DEBRA NEWMAN v. LAURENCE S. NEWMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4503-08T3

DEBRA NEWMAN,

Plaintiff-Respondent,

v.

LAURENCE S. NEWMAN,

Defendant-Appellant.

_______________________________________________

May 31, 2011

Argued November 8, 2010 Decided

Before Judges Grall and LeWinn.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-96-05.

Stephen E. Samnick argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, defendant appeals from the April 3, 2009 order denying his motion to vacate the parties' property settlement agreement (PSA) incorporated into their April 27, 2005 final judgment of divorce. The basis of defendant's motion was that due to mental illness brought on by his long-term addiction to drugs and alcohol, he lacked the mental capacity to enter into the PSA at the time of the settlement hearing in court. We affirm.

The parties were married in September 1995; two daughters were born of the marriage, in 1996 and 1998. This was defendant's second marriage, having been divorced from his first wife in April 1994.

The parties entered into a PSA; neither was represented by counsel. Under the PSA, defendant agreed to pay limited duration alimony of $370 per week for five years; he also agreed to pay child support of $214 per week until each child's emancipation. The PSA contained the parties' acknowledgement that neither was under the influence of any "drugs or alcoholic beverage which would impair their ability to understand" the agreement.

On April 27, 2005, a settlement hearing was held at which the parties placed the terms of their agreement on the record; each was questioned by the judge as to their understanding and acceptance of those terms. Defendant acknowledged that (1) he understood the agreement; (2) it was the product of "negotiations"; and (3) he voluntarily entered into it without force or coercion. The following colloquy ensued:

[Court]: Do you think under all the circumstances of this matter this is an equitable outcome?

[Defendant]: I don't think it is . . . to tell you the truth, but I think I'm doing the right thing for my kids in giving her the house.

[Court]: Do you understand that this is it? If we complete this process today, you're bound to this agreement. It's no longer voluntary. It's a court order.

[Defendant]: Yeah. I'm finished. I'm ready. I'm ready.

[Court]: Are you presently under the influence of any alcohol, drugs, anything at all that could affect your understanding of what's happening right now?

[Defendant]: I understand. I'm just trying to step up to the plate and give my kids a good house, and I guess, you know, not have anything.

The judge found that the parties entered into the PSA "because each considers, under all the circumstances, it does represent a reasonable resolution of the differences between them and is in the interest of the children." He thereupon entered judgment incorporating the PSA.

Defendant brought two post-judgment motions. The first, in which he appeared pro se, resulted in an order in December 2005, reducing his alimony and child support obligations because of his change in employment. In 2007, represented by counsel, defendant moved to correct clerical errors in the December 2005 order. Counsel also argued that defendant's support obligations in the PSA were "very onerous" and asked the judge to "arrive at . . . a fair and equitable alimony award." The judge denied that motion in an order entered in January 2008. Neither of these motions sought to vacate the PSA based on a claim of diminished mental capacity.

On January 5, 2009, defendant filed his motion to vacate the PSA. He certified that "for years prior to [the] divorce," he "had . . . been addicted to Oxycontin and Perchocet [sic]." He claimed that plaintiff "had actual knowledge [that he] was an alcoholic and . . . addicted to Oxycontin at the time when the [f]inal [j]udgment of [d]ivorce was entered." He further certified:

On the day I went to [c]ourt my universe was literally floating before me as I fortified myself for the experience by drinking [v]odka combined with Oxycontin. I have never read the [PSA], I was sure the kids were getting the house, and I wasn't concerned with the details. I understood I was getting divorced, I signed my name and left, with absolutely no assets except the clothing on my back, not even medical insurance, or more than pocket money.

Defendant submitted a report by Charles Goodstein, M.D., a psychiatrist, whose first contact with defendant was in "the spring of 2008." In addition to interviewing defendant, Goodstein reviewed records "related to . . . [defendant's] [(1)] hospitalizations and admissions f[or] rehabilitation between 2003 and 2005, . . . [(2)] encounters with police in 2004, [and (3)] pharmacy-filled prescriptions"; he also reviewed "the court decision [sic] regarding the [parties'] divorce."

In his interview, defendant reported that he began using cocaine in "the late 1980's" but then "turned to alcohol . . . consumption . . . of a much higher level than he had consumed in his previous life. . . ." Notwithstanding this "history of alcohol usage, [defendant] earned as much as $350,000 a year and regarded himself as happy." In 2000, the "technology bubble, from which [defendant] and others had benefitted [sic], burst . . . . [Defendant] responded to his economic woes by becoming depressed and began drinking more. . . ."

Defendant "described a state of apathy, hopelessness, and depression, fueled by the family disintegration but worsened by the chemical abuse." He told Goodstein that he "looks back at the divorce with a state of disbelief. Recounting that he is a person who made his living by working with numbers, he can't comprehend how he could have agreed to financial components which have made his life very difficult."

Goodstein noted that "[b]y the time [he] saw [defendant] for the first time" in 2008, "he had been sober since November 2005." Although the doctor could not "give a first hand report of [defendant's] psychological condition on the day of the divorce[,]" he opined that if defendant had been abusing Oxycontin "in and around . . . the time of his divorce trial, he would not be in a suitable position to contribute to putting forth his positions." Goodstein concluded:

Therefore, while I interviewed a psychologically intact [defendant] in 2008, I believe that one can say with a reasonable degree of medical certainty that the man who had established a diminished level of competence prior to and following his divorce, had a diminished level of competence at[] the time of the divorce trial.

Defendant also submitted a certification from Susan Zuidema, whom he began dating in November 2004. Zuidema described defendant's alcohol and Oxycontin abuse and her efforts to have him seek treatment. They lived together at the time of defendant's divorce hearing, and Zuidema asserted that "[w]hen [defendant] went to [c]ourt on April 27, 2005, he was 'higher than a kite' in a windstorm." In May 2005, she drove defendant to St. Clare's Hospital to enter a detoxification program; he stayed "for the minimum number of days" and then "signed himself out . . . against medical advice." As of the time of her certification, however, defendant had "finally become clean and sober."

Plaintiff filed a motion opposing defendant's request. Plaintiff certified that defendant "always had an alcohol dependency" during the marriage and that "did not stop him from going to work and making $350,000 per year." She further asserted that she "went over" the PSA with defendant "before [she] typed it up. . . . [They] spoke before [they] entered the court room [sic] and he was not 'higher than a kite.'" Plaintiff added that "[t]he week prior to . . . signing the [PSA], [defendant] went over it several times and even with [Zuidema]." She also certified that defendant "is currently working for an [i]nsurance [c]ompany and is still producing and making money."

The same judge who presided over the parties' divorce hearing in 2005, as well as defendant's two prior motions, heard oral argument on April 3, 2009. Defendant asserted that the provision in the parties' PSA calling for him to have supervised parenting time with the children should have alerted the judge to the fact that he "had a drug problem." The judge responded: "[W]hen you impose . . . knowledge on a [c]ourt you have to establish why . . . . I had no idea he was on drugs. I had no idea he had ever been on drugs."

Defendant further argued that the record demonstrated his lack of capacity to sign and agree to the PSA on April 27, 2005, pointing specifically to Dr. Goodstein's report. The judge stated, however, that he could not "reach that conclusion[,]" and characterized Goodstein's opinion as "speculation[,]" noting that the doctor "rel[ied] to a large degree upon information provided by [defendant]." To the extent that Zuidema's certification described defendant's hospitalizations, the judge deemed her information "hearsay."

The judge rendered a decision from the bench. In rejecting defendant's contentions, the judge noted that defendant had been to court on prior occasions since entry of the divorce judgment and "had many chances to raise" these issues; he did not do so, however, until a psychiatrist told him "that there's a valid theory here." Noting further that defendant had entered "a substantial period of sobriety" since the divorce hearing, as set forth in Goodstein's report, the judge questioned why defendant had not "come back to [c]ourt" to claim that he had "made a mistake" in entering into the PSA during that period.

The judge then reviewed the transcript of the April 27, 2005 settlement hearing. He reiterated that it was "not [his] impression" that defendant was under the influence of drugs and alcohol at the hearing, adding that he "would not have proceeded that day" otherwise. The judge found "telling significance" in the fact that defendant had been back in court on two occasions and had prevailed on his first application when he appeared pro se. The judge concluded that defendant had failed to "establish[] evidence that he was not competent" at the settlement hearing, and denied the motion.

On October 16, 2009, while this appeal was pending, we entered an order permitting defendant to supplement the record with a certification by an attorney, Mitchell A. Liebowitz, and a May 5, 2009 supplemental report by Goodstein. Liebowitz had represented defendant in three charges of driving while intoxicated, N.J.S.A. 39:4-50, and certified that in 2009 alone defendant had been hospitalized on five separate occasions in connection with mental health and substance dependency issues.

Goodstein stated that "there ha[d] been a significant decline in [defendant's] mental status" since the 2008 evaluation. In his professional opinion, defendant was suffering from "an organic brain disturbance" that "is in all likelihood chronic and resulted from [defendant's] drug and alcohol abuse." He also opined that defendant suffers from bipolar disorder and "does not meet the criteria for competency as set forth in . . . N.J.S.A. 2C:4-4."

On appeal, defendant essentially raises two issues: (1) the judge should have engaged in further questioning of the parties' understanding and acceptance of the terms of their PSA at the April 27, 2005 settlement hearing; and (2) the judge erred in denying his motion to vacate the PSA based on his incapacity to have entered into it. We are satisfied that both of these issues lack sufficient merit to warrant reversal of the judge's decision to uphold the PSA.

Our scope of review of trial judges' fact findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Therefore, an appellate court should "not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal quotation omitted).

Initially, we note that defendant seems to argue that something in the nature of a proof hearing was required at the April 2005 proceeding. However, this proposition and the two cases defendant cites to support it are inapposite. Those cases, Manion v. Manion, 143 N.J. Super. 499 (Ch. Div. 1976), and Lindblad v. Lindblad, 304 N.J. Super. 50, 53 (Ch. Div. 1997), both involved default hearings. In such situations, "oral testimony" is required "to prove the essential elements of a cause of action for divorce" before judgment may be entered. Manion, supra, 143 N.J. Super at 503.

Here, no default had been entered; both parties appeared and testified under oath as to the terms of their PSA. The judge questioned each of them as to their understanding of those terms and whether they voluntarily accepted them as fair and equitable under the circumstances. That is the proper scope of inquiry in a settlement hearing. The judge has no obligation to assume the role of "advocate" for either party and scrutinize terms the judge feels may be disadvantageous to one or the other. See Capuzzo v. Capuzzo, 244 N.J. Super. 317, 319 n.1 (App. Div. 1990).

The parties' divorce judgment expressly stated that the PSA was entered "with the understanding that the [c]ourt took no testimony as to the merits of the settlement and makes no judgment with respect to it, except that the parties entered into it freely and voluntarily." Incorporation of PSA's into divorce judgments on these terms is "the usual procedure." 1 Gary N. Skoloff & Laurence J. Cutler, New Jersey Family Law Practice 1.9 at 331-33 (12th ed. 2006).

Defendant asserts that there should be "mandatory disclosure" of circumstances potentially impacting upon the parties' capacity to enter the PSA. We are satisfied that the judge's questions as to whether each party is thinking clearly and if either is under the influence of alcohol, drugs or any other substance that might impair his/her ability to think clearly and act voluntarily, satisfy this requirement.

In sum, we find no error in the judge's denial of defendant's motion to vacate the PSA. Based on the record before him, the judge had no compelling evidence to justify such relief. As the judge noted, defendant filed two post-judgment motions, in 2005 and 2007, without raising this claim. Suddenly, in 2009 defendant claimed that he lacked capacity to understand and voluntarily enter the PSA in 2005, based upon a psychiatric evaluation conducted in 2008.

Defendant asserts for the first time on appeal that he is entitled to relief under Rule 4:50-1(f). Under that Rule, "the court may relieve a party . . . from a final judgment for . . . any . . . reason justifying relief from the operation of the judgment. . . ." "Relief under Rule 4:50-1(f) depends on the totality of the circumstances. The movant in such cases normally must show that the circumstances are exceptional and that enforcement of the . . . judgment would be unjust, oppressive, or inequitable." Piscitelli v. Classic Residence by Hyatt, 408 N.J. Super. 83, 102-03 (App. Div. 2009) (citations omitted).

Defendant contends it would be "unjust, oppressive or inequitable" to enforce the PSA because of his history of substance abuse and lack of employment. The question before the trial judge, however, was whether defendant lacked capacity to enter into the PSA knowingly and voluntarily in April 2005. The judge determined that defendant had failed to establish that he lacked such capacity, on grounds of either mental illness or intoxication, at that time.

Defendant urges us to consider Dr. Goodstein's supplemental report as evidence of his incapacity. That report, however, renders no opinion, to a reasonable degree of medical certainty, as to defendant's mental capacity in 2005; rather, it states the doctor's 2009 diagnosis of "an organic brain disturbance."

The record before the judge in April 2009 contained "adequate, substantial, credible evidence," Cesare, supra, 154 N.J. at 412, to support his finding that defendant failed to establish a lack of mental capacity, through use of alcohol and Oxycontin, at the April 27, 2005 settlement hearing.

Neither Leibowitz's certification nor Goodstein's 2009 report was before the trial judge. They provide no basis to warrant "second guessing" the judge's decision.

Defendant's remaining contentions "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).

Affirmed.