SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5829-17T4

GERI BENEDETTO,

Plaintiff-Respondent,

v.

ANTHONY J. TOSTI,

Defendant-Appellant.

________________________

Submitted October 3, 2019 – Decided

Before Judges Whipple and Mawla.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Burlington County, 

Docket No. FM-03-0432-12.

Anthony J. Tosti, appellant pro se.

Geri Benedetto, respondent pro se.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 21, 2019
2

A-5829-17T4

Defendant Anthony Tosti appeals from a July 5, 2018 final judgment of 

divorce and a November 2, 2018 order denying his motion for relief from the 

judgment. We affirm.

Defendant married plaintiff Geri Benedetto in 1989, and they had one

child, who is now an adult. The parties signed a matrimonial settlement 

agreement (MSA) in August 2011, and pursuant to its terms, the court granted a 

limited judgment of divorce from bed and board on November 29, 2011. The 

portions of the MSA relevant to this appeal are as follows: 

1. Mutual Waiver of Support- For the mutual 

promises and covenants contained herein, [plaintiff] and 

[defendant] hereby waive all past, present, and future 

rights that he and she might otherwise have to require the 

other to provide alimony for his/her support and 

maintenance. . . . [I]t is the intention of this agreement that 

[plaintiff] and [defendant] shall not now or hereafter seek 

periodic, rehabilitative, reimbursement and/or limited 

duration alimony from the other. By entering into this 

waiver of alimony, each party has considered any and all 

foreseeable events, and has also considered that there may 

be unforeseeable events occurring to either party. Each 

party has specifically considered increases or decreases in 

the cost of living, increases or decreases in their income 

and Social Security, the possible loss of or inability to 

secure employment, prospective changes of employment, 

disability or infirmity, the subsequent acquisition or loss 

of assets, the dissipation, whether negligently, 

purposefully, accidentally, or by any other circumstances, 

of the assets received as and for equitable distribution in 

this matter, or any other event which does change the 

quality of economic life. Each party specifically agrees 
3

A-5829-17T4

that the court shall have no jurisdiction or power to modify 

this provision. Notwithstanding any language contained 

in Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 

164 N.J. 11 (2000) and/or any other case or statutory law, 

the alimony waiver shall be non-modifiable and this 

provision is irrevocable. 

2. [Plaintiff's] Financial Assistance to [Defendant]-

Notwithstanding the mutual wavier of alimony and/or 

spousal support from one to the other, [plaintiff] shall 

continue to assist [defendant] financially in a limited 

manner. In lieu of alimony and/or spousal support, 

[plaintiff] agrees to assist [defendant] as follows:

(a) [Plaintiff] will cover [defendant]

on her medical insurance coverage as 

provided through her employment. In 

order to keep [defendant] on her medical 

insurance coverage, it is agreed that 

[plaintiff] will process a limited divorce 

from bed and board.

. . . .

. . . Real Estate

. . . .

b. 348 Mountain Road, Thurman, New York- This 

property was used as a vacation property by the parties and 

is titled to [defendant]. . . . The parties shall share the 

expenses of maintaining said property equally. Further, 

the parties shall have a deed prepared from [defendant] to 

[defendant] and [plaintiff] as joint tenants with right of 

survivorship. In the event that one party or the other 

advances any expenses to maintain this property, that party 

shall receive credit for one half of those expenses from the 

sale proceeds. . . .
4

A-5829-17T4

. . . .

INDEPENDENT LEGAL ADVICE

It is mutually agreed by and between [defendant]

and [plaintiff] that this Agreement is made voluntarily by 

both parties. The parties further recognize that the terms 

of this Agreement are fair, reasonable and equitable and 

that neither party was coerced or forced to enter into the 

terms of this Agreement. The parties were each aware of 

the income, assets and liabilities of the other and this 

disclosure was sufficient to allow each party to make a 

reasoned and informed decision with regard to the terms 

of this [MSA]. Thus, both parties are satisfied with the 

equitable distribution and the support provisions as set 

forth herein without additional discovery, production of 

documents, real estate or pension valuation or other 

financial disclosure. Further, the parties find the terms of 

this [MSA] to be fair, reasonable and equitable. The 

parties recognize that [plaintiff] has been represented by 

Alan Domers, Esquire, of the law firm of Domers & 

Bonamassa, A Professional Corporation, while 

[defendant] has waived his right to seek counsel and to 

have any attorney review this [MSA].

. . . .

1. Voluntary Execution. [Defendant] and [plaintiff]

acknowledge that:

. . . .

(b) They have read this Agreement in 

its entirety. 
5

A-5829-17T4

(c) They understand both the legal 

and practical effect of this Agreement in 

each and every respect.

. . . .

(e) They have made a full and 

complete disclosure of all assets, income 

and liabilities to each other.

(f) Each has been fully informed as 

to his or her legal rights and obligations.

(g) This Agreement is fair and 

adequate, being entered into voluntarily 

and is not the result of any duress or undue 

influence exercised by either party upon 

the other or by any other person or persons 

upon him or her. Each party, therefore, 

accepts these provisions in full and final 

settlement and satisfaction of all claims 

and demands one may have against the 

other and fully discharges the other from 

all such claims and demands except as 

provided in this Agreement.

2. No Bar to Divorce; No merger: Nothing in this 

Agreement shall be construed as a relinquishment by 

either party of the right to prosecute or defend any suit for 

divorce in any court of proper jurisdiction. It is further 

specifically understood and agreed that the provisions of 

this Agreement relating to the equitable distribution of 

property of the parties as herein contained are accepted by 

each party as final settlement for all purposes 

whatsoever. . . .

. . . .
6

A-5829-17T4

19. Warranty of Disclosure. . . . [B]oth parties 

are satisfied that they have sufficient independent 

knowledge of each other's income, assets and liabilities 

so as to make an informed decision in this regard. 

The par[t]ies warrant and represent that they have 

made a full disclosure of all income, assets and 

liabilities and have provided their best estimate of the 

fair market value of the various assets within this 

Agreement where said asset valuation and equity 

figures are deemed relevant and essential to the 

execution of this Agreement. . . .

Following the divorce from bed and board, plaintiff continued insuring

defendant on her state health insurance plan at her expense, as required by the 

MSA. In December 2014, plaintiff filed a motion to enforce the MSA, including 

converting the divorce from bed and board to an absolute divorce. Defendant 

filed a cross-motion seeking various relief. The motion judge issued a tentative 

decision, however, the parties entered into a consent order dated January 15, 

2015, resolving the motion. In pertinent part, plaintiff agreed to withdraw 

without prejudice her request for an absolute divorce and agreed to continue to 

provide defendant with health insurance through her employment. Defendant 

agreed to comply with the MSA relating to the issues raised in plaintiff's 

enforcement motion. The consent order also stated: 

The alimony waiver provisions of the [MSA] shall 

continue as set forth in the Agreement. . . . In the event 

. . . [p]laintiff seeks to convert the limited divorce from 
7

A-5829-17T4

bed and board to an absolute divorce, the issue over the 

cost of medical coverage is without prejudice to either 

party's rights in a future determination regarding the 

cost of that coverage. 

In 2018, plaintiff informed defendant she intended to retire and of the 

concomitant inability to maintain him on her health insurance coverage. In 

response, defendant filed a motion to enforce litigant's rights and sought

modification of equitable distribution and alimony. Plaintiff filed a crossmotion seeking an absolute divorce. 

The motion judge entered an order on May 4, 2018, essentially denying

defendant's motion related to a modification of alimony and equitable 

distribution. As to the enforcement component of defendant's motion, namely, 

funds he claimed were due for maintenance of the parties' New York property, 

the judge determined defendant had "not provided sufficient proofs to make a 

determination" and the issue would abide discovery and a settlement conference 

scheduled by the court at a future date. As to the relief sought in plaintiff's 

motion, the judge ordered the parties to conduct brief discovery regarding the 

impact of an absolute divorce on defendant's health care coverage. The judge 

ordered the parties to attempt to reach a settlement on the issue, and failing that,

scheduled a settlement conference. 
8

A-5829-17T4

A settlement conference occurred in June 2018. Defendant attempted to 

address claims the judge already denied relating to the modification of alimony 

and equitable distribution. The judge found defendant's lack of financial 

resources were irrelevant to his request to modify equitable distribution because 

equitable distribution was not subject to a change in circumstances. The judge 

also upheld the alimony waiver provision, noting the MSA stated the waiver 

would stand regardless of a change in financial circumstances. The judge found 

no basis to revisit the alimony waiver on account of defendant's claim of poor 

health because defendant's certification stated those claims pre-dated entry of 

the MSA. Additionally, the judge concluded neither party owed the other a

reimbursement relating to the once-marital real estate they continued to own 

post-judgment.

The judge signed the July 5, 2018 order, granting plaintiff's request for an 

absolute divorce. The order gave defendant thirty days from the final judgment 

of divorce to obtain his own medical coverage and thereafter relieved plaintiff 

of responsibility for defendant's medical coverage.1 

Defendant appealed from the July order. While the appeal was pending, 

he filed a motion seeking the same relief as in his May 2018 motion. Plaintiff 

 

1 The order addressed other issues irrelevant to this appeal. 
9

A-5829-17T4

filed a cross-motion for enforcement because defendant failed to comply with 

aspects of the July order. The motion judge entered the November 2, 2018 order, 

denying defendant's requests without prejudice because the court lacked 

jurisdiction due to the pending appeal, and granted plaintiff's requests for 

enforcement. We granted defendant's motion to amend his notice of appeal to 

include the November order.

I.

"'[W]e generally defer to the factual findings of the trial court because it 

has the opportunity to make first-hand credibility judgments about the witnesses 

who appear on the stand; it has a "feel of the case" that can never be realized by 

a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. R.D., 207 

N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198 

N.J. 382, 396 (2009)). "Because of the Family Part's special jurisdiction and 

expertise in family matters, we accord particular deference to a Family Part 

judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. 

Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 

(1998)). "That deference is especially appropriate 'when the evidence is largely 

testimonial and involves questions of credibility.'" MacKinnon v. MacKinnon, 

191 N.J. 240, 254 (2007) (quoting Cesare, 154 N.J. at 412). 
10 A-5829-17T4

We must examine "whether there was sufficient credible evidence to 

support the trial court's findings." N.J. Div. of Youth & Family Servs. v. M.C. 

III, 201 N.J. 328, 342 (2010). "We will not overturn a family court's factfindings 

unless they are so 'wide of the mark' that our intervention is necessary to correct 

an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 

(2012) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 

(2008)). 

On appeal, defendant raises the following arguments:

POINT 1

THE TRIAL COURT ERRED NOT DEALING WITH 

DEFENDANT'S SUBSTANTIAL MATERIAL 

CHANGE OF CIRCUMSTANCES[,] IGNORING 

PLAINTIFF'S CIS [CASE INFORMATION 

STATEMENT] . . . AGE, FINANCES, HEALTH, 

ECONOMY, RESOURCES, AND MARITAL 

ASSETS PURSUANT TO NEW JERSEY COURT 

RULE[S] . . . 4:17, . . . 5:5-1, [AND] 5:5-2[.]

POINT 2

[THIS] COURT [SHOULD] REVIEW [THE] 

VALIDITY OF MSA CONTRACT TO DIVORCE 

JUDGEMENT [SIC] [.] 

POINT 3

THIS COURT SHOULD TAKE A FRESH LOOK AT 

THE ENTIRE[TY OF THE] . . . TRIAL COURT'S 

DISMISSAL [OF THE] RELIEF [SOUGHT IN]
11 A-5829-17T4

DEFENDANT'S MANY PLEADINGS INCLUDING 

REQUESTS FOR FAIR AND EQUITABLE 

DISTRIBUTION OF MARITAL ASSETS AND ALL 

FINAL DECISIONS BY THE TRIAL COURT.

We considered defendant's arguments and affirm substantially for the 

reasons expressed by the motion judge. We add the following comments. 

Defendant was not entitled to alimony because the parties' alimony waiver 

expressly disclaimed any ability to revisit the waiver, including on the grounds 

defendant argued on appeal, namely, his health, decrease in social security 

receipts, and overall financial circumstances. Contrary to defendant's argument, 

plaintiff was not required to file a CIS when defendant failed to demonstrate a 

change in circumstances to overcome the alimony waiver. Lepis, 83 N.J. at 157. 

Moreover, the health-related evidence contained in defendant's appendix was 

not presented to the trial judge. Therefore, we cannot consider it either. 

"[A]ppellate courts will not ordinarily consider evidentiary material which is not 

in the record below[.]" Pressler & Verniero, Current N.J. Court Rules, cmt. 1

on R. 2:5-4(a) (2019).

We decline defendant's invitation to review the fairness of the MSA as a 

whole on grounds it was one-sided, the product of duress and fraud, and because 

defendant entered into it without counsel. These arguments are raised for the 

first time on appeal and we cannot consider them. See Nieder v. Royal Indem. 
12 A-5829-17T4

Ins. Co., 62 N.J. 229, 234-35 (1973) (discussing the limited circumstances in 

which an appellate court will consider an argument first raised on appeal). 

Furthermore, defendant expressly acknowledged the waiver of counsel in the 

MSA. Therefore, it is not a basis to undo the agreement. 

Finally, defendant argues plaintiff's breach of the MSA requires the 

agreement's invalidation, rescission, or reformation. Specifically, he alleges 

plaintiff breached the MSA through (1) her refusal to cover defendant on her 

health insurance plan; (2) her alienation of the parties' child2; (3) her failure to 

fairly cooperate to resolve the parties' dispute outside of court; (4) her failure to 

pay half of the rental contract income in the parties' Marlton home; and (5) her 

failure to pay half of the expenses on the parties' New York property.

Plaintiff neither breached the MSA, nor refused to provide defendant with 

health insurance coverage. Rather, as contemplated in the MSA and the 2015 

consent order, defendant's coverage was eliminated when plaintiff exercised her 

right to an absolute divorce. 

Defendant did not prove plaintiff failed to cooperate to resolve issues 

without court intervention. During the settlement conference, the motion judge 

 

2 We do not address this argument because it too was not raised before the trial 

judge.
13 A-5829-17T4

noted plaintiff provided defendant with information to enable him to secure his 

own medical coverage, yet there was "foot drag" on defendant's part in taking 

action with respect to this information. Our review of the record demonstrates 

defendant was the obstinate party and filed duplicative motions. 

Defendant's claim for expenses did not establish plaintiff breached the 

MSA. As the motion judge noted, defendant lacked proof the expenses he 

sought reimbursement for were legitimate, and plaintiff covered most of the 

expenses of the New York property since its purchase. For these reasons, the 

judge declared the claims to "be a wash" and declined to grant defendant relief. 

The judge's determination was supported by substantial, credible evidence, and 

we decline to disturb it. 

To the extent we have not addressed defendant's remaining claims, it is 

because they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.