GREGORY VISCONTI VS. LISA VISCONTI (FM-14-0005-12, MORRIS COUNTY AND STATEWIDE)

New Jersey Superior Court Appellate Division·Decided April 4, 2019·No. A-1743-16T2·Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-1743-16T2

GREGORY VISCONTI, Plaintiff-Appellant,

v. LISA VISCONTI,

Defendant-Respondent.

Argued January 15, 2019 – Decided April 4, 2019 Before Judges Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0005-12.

Vincent P. Celli argued the cause for appellant (Celli, Schlossberg, De Meo & Giusti, PC, attorneys; Vincent P. Celli, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Gregory Visconti appeals from two November 18, 2016 Family Part orders that denied modification of his alimony and child support obligations prior to August 2015 pursuant to the parties' Property Settlement Agreement (PSA), but modified his alimony obligation effective August 1, 2015, and referred "[a]ll other items of relief" to a post-judgment early settlement panel. On appeal, plaintiff argues that the court did not satisfy its obligation under Rule 1:7-4 because it failed to set forth adequate findings of fact or conclusions of law. We affirm in part, vacate in part, and remand.

I.

On July 9, 2007, the court entered a Final Judgment of Divorce (JOD), which dissolved plaintiff and defendant Lisa Visconti's marriage of twenty-two years and incorporated their PSA. Under Article Two of the PSA, entitled "Alimony/Maintenance," the parties agreed that "they enjoyed a middle class lifestyle predicated upon the income of [plaintiff] during the marriage." Article Two further provided that in light of the parties' respective needs and expenses, abilities to earn income, ages and health, and assets "including the distribution of equity as set forth" in the PSA, "the support payable to [defendant] shall provide both parties with the ability to substantially maintain the current lifestyle."

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Plaintiff agreed to pay defendant $4000 per month in permanent alimony, based on plaintiff's "gross annual income," which "varie[d] from year to year" between "$110,000 . . . and $160,000," and defendant's "capacity to earn income of approximately $15,000 . . . per year." The parties further agreed plaintiff's alimony payments would terminate upon the death of either party, defendant's remarriage, or defendant's cohabitation with an unrelated person for a period of thirty days or more.

In addition, plaintiff reserved the right to move for modification or termination of alimony in anticipation of, or upon, his retirement. Article Two also provided that plaintiff's alimony obligation was subject to modification or termination "upon a change in financial circumstances of either party," but that "[a]limony shall not be amended by offset or modification until after August 1, 2015 . . . ."

In Article Three, entitled "Equitable Distribution," the parties agreed that "[i]n exchange for the other equities" in the PSA, defendant would be "the sole and exclusive owner" of the marital home, which had an estimated market value of $860,000, and that she would "be free to transfer or sell this property at any time she deems appropriate." The parties further agreed that plaintiff would remain "the sole and exclusive" owner of certain investment property, which

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also had a market value of $860,000. At the time, mortgages encumbered both properties.

Article Six required plaintiff to pay defendant $850 per month, per child , in child support for the parties' two youngest children. 1 Although child support would terminate upon emancipation, plaintiff agreed to extend child support for the two youngest children until August 15, 2015, and further agreed that he would "not seek a modification of child support provided for herein." Article Six required plaintiff to pay all college expenses, "including tuition, books, [and] fees" for all three children.

Four years after the divorce, defendant sold the marital property and moved from New Jersey to Florida. Six months later, on January 5, 2012, plaintiff filed a motion seeking fifteen prayers for relief, including modification of his child support and alimony obligations, claiming defendant's move to Florida and a "drastic decline in his annual income" were substantial changes in circumstances that warranted modification of the PSA.

1 The parties' third, eldest child was twenty-years old at the time of the divorce, and the parties agreed plaintiff would not pay child support for that child as plaintiff was "exclusively funding th[at] child's college costs, her automobile, [and] her living expenses."

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On April 25, 2012, the court heard plaintiff's motion and defendant's cross-motions to enforce litigant's rights, and to appoint a forensic accountant to review plaintiff's financial records. The judge found both defendant's relocation to Florida and "plaintiff's loss of business or financial position" were "a substantial change of circumstance." However, the court denied plaintiff's applications to modify his alimony and child support obligations at that time, but did so "without prejudice" and "subject to discovery and economic mediation and potentially a plenary hearing if it's not resolved." The court also stated it would grant "a period of discovery pending a plenary hearing to determine if there has been a substantial permanent change in circumstances."

To memorialize its oral decisions, the court entered two orders on April 25, 2012, which: deemed defendant's move to Florida and plaintiff's loss of business to be substantial changes of circumstances; ordered plaintiff to advance "an initial $10,000.00 retainer" to defendant's counsel "for [d]efendant's counse l fees and costs of representation for the discovery process and plenary hearing"; "adjudicated [plaintiff] to be in violation of litigant's rights for his failure to pay" several items required by the PSA; and denied defendant's remaining prayer's for relief without prejudice.

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There was no further motion practice until November 7, 2013, when defendant filed another motion to enforce plaintiff's support obligations, asserting he was in arrears of $38,000 in alimony and $29,000 in child support. Plaintiff opposed the motion and claimed his "primary source of income ha[d] been destroyed by insurance companies and Obamacare" and his "office was destroyed in Hurricane Sandy."

Four months later, after hearing oral arguments on the November 7, 2013 motions, the same motion judge who issued the earlier orders entered an order on March 21, 2014, which appointed a forensic expert to evaluate plaintiff's financial status and compelled plaintiff to provide defendant with outstanding discovery. The court also granted defendant's numerous requests seeking enforcement of plaintiff's support obligations, but ordered them "held in abeyance pending the [forensic] evaluation as anticipated." 2

2 In a statement of reasons accompanying the March 21, 2014 order, the court attributed the delay in proceedings following the April 25, 2012 orders to plaintiff being "lackadaisical . . . and/or careless[ ] in attending to his legal matters" based on the amount of time that elapsed between the entry of the April 25, 2012 orders and when plaintiff alleged his office was destroyed by "the Sandy Storm (October 31, 2012)!" (emphasis in original).

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GREGORY VISCONTI VS. LISA VISCONTI (FM-14-0005-12, MORRIS COUNTY AND STATEWIDE) (GREGORY VISCONTI VS. LISA VISCONTI (FM-14-0005-12, MORRIS COUNTY AND STATEWIDE)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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