VALERIE J. MAASS-POLAK v. MILAN POLAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1665-10T2

VALERIE J. MAASS-POLAK,

Plaintiff-Respondent,

v.

MILAN POLAK,

Defendant-Appellant.

___________________________________

September 13, 2011

Argued April 13, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic

County, Docket No. FM-16-0148-08.

Brian Gerstein argued the cause for appellant

(Harkavy, Goldman, Goldman & Gerstein, attorneys;

Mr. Gerstein, on the brief).

Janet Porro argued the cause for respondent

(Ms. Porro, attorney; Ms. Porro and Janet S.

Del Gaizo, on the brief).

PER CURIAM

Defendant Milan Polak appeals from the order of the Family Part denying his post-judgment motion to vacate a property settlement agreement (PSA) that was incorporated in the final judgment of divorce dissolving the marriage between him and plaintiff Valerie Maass, f/k/a Maass-Polak. We affirm.

The parties married on June 14, 1996; no children were born of the marriage. In contemplation of divorce, the parties entered into a PSA on July 9, 2007, which comprehensively addressed all of the issues associated with the dissolution of a marriage.1 The PSA was drafted by an attorney representing plaintiff's interests. Because defendant chose not to retain counsel, the agreement included a clause denoted "Independent Legal Counsel," which read, in relevant part, as follows:

Husband acknowledges that he has been advised of his right to seek legal counsel and acknowledges that he has had the opportunity to do so prior to signing this Agreement. Husband further acknowledges that he has received absolutely no legal advice from [plaintiff's attorney].

Plaintiff filed a complaint for divorce on July 12, 2007. By letter dated July 23, 2007, plaintiff's counsel served defendant with a copy of the filed summons and complaint as well as plaintiff's case information statement (CIS). On September 10, 2007, plaintiff moved for entry of default against defendant, supported by defendant's duly notarized acknowledgment of service of process.

The case, initially scheduled for a hearing on October 2, 2007, was carried to October 30, 2007, as indicated in letters dated September 25, 2007 and September 27, 2007, sent to defendant by plaintiff's counsel. A hearing to dissolve the marriage was held on October 30, 2007, before the Family Part in Passaic County. Defendant did not appear. In an order entered that same day, the court granted plaintiff a final judgment of divorce incorporating the PSA and addendum.

On August 31, 2010, defendant, with the assistance of retained counsel, filed a motion seeking to vacate the PSA and to award alimony. In a three-page letter brief, defendant's counsel argued the court should set aside the PSA because: (1) defendant does not speak English; (2) defendant was not represented by counsel at the time; and (3) there was no proof defendant received notice of the final default hearing. Defendant also sought a plenary hearing to present evidence in support of the motion.

In a certification submitted in support of the motion, defendant claimed he was born in Slovakia where he obtained the equivalent of a high school education. His primary language is Slovak and he considers English his second language. He came to the United States in June 1990, when he was thirty years old. He "attempted" to play professional hockey for two American teams in 1991 and 1994. Since moving to the United States, he has also worked as an automobile mechanic, performed construction work, and worked in restaurants.

Defendant averred that he spoke to plaintiff about the PSA and "quickly skimmed through the Agreement" on [his] own. Through this cursory examination, defendant claimed he noticed a paragraph that gave their two dogs to plaintiff. According to defendant, the next paragraph in the PSA "gave . . . . . ownership of [their] home" to plaintiff. He allegedly objected to this, and "had the [p]laintiff cross out part of that paragraph. . . ." Defendant claims he then renegotiated this aspect of the PSA resulting in an agreement in which the house would be sold and the proceeds equally divided between the parties. Ultimately, defendant viewed the PSA as "completely unfair and unjust."2

Plaintiff submitted a comprehensive reply certification describing, in fifty-three numbered paragraphs, her marital relationship with defendant. Plaintiff alleged her marriage was mired by incidents of emotional bullying by defendant, at times escalating to threats of physical harm. She characterized her time with defendant as "a living hell. . . ." With respect to the PSA, plaintiff averred the agreement was the product of extensive discussions in which defendant took an active part. Plaintiff also claimed she amended the agreement a number of times at defendant's request. She saw defendant reading the document without any apparent difficulty.

Plaintiff refuted defendant's alleged lack of knowledge of this country's legal system. According to plaintiff, defendant was familiar with the legal system due to various cases he had been involved with in the past, including a case involving the sale of an automobile in 2004. As a result of these cases, defendant has retained counsel to represent him in connection with both civil and criminal matters. Plaintiff elaborated on this point by citing a number of specific legal matters in which defendant had either been named as a responsible party or was the initiating complaining party. Plaintiff concluded the certification by emphasizing that defendant had "always spoke in English throughout [the] relationship and marriage."

By order dated October 18, 2010, the Family Part denied defendant's motion without an evidentiary hearing. In a memorandum of opinion dated December 16, 2010, filed pursuant to Rule 2:5-1(b), the court first noted that defendant had not offered any explanation for waiting nearly three years before seeking the relief requested. The court also found defendant's brief in support of the application did not identify the legal basis for the relief requested under Rule 4:50-1, nor allege sufficient facts to substantiate his claims of unconscionability with respect to the PSA and addendum.

On appeal, defendant argues he is entitled to the relief requested under Rule 4:50-1(f), which authorizes a court to relieve a party from a final judgment for any reason justifying relief from the judgment. Plaintiff argues defendant's motion was correctly denied by the trial court as untimely and for failing to state a valid claim for the relief available under Rule 4:50-1.

It is well-settled that "absent 'unconscionability, fraud, or overreaching in the negotiations of the settlement, . . . no legal or equitable basis exists to reform the parties' property settlement agreement." N.H. v. H.H., 418 N.J. Super. 262, 282 (App. Div. 2011) (alteration in original) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)). Here, defendant's vague and unsupported allegations of overreaching by plaintiff are insufficient to satisfy the high standard of unconscionability.

As a means of vitiating an agreement, our Supreme Court has stated unconscionability can be manifested in two ways. The first is procedural unconscionability, which involves a "variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process. . . ." Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006), (quoting Sitogum Holdings, Inc., 352 N.J. Super. 555, 564 (Ch. Div. 2002)) cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). The second is substantive unconscionability, which is determined by applying the four factors identified by our Supreme Court in Rudbart v. North Jersey District Water Supply Commission, 127 N.J. 344, 356, cert. denied, 506 U.S. 871, 113 S. Ct. 203, 121 L. Ed. 2d 145 (1992). These factors are: "[1] the subject matter of the contract, [2] the parties' relative bargaining positions, [3] the degree of economic compulsion motivating the 'adhering' party, and [4] the public interests affected by the contract." Ibid.

The certification submitted by defendant to the trial court does not establish a sufficient basis to question the enforceability of this agreement under the doctrine of procedural unconscionability. Defendant chose to enter into this PSA willingly, and after knowingly and voluntarily deciding to forego his right to have independent counsel advise him as to its content and legal ramifications. The memorandum of law submitted by defendant's counsel does not even mention the factors of substantive unconscionability under Rudbart. Ibid.

As a general proposition, relief under Rule 4:50-1(f) is available only for "exceptional and compelling circumstances. . . ." Baumann v. Marinaro, 95 N.J. 380, 393 (1984). It is to be granted "sparingly," where "were it not applied, a grave injustice would occur." Hous. Auth. of Morristown v. Little, 135 N.J.274, 289 (1994). The trial court correctly found defendant's application did not meet this high standard.

Affirmed.

1 On August 28, 2007, the parties executed an addendum to the PSA that addressed the disposition of real property acquired during the marriage. The parties mutually acknowledged that the property was purchased with plaintiff's premarital funds; defendant thus agreed to transfer to plaintiff "all right, title and interest to said property. . . ."

2 Defendant's certification was written in English, without any indication that an interpreter assisted defendant in its preparation or that the contents of the document were translated into Slovak before defendant signed it.