and to pay two-thirds of his future college expenses. The judge acknowledged Francesco's argument that he was not given an opportunity to have input into his son's college choice, but nonetheless found that the usual factors6 did not apply in this situation given their son's skating career and his full academic scholarship. The judge noted that room and board expenses would be the same wherever their son went to college.

Judge Selser also found that Francesco knowingly entered into the agreement in October 2010 with full knowledge of how his business was performing that year and what he could afford. Therefore, Francesco failed to demonstrate a sufficient change in circumstances between October 2010 and October 2011, and Francesco's argument that he should be relieved of his obligations due to the poor economy was meritless.

IV.

On appeal, Francesco raises the following issues:

POINT I: THE TRIAL COURT ERRED IN REFUSING TO VACATE THE PORTIONS OF THE JANUARY 12, 2011 AMENDED JUDGMENT OF DIVORCE RELATING TO HEALTH INSURANCE AND [ANN-MARIE]'S CAR PAYMENTS TO BE CONSISTENT WITH THE ORAL SETTLEMENT PLACED ON THE RECORD, AND REQUIRE [ANN-MARIE] TO REIMBURSE [FRANCESCO] FOR PAYMENTS MADE ON HER BEHALF.

POINT II: THE TRIAL COURT'S DETERMINATION THAT [FRANCESCO]'S FINANCIAL OBLIGATIONS ARE NON-MODIFIABLE FOR THREE (3) YEARS MUST BE REVERSED.

POINT III: THE TRIAL COURT'S DECISION TO COMPEL [FRANCESCO] TO PAY 2/3 OF [THEIR SON]'S OFF-CAMPUS HOUSING MUST BE REVERSED BASED ON [ANN-MARIE]'S FAILURE TO COMPLY WITH THE TERMS OF THE SETTLEMENT REACHED BY THE PARTIES AND THE AVAILABILITY OF HOUSING TO [THEIR SON] AT NO COST TO THE PARTIES.

POINT IV: [FRANCESCO] WAS ENTITLED TO THE REASONABLE RENTAL VALUE OF THE "BI-YEARLY" TIMESHARE BASED ON [ANN-MARIE]'S USE OF THE TIMESHARE AFTER IT SHOULD HAVE BEEN TRANSFERRED TO [FRANCESCO].

POINT V: THE DOCTRINE OF UNJUST ENRICHMENT ALSO REQUIRED THE TRIAL COURT TO COMPEL [ANN-MARIE] TO REIMBURSE [FRANCESCO] FOR HEALTH INSURANCE PREMIUMS PAID ON HER BEHALF BETWEEN OCTOBER 22, 2 010 AND JUNE 30, 2011.

POINT VI: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO RETROACTIVELY RELIEVE [FRANCESCO] OF HIS OBLIGATION TO CONTRIBUTE TO THE SKATING ACCOUNT.

POINT VII: THE TRIAL COURT ERRED IN FAILING TO REQUIRE [ANN-MARIE] TO ACCOUNT FOR ALL FUNDS COLLECTED AND DISTRIBUTED FROM THE SKATING ACCOUNT BETWEEN OCTOBER 22, 2010 AND THE RETURN DATE OF THE MOTION.

POINT VIII: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO MODIFY [FRANCESCO]'S CHILD SUPPORT OBLIGATION.

POINT IX: THE TRIAL COURT'S FAILURE TO AWARD [FRANCESCO] COUNSEL FEES AND COSTS CONSTITUTES AN ABUSE OF DISCRETION.

We should not disturb the judge's findings unless the record does not support the determination with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Judge Selser presided over the parties' divorce proceeding and asked questions regarding their voluntary entry into the agreement and their understanding of the terms of the oral PSA. He carefully reviewed the transcript and written documents before deciding each of the issues before him. His findings are based on the information he reviewed, as well as common sense, and his extensive experience in the Family Part. We defer, as we must, to Judge Selser's findings and adopt his legal analysis.

We add only the following brief discussion relating to the parties' requests for counsel fees. Although Ann-Marie correctly points out that the extensive post-judgment litigation was required in large part by Francesco's failure to abide by his agreed-upon obligations, whether or not to assess counsel fees in such a situation remains within the sound discretion of the judge. Our standard of reviewing counsel fee determinations by a Family Part judge is one of deference. See Williams v. Williams, 59 N.J. 229, 233 (1971). We should only overturn the judge's determination on fees "on the 'rarest occasion,'" and only for a "clear abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). Rule 5:3-5(c) states that "the court in its discretion may make an allowance, . . . to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for . . . support, alimony . . . and claims relating to family type matters." We defer to Judge Selser's discretionary determination to deny counsel fees to both parties.

1 We refer to the parties by their first names for ease of reference.

2 A sole parenting Child Support Guidelines worksheet was attached. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-C to R. 5:6A at 2604 (2013). The judge stated in his supplemental written opinion that the parties prepared this Guidelines worksheet.

3 A Lynn Trust may be established to guarantee that a party is able to fulfill his or her support obligations regardless of current earnings. Lynn v. Lynn, 165 N.J. Super. 328, 342 (App. Div.), certif. denied, 81 N.J. 52 (1979).

4 The May 2011 letter from Francesco's attorney states that this amount is $640 per month.

5 See Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 29 U.S.C.A. 1161-69.

6 See Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).