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Bornstein v. Bornstein

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 24, 2007

SHARON BORNSTEIN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
ARTHUR BORNSTEIN, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1106-03A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 14, 2007

Before Judges Sabatino and Baxter.

Each represented by counsel, appellant Arthur Bornstein ("ex-husband") and respondent Sharon Bornstein ("ex-wife") appeared before a Family Part judge in November 2003 and entered into a Final Judgment of Divorce ("FJD"). The FJD incorporated a detailed Inter-spousal Agreement, which equitably divided the spouses' property and contained mutual waivers of alimony. More than two years later, in December 2005, the ex-husband filed a motion under R. 4:50-1, attempting to set aside the terms of the divorce. The Family Part denied that application, a disposition that we now affirm.

The parties were married in August 1993. They had no children. At the time of the divorce proceedings, the ex-wife was earning approximately $65,000 annually. The ex-husband, although licensed as a real estate agent, was not regularly employed. Prior to the marriage, in 1978, the ex-husband had been involved in an accident that caused him permanent cognitive disabilities, and which entitled him to Social Security Disability ("SSD") payments. When the parties divorced, the ex- husband was receiving approximately $11,000 in SSD per year.

The Inter-spousal Agreement, which was generated by the office of the ex-husband's counsel, consisted of twelve pages. It contained extensive negotiated terms concerning the disposition of the parties' real and personal property; their debts for utilities and other household expenses; various payment obligations and credits, insurance, retirement and pension funds; and other matters. Among other things, the parties agreed that the ex-wife would remit $35,000 to the ex- husband in equitable distribution. That lump sum was payable out of the net proceeds from the sale of the marital residence, proceeds which otherwise were essentially divided equally. The parties also specifically agreed that "[g]iven the[ir] present circumstances and [the] distribution of monies [in equitable distribution]," each of them "waive[d] any claim which he or she may have against the other for alimony, maintenance and support . . . ." That mutual waiver was punctuated by a separate recital in the agreement that "[n]either party under any circumstances, ordinary or extraordinary, shall hereafter seek or require from the other any alimony, maintenance, support or similar payment." Both parties signed the agreement, notarized by their respective lawyers.

When both parties appeared before the Family Part judge with their counsel on November 20, 1993, to have the terms of their divorce ratified and placed on the record, the judge took pains to assure that the parties understood the negotiated agreement and mutually acknowledged it as both voluntary and fair. In particular, the judge asked the parties the following questions and received the following sworn answers:

THE COURT: All right. I have before me this document marked J-1, and it's entitled Inter-spousal Agreement. It's a fairly lengthy document, with a number of exhibits attached. Have you both had the opportunity to read it?

MRS. BORNSTEIN: Yes. MR. BORNSTEIN: Yes.

THE COURT: Did you read it carefully?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Do you understand each and every one of the terms and conditions that it contains?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Is this your full and complete agreement?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Have there been any other promises or inducements that have been made to you, other than what is contained in the written agreement?

MRS. BORNSTEIN: No.

MR. BORNSTEIN: No.

THE COURT: Do you understand that if there are any other promises, those are not going to be considered legally enforceable, only what's here, correct?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Now, before you signed and initialed the document, did you review it carefully with your attorney?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: They answered all of the questions that you might have had about this agreement, correct?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: And it's only after that that you placed your name and signature on the agreement?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Now, you've both been represented by attorneys throughout these proceedings, is that correct?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: To the extent that you needed advice or assistance of a legal nature, has your attorney been available to you for that purpose?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Are you satisfied with the legal representation that you've received?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Part of this agreement contemplates a mutual waiver of any right you may have to claim alimony now or in the future. Is that correct?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: You understand that's a permanent decision on your part?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Am I correct in understanding that even if your circumstances should change in the future, in either a positive or a negative way, neither one of you would be allowed to come back and ask the Court to require the other to pay alimony?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Now, you both recognize that you do have an alternative to entering into this agreement. And the alternative that you have is to let the Court decide the issues through a trial. Correct?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Do you understand that by entering into this agreement, essentially you're waiving your right to testify, you're waiving your right to bring in witnesses, including experts, if that would help the Court, you're waiving your right to introduce documents and exhibits, and more importantly, you're waiving your right to let the Court make a decision in this matter.

In essence, I could decide this case, after hearing all of the evidence and testimony, in a manner similar to what you've agreed to, but the outcome could also be materially different, depending on the evidence. You could [d]o better, you could do worse. But your are waiving your right, correct?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: No one is forcing you or coercing you to do this, are they?

MRS. BORNSTEIN: No.

MR. BORNSTEIN: No.

THE COURT: Are you entering into this agreement because under all of the circumstances you consider it to be fair and reasonable to both parties?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Have you had ample time to consider the merits of this agreement?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Have you had access to any and all information that you deemed essential in order to make an informed decision as to what's fair here?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Do you have any questions at this time, either of your attorney or of this Court, concerning any aspect of the agreement?

MRS. BORNSTEIN: No.

MR. BORNSTEIN: No.

THE COURT: Do you want me to make it binding on both of you?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Are either one of you taking any medication or any other substance which might impair your judgment or interfere with your ability to fully understand the agreement?

MRS. BORNSTEIN: No.

MR. BORNSTEIN: No.

THE COURT: [Ex-wife's counsel], do you have any questions in light of my own?

[EX-WIFE'S COUNSEL]: No, Judge.

THE COURT: [Ex-husband's counsel]?

