Opinion
DOCKET NO. A-3246-14T4
04-27-2016
CINDY ANN LOSCALZO, Plaintiff-Appellant, v. JOSEPH LOSCALZO, Defendant-Respondent.
Rebel Brown Law Group, LLC, attorneys for appellant (Kourtney A. Borchers, on the brief). Gregory C. Dibsie, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Family Part, Gloucester County, Docket No. FM-08-565-12. Rebel Brown Law Group, LLC, attorneys for appellant (Kourtney A. Borchers, on the brief). Gregory C. Dibsie, attorney for respondent. PER CURIAM
Plaintiff Cindy Ann Loscalzo appeals from the February 6, 2015 order denying her motion to set aside a property settlement agreement (PSA). She also challenges the Family Part's denial of her requests for a plenary hearing and for a change in venue. We affirm.
Plaintiff and defendant Joseph Loscalzo were married in April 1986. During the marriage, defendant, a sheriff's officer in Gloucester County, was the primary source of financial support. The parties had two sons, who were both emancipated by the time of the divorce. On March 14, 2012, the parties were divorced before a Gloucester County Family Part judge (the divorce judge) on the basis of irreconcilable differences. The parties appeared pro se and the divorce was uncontested. At the very beginning of the divorce hearing, before either party testified, the divorce judge disclosed to plaintiff that defendant had previously been assigned to work in his courtroom as a sheriff's officer. Even though the judge did not think there was a conflict, he offered to have the case transferred to another judge in another county. Plaintiff stated that she was "fine" with these circumstances, and wanted to proceed.
Defendant was not assigned to the judge's courtroom at the time of the divorce hearing, and there was no indication that they had any relationship other than that past assignment.
The final judgment of divorce incorporated a one-page PSA dated January 26, 2012. The essential terms of the PSA can be summarized as follows:
1. Wife can live in the marital home and husband will continue to pay the mortgage until satisfied. Wife can live in the marital home for as long as she chooses, but if she decides to sell
the house, the proceeds will be divided equally.
2. Husband will continue to pay for Wife's auto insurance and car until the car loan is paid in full.
3. Husband will pay Wife's AARP Medical Insurance.
4. Wife waives any interest in Husband's pension.
5. Husband waives any interest in Wife's workers compensation claim.
6. Husband agrees to pay Wife alimony of $500 per month for five years.
The PSA was signed by both parties. On the record before the divorce judge, plaintiff acknowledged that she did not want to be represented by an attorney when she signed it; she was satisfied she understood the contents of the PSA and did not need counsel; she did not have any questions regarding the PSA; she was not forced or threatened to enter into the PSA; she was not under the influence of alcohol or drugs when she signed the PSA; she was satisfied there has been a full disclosure of all assets and debts; and she thought she could maintain a standard of living based on the terms of the PSA which was reasonably comparable to the marital standard of living.
On November 12, 2014, defendant filed a motion to enforce the PSA, claiming plaintiff fell behind in paying the property taxes and the marital home had been sold. The parties agreed to place the proceeds from the sale of the marital residence in the trust account of plaintiff's attorney pending further agreement or further order of the court. Plaintiff filed a cross-motion to change venue and to set aside the PSA based upon alleged "unconscionability, fraud, duress, incapacity and/or lack of disclosure."
In orders entered on January 16 and February 6, 2015, a different judge (the motion judge) granted defendant's motion seeking one-half of the net proceeds from the sale of the former marital home, pursuant to the PSA, and denied plaintiff's cross-motion seeking to set aside the parties' PSA. The motion judge specifically found that a change of venue was not warranted, as he had never met defendant despite defendant's employment by Gloucester County. Moreover, the motion judge concluded that plaintiff failed to carry her prima facie burden of showing the PSA was unfair or unjust; rather, the parties' PSA contemplated alimony, retirement assets, plaintiff's workers compensation settlement, and the marital home. This appeal followed.
Plaintiff submitted no information regarding her workers compensation claim, which goes entirely to plaintiff under the PSA. According to defendant, plaintiff told him "[the] settlement is expected to be approximately $125,000." --------
On appeal, plaintiff raises the following issues for our consideration:
POINT I
THE MOTION JUDGE ERRED IN DENYING PLAINTIFF'S MOTION TO SET ASIDE THE PURPORTED AGREEMENT OF THE PARTIES BECAUSE THE AGREEMENT IS UNCONSCIONABLE, A PRODUCT OF DURESS, PLAINTIFF LACKED THE CAPACITY TO ENTER INTO THE AGREEMENT AND THE AGREEMENT FAILED TO PROVIDE ANY DISCLOSURE AS TO ASSETS AND INCOME OF THE PARTIES.
