Opinion
DOCKET NO. A-3490-12T3
09-21-2015
TERESA TAVERAS, Plaintiff-Appellant, v. GUILLERMO PRIETO, Defendant-Respondent.
Law Offices of Malcolm Blum, attorneys for appellant (Mr. Blum, on the brief) Guillermo Prieto, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1252-11. Law Offices of Malcolm Blum, attorneys for appellant (Mr. Blum, on the brief) Guillermo Prieto, respondent pro se. PER CURIAM
Plaintiff Teresa Taveras appeals from an order denying her motion to set aside the parties' Property Settlement Agreement (PSA). She contends she signed the agreement under duress, did not agree to handwritten alterations to the printed PSA, and did not make the initials, purporting to be hers, adjacent to the handwritten alterations. Following a hearing, the trial court resolved conflicting testimony on those issues against plaintiff. On appeal, she argues:
POINT I
THE PLAINTIFF/APPELLANT WAS NOT REPRESENTED BY EITHER A COMPETENT OR A LOYAL ATTORNEY.
POINT II
THE TRIAL JUDGE DID NOT MAINTAIN IMPARTIALITY.
POINT III
THE PROPERTY SETTLEMENT AGREEMENT IS INEQUITABLE AND UNFAIR TO THE PLAINTIFF.
Having considered plaintiff's arguments, the record, and applicable law, we conclude the trial court's findings of fact and credibility determinations are supported by ample credible evidence in the record. We also conclude that the trial court did not fail to maintain its impartiality. Accordingly, we affirm.
The parties' twenty-one year marriage was dissolved by a Dual Judgment of Divorce (DJOD) filed November 3, 2011. The one child born during the marriage was nineteen years old when the parties divorced. The DJOD incorporated a PSA.
During the divorce hearing, both parties were represented by counsel and both parties were questioned about the PSA. The attorney who represented plaintiff questioned her as follows:
Q Ms. Taveras, I'm going to show you what's been marked J1 as the property settlement agreement. I'm going to direct your attention to page 17. Is this your signature on page 17?
A Yes.
Q And even though we signed this agreement today, this agreement has been among the parties for several weeks now. Is that correct?
A Yes.
Q And we've been negotiating back and forth and today we have a final agreement?
A Yes.
Q Did you read the agreement before you signed it?
A Yes.
Q Was the agreement the result of negotiations between me, you, the defendant's counsel and the defendant?
A Yes.
Q Have you had sufficient time to consider entering into this agreement?
A Yes.
Q Under all the circumstances of your case, do you think this agreement represents a fair and equitable resolution of all issues between you and your spouse?
A Yes.
Q Did anyone force, coerce, or threaten into signing this agreement?
A No.
Q Do you fully understand all the terms of the agreement?
A Yes.
. . . .
Q You understand this agreement, there's a waiver of alimony and child support in this agreement?
A Yes.
Q And it's partly based on the fact that both you and your soon-to-be ex-husband are disabled?
A Yes.
Q Do you believe that with that waiver of alimony and child support that you will be able to maintain a similar lifestyle as the lifestyle you maintained during the marriage?
A Yes.
Q Okay. And what is your highest level of education?
A I have a bachelor's degree at William Paterson University.
Q Do you agree to be bound by the terms of this agreement?
A Yes.
. . . .
The Court then questioned plaintiff:
Q So Madam Plaintiff, although you signed the agreement today, you've had ample opportunity to think about the agreement, ask your attorney any questions you might have, you read the agreement, you understand the agreement. Is that correct?
A Yes.
Q Do you understand that what we're doing today is we're settling the matter
instead of having a trial? Today was the scheduled trial date. Now if you had tried the case the Court would've decided all the issues submitted and the Court's decision could be different than the way you and the defendant resolved the issues. The Court might resolve the issues, for instance, in a way that was more favorable to you, however, it might have also been less favorable to you, or substantially the same. Do you understand that?
A Yes.
Q Do you think the agreement was a product of fair negotiations between you and the defendant with the help of able counsel?
