CARMEN J. ALBRECHCINSKI v. STEVEN P. ALBRECHCINSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2629-08T22629-08T2

CARMEN J. ALBRECHCINSKI,

Plaintiff-Appellant,

v.

STEVEN P. ALBRECHCINSKI,

Defendant-Respondent.

 

Submitted January 25, 2010 - Decided

 
Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0602-07G.

Carmen J. Albrechcinski, appellant pro se.

Louis M.J. DiLeo, attorney for respondent (Robert L. Mu oz, on the brief).

PER CURIAM

Plaintiff Carmen J. Albrechcinski appeals pro se from the denial of her Rule 4:50 motion for relief from a final judgment of divorce. For the reasons that follow, we affirm.

Plaintiff and defendant Steven P. Albrechcinski signed consent orders resolving parenting issues and equitable distribution on February 16, 2007, and December 5, 2007. On December 6, 2007, a hearing was conducted before a Family Part judge who issued a final judgment of divorce incorporating the consent orders.

Defendant filed an application for enforcement of litigant's rights on August 8, 2008. Plaintiff was found to be in violation of litigant's rights and a judgment in the amount of $54,434.68 was entered against her. The total consisted of $15,000 on account of plaintiff's jewelry, $15,000 for defendant's waiver of any claim against real property purchased by plaintiff prior to the divorce, $18,898.83 for defendant's one-half interest in plaintiff's bank accounts, and $5535.85, one-half of the parties' daughter's private school tuition. Plaintiff was ordered to continue to pay one-half of the child's tuition.

On October 20, 2008, plaintiff filed a Rule 4:50 motion seeking to vacate the final judgment. She claimed that she had not understood the settlement agreement before she entered into it and that her attorney had either misrepresented the agreement to her or, in some fashion, pressured her into signing it. She further claimed the agreement overall was unfair and that she should be relieved from compliance with its terms. When plaintiff's Rule 4:50 motion was denied, she filed this appeal.

We disturb a trial court's factual findings only where not "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and "feel for the case" based upon his opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's expertise, appellate courts must accord particular deference to the trial judge's fact-finding and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 413.

On appeal plaintiff reiterates the claims made in her Rule 4:50 application. She contends that the court erred in denying her relief because the equitable distribution process was premised upon incorrect valuations; she had not understood the agreement because she had not read the entire document; and her attorney pressured her into signing the agreement even though she did not have enough time to read and consider the terms.

Motions to set aside final judgments under Rule 4:50 are to be granted "sparingly." Pressler, Current N.J. Court Rules, comment 1 on R. 4:50-1 (2010). The Rule allows for relief only where some unique combination of facts and equities compel that a judgment be vacated. See R. 4:50-1.

On the other hand, "[t]he equitable authority of courts to modify property settlement agreements executed in connection with divorce proceedings is well established . . . . The agreement must reflect the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages." Miller v. Miller, 160 N.J. 408, 418 (1999) (citations omitted). "'[A]pplications for relief from equitable distribution provisions contained in a judgment of divorce are subject to [R. 4:50-1] and not, as in the case of alimony, support, custody, and other matters of continuing jurisdiction of the court, subject to a "changed circumstances" standard.'" Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (quoting Pressler, Current N.J. Court Rules, comment 1.7 on R. 4:50-1 (2004)).

Under the Rule, a party may be relieved from a judgment due to "mistake, inadvertence, surprise, or excusable neglect." R. 4:50-1(a). These four categories encompass those instances where "a party, through no fault of its own, has [made] . . . a mistaken judgment on a material point at issue in litigation." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 262 (2009). A trial court's decision on Rule 4:50 applications "will be left undisturbed unless it represents a clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) (citing Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)).

Plaintiff asserts that the division of assets was premised on incorrect numbers; that her bank accounts were unfairly divided because at the time of distribution only $7045.42 was actually on deposit, and thus defendant was not entitled to $18,898.33 as his half. Plaintiff contends that the additional funds in her bank accounts at the time of distribution were artificially inflated by $30,000 in loans from her 401K and 403(B) retirement plans. Because her retirement plans were the source of funds in the bank accounts, plaintiff alleges defendant essentially recovered twice for one asset. The mathematical consequence of this is unclear, as defendant waived any share of plaintiff's retirement plans in the agreement. As the Family Part judge said on this point, plaintiff better than anyone knew the contents of the bank accounts and retirement accounts she maintained in her name. She alone received monthly statements and knew the balances in any of those accounts.

Plaintiff also contends that defendant's receipt of $15,000 as his share of the equity in the home she purchased prior to the divorce further compounds the error, as she used the funds from her bank account to purchase the property. Thus, she avers, defendant was paid three times for one asset.

It bears noting that plaintiff signed each and every page of the agreements incorporated into the divorce decree and initialed the written changes. Additionally, she signed a consent stating that she "fully" understood the final judgment of divorce and had "no questions about any part of this agreement." The consent also stated that plaintiff was "fully and completely satisfied with" her attorney and that she "believe[d] the terms of this final judgment of divorce" to be "fair and equitable."

Furthermore, as the judge aptly commented, in her motion plaintiff did not establish the equity in the property at the time of divorce. She did not prove that defendant's share came solely from the down payment as opposed to appreciation. When the divorce decree was entered, real estate values were on the rise. Plaintiff, better than anyone, knew the value of the property that she had recently purchased.

We concur with the Family Court judge that the type of mistake that plaintiff is asserting as to equitable distribution does not fall within the purview of the rule. These claims, even if true, do not constitute mistakes plaintiff made "through no fault of [her] own," DEG, supra, 198 N.J. at 262, such that enforcement of the final judgment of divorce would result in a "grave injustice." Little, supra, 135 N.J. at 289. Plaintiff was more familiar than defendant with the documents related to her individually owned assets, including real estate. If plaintiff signed off on equitable distribution because she mistakenly believed she had no alternative, this does not constitute the "grave injustice" contemplated by the Rule. Plaintiff, either herself directly or her attorney, made numerous strikeouts and other amendments to the documents before the divorce was finalized. Plaintiff obviously could have refused to enter into any consent judgment or testified in open court that she was not satisfied with the equitable distribution to which she had agreed. She also could have testified that she was dissatisfied with her attorney's performance. None of these things occurred.

Moreover, any mistake plaintiff made as to equitable distribution resulting from her attorney's representation is not itself a basis to set aside the final judgment of divorce. Rule 4:50-1(a) "is intended to provide relief from litigation errors" against which a party could not have protected themselves. DEG, supra, 198 N.J. at 263 (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)). "[A]n attorney's error of law is not sufficient to relieve a party from a final judgment or order"; it is not the type of litigation error contemplated by the Rule. Posta v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997), certif. denied, 154 N.J. 609 (1998). See also Hendricks v. A.J. Ross Co., 232 N.J. Super. 243, 249 (App. Div. 1989) (noting that counsel's failure to assert a particular claim is not a mistake for Rule 4:50-1(a) purposes); Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1099 (9th Cir. 2006) ("Rule 60(b) [Rule 4:50-1's federal doppelganger] is not intended to remedy the effects of a deliberate and independent litigation decision that a party later comes to regret through second thoughts or subsequently-gained knowledge that corrects prior erroneous legal advice of counsel."); Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir. 1986) ("Mere dissatisfaction in hindsight with choices deliberately made by counsel is not grounds for finding the mistake, inadvertence, surprise or excusable neglect necessary to justify Rule 60(b)(1) relief."). Plaintiff claims that her attorney urged her not to proceed to trial because if she did, she would be exposed to paying alimony to defendant. This simply establishes that she made "deliberate and independent litigation decision[s]" that she now regrets. Latshaw, supra, 452 F.3d at 1099.

Plaintiff's remaining arguments are so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

The Family Part judge's refusal to vacate the divorce judgment was not a clear abuse of discretion. The judge appropriately applied equitable principles in concluding that plaintiff was responsible for her decisions, did not proffer a permissible basis for vacating the decree, and was doing no more than expressing second thoughts about an agreement she entered into with eyes wide open. The Family Part judge's decision was "supported by adequate, substantial and credible evidence," and does not "offend the interests of justice." Rova Farms, supra, 65 N.J. at 484.

 
Affirmed.

(continued)

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9

A-2629-08T2

March 29, 2010