February 29, 2008
THOMAS POINDEXTER, PLAINTIFF-RESPONDENT,
CAROLYN POINDEXTER, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 of these funds during the course of the marriage and that they remained in existence at the time the parties were divorce[d]. Further, the fact that the Defendant could not afford an attorney at the time the JOD was entered and that she has now retained counsel does not limit her burden in any way.
The Court further finds that a plenary hearing on the issue is unnecessary as, the Court finds that there is no genuine issue of material fact warranting such a hearing. Pfeiffer v. Ilson, 318 N.J. Super. 52 (Ch. Div. 1998); Barblock v. Barblock, 383 N.J. Super. 114 (2005).
We agree that the motion to vacate was properly denied as to settlement checks received as a result of a flood on former marital residence, proceeds from the sale of the former marital residence, and lottery winnings by plaintiff for the reasons set forth by the trial judge. However, we have concern regarding the two Merrill Lynch accounts, each with a balance of over $100,000. These accounts were not disclosed in plaintiff's notice of equitable distribution. His CIS does not denote these accounts, although he includes an amount of $240,000 as a "retirement plan" without further explanation. While the trial judge states in his opinion that defendant "fully participated" at the equitable distribution hearing and voiced no objection, the record supplied to us does not include a transcript of that hearing. In light of the position taken by the parties and the comments of the trial court, we assume the Merrill Lynch accounts were not discussed at that time.
Applications for relief from final judgment or orders of equitable distribution are cognizable under R. 4:50-1. Miller v. Miller, 160 N.J. 408, 418 (1999); Moore v. Moore, 376 N.J. Super. 246, 251 (App. Div.), certif. denied, 185 N.J. 37 (2005). Defendant argues that the statements of the Merrill Lynch accounts constituted newly discovered evidence entitling her to relief under R. 4:50-1(b). She states that the documents were not discoverable prior to trial even with due diligence, and that the account statements were material to the equitable distribution made to her. See Quick Chek Food Stores v. Springfield Tp., 83 N.J. 438 (1980); Posda v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997), certif. denied, 154 N.J. 609 (1998). The trial judge made a finding that defendant's claim of recent discovery of the Merrill Lynch accounts was without merit, but he does not set forth facts to substantiate the finding. By our reading, the record contains conflicting factual contentions in the certifications and other documents as to when the defendant discovered the Merrill Lynch accounts and whether they were previously discoverable through due diligence. Therefore, a plenary hearing is necessary. See, e.g., Fusco v. Fusco, 186 N.J. Super. 312 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259 (App. Div. 1968).
Moreover, in light of the conflicting factual contentions of the parties, a plenary hearing under R. 4:50-1(c) is necessary on the issue of whether plaintiff willfully concealed the Merrill Lynch accounts in order to mislead and defraud defendant when she entered into the settlement agreement prior to the divorce hearing. A property settlement agreement may be vacated in whole or in part upon a finding of fraud, misrepresentation or overreaching. See Pavlicka v. Pavlicka, 284 N.J. Super. 357 (App. Div. 1994); Gugliemo v. Gugliemo, 253 N.J. Super. 531, 541 (App. Div. 1992); see also Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.), certif. denied, 142 N.J. 455 (1995). Finally, assuming her allegations as to plaintiff's Merrill Lynch accounts satisfy the factfinder, defendant is entitled to argue for relief from the final divorce judgment under the catch-all category of R. 4:50-1(f) provided that she also satisfies the requirements of that subsection by proving the circumstances are exceptional and that enforcement of the judgment would be unjust, oppressive or inequitable. Lawson Mardon Wheaton Inc. v. Smith, 160 N.J. 383, 404-07 (1999); Johnson v. Johnson, 320 N.J. Super. 371 (App. Div. 1999).
The existence of the defendant's Merrill Lynch accounts is not in dispute, but the source of the funds is of importance, as is the issue of what amounts, if any, are traceable to exempt assets, and the knowledge, if any, of the accounts by defendant. Therefore, a plenary hearing on the issue of equitable distribution is necessary solely on the issue of the Merrill Lynch accounts to determine whether defendant is entitled to relief from the divorce judgment pursuant to R. 4:50-1(b)(c) or (f). Accordingly, we reverse in part on the issue of equitable distribution and remand for a plenary hearing consistent with this opinion. We do not reserve jurisdiction.
Reversed and remanded.
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