Opinion
DOCKET NO. A-3333-09T4
02-15-2012
LEONIE CANCIALOSI, Plaintiff-Respondent/Cross-Appellant, v. JAMES CANCIALOSI,Defendant-Appellant/ Cross-Respondent.
Mark Vogel, attorney for appellant/cross- respondent. Ceconi & Cheifetz, LLC, attorneys for respondent/cross-appellant (Kimberly A. Rennie, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Essex County, Docket No. FM-07-769-06.
Mark Vogel, attorney for appellant/cross
respondent.
Ceconi & Cheifetz, LLC, attorneys for
respondent/cross-appellant (Kimberly A.
Rennie, of counsel and on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant James Cancialosi (husband) appeals from a December 11, 2009 order of the Family Part denying his cross-motion to vacate the parties' Property Settlement Agreement (PSA) and a February 5, 2010 order enforcing the PSA by the entry of a final Qualified Domestic Relations Order (QDRO). Plaintiff (wife) cross-appeals from the December 11, 2009 order, which failed to address her request for counsel fees. We affirm.
We note that husband's notice of appeal only references the February 5, 2010 order but his Case Information Statement references both orders. Although it is generally only the judgments designated in the notice of appeal that are subject to the appeal process and review, see Pressler & Verniero, Current N.J. Court Rules, comment 6.l on R. 2:5-1 (2012), we will consider both orders.
Both parties provide us with a litany of facts and procedural history that is not relevant to this appeal. The parties were married in l969. Wife filed a complaint for divorce in September 2005. On July 27, 2006, a final judgment of divorce was entered that incorporated a detailed PSA of the same date. The PSA addressed medical insurance and expenses, taxes, spousal support, and distribution of husband's pension and the balance of the parties' marital assets. Both parties were represented by counsel.
In November 2009, wife filed a motion for enforcement of litigant's rights to finalize equitable distribution of the parties' investment and retirement accounts pursuant to the PSA. Wife expressed a particular concern about husband's failure to execute the QDRO that had been sent to him to effectuate her fifty percent interest in the coverture portion of his pension and protect her right to an "Option C" survivor benefits annuity, in view of husband's planned retirement as a teacher in 2010. She also requested counsel fees. Husband cross-moved to vacate the PSA on the grounds of fraud pursuant to Rule 4:50-1(c), claiming that at the time of the divorce wife failed to disclose, or misrepresented, the amount in numerous bank accounts and dissipated assets in anticipation of the divorce. He also challenged various aspects of the PSA, such as the length of alimony, arguing, for example, that "it was understood at the time of divorce that alimony would stop at the time that the pension kicked in." Wife filed a lengthy reply certification.
Following oral argument on December 11, 2009, Judge Thomas P. Zampino denied husband's motion in its entirety. He explained:
We should understand that [the] law requires discovery before we do a property settlement agreement, before we get divorced, not three and a half years later. Everything that I've heard from your lawyer surrounding 2000 and 2002 was easily discoverable then and in fact they weren't hidden or fraudulently concealed.The judge pointed out, for example, the lack of a provision terminating husband's alimony obligation upon his retirement, instead terminating it upon wife's remarriage, death or cohabitation. The judge denied wife's cross-motion, finding husband was not in violation of litigant's rights and he was going to sign the QDRO before he left court. He also ordered enforcement of certain other provisions of the PSA pertaining to life insurance and equalization of accounts. The judge's ruling was memorialized in an order of the same date.
They were just transformed into other entities that included the children or another family member in regard. And it was either known [to] you then or you were aware of them, or they became known to you. But even though you started some discussions with your present attorney in March of this year, it's not until they bring an actual motion do you bring [a] cross[-]motion.
The rule which is [4:50-l] actually says within a reasonable time. It even poses a year. This Court finds this is not a reasonable time. There's absolutely no basis for your award.
[You've] created a perception in your mind . . . that you have some entitlement beyond what this agreement says. And you don't. . . .
As much as now you feel I've offended you, because you're looking at me forlornly, but this is not a personal issue. It's my interpretation of your agreement. And the law as the facts fit into it. It has nothing to do with you as a person. So, I want you to understand that clearly.
Husband did not sign the QDRO. In response to letters from counsel proposing differing language and their own forms of a QDRO, Judge Zampino scheduled a hearing for January 14, 2010. On December 31, 2010, husband filed a motion for, among other items, reconsideration or setting of a date for a plenary hearing as to the duration of husband's alimony obligation. Husband and the attorney who represented him in connection with the divorce and PSA submitted certifications. In lieu of oral argument on February 5, 2010, however, the parties, through counsel, entered into a Consent Order, resolving all of the issues in husband's motion for reconsideration with regard to alimony and the language that would be included in the QDRO. The order further provided:
9. [Wife's] request for counsel fees is hereby reserved, without prejudice, pending [husband's] appeal of paragraph l of the Court's [] Order of December 11, 2009, denying [husband's] [m]otion seeking a plenary hearing regarding his claim of alleged fraud with regard to the parties' bank accounts. In the event that [husband] is not successful with regard to his fraud claim, [wife] shall be entitled to make application to the Court seeking counsel fees.This appeal and cross-appeal ensued.
