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Scipio v. Drayton


July 1, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2428-05.

Per curiam.


Submitted May 21, 2008

Before Judges Sapp-Peterson and Messano.

Plaintiff Michael Scipio appeals from certain aspects of a dual judgment of divorce (JOD) entered on April 18, 2007, "nunc pro tunc [to] [May 24, 2006]." Plaintiff contends 1) that the judge "altered the language of the [JOD] entered upon the record," resulting in a filed version that differed from the parties' agreement; 2) the judge denied him due process; 3) the judge "coerced" him to settle the case and wrongfully refused to recuse himself; 4) the final JOD as entered is inequitable and should be modified; and 5) his counsel provided ineffective assistance. We have considered these contentions in light of the record and applicable legal standards. We affirm.

Plaintiff filed his divorce complaint on May 16, 2005, at the time represented by counsel who he apparently subsequently discharged.*fn1 Defendant Denise Drayton, also represented by counsel, filed an answer and counterclaim. The matter proceeded through various pendente lite applications, and on the trial date, May 24, 2006, plaintiff appeared, now represented by a different attorney, along with defendant and defense counsel.

The judge directed the attorneys to specifically advise him what issues were still contested and which were settled. After a recess, the attorneys re-appeared on the record and advised the judge that they had "resolved" all issues other than "child support." Plaintiff's counsel characterized the agreement as a "package agreement," and that "child support is a factor in that." She then recited for the judge the terms of the agreement as follows: 1) plaintiff would pay alimony of $250 per week for four years; 2) plaintiff waived any interest "he ha[d] under the Weiss v. Weiss*fn2 case in the marital residence that now is not titled in his name"; 3) defendant waived any interest in a new residence plaintiff purchased after the filing of the divorce complaint; 4) both parties agreed to "no additional equitable distribution of any assets, with plaintiff keeping "[w]hatever [he] ha[d]" and defendant keeping "[w]hatever she ha[d]"; 5) both parties agreed to the "joint custodial arrangement that the court already awarded," with both parties having "completely equal parenting time"; 6) plaintiff agreed that his "retirement benefits w[ould] be equally divided by a qualified domestic relations order [(QDRO)]" with each party paying one-half of the preparation costs; 7) both parties waived any right to have their debts equitably shared; and 8) both parties agreed to pay their own counsel fees. The parties also agreed to each take a tax exemption for one of their two children, and alternate on a yearly basis the tax exemption available for their third child.

Plaintiff was then placed under oath and testified that he understood and agreed to those terms, did so voluntarily, was fully satisfied with his lawyer's representation, had no questions about the agreement, and accepted it. Defendant was likewise placed under oath and did the same.

The judge found grounds for the entry of the divorce and then turned his attention to the "issue of child support." The attorneys and the judge engaged in an extensive discussion of the appropriate child support obligations based upon the Child Support Guidelines. Pressler, Current N.J. Court Rules Appendix IX-A and Appendix IX-B (2008).*fn3 Noting a "disproportionate earning level," with plaintiff earning "four times" what defendant earned, the judge concluded he should "deviate from" the Guidelines, and "create a balance of payment based on the disparity in the income yet the sharing of the parenting time with the children." Ultimately, the judge adopted a "tier" child support obligation requiring plaintiff to pay $100 per week based upon an assumed reduction in his income from $104,000 per year to $85,000 per year. If that income increased to $95,000 per year, plaintiff's support obligations were to increase to $110 per week, and if it increased to $105,000 per year, his support obligations would increase to $120 per week. The judge required plaintiff to furnish W-2 income reporting statements on an annual basis to defendant, and ordered that any adjustments could then be made.

The judge directed that the attorneys should place "in [the] judgment that the elimination of the alimony at the end of the term is going to be a change of circumstance which would cause a recalculation of the child support." Plaintiff's counsel was charged with the obligation to forward a proposed JOD.

However, before the JOD was entered, plaintiff moved pro se on November 28, 2006, for a reduction of child support and alimony; defendant cross-moved for entry of the JOD.*fn4 Prior to any ruling on the motion and cross-motion, plaintiff moved on February 15, 2007, 1) to recuse the judge; 2) for "restitution of overpayment of child support"; and 3) for discovery. The parties appeared before the judge again on February 23, 2007.

The judge delayed any consideration of the issues raised by plaintiff's second motion until a future date, and carried defendant's cross-motion until a copy of the May 24, 2006, transcript was produced. The judge denied plaintiff's motion for any reduction in child support or alimony, noting that plaintiff had not demonstrated any change in circumstances. In particular, the judge observed that plaintiff's contention--that he was going to be earning less money because he would be assigned less overtime in 2007--was premature. He told plaintiff, But with the numbers as they appear, and you brought this motion in January, you do not have a basis for reduction based on the fact that the three years of your historical earning are equal to and greater than what it was at the time of the divorce.

When plaintiff persisted in arguing it was unlikely that his earnings would reach those of prior years, the following exchange occurred:

Judge: Are you suggesting to me that for this calendar year, [20]07 . . . that your salary will be[,] your total earnings will be $59,000?

Plaintiff: No.

Judge: Sir, I can't tell you what it will be and I can't give you a speculative reduction based on something that has not yet occurred . . . .

You can't come in and say I'm probably going to make less . . . .

The judge denied the motion as "premature because [plaintiff] ha[d] not suffered the reduction [in earnings] as shown by [his] W-2 statements."*fn5

On March 30, 2007, another hearing was held on defendant's motion to enter the JOD. Finding that defense counsel, who apparently had drafted the JOD, made changes to the original proposed JOD based upon his review of the transcript, the judge reluctantly adjourned the motion again. It is obvious from the transcript that neither party was pleased with the delay, however, the judge admonished plaintiff regarding his "gestures and facial movements." The judge also attempted to resolve defendant's request for plaintiff's financial information required for preparation of any QDRO. Defense counsel noted, "The judgment of divorce provided for the QDRO on [plaintiff's] retirement benefits . . . . They . . . are two in kind, a pension and thrift savings plan." Plaintiff contended those issues were not "in the transcript" of the May 24, 2006, hearing. Without reaching the issue, the judge directed both sides to submit any other open issues for decision.

On April 19, 2007, the parties again appeared before the judge. The judge expressed continued frustration because plaintiff's objections to the proposed JOD had not been served upon defense counsel, and, despite plaintiff's contention to the contrary, had not been served upon the court. The judge then attempted to secure plaintiff's suggested deletions and additions to the proposed JOD, but grew frustrated as plaintiff attempted to re-litigate many issues that were the subject of the settlement agreement.

Ultimately, the judge excused both sides from the courtroom and concluded that the JOD as proposed, with a minor exception regarding parenting time, was consistent with the terms of the settlement reached on May 24, 2006, and accurately reflected the parties' agreement. The judge then summarily denied plaintiff's motion for recusal and for modification. He explained as to the latter, Let me try and outline this for you. I want to make it clear. You entered into an agreement represented by a lawyer. Whatever else you think should have happened doesn't happen after the divorce. That's all I'm telling you.

You didn't have to enter into the agreement. You could have had a trial, but you elected to resolve it. So the factors you're raising now are not a basis for modification . . . .

The judge denied plaintiff's request to orally argue the motions finding "there's no basis for it[,]" and entered the JOD. This appeal followed.

Plaintiff first contends the JOD does not reflect the actual settlement he reached on May 24, 2006, in three respects. First, he contends the JOD calls for his retirement benefits to be "divided by a QDRO," then lists both his "pension and Thrift Savings Plan as retirement benefits." He contends there was no mention of the savings plan as part of the settlement. Second, he contends the actual custody arrangement as ordered by the judge pendente lite was not incorporated in the JOD. And third, that the JOD reflects some terms as agreed to by the parties, when in fact they were ordered by the judge.

We find the entirety of this argument to be of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(1)(E). We add only that plaintiff's counsel placed the terms of the agreement on the record, and in doing so stated, "[t]he marital portion of my client's retirement benefits will be equally divided by a qualified domestic relations order. Both parties will pay one half of the cost of preparing the quadros." (Emphasis added). We think it is obvious that all plaintiff's retirement benefits of whatever nature were going to be the subject of QDROs and no specific benefit, including the "thrift savings plan," was excepted.

On this point, we note that plaintiff's true objection, as set forth in his submission to the judge, is that inclusion of the thrift savings plan for purposes of equitable distribution was contrary to discussions he claims to have had with his attorney. He contends he "gave specific instructions to [his] counselor" that he "would not agree to any terms of equitable distribution wherein my thrift savings were included to be divided." Of course, this runs contrary to the actual transcript, quoted above, plaintiff's then-stated complete understanding of the terms of the agreement, and his then-stated satisfaction with his lawyer's services.

Plaintiff next argues that he was denied due process because the judge failed to consider the interplay between alimony and equitable distribution, failed to appropriately consider the factors regarding any award of custody, failed to provide him with oral argument on his motions, failed to recuse himself, and earlier failed to modify the child support and alimony terms based upon a change of circumstances. These arguments are also unpersuasive.

As to the denial of the motion for modification, it is clear that the judge concluded that plaintiff's contention that he suffered a reduction in income was entirely speculative. Plaintiff essentially agreed with this, as the above-quoted exchange demonstrates. There is nothing in the certification plaintiff filed in February 2007 that supports the change in circumstances, nor has plaintiff advanced any argument regarding the unreasonableness of the judge's original child support determination reached in May 2006.

As to plaintiff's contention that he was denied the opportunity to orally argue his motions, we acknowledge that there is a presumption that oral argument of Family Part motions will occur when requested. R. 5:5-4(a). However, it is clear that plaintiff was accorded the opportunity to argue his motion for modification as well as his objections to the JOD. It would seem, therefore, that plaintiff's contention in this regard is solely related to his motion for recusal.

We have said, "It is improper for a judge to withdraw from a case upon a mere suggestion that he is disqualified 'unless the alleged cause of recusal is known by him to exist or is shown to be true in fact.'" Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)(quoting Hundred East Credit Corp. v. Eric Schuster, 212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 60 (1986)). A motion for recusal is, in the first instance, addressed to the trial judge's sound discretion, ibid., subject to our review to insure the judge's impartiality over the proceedings. Panitch, supra, 339 N.J. Super. at 67.

While it may have been preferable to have allowed plaintiff to orally argue the motion, we can find no basis to conclude that the judge mistakenly exercised his discretion in denying it. There was simply no basis whatsoever provided in plaintiff's moving papers, and we find none in the transcripts, upon which to conclude the judge was biased or otherwise could not decide the case impartially.

All of plaintiff's other arguments in this regard ignore the fact that the parties had reached an agreement that resolved all issues except child support. Absent demonstration of "unconscionability, fraud, or overreaching in the negotiations of the settlement," courts favor the resolution of marital disputes through consensual agreements. Miller v. Miller, 160 N.J. 408, 419 (1999). Plaintiff demonstrated no such reasons for setting aside the agreement, therefore, as the judge noted, absent a change in circumstances, plaintiff's attempts to re-litigate substantive issues were inappropriate.

Plaintiff next argues he was coerced by the judge in accepting the settlement, in particular, his agreement not to seek "sole custody" of the children. This argument is entirely unsupported by plaintiff's own statements at the time the settlement was entered on the record, and there is no evidence for the claim in any of the transcripts of the various proceedings.

Plaintiff next contends the JOD should be modified because it is "inequitable and contrary to law." Plaintiff argues that the judge indicated during two proceedings prior to the May 24, 2006, trial date that an alimony award was likely given the disparity of income between the parties. Once again, however, plaintiff ignores the fact that he settled the case with an agreement to pay defendant $250 per week in limited duration alimony. He cannot now argue that the judge "failed to fully and adequately consider the full statutory factors" as contained in N.J.S.A. 2A:34-23. Moreover, plaintiff has not directed our attention to anything that demonstrates why the agreed-upon alimony amount is inequitable.

Lastly, plaintiff argues his attorney was ineffective. Such arguments are limited to criminal cases in which an individual's right to representation is of a constitutional dimension, and simply do not apply to matters in the Family Part, with the exception of juvenile delinquency petitions and parental rights termination proceedings. N.J. Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 306-07 (2007).


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