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Palko v. Palko

Decided: March 2, 1976.

VERNA MAY PALKO, PLAINTIFF-APPELLANT,
v.
DANIEL PALKO, DEFENDANT-RESPONDENT



Fritz, Seidman and Milmed. Seidman, J.A.D. (dissenting).

Per Curiam

[150 NJSuper Page 256] In this matrimonial action plaintiff wife sought, by motion dated July 17, 1974 and filed July 22, 1974, to reopen a final judgment entered May 16, 1972 and to set aside so much of that judgment as incorporated a separation agreement dated February 14, 1972. While the motion sought much more, including "equitable distribution," the only ground asserted on this appeal is a charge of error on the part of the trial judge in refusing this relief in view of plaintiff's allegations that her husband "intentionally and wilfully withheld material information as to the value

of his holding during negotiations of the said property settlement agreement." It is to be observed that defendant died on June 18, 1973 and his will was admitted to probate on July 5, 1973.

While the procedure below, lacking an evidential hearing and ending in a determination in which the judge's findings had to be elicited by inference from his colloquy with counsel, left much to be desired, we are satisfied, as was the trial judge, that plaintiff set forth no substantial circumstances justifying the reopening of this judgment.

Moreover, it is noteworthy that the motion to reopen was not made for more than a year after probate of defendant's will and some 26 months after entry of the judgment sought to be set aside. We believe that nothing appears to invoke the relief available in R. 4:50, either by way of the specifics of R. 4:50-1(a), (b) or (c) (outlawed in this case by R. 4:50-2), or by the generality of the "other reason" provision in (f). See Doyle v. Chase Manhattan Bank , 80 N.J. Super. 105, 125 (App. Div. 1963), certif. den. 40 N.J. 508 (1963).

We observe that plaintiff has enjoyed the advantage of defendant's fully executed covenant, incorporated in the judgment and now beyond modification, to leave unchanged a will executed prior to their agreement. In less compelling circumstances than these we have formulated and honored the "important policy that litigation must have an end." Hartford Ins. Co. v. Allstate Ins. Co. , 68 N.J. 430, 434 (1975).

The matter of relief from a judgment or order under our rules is one addressed to the sound discretion of the trial judge, whose decision will be upheld absent an abuse of that discretion. Greenberg v. Owens , 31 N.J. 402, 405 (1960). In the circumstances here present, we are unwilling to characterize the determination below as an abuse of discretion.

Affirmed.

SEIDMAN, J.A.D. (dissenting). I disagree with the conclusion reached by my colleagues. The issue here, as I perceive it, is not whether plaintiff set forth "substantial circumstances

justifying the reopening of the judgment." It is whether, on the record before him, the trial judge should have set the matter down for a plenary hearing and taken oral testimony. Cf. Hallberg v. Hallberg , 113 N.J. Super. 205, 207 (App. Div. 1971). I think such hearing should have been held, followed by requisite findings of fact, and leading to a determination of whether the motion should be granted. I would therefore reverse and remand.

My colleagues acknowledge that "the procedure below, lacking an evidential hearing and ending in a determination in which the judge's findings had to be elicited by inference from his colloquy with counsel, left much to be desired * * *." I thoroughly agree with this appraisal. But their affirmance of the order dismissing the motion reflects a misconception of the real issue in this case.

Verna May Palko was married to Daniel Palko on April 19, 1952. Three children, two of whom are now adults, were born of the marriage. The parties were divorced by judgment entered May 16, 1972. Annexed to the judgment was a detailed settlement agreement which the trial judge found "wholly suitable and adequate in Plaintiff's favor and in favor of the infant children born of the marriage," and which he ...


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