POINT II
EVEN IF PLAINTIFF DID NOT SATISFY THE COURT BELOW THAT THE PURPORTED AGREEMENT SHOULD AUTOMATICALLY BE SET ASIDE, THE CONFLICTING CERTIFICATIONS OF THE PARTIES CREATED ENOUGH FACTUAL DISPUTE TO REQUIRE A [PLENARY] HEARING AS TO THE ENFORCEABILITY OF THE [AGREEMENT] AND THE COURT BELOW ERRED IN NOT HOLDING A PLENARY HEARING.
POINT III
THE COURT BELOW ERRED IN NOT [TRANSFERRING] VENUE OF THIS MATTER TO A DIFFERENT COUNTY GIVEN THE FACT THAT THE DEFENDANT IS EMPLOYED BY GLOUCESTER COUNTY AS A [SHERIFF'S] OFFICER AND THE DIVORCE JUDGE ACKNOWLEDGED DEFENDANT WAS HIS [SHERIFF'S] OFFICER, CREATING A CONFLICT AND THE APPEARANCE OF IMPROPRIETY.
The party seeking to set aside a PSA has the burden to prove fraud or falsehood. Wertlake v. Wertlake, 137 N.J. Super. 476, 482 (App. Div. 1975). There is a strong public policy favoring settlement of litigation. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Clear and convincing proof that the "agreement [was] achieved through coercion, deception, fraud, [or] undue pressure" must be shown before a court will vacate a settlement. Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (citation omitted); Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.), certif. denied, 137 N.J. 165 (1994). This court reviews the trial court's determination on a motion to vacate a judgment under an abuse of discretion standard. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
Following our review of the record, we conclude the motion judge correctly found that plaintiff failed to show that the PSA was procured by fraud, duress, or falsehood, that its terms are unconscionable, or that plaintiff lacked capacity to enter into it. At the divorce hearing, plaintiff elected to proceed without counsel in front of the divorce judge, despite his relationship with the officer. She swore she understood the PSA, she was not under the influence of any drugs, and she was acting voluntarily. Moreover, she swore that she had received full disclosure of all assets, and that she could maintain her standard of living. We note it is well-settled that "[s]olemn declarations in open court carry a strong presumption of verity." State v. Simon, 161 N.J. 416, 444 (1999) (citation omitted); see Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977).
Plaintiff further claims that, at a minimum, the motion judge should have held a plenary hearing to fully explore the issues raised in her cross-motion. A plenary hearing is not mandated, however, in every case where there are competing affidavits. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). "The applicant nevertheless has the threshold burden to establish a prima facie case to obtain a hearing on a motion for relief from the terms of an agreement." Dworkin v. Dworkin, 217 N.J. Super. 518, 525 (App. Div. 1987). As our Supreme Court stated in Lepis v. Lepis, 83 N.J. 139, 159 (1980), "In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded." Given these guidelines, we are satisfied that plaintiff's unsupported certification, including uncorroborated claims of duress and incapacity, were not sufficient to warrant either an order in her favor or a hearing to resolve factual disputes. Plaintiff simply failed to present sufficient evidence to support her claims.
Further, we reject as without merit plaintiff's argument that the motion judge abused his discretion in denying her motion for a change of venue. Rule 5:2-2 provides that "[c]hange of venue in family actions shall be governed . . . [by] [R.] 4:3-3 (civil actions)." Rule 4:3-3(a) provides that "a change of venue may be ordered . . . (2) if there is a substantial doubt that a fair and impartial trial can be had in the county where venue is laid[.]" Here, the motion judge stated that he had never met defendant, who at the time was providing night transportation of prisoners and had not been involved in the day-to-day activities of his chambers. We find this to be sufficient.
We have considered the remaining issues raised by plaintiff and find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). While we conclude the motion judge correctly ordered the equal division and distribution of the proceeds of the sale of the marital home, as provided by the PSA, our ruling is without prejudice to any motion based on a change of circumstances not contemplated in the PSA. See Lepis, supra, 83 N.J. at 149. Similarly, our decision is without prejudice to a future application to change venue if circumstances change.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION