Opinion
DOCKET NO. A-3975-13T3
11-09-2015
STEVEN PADULA, Plaintiff-Respondent, v. LINDA PADULA, Defendant-Appellant.
Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Ms. Frost and Linda Mainenti Walsh, on the brief). Brian P. Latimer argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Leone. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1919-10. Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Ms. Frost and Linda Mainenti Walsh, on the brief). Brian P. Latimer argued the cause for respondent. PER CURIAM
Defendant Linda Padula appeals from a dual final judgment of divorce (DFJD) entered by the Family Part on March 20, 2014. The DFJD was largely shaped by a reconciliation agreement (Agreement) entered into between the parties on June 16, 2009, just before trial on a prior divorce complaint was to begin, which set forth the terms of their divorce in the event one would occur in the future. When the parties' reconciliation failed, plaintiff Steven Padula filed a second divorce complaint, seeking dissolution of the parties' marriage and enforcement of the Agreement. Following a four-day bench trial, Judge Linda Grasso Jones found the Agreement enforceable, and addressed all other issues between the parties, in a sixty-three-page written opinion issued March 20, 2014.
On this appeal, defendant raises the following issues for our consideration:
I. THE JUNE 16, 2009 AGREEMENT IS UNCONSCIONABLE AND A PRODUCT OF DURESS AND SHOULD BE SET ASIDE AS VOID AND UNENFORCEABLE.
II. PARAGRAPH [2.12] OF THE AGREEMENT REGARDING PLAINTIFF'S DEFERRED COMPENSATION IS UNFAIR AND UNCONSCIONABLE AND THEREFORE SHOULD BE RESCINDED AND REFORMED.
III. PARAGRAPH 2.8 OF THE AGREEMENT SHOULD BE REFORMED TO REFLECT THE FAIR MARKET VALUE OF THE PARTIES' 1/3 INTEREST IN THE VERMONT PROPERTY WHEN CALCULATING
ANY CREDIT OWED TO DEFENDANT FOR EQUITABLE DISTRIBUTION.
IV. THE COURT ERRED IN FAILING TO REFORM THE AGREEMENT TO PROVIDE PERMANENT ALIMONY RATHER THAN THE LIMITED DURATION ALIMONY (ENDING WHEN PLAINTIFF TURNS 65) [AND IN] IMPUTATION OF $2 7,500 IN INCOME TO DEFENDANT.
V. THE COURT ERRED IN DENYING DEFENDANT'S REQUEST THAT PLAINTIFF'S LIFE INSURANCE OBLIGATION BE INCREASED TO SECURE HIS ALIMONY OBLIGATION TO DEFENDANT AND [IT IS] INSUFFICIENT TO SECURE DEFENDANT'S INTEREST IN PLAINTIFF'S POLICE AND FIREMAN'S PENSION.
VI. THE TRIAL COURT ERRED IN FAILING TO TRANSFER VENUE FROM MONMOUTH COUNTY SUA SPONTE WHERE PLAINTIFF IS THE BUDGET DIRECTOR/ADMINISTRATOR FOR THE MONMOUTH COUNTY PROSECUTOR'S OFFICE.
VII. THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT COUNSEL FEES; ERRED IN ORDERING DEFENDANT TO PAY ALL COUNSEL FEES SHE CHARGED TO JOINT CREDIT CARDS AND ERRED IN ORDERING HER TO PAY PLAINTIFF ALL PAYMENTS MADE ON THE JOINT CREDIT CARDS FOR HER COUNSEL FEES FROM THE JOINT ACCOUNT.
VIII. THE COURT'S DECISION SHOULD BE REMANDED TO REQUIRE THE TRIAL COURT TO AMEND THE DUAL JUDGMENT OF DIVORCE TO REFLECT THE DECISIONS SET FORTH IN ITS [FORTY-TWO-PAGE] DECISION.
Defendant's brief consistently cites to paragraph 2.2 for her arguments about deferred compensation; however, it is clear from her arguments that she is actually challenging paragraph 2.12. The quoted portion of the Agreement in defendant's brief regarding defendant's deferred compensation plan comes directly from paragraph 2.12. In contrast, paragraph 2.2 — establishing alimony payments from defendant to plaintiff — has no bearing on plaintiff's argument here. --------
After reviewing the record, we find that as to defendant's first seven points, these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Jones' decision is entitled to the deference we normally accord to the expertise of the Family Part. See Cesare v. Cesare, 154 N.J. 398, 411-12 (1998). The decision is supported by substantial credible evidence and is consistent with applicable law. R. 2:11-3(e)(1)(A); Cesare, supra, 154 N.J. at 411-12. Except as further discussed herein, we affirm for the reasons stated in Judge Jones' comprehensive written opinion. We add the following comments.
While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),
we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion.We will only reverse the judge's decision when it is necessary to "ensure that there is not a denial of justice" when the family court's "conclusions are [] 'clearly mistaken' or 'wide of the mark.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).]
Judge Jones did not find defendant credible when she testified that she neither read nor understood the Agreement, that she signed it under duress, and that her lawyers did not explain it to her. We find no basis to second-guess the judge's evaluation of witness credibility. The judge also found that the Agreement was fair to both sides, and defendant unreasonably failed to return to work. Nevertheless, the judge did rule in defendant's favor regarding the weekly alimony amount of $700 a week, an amount far greater than plaintiff wanted to pay.
Defendant failed to show a change in circumstances warranting relief from terms of the Agreement she signed in 2009, especially as it contemplated plaintiff's change of position. Furthermore, defendant did not present convincing evidence that enforcement of paragraph 2.8 of the Agreement, which allocates the distribution of the parties' interest in a Vermont property, entitling plaintiff to a credit for one-half the net value of their interest in the property, was unconscionable. In any event, defendant failed to present a timely appraisal expert report.
As for defendant's change of venue argument, this claim clearly lacks substantive merit. Without citing to any authority to support her position, defendant argues that the court erred by failing to transfer venue, sua sponte, out of Monmouth County. Her sole basis for this position is plaintiff's employment with the Monmouth County Prosecutor's Office. Defendant had ample opportunity, in the three plus years before trial in the second divorce proceeding, to move for a transfer of venue out of Monmouth County. Significantly, in the first divorce action, defendant successfully moved to have venue transferred out of Monmouth County. Defendant provides no explanation for her failure to submit a similar application in the second divorce proceeding, and otherwise fails to provide any basis for us to find the court's failure to transfer venue sua sponte constituted plain error. R. 2:10-2.
Defendant's eighth point concerns the fact that the DFJD incorporates the judge's sixty-three-page decision rather than setting forth her substantive decisions. See J.S. v. D.M., 285 N.J. Super. 498, 500 (App. Div. 1995) ("A person who reads a judgment or order should not have to also read a transcript to glean its substantive provisions."); R. 4:42-1(a)(4) (requiring "a separate numbered paragraph for each separate substantive provision of the judgment or order."). To address this point and avoid the necessity of a remand, we hereby deem the DFJD amended to state that the Family Part specifically enforces the parties' agreements of June 16, 2009, May 14, 2013 (regarding college expenses), and May 7, 2013 (regarding sale of the marital residence), and incorporates the agreements into the DFJD; awards no attorney's fees to either party; and allows plaintiff a credit in equitable distribution on all counsel fees and costs, as well as expert fees and associated expenses, paid by defendant out of marital funds.
Affirmed as amended. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION