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Murowski v. Murowski


February 23, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1009-06A.

Per curiam.


Submitted January 14, 2009

Before Judges Lihotz and Messano.

Defendant Carl Murowski appeals from two post judgment orders entered by the Family Part to effectuate the terms of settlement incorporated into a Final Judgment of Divorce (FJOD). The first order, filed on February 22, 2008, denied defendant's motion to set aside the FJOD and granted plaintiff's motion to compel defendant to cooperate in the refinance of the mortgage encumbering the former marital residence. The order denied plaintiff's requests for reimbursement of costs incurred in filing the motion. The second order, dated April 4, 2008, denied defendant's request to stay the mortgage refinance and for reconsideration. In light of our review of the record, the arguments of the parties, and the applicable legal standards, we affirm.

The parties were divorced on December 4, 2007. The parties resolved the collateral issues and placed the terms of settlement in a Property Settlement Agreement (PSA), marked into evidence on the hearing date. During the hearing, defendant acknowledged he read the PSA and stated he accepted the agreement terms, which were negotiated and understood, even though he did not accede the terms were fair to his interests. Defendant understood he had a right to be heard on all issues and waived his right to a trial in favor of being bound by the terms of the PSA.

Several post-judgment motions were filed and orders were entered. Defendant identifies two in his notice of appeal: the order dated February 22, 2008, which denied his request to set aside the PSA, and the order dated April 4, 2008, which denied his request to stay the refinance. The parties include in their respective appendices other orders, the relevance of which is not mentioned.

In a rambling merits brief, defendant suggests he capitulated to plaintiff's demands for settlement as a result of fatigue after working the prior night-shift; ineffective medication to treat his depression and anxiety; and a strong desire to achieve a favorable visitation schedule ending plaintiff's ability to use the two children as pawns in negotiation. During the week following the final hearing, defendant saw his psychiatrist who changed his prescribed medication from Zoloft to Cymbalta.

Defendant now argues the PSA must be "reworked and am[]ended for a 'Fair and Equitable' Distribution." He suggests the provisions for alimony, distribution of his 401(k) plan and bank accounts, and visitation need to be reworked, while provisions preventing the children's removal from New Jersey and payment of college costs must be added. Additionally, defendant seeks enforcement of the PSA provisions that require the parties to divide their 2006 tax rebate, notify each other regarding the health and welfare of the children, and provide a Federal Form 8223 to allow him to claim one child as a dependent for income tax purposes.

In her responsive merits brief, plaintiff rebuts and denies defendant's assertions. She also requests this court enforce specific provisions of the PSA and award damages for defendant's alleged noncompliance.

Following our review, we conclude the arguments advanced by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these brief comments.

Defendant's initial post-judgment motion sought to set aside the negotiated PSA. That request was denied and we are now requested to review the trial court's determination. We were not provided with the hearing transcript, as required by Rule 2:5-3. Assuming defendant proffered arguments similar to those now made to this court, we concur with Judge English's determination, likely resulting from a failure to assert a basis to set aside the FDOD, pursuant to Rule 4:50-1. We infer from defendant's arguments that he believes he experienced duress or an inability to comprehend the process based on a needed medication adjustment. However, his behavior as demonstrated during the hours preceding the final hearing while he reviewed and negotiated the PSA, and during the hearing itself, reveal no abnormalities or difficulties. Quite contrary to this, defendant was able to examine the proposed PSA page by page, request changes, and go through the final version with his counsel. During the final hearing, he lucidly responded to the inquiry of counsel and the court, admitting he was tired but fully capable of understanding the PSA terms as renegotiated. He expressed his satisfaction with the settlement, despite his belief the terms could have been "more fair" to him. Defendant explained to the court, notwithstanding his perceived inequity in the terms, he nevertheless wanted to settle the matter, end the case and avoid a trial.

Defendant now offers no evidence to sustain his contention of inappropriate medication and its possible effects upon his ability to reason and understand the events occurring on the day of the hearing. Accordingly, the trial court properly denied his request to open the judgment.

To avoid defendant's demonstrated misconceptions, we briefly address certain issues. First, the Family Part has the equitable power to modify support orders. If circumstances have changed such that the support provisions of a PSA would no longer be equitable and fair, the court remains free to alter the prior arrangement. Zazzo v. Zazzo, 245 N.J. Super. 124, 131-32 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

The moving party bears the burden of establishing the circumstances that necessitate the change. Id. at 132.

Thus, an alimony determination may be subject to modification, on either parties' request, upon a showing of sufficient changed circumstances that demonstrate the required payment is inequitable or the obligor is unable to pay as ordered. Lepis v. Lepis, 83 N.J. 139, 151 (1980). Similarly, child support is always modifiable upon establishment of changed circumstances. Id. at 146; see also Farmilette v. Farmilette, 237 N.J. Super. 29, 31 (Ch. Div. 1989).

The events advanced by defendant to support an alimony modification that is, plaintiff's potential employment upon the conclusion of her schooling and prospective monies realized from the sale of the former marital home, have not occurred, thereby making any modification request premature.

The Family Part retains the authority to determine parents' respective obligations, if any, to provide for their children's college education costs. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). In this matter, the oldest child's college attendance is likely, even imminent, but yet unripe for disposition.

With respect to the equitable distribution of the 401(k) account and bank accounts, we reject defendant's argument that the allocation was unfair. Defendant provided no evidentiary basis for relief from equitable distribution provisions contained in the FJOD and PSA. See R. 4:50-1; Miller v. Miller, 160 N.J. 408, 418 (1999).

Finally, each party raises issues regarding enforcement of the PSA provisions and related relief. The matters relate to issues not previously presented to the trial court, they are not jurisdictional in nature and do not implicate the public interest. Thus, these matters are not properly before this court. R. 2:6-2; County of Essex v. First Union, 186 N.J. 46, 51 (2006); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The parties are not precluded from presenting appropriate applications for determination by the Family Part.



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