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Brocken v. Brocken

January 19, 2010

VALERIE BROCKEN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
JOHN BROCKEN, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Essex County, Docket No. FM-07-1354-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2010

Before Judges Lisa, Baxter and Alvarez.

Defendant John Brocken appeals from an order entered on November 14, 2008 that denied his motion for relief from judgment. He sought to vacate one of the key provisions in the parties' judgment of divorce (JOD), claiming that his ex-wife, plaintiff Valerie Brocken, had engaged in fraud and misrepresentation. We agree with defendant that neither laches, res judicata nor waiver, upon which the judge relied in refusing to grant defendant relief from judgment, justify the judge's refusal to analyze defendant's claim on the merits. We reverse the denial of defendant's motion for relief from judgment and remand for a plenary hearing, the scope of which we describe later in this opinion.

On the cross-appeal, we reject plaintiff's contention that the Family Part erred when it denied her request for counsel fees. In light of our conclusion that plaintiff misrepresented the status of the property at issue, and thereby forced defendant to file a motion, she was not entitled to counsel fees. We therefore reject the claim plaintiff advances in her cross-appeal.

I.

Plaintiff Valerie Brocken and defendant John Brocken were married on October 8, 1994. Prior to the marriage, in September 1990, defendant won $98,354 in the Florida Lottery. After federal income tax was withheld, defendant received a check in the amount of $78,683. Defendant immediately invested his lottery winnings in an investment account with Smith Barney in an account bearing the number 576-12.*fn1 Throughout the marriage, defendant maintained account 576-12 in his name only and actively managed it. Plaintiff had no role in the investment decisions affecting the account. The account remained titled in defendant's name throughout the marriage and was never used for any joint marital purpose. Other than defendant's Florida Lottery winnings, the only other contributions to the account were a $1,000 gift from defendant's parents in May 2003 and the sum of $7,500, which represented one half of the parties' refund from their joint 2004 income tax return. The balance of the refund was deposited in the parties' joint bank account.

On December 16, 2005, plaintiff filed a complaint for divorce. Defendant did not file an answer or enter his appearance to be heard on any of the issues raised in plaintiff's complaint. Therefore, in accordance with the provisions of Rule 5:5-10, plaintiff served defendant with a notice of proposed equitable distribution and final judgment.

The notice included the proposed hearing date, a statement of the value of each asset to be distributed, and a proposal for distribution of each.

Notably, because the parties were still residing together at the time that the divorce proceedings were pending, plaintiff mailed a copy of the Rule 5:5-10 notice of equitable distribution to defendant at the marital residence. Although the record is not entirely clear, it appears that when the notice arrived in the mail, plaintiff placed it in defendant's "inbox." He later "repackaged" it and sent it back to plaintiff's counsel, apparently never opening it.

On June 30, 2006, in anticipation of the upcoming default hearing, plaintiff filed a Case Information Statement (CIS), in which she listed defendant's individually-held Smith Barney 576-12 account as a joint asset. In particular, on page seven of the CIS, litigants are instructed to list all "Family Assets and Liabilities." The document requires the litigant to complete five columns: "Description," "Title to Property (HWJ)," "Date of purchase/acquisition," "Value. Put * after exempt," and "Date of Evaluation Mo/Day/Yr."

In completing the "Description" column of the form, plaintiff listed two Smith Barney accounts, one of which is the account in question.*fn2 In the "Title to Property" column, she answered "J," for joint, next to both. As to account 576-12, this was unquestionably a blatant and significant misrepresentation, as the account was not titled jointly, but was instead titled only in defendant's name. Plaintiff left blank the column "Date of purchase/acquisition." Although plaintiff also left blank the "Date of Acquisition" for all other assets on her CIS, leaving the column next to the account in question blank was a far more serious omission, as it denied the judge the information that would have caused him to consider whether the account was an exempt asset. If plaintiff had listed an acquisition date of September 1990, the judge would have realized that the funds in the account were acquired prior to the marriage. Plaintiff also failed to place an asterisk in the "Value" column, which is required when an asset is exempt from distribution.

In plaintiff's notice of equitable distribution dated June 30, 2006, which she filed with the court, was the statement "[t]he parties have the following joint or individual accounts, which shall be equally divided within [thirty] days." Below the introductory statement, plaintiff listed defendant's Smith Barney 576-12 account together with the parties' joint Smith Barney ...


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