A Yes, I do.
Q And while - - while you were negotiating the agreement today you were not under the influence of any substance that would [a]ffect your judgment, labeled with any physical or mental - - that you're aware of. Is that correct?
A Yes.
Q You understand that under the terms of the agreement as I understand it from counsel's questions and your responses, is a mutual permanent waiver of alimony. So that means that you're not going to receive any alimony, you're not going to pay any alimony, and neither party could come back later and ask for alimony. Is that how we understand the agreement?
A. Yes.
Six PSA clauses had handwritten alterations. The first, concerning custody and parenting time, changed the declarative statement that the child resided in Arizona with defendant to the revised statement that the child resided in New Jersey with plaintiff. The clause was further altered to state that should the child decide to live with defendant in Arizona, plaintiff would not impede the relocation.
The second through fifth alterations involved equitable distribution of four residences addressed under Article Six, paragraphs 1A through 1D. Paragraph 1A concerned the marital residence. Plaintiff's agreement to pay defendant $20,000 in exchange for his waiver of any right, title and interest in the marital home was altered to require that the home be immediately listed for sale and the proceeds, if any, divided equally. The provision requiring plaintiff to pay defendant $20,000 was lined through.
The printed version of paragraph 1B stated that the debt on a Florida residence exceeded its appraised value, defendant waived any interest in the title to the property, and plaintiff would be solely responsible for payment of the mortgage, taxes, insurance and maintenance. The paragraph was altered to require that the property be immediately listed for sale and the proceeds, if any, divided equally.
Printed paragraph 1C stated that the debt, mortgage, and loan due to defendant's brother on a Santo Domingo, Dominican Republic apartment exceeded the property's value and plaintiff waived any right, title, or interest in the property. The printed provision was altered to require the property be immediately listed for sale and the proceeds, if any, divided equally.
The fourth residential dwelling, referenced in paragraph 1D, as was a six-family home in the Dominican Republic. The original printed clause required defendant to divide the home into six separately titled homes, with title to each home to be held jointly by the parties. The individual units were to be listed for sale and the proceeds equally divided between the parties. The alterations deleted the reference to defendant dividing the property into six homes and provided that the six existing family dwellings would be listed for sale and the proceeds divided equally.
The sixth PSA alteration added a sentence to a printed clause that stated the parties had divided their personal property. The additional sentence, handwritten, states: "[Defendant] will be permitted to enter the marital home to collect his personal belongings including lamp, tools, etc."
The letters "TT" appear adjacent to each alteration. Whether some of the initials were made by plaintiff, or forged by defendant, was a central issue at the plenary hearing.
Plaintiff's proofs at trial consisted of documentary evidence, her daughter's testimony, and her own testimony. The daughter's testimony shed no light on who initialed the PSA alterations. She was attending college, supporting herself with financial aid, and living with plaintiff. Defendant paid no child support. The daughter resided with plaintiff, and with the exception of college expenses, plaintiff supported the child.
Plaintiff testified that she and the attorney who represented her at the divorce hearing had a falling out before the hearing, he terminated his representation, and she signed a substitution of attorney so that she could represent herself. They did not speak between her signing the substitution and the trial date. Nonetheless, the attorney appeared at the divorce hearing, the trial judge having refused to permit him to withdraw as plaintiff's counsel in view of the pending hearing.
Plaintiff testified that she was unaware that certain alterations were made to the PSA. To support her claim that she neither agreed to nor initialed the alterations to paragraphs 1B, C, and D, plaintiff explained how each property was purchased and carried. She testified that she purchased the Florida property in 2007 after she had separated from defendant. For a down payment on the Florida property, she used the settlement proceeds from a personal injury action. The deed was in her name only, as was the mortgage. To generate income to pay the mortgage, utilities, homeowners' insurance, and other expenses, she rented the property, but because the rent was often insufficient to cover the expenses, she put her own money into the house. Defendant paid nothing. For all of these reasons, paragraph B in its original, printed form stated that defendant would waive his right, title, and interest to the Florida property. Plaintiff denied being aware at the time of the divorce hearing that the alteration had been made, requiring the property to be sold and the proceeds divided equally. She denied the "TT" initials next to the alteration were made by her.
