ANTHONY DISALVATORE v. DOREEN DISALVATORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0180-10T2

ANTHONY DISALVATORE,

Plaintiff,

v.

DOREEN DISALVATORE,

Defendant-Respondent.

___________________________

IN THE MATTER OF THOMAS J. FORKIN, ESQ.,

Appellant.

___________________________

December 30, 2011

Argued December 20, 2011 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1010-99.

Thomas J. Forkin, appellant pro se.

James R. Ozol argued the cause for respondent Doreen DiSalvatore.

PER CURIAM

Appellant Thomas J. Forkin appeals from the July 30, 2010 Law Division order, which denied his motion pursuant to Rule 4:50-1(f) to set aside a final judgment of divorce entered on October 17, 2000, and an amended final judgment of divorce entered on November 13, 2000.1 We affirm.

Forkin represented plaintiff Anthony DiSalvatore in a matrimonial matter. He and defense counsel met with the court on September 21, 2000, and agreed to the terms of a settlement, which apparently included the equal division of the proceeds of plaintiff's stock arbitration award with defendant Doreen DiSalvatore. The parties placed the settlement terms on the record on September 22, 2000. Although Forkin initially disagreed with a division of the arbitration award, it was nevertheless included in the settlement without any further objection. Plaintiff acknowledged, under oath, that he heard and understood all of the terms of the settlement, believed they were fair and equitable under the circumstances, had no questions about them, and had urged Forkin to settle the case.

Following the settlement, Forkin submitted a proposed judgment of divorce, which did not include the equal division of the arbitration award. By letter to the court dated October 6, 2000, defense counsel2 objected to Forkin's proposed judgment of divorce, and submitted a proposed judgment of divorce, which included the equal division of the arbitration award. Defense counsel apparently did not send Forkin a copy of this letter and the proposed judgment of divorce. However, he sent a second letter and his proposed judgment of divorce to the court and Forkin on October 6, 2000. This letter states as follows:

Enclosed herewith please find original and two copies of Final Judgment of Divorce in the above-entitled matter.

I am forwarding a copy of same to my adversary under the Five Day Rule and would ask if no objection is received thereto, kindly affix your signature to same, file and return two certified copies to me in the envelopes provided.

Forkin claimed that he did not receive this letter. On October 17, 2000, the court entered defense counsel's proposed judgment of divorce (JOD).

Defense counsel sent a third letter and a proposed amended JOD to the court and Forkin on October 30, 2000. This letter states as follows:

Enclosed herewith please find original and two copies of Amended Final Judgment of Divorce in the above-entitled matter.

I am forwarding a copy of same under the Five Day Rule to my adversary and would ask if no objection is received thereto, kindly affix your signature to same, file and return two certified copies to me in the envelopes provided.

Forkin claimed that he did not receive this letter as well. The court entered the proposed amended judgment of divorce on November 13, 2000 (AJOD). The AJOD also includes the equal division of the arbitration award.

In February 2001, Forkin received the proceeds from the arbitration award, paid plaintiff his fifty percent share, and misappropriated defendant's share. As a result, a complaint was filed with the Office of Attorney Ethics and a claim was filed with the New Jersey Lawyer's Fund for Client Protection (NJLFCP). Our Supreme Court suspended Forkin for three months, effective May 29, 2001, concurrent to a one-year period of suspension imposed in two unrelated disciplinary matters,3 for violating RPC 1.15(b) (failure to promptly notify a client or third person of the receipt of funds and promptly deliver the funds to the person entitled to receive them), RPC 1.15(d) (recordkeeping violations), RPC 8.1(a) (false statement of material fact in connection with a disciplinary matter), and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). In re Forkin, 168 N.J. 167 (2001).4

On May 22, 2001, defendant filed a motion to enforce the AJOD, and included the JOD and AJOD in her motion papers. Forkin filed opposition to the motion on July 5, 2001, and specifically referenced the AJOD. By order entered on July 13, 2001, the court granted the motion and compelled Forkin and/or plaintiff to turn over defendant's share of the arbitration award "forthwith." Forkin admitted at oral argument of his motion to set aside the AJOD that he received a copy of the July 13, 2001 order in 2001. He did not appeal from that order, or take any other action at that time with respect to the AJOD.

