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Alexandria Mandarino v. James J. Mandarino

December 14, 2010

ALEXANDRIA MANDARINO, PLAINTIFF-RESPONDENT,
v.
JAMES J. MANDARINO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-768-95.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2010

Before Judges Axelrad and J. N. Harris.

This appeal -- prosecuted by the putative personal representative of the estate of defendant James J. Mandarino (James, Sr.) -- seeks to reverse the denial of a motion to vacate a judgment of divorce entered on December 13, 1994.*fn1 We affirm.

I.

We derive the following facts from the motion papers considered by the Family Part in connection with the application to vacate the judgment of divorce, together with appropriate references gleaned from the ancillary federal litigation.

James, Sr. and plaintiff Alexandria Mandarino were married in 1958. On November 1, 1993, a Property Settlement and Separation Agreement (PSSA) was allegedly executed by both parties. On November 14, 1993, James, Sr. was admitted to Barnert Hospital due to ingesting an overdose of heroin in an aborted suicide attempt. Less than three weeks later, James, Sr. was discharged from the hospital, diagnosed with, among other things, major depression.

More than one year later, on December 13, 1994, Judge Lawrence D. Smith entered a judgment of divorce and incorporated the PSSA*fn2 into the judgment. James, Sr. did not appear at the time of the court's consideration of the application for the divorce, and default was entered against James, Sr. at that time.

Before he died, James, Sr. claimed that he was mentally incapacitated for several years, commencing around the time of his unsuccessful suicide attempt in 1993.*fn3 However, in June 2002, James, Sr. discovered what he described as "unlawful and fraudulent actions" of Alexandria and their son, James, Jr. These actions included forgery, identity theft, and conversion, which were allegedly committed on multiple occasions during James, Sr.'s temporary incapacity.

In an effort to seek redress from the allegedly deceitful actions of his former spouse and son, James, Sr. commenced an action against them in the Southern District of New York on January 8, 2004. The federal complaint sought remedies pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. 1961 to 1968, as well as state consumer protection laws, and various common law torts.

Alexandria and James, Jr. moved to dismiss James, Sr.'s federal action. In July 2005, the District Court granted the motion on grounds of lack of timeliness, failure to state a claim upon which relief could be granted, and failure to plead fraud with particularity. In May 2006, the Second Circuit Court of Appeals affirmed in part, and reversed in part, concluding that James, Sr. was entitled to an evidentiary hearing on the statute of limitations issues, particularly as they implicated the doctrine of equitable tolling vis-a-vis James, Sr.'s claims of mental incapacity.

Following the substitution of the Estate of James J. Mandarino as plaintiff, after James, Sr.'s May 2008 death, an evidentiary hearing in federal court commenced on September 30, 2009, and spanned two days. On November 6, 2009, United States Magistrate Gabriel W. Gorenstein entered an order denying the estate's application for a stay, which was sought because of a putative stipulation made during the evidentiary hearing and the supposed concession by Alexandria that the default judgment of divorce was invalid.*fn4 This supposed stipulation, which became the centerpiece of the application to vacate the judgment of divorce in the Family Part, provided that in order to expedite the evidentiary hearing, James, Sr. was deemed to not be competent in "the 1993 and 1994 time period." Thus conceded, it permitted the parties in the federal proceeding to focus their inquiry regarding equitable tolling to the period "January 1, 1995 through 2002."

Appellant filed the instant motion to vacate the judgment of divorce contemporaneously with her application for a stay in federal court. Attacking the judgment of divorce and the PSSA on two prongs, appellant vigorously pursued claims that James Sr. was the victim of fraud ("someone fraudulently signed James, Sr.'s signature and dated it for November 1, 1993," on the PSSA) and that James, Sr. suffered from mental incapacity in 1993 and 1994. Contending that the ...


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