10. [Husband's] fraud claim shall abide the appeal process.
On appeal, husband argues:
POINT IOn her cross-appeal, wife contends the trial court failed to address the issue of her request for counsel fees and requests we remand on that issue.
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD A PLENARY HEARING IN AN EFFORT TO RESOLVE A DISPUTE IN WHICH THERE WERE MATERIAL FACTS AT ISSUE BETWEEN THE PARTIES.
POINT II
ON ACCOUNT OF THE FAILURE OF THE PARTIES TO ACHIEVE ANY MEETING OF THE MINDS ON MOST OF THE IMPORTANT ASPECTS OF EQUITABLE DISTRIBUTION, THE PSA SHOULD BE VACATED, AT LEAST AS TO THOSE PORTIONS TO WHICH THE PARTIES NEVER REACHED AN AGREEMENT.
POINT III
THE TRIAL JUDGE SHALL BE RECUSED BECAUSE OF HIS DEMONSTRATED BIAS WHICH WOULD REASONABLY LEAD LITIGANTS AND COUNSEL TO BELIEVE THAT THE COURT HAS LITTLE TOLERANCE BOTH FOR [R.] 4:50 MOTIONS AND PLENARY HEARINGS OR NEW TRIALS ORDERED UNDER THEM.
Based on our review of the record and applicable law, we are not persuaded by any of husband's arguments. As to the first two points we affirm substantially for the reasons articulated by Judge Zampino following oral argument. Husband's third point is so clearly without merit that it warrants no discussion. R. 2:11-3(e)(1)(E). We do not understand why wife filed a cross-appeal seeking a remand for consideration of her fee application in view of the express language of the February 5, 2010 consent order that expressly reserved the issue pending our disposition of husband's fraud claim. Accordingly, wife is entitled to renew her application to the Family Part for fees in connection with her enforcement motion without any direction on our part. We take no position as to the merits of her application.
We add the following brief comments on husband's appeal. Rule 4:50-2 requires a motion to set aside a judgment pursuant to Rule 4:50-1 to be made within a reasonable time and, if based on the ground of fraud under subsection "c," the motion "shall be made . . . not more than one year after the judgment . . . was entered[.]" As a general matter, judgments and orders in family actions are covered by this rule. Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 4:50-1 (2012). As noted by Judge Zampino, husband's motion was filed three and one-half years after entry of the final judgment of divorce.
There is a strong public policy in New Jersey "favoring the use of consensual agreements to resolve marital controversies." Konzelman v. Konzelman, 158 N.J. 185, 193 (l999). Our courts have consistently recognized the longstanding contractual nature of these matrimonial agreements. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007); Petersen v. Petersen, 85 N.J. 638, 642 (1981); Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (internal quotation marks and citations omitted). Moreover, when a party is represented by an attorney, states he or she understands the agreement, and there are no substantiated allegations of fraud, unconscionability or overreaching in the negotiations of the PSA, there is no legal or equitable basis to reform the parties' PSA. Miller v. Miller, 160 N.J. 408, 419 (1999).
A party seeking to be relieved from a judgment on the basis of fraud must demonstrate by clear and convincing evidence testimony or conduct that is willfully false, material to the issue, and the falsity could not have been discovered by reasonable diligence. See Shammas v. Shammas, 9 N.J. 321, 330 (l952); Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366 (App. Div. l964). Husband's reliance on Palko v. Palko, 73 N.J. 395, 397 (1977) is misplaced as he failed to present evidence to support a claim that wife failed to disclose, hid, concealed, or fraudulently transferred marital assets or that the information he submitted was not known or discoverable at the time of the divorce.
Furthermore, a movant is entitled to a plenary hearing only where he or she clearly demonstrates the existence of a genuine issue of material fact entitling the party to relief through competent supporting documents and affidavits. Lepis v. Lepis, 83 N.J. 139, 159 (1980); Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. l968). Again, husband failed to sustain his burden.
Accordingly, we discern no abuse of discretion by Judge Zampino in ruling on husband's motion to vacate without a plenary hearing and in denying the motion as both time-barred and without merit. See Eaton, supra, 368 N.J. Super. at 222-223 (noting that a "trial judge's decision whether to allow or deny such relief on one of the six specified grounds in Rule 4:50-1 should be left undisturbed unless it results from a clear abuse of discretion") (internal quotation marks and citations omitted). See also Schwartzman v. Schwartzman, 248 N.J. Super. 73, 77-78 (App. Div), certif. denied, 126 N.J. 341 (l99l). We further note that the parties' February 5, 2010 consent order resolved husband's challenges to the PSA with respect to alimony and his pension and solely preserved for appeal his claim for "alleged fraud with regard to the parties' bank accounts." Accordingly, husband's challenges to the court's rulings with respect to portions of the PSA contained in his second argument are moot.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION