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Marquez v. Cabrera

July 15, 2010

NELLY MARQUEZ, PLAINTIFF-RESPONDENT,
v.
MARCELO GABRIEL CABRERA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-375-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 12, 2010

Before Judges Fisher and Sapp-Peterson.

In this appeal, defendant, Marcelo Gabriel Cabrera (Cabrera), seeks reversal of the Family Part order denying his motion for relief from judgment pursuant to Rule 4:50-1 based upon his claim that the property settlement agreement (PSA) incorporated into the final judgment of divorce (FJOD) was procured by fraud. Because we conclude that there were genuinely disputed factual issues raised by the parties' certifications and other documentary evidence, we reverse and remand for a hearing.

Cabrera and plaintiff, Nelly Marquez (Marquez), were married on August 26, 2003. During the marriage, the couple owned two principal assets: a co-op in North Bergen, New Jersey (the North Bergen co-op) and a condominium in Argentina (the Argentina condominium). Marquez had acquired the North Bergen co-op prior to the marriage, and the title and mortgage were in her name only. The couple purchased the Argentina condominium as an investment property during the marriage. It was purchased for $50,000, using a loan from Cabrera's credit union which Marquez allegedly co-signed.

Marquez filed for divorce on July 17, 2008. Cabrera never responded to the complaint, and default was entered against him on April 13, 2009.*fn1 Following the entry of default, plaintiff served defendant with a notice of motion for proposed equitable distribution and final judgment in accordance with the provisions of Rule 5:5-10. According to Marquez, on June 18, 2009, the couple executed their PSA. The PSA provided that Marquez would receive the North Bergen co-op and the Argentina condominium "with no [b]uy-out to the [h]usband." She would also be "solely responsible for the mortgage payments" on the North Bergen co-op, although Cabrera would be required to "[pay off] the said [$50,000] personal loan [from the credit union], within forty-five (45) days from the date this Agreement is signed."

The court conducted a proof hearing on June 30, 2009, at which Cabrera made no appearance. At its conclusion, the court entered the FJOD and incorporated the PSA into the order. According to Cabrera, he received a copy of the FJOD on August 12, 2009, and filed a motion seeking relief from the judgment the following month.

In his certification submitted in support of his motion, Cabrera acknowledged that he signed a PSA on June 18, but claimed that he did not sign the version submitted to the court that was later incorporated into the FJOD. He indicated further that the PSA he signed would have allowed him to keep the Argentina condominium, provided he paid off the $50,000 credit union loan within two years of the contract date.*fn2 Cabrera accused Marquez of removing the signature page from the PSA he signed and appending it to the PSA she ultimately submitted to the court. He also pointed out to the court "that there is no Certification from the Notary that he witnessed my signature. In addition, the last two pages of the purported Agreement are both numbered as Page 7."

Marquez opposed the motion and also filed a cross-motion seeking the entry of judgment in the amount of $5332.71 against Cabrera representing a debt he incurred with the United Nations for which she was also being held responsible. In her certification in opposition to Cabrera's motion and in support of her cross-motion, Marquez concedes she was initially open to the idea of Cabrera keeping the Argentina condominium. She explained that she changed her position when Cabrera began missing payments on the credit union loan, causing funds to be deducted from her personal bank account. Once Cabrera stopped making the loan payments, she believed "it would not be just for me to solely pay for the line [of] credit and the Defendant to keep the property in Argentina." She contends that she discussed the matter with Cabrera, who in turn, via email, agreed that she should retain the Argentina property.

Cabrera requested oral argument only if there was opposition to his motion, while Marquez requested oral argument "as to all issues" raised in her papers. On October 1, 2009, the return date of the motion, prior to rendering an oral decision, the court asked the attorneys if there was anything they wanted to add. Both attorneys declined the offer. The court then placed its decision on the record. Beginning with Cabrera's fraud claim, the court found "there is no proof before the [c]court that he did not sign the document and was not aware of it. . . . All of the documents that have been produced lead me to believe that Ms. [Marquez] . . . is giving me a correct statement." Regarding Marquez's claim for $5332.71, the court held that "[h]e also needs to reimburse the sum of $5332.71 for the lack of dependency allowance because he did not file the appropriate documents."*fn3 Finally, regarding Marquez's claim for attorney's fees, the court concluded: "I would also . . . allow Ms. Marquez to receive attorney's fees [because] Mr. Cabrera's veracity is questionable regarding this motion. I see nothing that leads me to believe that his version of the events is the correct version." The ensuing appeal followed.

On appeal, Cabrera raises the following points for our consideration:

POINT I.

THE ORDER BELOW SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE ENTITLING HIM TO A ...


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