Plaintiff next testified that the Santo Domingo apartment was a condominium that the parties purchased after selling an apartment in Hackensack. Defendant took the settlement check on the Hackensack apartment to Santo Domingo. The Hackensack apartment had been titled in both their names and the Santo Domingo condominium was to be purchased in both their names. Plaintiff later learned that defendant had purchased the Santo Domingo condominium for less than the sales proceeds on the Hackensack apartment and put the Santo Domingo condominium in his name only. Contrary to the printed declaration in PSA 1C, the Santo Domingo condominium had no mortgage. Although plaintiff did not agree with the printed provision, she did agree with the alteration requiring the property to be listed for sale immediately and the net proceeds divided equally.
As to the six-family residence referenced in PSA 1D, plaintiff testified that she purchased the property in 1989 before she married defendant. She used her money and money her mother loaned her to put a down payment on the property and then borrowed the remaining purchase money, which she secured with a mortgage. The mortgage had been paid by the time the parties were divorced. When plaintiff purchased the property, it consisted of two rental units.
Defendant decided to go to Santo Domingo and convert the building into six small apartments. Although defendant began the work, he never finished it. According to plaintiff, she now had to hire a company to finish the work. Defendant had, however, finished four apartments and he had collected rent from the tenants. Plaintiff never saw a penny of that money. Defendant told her that he was using the money for construction.
Plaintiff claimed she never agreed that the six units would be sold and the proceeds divided equally. Because she owned the six-unit building before she and defendant were married, and because she never agreed to defendant converting the original two-unit dwelling to six units, she expected the property to remain solely in her name.
Plaintiff also testified about the marital residence in Bergenfield, where she resided with the parties' child. She and defendant purchased the house and secured the loan for the purchase money with a mortgage. Eventually, they both became unemployed and she took out a home equity loan with defendant's permission. Defendant ultimately obtained the balance of available funds on the home equity loan and plaintiff saw none of those proceeds. Plaintiff told her divorce attorney that she wanted a provision in the PSA addressing the balance of the money defendant took from the home equity loan. Plaintiff admitted, however, that she agreed to the alterations to paragraph 1A, namely, that the Bergenfield house would be sold and the proceeds divided equally.
Plaintiff next discussed the divorce hearing. The PSA provided that because the parties were disabled, they each "agree[d] to a mutual waiver of child support." The PSA also provided: "In the event that [the child] decides to reside with Wife, Wife agrees that she waives any child support from Husband." According to plaintiff, she never agreed to waive child support. In fact, she specifically discussed with her former attorney the need to have a provision for child support. Plaintiff then explained all of the reasons she needed support to continue to provide for herself and for her daughter.
In response to the court's questions, plaintiff acknowledged that she was in court on November 3, 2011, and testified at the divorce hearing, but claimed her former attorney asked her no questions in front the judge about the PSA. Rather, both he and defendant's counsel met her in the hallway and pressured her into signing the PSA. The court then informed plaintiff that it had a transcript of the hearing. In response to the court's further questions, plaintiff admitted that at the divorce hearing she was shown a copy of the property settlement agreement and was asked if she had signed it. The court then reviewed the questions plaintiff's former attorney asked her during the divorce proceedings, and plaintiff acknowledged some, but claimed she did not recall others, including whether she had sufficient time to consider entering into the agreement, that under all the circumstances she thought the agreement was fair, and that no one had coerced or threatened her into signing it. Plaintiff claimed she did not recall saying at the divorce hearing that considering all circumstances, she would be able to maintain a lifestyle similar to that she maintained during her marriage, even with a waiver of alimony and child support.
Following the court's questions, plaintiff's attorney elicited from plaintiff that the PSA presented to her during her divorce hearing and attached to the DJOD was not the one she signed. Plaintiff testified that the initials "TT" that she disputed making were placed by defendant. She testified that she recognized his writing.
