KATHLEEN L. RHODY v. JOHN F. RHODY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1822-06T51822-06T5

KATHLEEN L. RHODY,

Plaintiff-Appellant,

v.

JOHN F. RHODY,

Defendant-Respondent.

______________________________________________________________

 

Submitted October 15, 2007 - Decided

Before Judges Graves and Alvarez.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, Docket No. FM-13-381-02C.

Lawrence W. Saltzman, attorney for appellant.

Lucas & McGoughran, attorneys for respondent

(Timothy F. McGoughran and Denise A. DaPrile,

on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Kathleen Rhody appeals from two orders; an order dated October 20, 2006, denying her motion to change venue, and a subsequent order dated November 16, 2006, denying her motion to vacate the terms of the judgment of divorce (JOD) relating to "equitable distribution, alimony, child support and attorney's fees and costs and all post[-]judgment [o]rders related to said issues." After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

Plaintiff and defendant, John Rhody, were married on May 16, 1987. They have two children--a daughter who is now nineteen years old, and a son who is seventeen. Plaintiff filed her complaint for divorce in Monmouth County. After their divorce trial began in June 2004, the parties successfully resolved their differences in mediation, and their JOD, dated September 23, 2004, incorporated a twenty-four-page property settlement agreement (PSA). As noted on the second page of their PSA, the parties "each had independent advice of counsel of their own choosing," and they entered into the PSA "voluntarily, and with full knowledge of the income and property of each other."

On appeal, plaintiff presents the following issues:

POINT I

DID THE COURT ERR IN DENYING PLAINTIFF'S MOTION TO TRANSFER VENUE FROM MONMOUTH COUNTY?

POINT II

DID THE COURT ERR IN DENYING PLAINTIFF'S MOTION TO VACATE THE OPERATIONAL PROVISIONS OF EQUITABLE DISTRIBUTION, ALIMONY, CHILD SUPPORT, ATTORNEY'S FEES AND COSTS BASED UPON THE FRAUD COMMITTED BY DEFENDANT?

In a certification dated September 8, 2006, submitted in support of her motion to change venue "for all subsequent proceedings," plaintiff certified:

31. I intend to file a motion for post-judgment relief and the relief sought is related to the former marital residence, defendant's income and other assets.

32. Based upon the foregoing, I have a substantial doubt that a fair and impartial hearing can be had if my subsequent proceedings continue in Monmouth County.

33. Specifically, defendant had been a member of the Monmouth County and Ocean County Bar for many years and is probably familiar with many of the Monmouth County [j]udges because he practiced primarily in Family Part for the last several years and had been director of Ocean-Monmouth Legal Services.

34. At least one [j]udge [Judge Kreizman] was familiar with defendant's [postcard] business and this is related to my subsequent proceedings.

35. Defendant's concealed income is related to my subsequent proceedings.

36. Defendant's concealed assets are related to my subsequent proceedings.

37. Defendant's fraudulent financial statements and fraudulent income tax returns are related to my subsequent proceedings.

38. Defendant's credibility is related to my subsequent proceedings.

Following oral argument on October 20, 2006, the court denied plaintiff's motion. The court explained that even if Judge Kreizman was familiar with defendant's postcard activities, any such knowledge would not interfere with plaintiff's ability to "get a fair hearing in the matrimonial side," because Judge Kreizman was assigned to the Criminal Division and would not handle any matrimonial cases.

The court also found that plaintiff had failed to demonstrate a valid reason to transfer the case from Monmouth County to some other county:

And in point of fact, we have now in the [F]amily [D]ivision bench Judge Flynn, who served 10 years as a [j]udge not in Monmouth County but in Essex County. We have other [j]udges that are sitting here, Judge Kilgallen that, when she was in private practice, dealt with boards of education, not in the [F]amily bench and not in the [F]amily [P]art and not dealing with Mr. Rhody and I'm sure that if your client can articulate that a [j]udge has unreasonable familiarity with Mr. Rhody and shouldn't be handling the case, then the application can be made to have that [j]udge recused.

But to suggest that the environment in Monmouth County is such a nature that Ms. Rhody cannot get a fair and impartial hearing across the board, I think, is the quantum leap that the [c]ourt cannot consistent with the rules and the case law make under these circumstances.

A change of venue may be ordered, "if there is a substantial doubt that a fair and impartial trial can be had in the county where venue is laid." R. 4:3-3(a)(2). "Motions for a change of venue . . . are addressed to the sound discretion of the court." State v. Collins, 2 N.J. 406, 411 (1949). In the present matter, we are satisfied the court did not misapply its discretion, and we affirm substantially for the reasons stated by Judge Kapalko on October 20, 2006.

We are also satisfied that the court neither erred nor abused its discretion in denying plaintiff's motion to vacate the provisions of the JOD dealing with equitable distribution, alimony, child support, attorney's fees and costs, and all post-judgment orders relating to those issues based upon fraud allegedly committed by defendant. When property settlement agreements have been knowingly and voluntarily executed by divorcing spouses, they are "entitled to considerable weight with respect to their validity and enforceability." Petersen v. Petersen, 85 N.J. 638, 642 (1981). Although spousal agreements may be avoided on grounds of fraud, duress, or unconscionability, Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992), the party challenging the agreement bears the burden of demonstrating the agreement is unfair and inequitable. Petersen, supra, 85 N.J. at 642.

In support of her motion to vacate portions of the JOD dated September 23, 2004, plaintiff submitted a certification dated September 13, 2006, alleging that: (1) defendant failed to report income from his sale of postcards on his September 15, 2004, Case Information Statement (CIS); (2) although defendant reported a Transamerica annuity valued at $37,029.72 in his September 15, 2004, CIS, he failed to report the liquidation amount of that annuity on his December 29, 2005, CIS; (3) on December 19, 2005, defendant pled guilty to "falsification of records" for not indicating his hobby of "collecting and buying and selling" postcards on a disability insurance application that he filled out "on or about March 26th, 2002"; (4) defendant forged documentation regarding proceeds from the auction of his postcard collection; (5) defendant forged documentation regarding payment for repairs of the marital residence; and (6) defendant violated various pendente lite court orders, which restrained him from selling or disposing of marital assets, prior to the entry of the JOD on September 23, 2004. Although plaintiff raised each of these issues in her initial certification, she summarized her position in her reply to defendant's cross-motion as follows: "The thrust of my Motion is that the Case Information Statement [dated September 15, 2004] upon which I relied in entering into said [Property Settlement] Agreement . . . is fraudulent."

In an oral decision on November 16, 2006, the court noted that, "Rule 4:50-1 provides relief from a final judgment for . . . (a) mistake[,] inadvert[ence], surprise or excusable neglect[,] (b) newly discovered evidence[,] (c) fraud[,] and (f) for any other reason justifying relief from the operation of the judgment or order." Rule 4:50-2 states that for reasons (a), (b), and (c), a motion for relief from an order or judgment must be filed "not more than one year after the judgment, order[,] or proceeding was entered or taken." Section (f) does not have a limitation except that "the application is to be made within a reasonable time."

The court found that plaintiff was not entitled to relief under R. 4:50-1(a), (b) or (c) because her motion was not filed within one year of the JOD as required by R. 4:50-2. Therefore, plaintiff's request for relief was governed by R. 4:50-1(f). After noting Article VII of the PSA authorized plaintiff to closely monitor the auction of the "marital postcards," the court found that plaintiff failed to substantiate her claim of "unreported income" from the auction. The court also concluded that plaintiff failed to demonstrate she was fraudulently induced into signing the PSA, or that "the provisions of the property settlement agreement are either unjust or inequitable."

A motion for relief from a final judgment or order under R. 4:50-1(f) is available "only when truly exceptional circumstances are present and only when the court is presented with a reason not included among any of the reasons subject to the one[-]year limitation." Baumann v. Marinaro, 95 N.J. 380, 395 (1984). In this case, the motion judge's findings are firmly supported by the record and his conclusions predicated on those findings are legally sound. We therefore affirm the order denying plaintiff's motion to vacate the terms of the JOD relating to equitable distribution, alimony, child support, attorney's fees and costs, and all post-judgment orders related to those issues substantially for the reasons stated by Judge Coogan on November 16, 2005. Cesare v. Cesare, 154 N.J. 392, 412-13 (1998).

The orders appealed from are affirmed.

(continued)

(continued)

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A-1822-06T5

November 13, 2007