Opinion
DOCKET NO. A-5461-12T1
10-03-2014
J.B., Plaintiff-Respondent, v. J.S.B., Defendant-Appellant.
J.S.B., appellant pro se. Karen Kirchoff Saminski, LLC, attorney for respondent (Amy L. Bernstein, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1128-13. J.S.B., appellant pro se. Karen Kirchoff Saminski, LLC, attorney for respondent (Amy L. Bernstein, on the brief). PER CURIAM
In this post-judgment matrimonial matter, defendant appeals from the May 10, 2013 order of the Family Part denying her motion to vacate the parties' Marital Settlement Agreement (MSA) and "reopen the matrimonial case" for a plenary hearing on all issues, including alimony and child custody. We affirm.
The parties were married in March 2006. They have one child, born in November 2007.
In August 2010, plaintiff filed his complaint for divorce on the grounds of irreconcilable differences, and the Dual Judgment of Divorce (DJOD) was entered one year later, in August 2011. Both parties were represented by counsel during the negotiations that led to the execution of their MSA and their agreement was incorporated into the DJOD. Although defendant has not provided us with a copy of the transcript of the proceeding that culminated in the entry of the DJOD, the judgment states the parties "testified in [c]ourt as to their understanding of and consent to the terms of [the MSA]" and that "based upon the testimony of the parties, the [c]ourt finds that the parties entered into the [MSA] freely and voluntarily[.]"
Under the MSA, plaintiff agreed to pay defendant $425 per week in limited duration alimony for a period of thirty months beginning on the date the parties sold their former marital residence. Plaintiff was also required to make a "lump sum payment" of $18,000 to defendant after the residence was sold. The MSA specifically provides that, in part, this payment was "[i]n full satisfaction of any [and] all claims" defendant may have "with respect to payment of counsel fees incurred by" her.
The MSA also required each party to "maintain his or her own medical insurance coverage[.]"
The parties agreed to equally share parenting time with their child. Plaintiff agreed to pay defendant $128 per week in child support.
In September 2011, plaintiff learned that defendant had been hospitalized for severe depression and he filed an order to show cause seeking sole residential custody of the child. On September 30, 2011, the court granted plaintiff's motion and also suspended his child support obligation until further order of the court.
On January 6, 2012, the court entered an order permitting defendant to have weekly supervised parenting time at the county courthouse. The order provided that supervised parenting time would continue until defendant submitted "a doctor's report describing her current diagnosis, her current course of treatment, and the doctor's opinion of [d]efendant's ability to exercise unsupervised parenting time. The [c]ourt will then revisit the issue of unsupervised visitation."
However, on March 15, 2012, the court suspended defendant's supervised parenting time following an incident at the courthouse. Shortly thereafter, defendant was incarcerated for a two-month period.
Later in 2012, defendant filed a motion to reinstate her parenting time. On October 12, 2012, the court denied the application without prejudice. The order stated that "[d]efendant must provide proof to the [c]ourt from a licensed professional that she has made sufficient progress in her treatment to warrant reinstatement of parenting time with the parties' [child] before the [c]ourt will readdress the issue[.]"
Defendant filed another motion to reinstate parenting time, accompanied by a one-paragraph letter from her psychologist that recommended that defendant commence reunification therapy with her. Plaintiff opposed the motion, arguing that a more neutral medical professional should conduct the therapy. On December 11, 2012, the court ordered plaintiff to "submit a reunification plan" to defendant within ninety days. If the parties were not able to agree upon the plan, the court directed them to return for further proceedings.
By this point, neither party lived in the county where the DJOD was entered. Therefore, the matter was transferred to their current county of residence.
Plaintiff spoke to the child's pediatrician, who recommended a psychologist to conduct the reunification therapy. In March 2013, the psychologist sent a letter to the court and the parties indicating her willingness to take on the task. The psychologist asked the parties to sign releases for their medical records to be provided to her. She also advised that she accepted "most (but not all) insurance carriers" and that defendant should provide her "with her separate insurance coverage prior to any sessions with her." The psychologist explained that she was "stating this specifically, only because there is a clear statement in the [MSA], which states: 'each party shall maintain his or her own medical insurance coverage.'"
Defendant did not provide the medical releases or her insurance information. Instead, she filed a motion to vacate the parties' MSA. Defendant claimed she was "under duress" during the settlement negotiations and had been pressured into signing it by her attorney, who wanted to get paid for her services. Defendant also asked that the DJOD be "reopened" and a plenary hearing conducted so that she could seek a divorce on the grounds of extreme cruelty. Defendant asserted that plaintiff abused her during the marriage, as allegedly evidenced by a number of telephone calls made to the police by the parties to intervene in their verbal arguments during their marriage.
At the May 10, 2013 motion argument, defendant asserted she sent the psychologist a letter after she received the request for information, but the letter could not be delivered. Defendant asserted the psychologist had moved, without leaving a forwarding address, and that her phone was disconnected. Although defendant stated she kept a copy of the letter she sent to the psychologist, she did not bring it to court on the day of the argument.
