SHARON BORNSTEIN v. ARTHUR BORNSTEIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3495-10T4

SHARON BORNSTEIN,

Plaintiff-Respondent,

v.

ARTHUR BORNSTEIN,

Defendant-Appellant,

________________________________

May 23, 2012

Argued May 7, 2012 - Decided

Before Judges A. A. Rodr guez, Sabatino, and Ashrafi.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1106-03.

Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Ms. Frost, on the brief).

Respondent has not filed a brief.

PER CURIAM

This matrimonial case returns on appeal following further proceedings in the trial court regarding the application of defendant Arthur Bornstein (the "ex-husband") to reopen the terms of an interspousal agreement incorporated into the parties' 2003 divorce judgment because he allegedly lacked sufficient mental capacity to assent to the terms negotiated by the parties' counsel. After an extensive evidentiary hearing that explored in depth the history of the ex-husband's mental condition, as well as his interactions with his former attorney during the divorce proceedings, the trial court denied the motion to reopen the judgment. We affirm.

We incorporate by reference the facts and procedural history set forth in our 2007 unpublished decision that preceded the trial court proceedings and the current appeal. See Bornsteinv. Bornstein, No. A-3156-05 (App. Div. Aug. 24, 2007). Only a few points bear repeating. The parties were married in 1993 and had no children together. In 1978, long before the marriage, the ex-husband was involved in an accident that caused him permanent cognitive disabilities, and which entitled him to receive Social Security Disability payments. At the time of the divorce proceedings, the ex-husband, although he was licensed as a real estate agent, was not regularly employed. His spouse, plaintiff Sharon Bornstein ("the ex-wife"), was employed and earned about $65,000 annually.

The parties and their respective counsel appeared before the Family Part on November 20, 2003, at which time their agreement was presented for the court's approval. As reflected in the transcript excerpts quoted at length in our prior opinion, see id. at 3-8, the parties were questioned extensively by the judge. They each confirmed their assent to the terms of the agreement, which they acknowledged were fair; their mutual ability to make an informed decision; their denial of being affected by medication or substances that could affect their judgment; and their lack of questions for their respective counsel or the court.1 Pursuant to the agreement, the ex-husband waived a claim for alimony, although he received a $35,000 lump sum in addition to his half-share of the equity in the marital residence.

In 2005, the ex-husband filed a motion pursuant to Rule 4:50-1 seeking to vacate the terms of the divorce judgment and, in particular, to repudiate his alimony waiver. He based his motion upon a claim that he was suffering from ongoing mental impairment at the time of the 2003 divorce proceedings and that he did not understand what he was doing. The ex-husband supported his 2005 motion with letters and reports from several mental health professionals who had evaluated him. The ex-wife opposed the application. The trial court rejected the ex-husband's motion, finding that the ex-husband's brain injury had not markedly changed since his 1978 accident, and that the opinions in the doctors' reports that he lacked sufficient capacity to enter into the divorce in 2003 were speculative. The court further concluded that the substantive terms of the divorce were not inequitable, and that the ex-husband's alimony waiver was a fair quid pro quo in exchange for his receipt of an enhanced sum in equitable distribution.

The ex-husband then appealed, contesting the trial court's denial of his motion to reopen the divorce judgment. We affirmed that decision in our August 24, 2007 opinion, agreeing with the trial court that the ex-husband's medical proofs were inadequate to demonstrate that he lacked sufficient capacity to enter into the interspousal agreement. Bornstein v. Bornstein, supra, slip op. at 10-12. We also sustained the court's finding that the ex-husband had failed to sustain his burden of proving that the terms of the divorce were unconscionable. Id. at 12-13.

Shortly after our opinion was issued, the ex-husband moved for reconsideration. In support of that motion, the ex-husband furnished us with additional mental health records and reports that had not been supplied to the trial court in 2003 nor on the appeal. On September 26, 2007, we issued an order denying reconsideration. That order was without prejudice and specifically stated that defendant could file a renewed motion in the Family Part to seek relief under Rule 4:50-1. Our order also required the ex-husband to justify, in any such proceedings, why the supplemental medical materials had not been previously supplied to the trial court.

Thereafter, defendant filed a motion in the Family Part seeking relief under Rule 4:50-1. The trial court conducted four days of evidentiary hearings in May and August 2010 to further develop the record of the ex-husband's mental condition and to re-examine whether he lacked capacity at the time of the 2003 divorce. The ex-wife participated in those hearings, pro se, and presented the testimony of her former attorney who represented her during the divorce in 2003, and the testimony of her ex-husband's former attorney who had represented him in the divorce proceedings. The ex-husband, represented by new counsel, presented testimony from a neuropsychiatrist, his physician, his sister, and the ex-wife. The ex-husband also testified on his own behalf. The trial court was also supplied with the voluminous mental health records that were thereafter reproduced on appeal for our own consideration.

The gist of the ex-husband's proofs, including the expert testimony of the neuropsychiatrist, is that he lacked the mental capacity in 2003 to appreciate what was occurring in the divorce case and that, had he been more cogent, he would have insisted that his then-attorney negotiate an alimony award. In particular, the neuropsychiatrist opined that the ex-husband's cognitive limitations were of a latent nature, such that he could appear to be cogent to others and not realize that he, in fact, was not fully understanding the import of the negotiations.

The ex-husband's former attorney, however, testified that during his interactions with him in 2003, the ex-husband had been lucid and had behaved as if he understood what was going on. The attorney stated that the ex-husband never advised him that he did not want to go through with the settlement on the negotiated terms, that he did not indicate in any way that he lacked understanding of what was going on in the negotiations, and that he was "extremely actively involved" in the case.

Upon considering the amplified proofs, the trial court again concluded that the ex-husband had not shown an entitlement to relief under Rule 4:50-1(f). In his order dated February 2, 2011, the judge specifically found that the testimony and medical evidence "fail[ed] to overcome the other available evidence of the defendant's overall competence, as well as his knowledge of and participation in the full divorce process, with the advice and assistance of competent counsel." The judge further noted that "[t]he evidence, taken as a whole, conclusively demonstrates that the defendant was capable of understanding the process and intelligently and voluntarily entering into his divorce."

In his oral decision accompanying his order, the judge found that "[i]t's clear to this [c]ourt by clear and convincing evidence that [the ex-husband] understood what was going on and that there is no reason to nullify the agreement or to set aside the judgment of divorce." The judge found particularly significant the prior attorney's description of the substantive interactions that he had with the ex-husband in negotiating the terms of the divorce. The judge also noted that, at the time of the divorce litigation, the ex-husband had an opportunity to consult with his sister. Additionally, the judge observed that the ex-husband was cogent in his testimony during the 2010 remand proceedings and that, in fact, he had "match[ed] the wits" of his ex-wife.

The ex-husband now appeals, contending that the trial court erred in denying him relief under Rule 4:50-1(f). The ex-husband contends that the court improperly used his mental state and courtroom demeanor in 2010 in a retroactive manner. The ex-husband further argues that the judge was biased, and that the terms of the divorce, particularly the alimony waiver, were manifestly unfair.

Having considered these arguments and the copious record, we affirm the trial court's renewed denial of the ex-husband's Rule 4:50-1(f) motion, substantially for the reasons detailed in Judge Terence P. Flynn's extensive oral opinion of February 2, 2011 and his corresponding order of that date. We add only a few remarks.

Judge Flynn painstakingly considered the proofs that were adduced at the four days of evidentiary hearings. The judge rightly recognized that the ex-husband bore a heavy burden under Rule 4:50-1(f) to demonstrate "exceptional circumstances" to set aside the negotiated terms of the divorce that were placed on the record in November 2003. Whether exceptional circumstances are present to obtain relief under the Rule hinges upon the totality of the facts, and is assessed on a case-by-case basis. In reGuardianship of J.N.H., 172 N.J. 440, 473-74 (2002). To obtain relief, the movant must demonstrate that the circumstances are exceptional and that continued enforcement of the judgment would be "unjust, oppressive or inequitable." Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971), superseded by statute onother grounds, Comparative Negligence Act, L. 1987, c. 146, as recognizedin Reichert v. Vegholm, 366 N.J. Super. 209, 224 (App. Div. 2004).

The judge specifically found that the ex-husband's testimony lacked credibility in numerous respects. That credibility assessment warrants our deference. Rova Farms Resort,Inc. v. Investors Ins.Co. of Am., 65 N.J. 474, 483-84 (1974); see also Cesare v.Cesare, 154 N.J. 394, 411-12 (1998). The judge also did not find the testimony of the ex-husband's experts to be persuasive. Even though the unrepresented ex-wife did not present any competing expert testimony, the court, as fact-finder, was not obligated to adopt at face value the opinions of the ex-husband's experts, despite their qualifications. See Brown v.Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). The judge was entitled to accord greater weight to the testimony of the ex-husband's trial counsel, whose recollection of the ex-husband's cogent substantive involvement in the divorce litigation and negotiations was corroborated by contemporaneous letters that the ex-husband had sent his counsel in 2003 that commented upon the substance of the case.

We reject the ex-husband's claim that Judge Flynn gave improper consideration to the ex-husband's courtroom demeanor in 2010 as relevant counter-proof of his alleged lack of capacity in 2003. It is impossible to replicate how the ex-husband actually presented himself in 2003. The judge rightly took into account the ex-husband's present demeanor as circumstantial evidence of his prior condition, and also to the extent that it bore on the credibility of his present sworn assertions.

The ex-husband's contention that the trial judge was biased and showed favoritism to the ex-husband's former counsel lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). The judge reasonably considered the first-hand observations of the former counsel as having substantial probative value in undercutting the ex-husband's claim that he had been too impaired to participate in the divorce negotiations in a meaningful fashion.

Lastly, our conclusion from 2007 that the terms of the divorce were not unconscionable, see Bornstein v.Bornstein, supra, slip op. at 12-13, remains unaltered, even in light of the additional proofs that were tendered on the remand.

Affirmed.

1 Since the parties are well aware of the background, there is no need in this opinion to elaborate upon the history of the ex-husband's mental health condition, diagnoses, or treatment, including the information contained within the fourteen volumes of appendices furnished on this appeal, all of which we have duly considered.