CAROL A. KONICKI-KULESA v. JOHN W. KULESA, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5584-05T25584-05T2

CAROL A. KONICKI-KULESA,

Plaintiff-Respondent,

v.

JOHN W. KULESA, JR.

Defendant-Appellant.

___________________________________________

 

Submitted October 17, 2007 - Decided -

Before Judges Lisa, Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM 10-209-05.

John W. Kulesa, Jr., appellant pro se.

Carol A. Konicki-Kulesa, respondent pro se.

PER CURIAM

In this matrimonial matter, defendant John W. Kulesa, Jr. appeals from the order of June 20, 2006, denying his motion to vacate an Amended Final Judgment of Divorce entered April 21, 2006, which incorporated a property settlement agreement placed on the record.

I

Prior to the parties' marriage on August 2, 1997, plaintiff had accumulated significant pre-marital assets. During the marriage, plaintiff was the primary wage earner. No children were born of the marriage. Plaintiff filed a Complaint for Divorce on January 12, 2005. The trial began on October 24, 2005, before Judge Stephen B. Rubin. Both parties were represented by counsel at the trial.

Prior to the trial's conclusion, the parties reached a settlement on all issues, which they placed on the record. Pertinent to this appeal is the parties' agreement to equally divide all marital assets based on their value as of October 31, 2005. To confirm the value of some of those assets, plaintiff agreed to provide monthly account statements to defendant.

After the settlement agreement was read into the record, Judge Rubin questioned the parties. Defendant acknowledged he understood it, entered into it freely and voluntarily, believed it was fair and equitable under all the circumstances, and was satisfied with his attorney's representation. When the judge asked defendant if he had full knowledge of plaintiff's financial status, he replied, "I believe so," and agreed his knowledge was sufficient to allow him to proceed. Defendant agreed to be bound by the settlement agreement and indicated he understood that as a result of having entered into it, he waived his right to complete the trial. The judge signed a Judgment of Divorce on October 25, 2005. He indicated he would sign an amended Judgment of Divorce on a later date, which would incorporate the settlement terms placed on the record.

On November 30, 2005, defendant filed a motion to enforce the settlement, claiming plaintiff failed to provide the monthly statements. Prior to the determination of the motion, defendant's attorney advised the judge he had received the monthly statements. Counsel also represented that:

[Defendant] submitted that documentation to an accounting expert. Within 30 days, he will have a report which we will forward to [plaintiff's counsel]. And that report will say that our valuation estimate as per the investments is X, Y, or Z. And if there's any holes or gaps or pieces that are missing, please provide this documentation. If not, we can make the division of those assets.

As a result, the judge denied the motion as moot, noting that plaintiff had attached the monthly statements to her reply to the motion, and defendant admitted receiving them. The judge also denied defendant's request to: (1) share in any increase in the value of the marital assets from October 31, 2005, to November 30, 2005; and (2) compel plaintiff to disclose the value of her pension because the settlement provided that the parties would retain their respective pensions.

Defendant filed a motion on March 17, 2006, for an order directing plaintiff's attorney to supply a trial exhibit that listed the marital assets, and entering the form of Amended Judgment of Divorce provided by defendant. The judge denied the motion because "[t]he documentation requested relat[ed] to an issue decided in the previous motion," and "the form of Amended Judgment as provided by Defendant . . . attempts to relitigate issues which have already been settled through submission of the Amended Judgment of Divorce." On April 21, 2006, the judge entered an Amended Final Judgment of Divorce, incorporating the settlement placed on the record.

On May 26, 2007, defendant filed a motion to vacate the April 21, 2006, Amended Final Judgment of Divorce. He argued, "there was to be an accounting with bank statements and account statements verifying" what marital assets the parties would receive. Relying on Wertlake v. Wertlake, 137 N.J. Super. 476, 482 (App. Div. 1975), the judge denied the motion because defendant failed to "follow through" with his promise to have an accounting expert analyze the monthly statements plaintiff provided to "determine if adjustments needed to be made to the Judgment of Divorce," and that "[d]efendant present[ed] no evidence of fraud or misrepresentations." This appeal followed.

We reject these arguments and affirm.

II

Defendant contends Judge Rubin should have vacated the Amended Final Judgment of Divorce incorporating the settlement agreement because he was "seriously disadvantaged by the fatal lack of specificity regarding the marital property," and there was "too much financial information missing." Defendant received monthly statements setting forth the value of the marital assets, which he submitted to his accounting expert. However, he failed to have the expert analyze the information provided to determine if adjustments should be made to the settlement agreement.

The party seeking to set aside a property settlement agreement has the burden to prove fraud or falsehood. Wertlake, supra, 137 N.J. Super. at 482. There is a strong public policy favoring settlement of litigation. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Clear and convincing proof that the "'agreement [was] achieved through coercion, deception, fraud, undue pressure . . . or if one party was not competent to voluntarily consent [to the agreement],'" must be shown before a court will vacate a settlement. Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005); Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.), certif. denied, 137 N.J. 165 (1994). Defendant presented no evidence the settlement agreement was procured by fraud or falsehood, or that its enforcement would work an injustice or hardship on him.

III

Defendant next contends Judge Rubin failed to follow the three-step process outlined in Rothman v. Rothman, 65 N.J. 219, 232 (1974). This argument is without merit. The three-step proceeding only applies in cases where the judge makes an equitable distribution of marital assets, not where, as here, the parties have done so in a settlement agreement. Ibid.

IV

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

Affirmed.

 

Respondent is referred to as John W. Kulesa in the lower court. Both briefs and the transcripts refer to him as John W. Kulesa, Jr.

Plaintiff's cause of action for divorce is based, in part, on allegations of extreme cruelty stemming from defendant's lack of employment during the marriage.

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A-5584-05T2

December 14, 2007