Over plaintiff's objection, the court ordered the attorney who represented her at the divorce hearing to appear and testify. Counsel for plaintiff argued that because defendant chose to appear pro se, he had to suffer the consequences of his decision and act as his own attorney. Counsel also argued that if plaintiff's former attorney testified, during cross-examination current counsel would "have to go beyond that attorney[-]client privilege[.]" The court ruled that plaintiff had waived the privilege by testifying "at great length as to her conversations with her attorney."
The attorney who represented plaintiff at the divorce hearing (former counsel) testified that defendant's attorney prepared the printed PSA. When former counsel first began representing plaintiff, he received a copy of the PSA and advised her not to sign it. After reading it, he and defendant's counsel went back and forth with respect to changes until they appeared at an early settlement panel. Subsequently, after an economic mediation and plaintiff's rejection of the mediator's recommendation, she fired former counsel, who filed a substitution of attorney so that she could represent herself. The judge presiding over the divorce hearing declined to permit former counsel to withdraw with the trial date looming. Accordingly, former counsel appeared at the divorce hearing.
On the day of the divorce hearing, outside of the courtroom, the attorneys and the parties settled their disputes. Former counsel testified that he made the alterations to the printed PSA. The final document incorporated the changes the parties had negotiated outside of the courtroom. Plaintiff initialed each change, former counsel witnessing her doing so.
Former counsel denied pressuring plaintiff to sign the PSA. He also denied her accusation that he told her how to answer questions she would be asked during the divorce hearing, and if she did not do so the court would not approve the PSA. Former counsel explained that present in court on the day of the divorce hearing were two of plaintiff's friends who were providing her with support and helping her with the PSA.
Defendant also testified at the hearing on plaintiff's motion to set aside the PSA. He confirmed that plaintiff initialed the PSA alterations after he signed the PSA and initialed the changes. He witnessed plaintiff initial the alterations.
Following defendant's testimony, the court granted plaintiff an extension to retain a handwriting expert. When the hearing resumed, plaintiff presented the expert testimony of a "Questioned Document Examiner." Noting that his conclusion was not "the most ironclad" because he had seen no original standard documents and because he was dealing with two initials so "there's far less information in two initials than there are for example in a complete signature." The expert concluded "there was reason to suspect these initials." In response to a cross-examination question by defendant, the expert said he was suspect "of all five" sets of initials.
In a written decision, the court denied plaintiff's motion to vacate the PSA. After recounting the testimony of the witnesses, the court found that the PSA was just and fair. Noting that a PSA is presumptively valid unless proved to be the product of fraud or coercion, the court concluded plaintiff had not proved that the parties' PSA was a product of fraud, coercion or duress. The court also determined that plaintiff's claim that her initials had been forged was not supported by the record. The court rejected the testimony of plaintiff's expert.
After considering each residential property, the court concluded the PSA equitably provided for the distribution of those properties. Noting that when questioned by the court during the divorce proceeding plaintiff raised no concerns with respect to the fairness of the PSA, the court explained that plaintiff could not pick and choose the provisions in the agreement which were favorable and have the court vacate those that she perceived to be less favorable. The court filed an order implementing the decision. Plaintiff appealed.
Plaintiff makes three arguments on appeal: she was not represented by either a competent or loyal attorney at the divorce hearing; the property settlement agreement is inequitable and unfair; and the judge who conducted the plenary hearing did not maintain impartiality.
Because it is important that the parties understand our limited role in reviewing Family Part judgements, we begin by explaining some of the well-established principles that guide us. We give considerable deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). When a Family Part judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, the judge's findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
That is so because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413. Just as important, the trial judge is in the best position to make judgments as to whether witnesses are believable. Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). For those reasons, we will not reverse a trial judge's findings of fact unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 70 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Unlike a trial judge's fact and credibility findings, the judge's "'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995)). A trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012). We review the legal issues anew. Id. at 245-46.
