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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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, 20192 A

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- 17T4

Defendant Anthony Tosti appeals from a July 5, 2018 final judgment of
divorce and a N ovember 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 it s terms , the court granted a limited judgment of divorce from bed and board on November 29, 2011. T he portions of the MSA relevant to this appeal are as follows:

1. Mutual Waiver of Support

- For the mutual promises and covenants contai ned 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, increase s or decreases in their income and Social Security, the possible loss of or inab ility 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 agrees3 A

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- 17T4 that the court shall have no jurisdiction or power to modify this provision. Notwithstanding any language co ntained 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 assi st [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 d ivorce 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 oth er advances any expenses to maintain this property, that party shall receive credit for one half of those expenses from the sale proceeds.

. . .4 A

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- 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 partie s were each aware of the income, assets and liabilit ies 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 equitabl e 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 a nd 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 th is [MSA].

. . . . 1. Voluntary Execution

. [Defendant] and [plaintiff] acknowledge that:

. . . . (b) They have read this Agreement in its entirety.5 A

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- 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 satisfacti on 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 relinqui shment 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 relat ing 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

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- 17T4 19. Warranty of Disclosure

. . . . [B]oth parties are satisfied that they have suffic ient 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 provide d 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, p laintiff continued insur ing
defendant on her state health insurance plan at her expense , as required by the
MSA. In December 201 4 , plaintiff filed a motion to enforce the MSA , including

conver ting the divorce from bed and board to a n absolute divorce. D efendant
filed a cross

- motion seeking various relief. T he 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 pr ejudice 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 provisi ons of the [MSA] shall continue as set forth in the Agreement.

. . . In the event

. . . [p]laintiff seeks to convert the limited divorce from7 A

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- 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 cross
motion seeking an absolute divorce

. The motion judge entered an order on May 4, 2018, essentially den ying
defendant's motion related to a modification of alimony and equitable
distribution

. As to the enforcement component of defendant's motion, namely,
fund s 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 b rief 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

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A settlement conference occ urred in June 201 8

. D efendant attempted to address claims the judge already denied relating to the modification of alimony and equitable distribution

. T he 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 ju dge 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 reimbursemen t relating to the once

- marital real estate they continued to own post

- judgment

. The judge signed the July 5, 2018 order , grant ing plaintiff's request for a n absolute divorce

. T he order gave defendant thirty days from the final judgment
of divorce to obtai n his own medical coverage and thereafter relieved plaintiff
of responsibility for defendant's medical coverage. 1 Defendant appealed from the July order. While th e 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

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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,
den y i ng defendant's requests without prejudice because the court lacked jurisdiction du e 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 c old 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 accor d 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

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We must examine "whether there was sufficient credible evidence to support the trial court's fin dings." 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 M ATERIAL 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 JUDG E MENT [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

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- 17T4 DEFENDANT'S MANY PLEADINGS INCLUDING REQUESTS FOR FAIR AND EQUITABLE DISTRIBUTION OF MARITAL ASSETS AND ALL FINAL DECISION S 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 no t 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 circumsta nces
. Contrary to defendant's argument, plaintiff was not required to file a CIS whe n defendant failed to demonstrate a change in circumstances to overcome the alimon y waiver. Lepis , 83 N.J. at 157. Moreover, the health

- related evidence contained in def endant'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 , cm t. 1

on R. 2:5

- 4(a) (20 19 ).
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

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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 acknowledge d 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 reformati on. Specifically, h e alleges plaintiff breached the MSA through (1) her refusal to cover d efendant on her
health insurance plan ; (2) her alienation of the parties' child 2 ; (3) her failure to fairly cooperate to resolve the parties' dispute outside of cour t; (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 breach ed the MSA , nor refuse d to provide defendant with
health i nsurance 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
with out 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

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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 f iled duplicative motions. Defendant's claim for expenses did not establish plaintiff breached the MSA. As the motion judge noted, d efendant 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 jud ge'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.