DINKO MORIN v. JADRANKA MORIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4067-07T34067-07T3

DINKO MORIN,

Plaintiff-Appellant,

v.

JADRANKA MORIN,

Defendant-Respondent.

__________________________________________________________

 

Argued February 24, 2009 - Decided

Before Judges Graves and Ashrafi.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

Docket No. FM-02-660-06.

Paul Fernandez argued the cause for appellant

(Paul Fernandez & Associates, P.C., attorneys;

Mr. Fernandez, on the brief).

Marion v.G. Hinman, attorney for respondent

(Law Offices of Mira Lukovic Mullins, attorneys;

Ms. Hinman, on the brief).

PER CURIAM

Plaintiff Dinko Morin and defendant Jadranka Morin were married on September 18, 1971. Plaintiff appeals from an order denying his motion to modify or amend a property settlement agreement (PSA), which was incorporated into an amended judgment of divorce from bed and board. Plaintiff's sole argument is that the court abused its discretion when it decided his motion without holding an evidentiary hearing. We affirm.

On March 21, 2007, the day their case was scheduled for trial, both parties were present in court with their attorneys, and they negotiated a PSA. At approximately 4:20 p.m., the attorneys advised the court that the case was settled, and the attorneys placed the terms of the settlement on the record. The court then inquired of the parties as follows:

THE COURT: Okay. Mr. Morin, you heard what the attorneys have just placed on the record today?

MR. MORIN: Yes, I did.

THE COURT: Do you understand it?

MR. MORIN: Yes.

THE COURT: Sound acceptable to you?

MR. MORIN: Yes, it is.

THE COURT: Miss Morin, did you also hear what the attorneys just said?

MS. MORIN: Yes.

THE COURT: And do you understand?

MS. MORIN: Yes.

THE COURT: And does that sound acceptable to you?

MS. MORIN: Yes.

Because it was late in the day, the court instructed the parties and their attorneys to return to court in one week--on March 28, 2007--to "put the whole thing through." When the parties returned to court the following week, plaintiff's attorney advised the court that his client wanted to change the terms of the PSA because the accountant hired by the parties had been unable to determine the extent of their tax liability. Plaintiff's attorney advised the court as follows:

Both Miss Mullins [defendant's attorney] and I are confident that that issue should be resolved in our clients' favor, but in any event, it's my client's position that he does not want to proceed today. He is not going to proceed with the divorce from bed and board. It's his position that the settlement that was placed on the record was contingent upon the tax issue being settled or at least . . . being given reasonable [assurance] by his expert that there [will] be enough money in the trust account to take care of his wife and his taxes. That's his position today, Judge.

Did I express that correctly, Mr. Morin?

MR. MORIN: Yes.

The court was unwilling to adjourn the matter, however, and an amended judgment of divorce from bed and board, which contained the terms of the PSA, was entered on April 20, 2007. Paragraph ten of the judgment provides in part as follows:

The parties have divided all of their assets except for the aforementioned monies in the Husband's attorney's trust account. From that account plaintiff's attorney shall pay the Wife $40,000 and the Husband $20,000 on the condition that a certified public accountant certifies that the parties should owe less than $108,000 for taxes, interest and penalties for the period of time from the date of the marriage until December 31, 2004, or the Court is presented with other reasonable proof to that effect.

In a subsequent motion, plaintiff sought to modify or amend the PSA "allegedly entered into between the parties on March 21, 2007," because "there was no meeting of the minds," and because the tax questions were still unresolved. In denying plaintiff's motion, the court found that he had "consented on the record to understanding and agreeing to the PSA between the parties," and he failed to demonstrate that circumstances had changed.

Preliminarily, we note that during oral argument we were advised by defendant's attorney that the accountant has continued his efforts to resolve the outstanding tax liability problems, and it is anticipated that the parties will owe less than $20,000 in unpaid taxes. Thus, it appears likely that the trust funds will be distributed pursuant to the PSA in the near future.

We recognize, of course, that consensual agreements play a critical role in divorce cases. See Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) ("The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistently with their post-marital responsibilities."). As a result, courts generally honor and enforce such agreements "absent a demonstration of fraud or other compelling circumstances." Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983) (internal quotations omitted). Nevertheless, the incorporation of a PSA "into a divorce decree does not render it immutable. Courts have a continuing power to oversee divorce agreements, and the discretion to modify them on a showing of 'changed circumstances,' that render their continued enforcement unfair, unjust, and inequitable." Konzelman, supra, 158 N.J. at 194 (citations omitted).

In this case, plaintiff has never claimed that the PSA was unfair or unreasonable, and he has failed to establish a prima facie case of changed circumstances. Accordingly, the trial court did not abuse its discretion in denying plaintiff's motion to modify or amend the PSA without an evidentiary hearing. See Lepis v. Lepis, 83 N.J. 139, 159 (1980) ("[A] party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary. Without such a standard, courts would be obligated to hold hearings on every modification application.") (citations omitted).

 
Affirmed.

The parties agreed to a divorce from bed and board in order to "file joint tax returns," and to enable defendant to continue "to receive medical benefits."

As part of the PSA, plaintiff's attorney advised the court that he was holding approximately $171,000 in his trust account from the sale of property, and it was agreed that "[f]orty thousand dollars would go to wife," "[t]wenty thousand dollars would go to the husband," and the rest of the money would be dedicated to paying any federal or state taxes that the parties owed, including interest and penalties. The distribution to the parties, however, was not to take place unless Michael Wade, an accountant hired by the parties, certified (or there were "other reasonable proofs") that the remaining trust funds would be sufficient to pay the taxes.

(continued)

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6

A-4067-07T3

April 15, 2009