ALEXANDRIA MANDARINO v. JAMES J. MANDARINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2365-09T1

ALEXANDRIA MANDARINO,

Plaintiff-Respondent,

v.

JAMES J. MANDARINO,

Defendant-Appellant.

__________________________________

December 14, 2010

Argued December 1, 2010 - Decided

Before Judges Axelrad and J. N. Harris.

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

Michael S. Kimm argued the cause for appellant (Kimm Law Firm, attorneys; Mr. Kimm and Francis Liu, on the brief).

Douglas V. Sanchez argued the cause for respondent (Cruser, Mitchell & Sanchez, LLC, attorneys; Mr. Sanchez, of counsel and on the brief; Jacqueline Curko, on the brief).

PER CURIAM

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, 1994.1 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 PSSA2 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 1993.3 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- -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.4 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 forgery claim was "put to rest" by the federal stipulation, appellant's claim was distilled to the following assertion:

Since there was no capacity to enter into any Property Settlement Agreement and no capacity to obtain a divorce, those events require a review by [the Family Part] and there is now a need to invalidate the "Divorce" obtained on the basis of the Property Settlement Agreement being [in]validly made by the parties.

After considering the submissions of both sides, Judge James J. Guida issued a thoughtful written opinion in which he rejected all of the proferred grounds to vacate the 1994 judgment. The opinion expressly considered the effect, if any, of the stipulation made during the federal evidentiary hearing, and concluded nevertheless that the judgment of divorce should remain intact. Relying upon Rules 4:50-1 and -2, the court held:

Mandarino's estate cannot play Monday Morning Quarterback six months after his death to bootstrap itself into a better position than [James] Mandarino [Sr.] was in prior to his death, when he failed to exercise his right to challenge the [judgment of divorce].

The court finds that any one of [James] Mandarino [Sr.'s] actions or inactions [between 1996 and 2008] would bar the within application. Taken together, based upon the totality of circumstances, the court finds that [James] Mandarino [Sr.'s] delay in seeking relief from the [judgment of divorce] is unexplained and unexcused. Therefore, the application for relief was not made within a reasonable time after the [judgment of divorce].

Because we are in agreement with Judge Guida's analysis and rationale, we affirm substantially for the reasons stated in his fourteen-page written opinion dated December 16, 2009. We add only the following brief comments.

II.

The material that appellant relied upon to establish entitlement to a vacation of the judgment of divorce was available to James, Sr. prior to the earlier federal proceedings in 2004. In fact, James, Sr. averred as part of that federal case that "[i]n approximately June 2002, [he] discovered [Alexandria's and James, Jr.'s] unlawful and fraudulent actions for the first time, when [James, Sr.] partially regained his ability to perceive events, and discovered that defendants had converted virtually all of [his] assets to their own benefit." He cannot satisfy the requisite elements of Rule 4:50-1(f), and is clearly disenfranchised by the one-year provision of Rule 4:50-2. Not having acted diligently prior to the filing of the motion, his estate is not entitled to relief now, which would undo years of reliance and affect the rights of third-parties.

Affirmed.

1 James, Sr. apparently died on May 8, 2008, in Florida. Patricia Mandarino, his daughter-in-law, claims to be the estate's personal representative. Other than Patricia's naked claim, we have not been provided with any documentary evidence to substantiate Patricia's status. We are, however, aware that in ancillary federal litigation, the estate was permitted to advance claims on behalf of James, Sr., and we will not use our uncertainty concerning Patricia's status as a basis for our determination in this appeal.

2 The judgment reflects that the PSSA was supplemented with a writing signed only by Alexandria on October 13, 1994, which memorialized Patricia's release of James, Sr. from any claims she had to the repayment of the sum of $50,000.

3 During this putative period of mental disability, James, Sr. married Maryse LaGuerre on December 30, 1998, at the Office of the City Clerk, Bronx County, New York. In his affidavit and application for a license to marry, James, Sr. indicated that he had been divorced from Alexandria since December 13, 1994. See N.J.R.E. 202(b).

4 Magistrate Gorenstein's order notes "the apparent frivolousness" of the request for a stay and stated, "there is no reason that a stipulation made for the purpose of obviating the need to rule on the admissibility of certain evidence at a hearing would constitute a 'concession' or admission of fact as to any other proceeding."