In view of our standard of review, we conclude two of plaintiff's arguments — that she was represented by an attorney who was either incompetent or unloyal, and that the PSA is inequitable and unfair — are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2)(E). We add only these comments. Plaintiff's arguments are, for the most part, based on her recollection of events, many of which were disputed. The trial court resolved most of the disputed evidence against her. The court found the countervailing testimony of both plaintiff's former attorney and defendant to be credible. Moreover, the court's difficulty with plaintiff's credibility is amply supported by plaintiff's inconsistent testimony not only about what plaintiff did or did not agree to and initial on the modified PSA, but also what plaintiff said at the divorce hearing and later denied at the plenary hearing. In view of our limited standard of review, we cannot make our own credibility determinations, accept plaintiff's version of events, and disregard those of her former attorney and defendant; all of which plaintiff would appear to have us do. Rather, as previously stated, we must accept the trial court's credibility determinations and findings of fact that are supported by credible evidence in the record. Based on that standard of review, we affirm the trial court's determination and implementing order.
We also reject plaintiff's claim that the trial judge did not remain impartial. We begin with three observations. First, plaintiff concedes in her brief that defendant "clearly was incapable of conducting either a trial or his own representation[,] . . . had no idea how to represent himself, . . . repeatedly became uncontrollably emotional, cried frequently, and could not pose a question." Plaintiff also asserts that "all [defendant] could present were irrelevancies, that had no bearing on the issues before the [court]."
Second, "[t]he objective of every trial is a search for the ultimate truth." State v. Clark, 381 N.J. Super. 41, 48 (App. Div. 2005) (citing State v. Szemple, 135 N.J. 406, 413 (1994)). It follows that a trial should not be a proceeding where a self-represented litigant is on the losing end of a miscarriage of justice brought about by a court's reliance on inaccurate or false evidence.
Third, a judge, "in accordance with law and subject to the right of a party to make timely objection, may call a witness and may interrogate any witness." N.J.R.E. 614. "The discretionary power of a judge to participate in the development of proof is of 'high value' because a fair trial is [the judge's] responsibility." State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002) (citing State v. Guido, 40 N.J. 191, 207 (1963)). In short, "[t]rial judges are vested with the authority to propound questions to qualify a witness's testimony and to elicit facts on their own initiative and within their sound discretion." Ibid.
Plaintiff objects to the trial court's questioning her from a transcript of her divorce proceeding and argues that the court disregarded her testimony that former counsel told her how to answer the questions. Although plaintiff did say her former attorney told her how to answer questions, what the attorney told her presented a credibility issue. And, indisputably, plaintiff testified at the PSA hearing that no one had questioned her at her divorce proceeding about the PSA, generally, or specifically about her waiving alimony and child support. That testimony, though perhaps not deliberately false, was nonetheless false. We can find no basis for concluding that the trial court abused its discretion by assuring it did not decide a case based on false testimony.
Further, we find no abuse in the trial court's ordering plaintiff's former attorney to testify. Part of plaintiff's strategy to have the court set aside the PSA was to charge her former attorney, an officer of the court, with incompetence and breaches of ethical obligations that resulted in coercing her to sign a PSA. In its search for the truth, the court acted well within its discretion by directing plaintiff's former attorney to appear and give testimony.
Trial judges should, of course be aware, particularly when presiding over jury trials, that they "must maintain a mien of impartiality and must refrain from any action that would suggest that [they] favor[] one side over the other, or [have] a view regarding the credibility of a party or witness." State v. O'Brien, 200 N.J. 520, 523 (2009). Trial courts must be particularly cautious in the way they go about exercising their discretion in such situations. Here, however, the court avoided entering judgment on one-sided testimony that was in part demonstratively false. The court did not abuse its discretion when, in its search for the truth, it questioned plaintiff about her testimony in the divorce hearing and thereafter called a witness with first-hand knowledge of the issues central to the disposition of plaintiff's motion.
For the foregoing reasons, we affirm the order denying plaintiff's motion to set aside the PSA.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION