GERI BENEDETTO VS. ANTHONY J. TOSTI (FM-03-0432-12, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5829-17T4

GERI BENEDETTO,

Plaintiff-Respondent,

v.

ANTHONY J. TOSTI,

Defendant-Appellant.
________________________

Submitted October 3, 2019 – Decided October 21, 2019

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
 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

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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. . . .

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 ....

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.

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 (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. . . .

....

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 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

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 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 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.

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 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.
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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,

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).

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 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]

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 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.

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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 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.
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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 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.

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