On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-112-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Collester and C.S. Fisher.
Defendant Carolyn Poindexter appeals from that portion of an order of the Family Part denying her cross-motion to vacate the final judgment of divorce between the parties based on R. 4:50. We reverse in part and remand for further proceedings.
The parties were married on May 30, 1992. In 2000 plaintiff Thomas Poindexter retired from Verizon after thirty- two years of service and worked thereafter as a security officer with the Boardwalk Regency Corporation. In March 2003 defendant obtained a final restraining order against plaintiff under the Prevention of Domestic Violence Act, which provided that he was restrained from entering the marital home. On July 29, 2005, plaintiff filed a complaint for divorce based on eighteen months separation. Defendant did not respond, and default was entered on February 8, 2006. Defendant then filed a notice of equitable distribution pursuant to R. 5:5-2(e), which was served upon the plaintiff. The notice listed the following assets subject to equitable distribution: (1) the townhouse in Little Egg Harbor owned by plaintiff and defendant as tenants by the entirety with an equity of slightly less than $100,000; (2) items of personal property; (3) a 1995 Chrysler automobile sought by plaintiff; (4) plaintiff's pension and 401(k) with the Boardwalk Regency Corporation; and (5) any individual bank accounts with the proposal that "each party to keep whatever cash or bank account is presently in the party's respective name."
While defendant was not represented by counsel, she did appear at the final hearing and reached agreement on the financial issues. The final judgment of divorce entered on April 3, 2006, set forth that the parties agreed as follows:
(1) to continue the final restraining order including plaintiff's obligation to provide the support to defendant stated in that order; (2) for sale of the Little Egg Harbor townhouse with net proceeds divided equally; (3) to permit defendant to remain in the townhouse pending its sale; (4) equal distribution of personal property including automobiles; (5) equal division of plaintiff's pension and 401(k) with Boardwalk Regency with defendant's share distributed to her by way of a QDRO; and (6) the statement that, "plaintiff seeks for each party to keep whatever cash or bank account is presently is the parties' respective names."
A short time after the final judgment was signed plaintiff filed a motion for enforcement of litigant's rights claiming that defendant refused to cooperate with the sale of the townhouse. Defendant did not respond, and plaintiff's motion was granted. However, a few months later plaintiff filed a motion to have defendant removed from the townhouse based on her alleged conduct preventing its sale. Defendant filed a cross-motion on January 17, 2007 to vacate the final divorce judgment under R. 4:50-1 because she recently found statements from a Merrill Lynch account in plaintiff's name. Before oral argument on January 26, 2007, the trial judge circulated a tentative decision in which he granted plaintiff's motion to enforce litigant's rights and denied defendant's cross-motion on grounds she failed to meet her burden under R. 4:50-1. He reasoned as follows:
The Defendant first relies upon R. 4:50-1(b) in support of her claim. R. 4:50-1(b) provides that "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time" is a ground for relief from a judgment or order. The Court finds that the Defendant has failed to present "newly discovered" evidence that was not available to her by due diligence. The Defendant points to two (2) Merrill Lynch accounts with the values of $116,175.04 and $123,459.49 respectively. The Defendant claims that she just discovered the existence of these accounts and she claims that she may be entitled to a portion of same. However, the Court finds that the Defendant's claim that she just discovered these accounts is without merit. The Court finds that each account statement submitted by the Defendant as proof of the existence of these accounts is dated February 28, 2003, three (3) years prior to the parties JOD. Further, the Defendant points to the Plaintiff receiving settlement checks for a flood on the former marital residence in the amounts of $79,637.29 and $48,300.00 as a possible source of the funds in the Merrill Lynch accounts. She also points to the fact that the Plaintiff sold a former marital residence for $81,700.00 and that the Plaintiff won $43,000.00 in the lottery. The Defendant claims that the plaintiff kept all of these sums for himself and she did not receive any of them. The Court finds this claim to be equally without merit. First off, the proofs submitted by the Defendant in support of the claims for the money from the sale of the former marital residence and a flood check are signed by the Defendant. Thus, her claims that these funds were unknown to her are not a plausible argument to this Court. Further, each amount claimed by the Defendant dates back as far as 1999 and up to 2001.
Clearly, the Defendant would have known about the Plaintiff's receipt of these funds during the course of the marriage (especially since she signed some of the documents) and she cannot claim ignorance now, as more than five (5) years passed between the receipt of these funds and the JOD. As such, the Court finds insufficient evidence to vacate the JOD under R. 4:50-1(b).
The Defendant next relies upon R. 4:50-1(c).
R. 4:50-1(c) provides that a litigant can obtain relief from a final judgment upon showing "fraud ... misrepresentation, or other misconduct of an adverse party." The Defendant claims that the Plaintiff committed fraud and misconduct pursuant to R. 4:50-1(c) because he did not disclose the existence of the Merrill Lynch accounts in his Notice of Equitable Distribution or on his CIS. The Court finds insufficient evidence of fraud or misconduct by the Plaintiff warranting vacating the JOD. As indicated above, the proof submitted by the Defendant in support of her claim of the existence of the Merrill Lynch accounts is speculative at best. The Court finds that the statements submitted date back to February 28, 2003. The Plaintiff represented, under oath, the full disclosure of the marital assets. The Court was fully satisfied with Plaintiff's representations and issued the JOD based upon same. Further, the Defendant was present at the Equitable Distribution hearing and she fully participated in same, along with other pre divorce court appearance. The Defendant never voiced an objection to the Equitable Distribution set by the Court and her claim now that it was unfair does not persuade this Court to reopen the proceedings.
Finally, the Court finds that the Defendant has failed to produce sufficient evidence to warrant setting the JOD aside under R. 4:50-1(f). Rule 4:50-1(f) provides for relief from a Judgment for "any other reason justifying relief from the operation of the Judgment or Order." To obtain relief under this subsection, the movant must show that enforcement of the Order or Judgment would be unjust, oppressive or inequitable. See Quagliato v. Bodner, 115 N.J. Super. 133 (App. Div. 1971). The court's boundaries are limitless in this regard in addressing the need to achieve equity and justice in exceptional circumstances. See Court Investment Company v. Perillo, 48 N.J. 334, 341 (1966). The Court finds that enforcing the JOD entered by this Court will not be unjust or inequitable. The Court finds that the Defendant has presented insufficient evidence of the existence of any funds that would be subject to equitable distribution that were present at the time the JOD was entered. As noted, each and every proof submitted by the Defendant dates back to at least 2003 and as far back as 1999. The Defendant has not presented sufficient evidence that she did not receive the benefit ...