[EX-HUSBAND'S COUNSEL]: No.

THE COURT: All right.

The FJD was accordingly entered that same day, November 20, 2003. The ex-husband thereafter received his agreed-upon $35,000 in equitable distribution, along with his half-share of the equity in the marital residence.

Subsequently, in December 2005, the ex-husband, represented by new counsel, filed a motion under R. 4:50-1 seeking to vacate the terms of his divorce and, in particular, to repudiate his waiver of alimony. The ex-husband's application was founded upon contentions that he was suffering from his ongoing mental impairment at the time of the divorce proceedings and did not really appreciate what he was doing. The ex-husband also contended that the financial terms of the divorce were unconscionable, in light of the disparities in the parties' incomes and the duration of their marriage. The ex-wife opposed the application and sought an award of counsel fees.

In support of his motion, the ex-husband submitted letters from four doctors who have treated or evaluated him for his cognitive difficulties, including two psychiatrists, a clinical neuropsychologist, and an epilepsy specialist. Although at least three of these mental health experts had not been treating the ex-husband at the time of his divorce proceedings,*fn1 the experts confirmed the extent of his cognitive impairments and collectively opined, as the neuropsychologist expressed it, that the ex-husband was "not likely to have understood the full ramifications of his divorce and the effects of it on his future." Notably, none of the experts' opinions were expressed to a reasonable degree of medical or professional probability, and none of them were based on evaluations or testing reasonably contemporaneous with the entry of the divorce in November 2003. After considering these submissions and the arguments of counsel, the Family Part denied the ex-husband's application.

The court determined that the ex-husband had failed to demonstrate extraordinary circumstances warranting relief under R. 4:50-1. In particular, the judge observed that the ex- husband's present claim that he did not understand the negotiated terms of the FJD is inconsistent with his sworn responses at the uncontested divorce proceedings. Additionally, the court noted that "a careful review of [the ex-husband's] medical records demonstrates that his brain injury dates back to 1978 and there has been a consistency of condition rather than a marked change of condition or competency." The court further noted that the opinions in the doctors' reports were speculative, since they were not based upon evaluations or treatment at or around the time the divorce was placed on the record. Moreover, the court was satisfied that the negotiated terms of the divorce were not inequitable, given the "totality of circumstances" and the ex-husband's acceptance of "a quid pro quo in equitable distribution in return for a waiver of alimony."

The ex-husband appeals that determination. He argues that, at a minimum, the motion judge should have conducted a plenary hearing before rejecting the R. 4:50-1 application. He further argues that the judge should have appointed a guardian ad litem. We affirm the Family Part's determination, substantially for the cogent reasons expressed by Judge Guadagno in his oral ruling of January 13, 2006, as amplified in a letter opinion dated March 2, 2006. We add only a few comments. As the ex-husband's present counsel appropriately recognizes, a motion to set aside a final judgment of divorce under R. 4:50-1 should only be granted sparingly and must be supported by a compelling showing of extraordinary circumstances. Fineberg v. Fineberg, 309 N.J. Super. 205, 215 (App. Div. 1998); see also Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) (reciting the general precepts of the Rule). We agree with Judge Guadagno that such compelling circumstances are absent here. Although we appreciate the ex- husband's long-standing cognitive limitations, the record simply does not justify the repudiation of his sworn representations to the Family Part judge at the time of the divorce that he understood what he was doing and that the divorce terms were fair. We concur with Judge Guadagno that the after-the-fact opinions of the medical experts are speculative at best. We also note that the ex-husband waited more than two years after the FJD before seeking relief, a delay that we agree was unreasonable and contrary to the sound objectives of achieving finality in divorce litigation. See Avery v. Avery, 209 N.J. Super. 155, 160 (App. Div. 1986); see also R. 4:50-2 (limiting the available grounds for relief from judgment when it is sought more than a year after the judgment is entered).

We also sustain Judge Guadagno's conclusion that the divorce terms were not unconscionable. The parties' marriage before the filing of the divorce complaint in January 2003 was short of ten years, diminishing the strength of a possible claim by either spouse for permanent alimony. See Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). Even if the ex-husband had litigated a claim for limited duration alimony (LDA) under N.J.S.A. 2A:34-23(c)(1), we note that such LDA would have been effectively circumscribed in amount. In particular, the Inter-spousal Agreement states that the receipt of income over $800 per month, or $9600 per year, would impair the ex-husband's continued eligibility for Social Security benefits. Under the circumstances, the $35,000 enhancement the ex-husband gained in equitable distribution, exchanged for his alimony waiver, was a sum well within the range of fair outcomes. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Wertlake v. Wertlake, 137 N.J. Super. 476, 482 (App. Div. 1975). The ex-husband did not satisfy his burden of proof of unconscionability. Smith v. Smith, 261 N.J. Super. 198, 202 (Ch. Div. 1992).

Lastly, we do not fault Judge Guadagno for resolving the post-judgment issues before him without conducting a plenary hearing. A plenary hearing is not required in every matrimonial dispute, and would needlessly consume the parties' resources where there are no genuine issues of fact that would alter the legal outcome. See Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 81 (2006); see also Fineberg v. Fineberg, supra, 309 N.J. Super. at 218. Even if one accepts the truth of the ex-husband's assertions and the circumstantial inferences of his doctors, the proofs simply are inadequate to warrant the unraveling of this final divorce judgment more than two years after it was entered.*fn2

Affirmed.


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