Defendant argued that the terms of the MSA were unfair to her and that she should have been granted additional alimony. Defendant stated she had already spent the $18,000 lump sum payment she received on counsel fees related to the divorce and other expenses. Defendant was not working at the time of her motion and she did not file a Case Information Statement (CIS) as part of her pleadings. Plaintiff opposed the motion.
Following oral argument, the motion judge denied defendant's motion. In an oral opinion, the judge found that defendant failed to demonstrate any basis for vacating the MSA or reopening the DJOD for further proceedings. The judge noted that defendant was represented by an attorney at all stages of the negotiations. Defendant also testified she understood and consented to the terms of the MSA and the court found "that the parties entered into the [MSA] freely and voluntarily[.]"
The judge observed that the MSA was extremely favorable to defendant, who "received 2.5 years of alimony, following a four-year marriage, . . . which in this [c]ourt's experience [is] an extremely generous length of time for temporary alimony, and a lump sum of $18,000, in additional alimony, a vehicle, and shared custody" of the parties' child. Thus, defendant failed to demonstrate that any of the terms of the MSA were unfair to her and warranted reconsideration.
Finally, the judge directed the parties to comply with the reunification plan by working with the psychologist recommended by their child's pediatrician. In the May 10, 2013 order, the judge also confirmed the psychologist's new office address and telephone number for the parties and reminded them that the psychologist would "work with the parties by appointment only."
Defendant filed a motion for reconsideration, which the judge denied on June 21, 2013. This appeal followed.
On appeal, defendant argues that the judge "fail[ed] to review all evidence in the case" and that he "abused his discretion in not reopening the case" without conducting a plenary hearing. We disagree.
The scope of our review of the Family Part's order is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Id. at 413. Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we 'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We will only reverse the judge's decision when it is necessary to "'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
In light of the record, defendant's arguments concerning the judge's decision to deny her motion to vacate the MSA and reopen the divorce judgment, grant her additional alimony, and immediately reinstate her parenting time, reveal nothing "so wide of the mark" that a clear mistake was made. Ibid. A motion to set aside a final divorce judgment and accompanying property settlement agreement must be founded upon a showing of inequity and unfairness under Rule 4:50-1(f). Rosen v. Rosen, 225 N.J. Super. 33, 36 (App. Div.), certif. denied, 111 N.J. 649 (1988). Indeed, it is also well-settled that "absent 'unconscionability, fraud, or overreaching in the negotiations of the settlement, . . . no legal or equitable basis exists to reform the parties' property settlement agreement.'" N.H. v. H.H., 418 N.J. Super. 262, 282 (App. Div. 2011) (alteration in original) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).
Here, defendant's vague and unsupported allegations of being under "undue duress" either from her attorney or plaintiff at the time of the execution of the MSA are insufficient to satisfy the high standard of unconscionability. At the time of the DJOD, defendant testified that she entered the MSA "freely and voluntarily." Although defendant entered a hospital a month after the DJOD was filed, she did not submit any medical documentation concerning her condition prior to that hospitalization or any other evidence supporting her claim of having signed the MSA under duress.
Defendant also did not demonstrate that the terms of the MSA were inequitable or unfair. This was a four-year marriage, but defendant was still granted thirty months of alimony, an additional lump sum payment to assist her with expenses and counsel fees, child support, and equitable distribution. The parties also agreed to equally share parenting time with their child.
Although defendant asserts the alimony she agreed to in the MSA was insufficient, she failed to file a current CIS in support of her motion. Post-judgment motions involving disputes concerning support obligations must be accompanied by a current CIS as well as the prior CIS. R. 5:5-4(a). The requirement that parties file current financial disclosure statements is "a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). Because defendant did not submit the required CIS, she was unable to demonstrate any entitlement to a reconsideration of plaintiff's support obligations.
Defendant's argument that the judge should have conducted a plenary hearing also lacks merit. We defer to the trial judge's determination as to whether to schedule a plenary hearing. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). "A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute . . . and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). See also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary"). Because defendant raised nothing more than bald allegations, which lacked factual support, we discern no abuse of discretion in the judge's decision to resolve the motion without conducting a plenary hearing.
There is also no basis for disturbing the judge's decision to require the parties to pursue the reunification program offered through the psychologist. In view of the circumstances of defendant's hospitalization and subsequent treatment, we concur that immediate parenting time between defendant and the parties' child was not advisable at the time of the May 10, 2013 order. Although defendant asserted she was initially unable to contact the psychologist, the judge obtained the psychologist's correct contact information for her and included it in the May 10 order.
Finally, the record on appeal does not disclose the current state of the reunification process. We trust that defendant was able to provide the psychologist with the necessary releases, work out any issue regarding insurance, and initiate the reunification process.
If circumstances have changed, either party is free to file an appropriate motion in the Family Division to address any concerns regarding parenting time or other issues concerning their child.
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As for the balance of any of defendant's arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION