July 25, 2008
JOHN HOGBIN, PLAINTIFF-RESPONDENT,
KATHY HOGBIN-DE LAURENTIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-707-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges C.S. Fisher and Grall.
After careful consideration of the parties' arguments in this appeal, we vacate the order denying defendant Kathy Hogbin- De Laurentis's motion for relief from certain portions of the judgment of divorce and remand for additional proceedings.
The parties were married in 1993 and had no children. They separated in January 2006. The following month, plaintiff John Hogbin filed this divorce action; the parties also executed a property settlement agreement (PSA) at or around the same time.
The PSA resolved all the parties' financial issues.
Pursuant to the terms of the PSA, John was permitted to retain the assets that Kathy describes in the following way:
1. Their home . . . [in] Williamstown, New Jersey. The value of the property alone approximates $1,000,000. The structure is a sprawling ranch which includes a pool, as well as in-home movie theatre and gun range. The home is situated on approximately thirteen acres of land.
2. The business of Hogbin's Nursery, its structure, equipment, inventory and accounts receivable . . . [in] Williamstown, New Jersey. The business's gross revenue approximated $1,000,000 per year for the last five years.
3. The parcels of land upon which Hogbin's Nursery is situated is approximately twenty-two acres . . . [in] Monroe Township.
4. Three additional lots . . . on Jackson Road in Monroe Township valued in excess of $110,000.
5. Four lots . . . in Franklinville Township, New Jersey that were purchased during the marriage at a contract price of $139,000.
6. Two rental units . . . in Monroe Township, which produced a monthly income of $1,350.
7. An additional rental unit . . . [in] Monroe Township, which produced rental income of $740 per month.
In exchange, Kathy received $300,000, payable over the course of six years beginning in January 2007. An uncontested judgment of divorce, which incorporated the PSA, was entered on June 29, 2006.
On August 31, 2007, Kathy moved to set aside the judgment insofar as it incorporated those portions of the PSA that dealt with the marital assets referred to above, asserting that the PSA was the product of coercion and duress or otherwise provided for an inequitable distribution of their marital assets. In support of this claim, Kathy swore to the following:
I now know that the [PSA] was unconscionable. I realize after having the opportunity of being away from my ex-husband, and further receiving the psychological treatment I so desperately needed that the [PSA] was the product of my fear and my ex-husband's coercion and duress. Given the physical, emotional and mental state I was in [at that time], nothing I did was logical, sensible or a product of my free and intelligent will. I simply found myself in a circumstance at that time where I truly believed I had no other choice.
Kathy also detailed her allegations of John's "propensity for anger and violence." She claimed [t]here were however too many occasions to mention where his anger erupted into actual assaults or physically menacing threatened assaults. On one occasion, he grabbed me by the throat and threw me onto the floor. On another, he punched and shattered a mirror. On yet another, he threw my clothes around, telling me how simple it would be to get rid of me. In almost every instance however, he would repeatedly tell me that if I ever left him he would kill me, and no one would ever find me. For years prior to our separation, I remained in our house strictly out of fear. My ex-husband is an avid gun collector and marksman. As set forth [in the PSA], he kept no less than sixty guns in our home. He even built an indoor firing range in our home. On the one and only occasion I told him I could not take it anymore and was leaving, he grabbed one of his handguns and fired a bullet through our basement door. I learned at that point that his threats were deadly serious.
In addition, Kathy submitted to the motion judge a report written by a psychologist in which it was asserted that [w]hen [Kathy] first began therapy prior to divorcing [John], her mental status was unstable. She had difficulty thinking clearly and was unable to make decisions. [Kathy] was very distressed by her marital circumstances. She was fearful about leaving her husband because she anticipated an angry reaction. She was uncertain about how she could move forward but desperately wanted to be free from the relationship. This was a very stressful time for [Kathy]. Her emotional desperation made [Kathy] quickly accept [John's] divorce agreement. She was not thinking clearly during this period due to her significant emotional crisis.
John filed opposition in which he refuted many of Kathy's allegations. Among other things, John asserted that his agreement to pay $300,000 over six years was actually proposed by Kathy. John also cross-moved for an award of counsel fees.
The motion judge advised the parties in advance of the return date of his tentative decision to deny the motion and cross-motion. Notwithstanding, Kathy persisted in her demand for oral argument, prompting the judge's initiation of an unrecorded telephone conference with counsel. The parties appear to dispute whether, during the telephone conversation, Kathy's counsel acceded to the judge's alleged insistence on his dispensation of oral argument. In any event, it appears undisputed that Kathy's counsel requested that the judge provide a written decision.
The only decision rendered by the judge is contained in an order entered on September 21, 2007 that states in full:
1. For an Order vacating that part of the Final Judgment of Divorce entered June 29, 2006 incorporating a Property Settlement Agreement between the parties executed February 13, 2006.
DENIED. Defendant's application indicates Defendant's condition was determined ex post facto to the Final Judgment of Divorce. The hearing Judge made a finding with regards to Defendant's voluntariness and understanding at the time she entered into the Property Settlement Agreement and this Court will not disturb that finding.
2. For conduct of a plenary hearing on the issues of fairness, coercion and duress as underlying the aforenoted Property Settlement Agreement in the alternative.
DENIED. See Paragraph 1.
PLAINTIFF'S CROSS MOTION
1. Denying defendant's application in its entirety.
2. For counsel fees and costs.
DENIED without prejudice.
3. For such other relief as the Court deems equitable and just.
Kathy appealed this order, arguing that the judge's findings did not meet the requirements of R. 1:7-4(a) and that she was entitled to an evidentiary hearing regarding the parties' competing allegations. Although we agree that the judge's decision contains only conclusions and does not comport with the rule's requirements, as Kathy has argued, we vacate the order and remand because we agree with Kathy's second argument that a hearing should have been conducted in order to permit the development and resolution of the issues posed.*fn1
Kathy's motion required that the judge consider whether the PSA should be enforced -- a matter that required inquiry into whether it was the product of overreaching or whether its terms were manifestly unfair or oppressive, dictated by a dominant party, or the product of duress or coercion. See, e.g., Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995). It was Kathy's burden to present sufficient facts as to warrant a hearing on the matter. We are satisfied that she sustained this burden.
In applying these principles, the judge was obligated to consider the context in which this dispute arose. This was not just any contract dispute. The contract purports to resolve domestic issues. In that regard, we have said:
The law grants particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements. Such discretion lies in the principle that although marital agreements are contractual in nature, contract principles have little place in the law of domestic relations.
[Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992) (internal quotes omitted).]
As we have observed, Kathy alleged John's physical, psychological and emotional abuse of her, and she claims that these circumstances restricted her ability to freely and voluntarily negotiate with John in the production of the PSA a very short time after their physical separation. In this regard, Kathy not only provided her own assertions about her life with John, but she also submitted the report of a psychologist that provides additional insight. Since the judge did not permit an evidentiary hearing, he was, as we are, obligated to assume the truth of Kathy's allegations and the conclusions of her expert. If the judge had done so, he would have been required to conclude that the motion could not simply be denied. Instead, the judge should have conducted an evidentiary hearing in order to allow exploration into the allegations so that he could ascertain the truth from the parties' competing allegations.
We note that the judge denied Kathy's motion by first indicating that Kathy's "condition was determined ex post facto to the [f]inal [j]udgment of [d]ivorce." If, by this, the judge meant that Kathy's motion for relief from the judgment could not succeed because she did not ascertain her alleged inability to freely and voluntarily enter into the PSA until after entry of the judgment, we find this fact to have no particular significance. Indeed, it would seem unlikely that any allegation of this sort would arise in any other manner. The fact that Kathy allegedly did not gain insight into her state of mind until engaging in therapy that did not occur until after executing the PSA is no impediment to her current application.
The judge relied on only one other circumstance in denying Kathy's motion: "[t]he hearing [j]udge made a finding with regards to [Kathy's] voluntariness and understanding at the time she entered into the [PSA] and this [c]court will not disturb that finding." In this regard, we observe that the record on appeal contains no evidence of such a finding. In fact, the judgment of divorce expressly indicates that Kathy was not present at that earlier hearing; we question how the judge who entered the divorce judgment could have made a finding worthy of reliance about whether Kathy freely and voluntarily entered into the PSA if Kathy was not present to testify in that regard.
Moreover, on remand, the issues raised by Kathy are to be determined not so much with reference to the surface facts existing at the time of the divorce but with a deeper consideration of Kathy's state of mind at that time.*fn2
Lastly, we hasten to observe that in explaining the reasons for our remand, we by no means intend to convey any particular view about the parties' allegations. To the contrary, because there has been no exploration of their allegations and nothing presented beyond the parties' sworn statements, which have not been amplified by their testimony or subjected to cross- examination, we could not possibly possess any reliable view about the truth of the matter.*fn3
The order under review is vacated and the matter remanded for an evidentiary hearing. We do not retain jurisdiction.