In a September 27, 2002 letter to the NJLFCP, Forkin argued that he did not receive defense counsel's proposed AJOD in October 2000, and did not intentionally misappropriate defendant's funds. However, he had gone to the courthouse

to retrieve a copy of the [AJOD] and review the court file to discover other documents and correspondence which I did [not] receive, more specifically the October 6, [2000] cover letter from [defense counsel] to [t]he [c]ourt, with the order to which I am not "cc'd". In the presence of a secretary I reviewed the file and had [made] copies of the missing/needed documents.

He also argued that the AJOD should not have included an equal division of the arbitration award because the award was not a marital asset subject to equitable distribution. In addition, by December 2004, Forkin had obtained a transcript of the September 22, 2000 proceeding, and an expert's report relating to the ethics complaint.

In 2006, the Court disbarred Forkin in connection with this matter

for unethical conduct, including the knowing misappropriation of escrow funds, in violation of In re Hollendonner, 102 N.J. 21, 26-27, . . . (1985), RPC 1.15(a) and (b) (failure to safeguard funds), RPC 3.4(c) (knowingly disobeying an obligation of the rules of a tribunal), and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation)[.]

[In re Forkin, 186 N.J. 70 (2006).]

It was not until February 2009 that Forkin filed a motion pursuant to Rule 4:50-1(f) to vacate the AJOD based on defense counsel's alleged misrepresentation and fraud, and exceptional circumstances. He argued that he did not know about the AJOD until 2005; however, he admitted at oral argument that he knew about it in July 2001, as it had been attached to defendant's motion to enforce, and that he "came into possession" of the AJOD in 2002. Plaintiff submitted a certification in opposition to the motion, stating that from the date this matter concluded on September 22, 2000, "there was never any question in my mind that the stock arbitration award set forth in the . . . [AJOD] was to be divided 50/50 between my ex-wife and myself. That was my understanding of our settlement."

Judge Franklin rendered a written opinion on July 30, 2010 denying the motion. He found that Forkin received and reviewed the AJOD no later than July 5, 2001, had possession of the AJOD no later than September 22, 2002, and had the transcript of the September 22, 2000 proceeding and an expert's report by December 2004. Accordingly, the judge concluded that Rule 4:50-2 barred Forkin's claims of fraud, mistake and inadvertence under Rule 4:50-1(a) and (c) because Forkin made them over one year after the AJOD's entry, and under Rule 4:50-1(f) because Forking did not make the claims within a reasonable time.

Addressing the merits, Judge Franklin found that it was "clear from the record" that the parties had reached a settlement on September 22, 2000, which included an equal division of the arbitration award. The judge emphasized that after the arbitration provision was placed on the record, "there was never any objection or challenge throughout the remainder of the . . . proceeding[,]" and plaintiff acknowledged on the record that he had heard all of the settlement terms, understood them, believed they were fair and equitable under the circumstances, had no questions about them, and had urged Forkin to settle the matter. The judge also emphasized that plaintiff certified that the settlement included the equal division of the arbitration award. This appeal followed.

On appeal, Forkin contends that he is entitled to relief pursuant to Rule 4:50-1(f) based on misrepresentation, fraud and exceptional circumstances, and the claims are not time-barred by Rule 4:50-2. He misrepresents in his merits brief that he had no actual knowledge of these claims until 2005, and argues that the exceptional circumstances were his inability to appear in July 2001 at oral argument on defendant's motion to enforce due to his disability, rehabilitation and suspension, and the July 13, 2001 order created an adversarial relationship between him and plaintiff. He also contends that the judge failed to consider the lack of consent to the equal division of the arbitration award in the settlement, the impact of the July 13, 2001 order, and plaintiff's credibility and self-serving certification.

We have considered Forkin's contentions in light of the record and applicable legal principles and conclude they have no merit whatsoever to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Franklin in his well-reasoned written opinion rendered on July 30, 2010, which are amply supported by the record. However, we make the following brief comments.

The time within which relief from a judgment or order pursuant to Rule 4:50-1(d), (e) and (f) must be made is within a reasonable time, and for reasons (a), (b) and (c) not more than one year after the judgment or order was entered. R. 4:50-2. The timeliness of an application under Rule 4:50-1(f) is measured by when the party adversely affected by the judgment or order was served, or had actual knowledge of the judgment or order. Farrell v. TCI of N. N.J., 378 N.J. Super. 341, 353-54 (App. Div. 2005). In July 2001, and no later than September 2002, Forkin had actual knowledge of the JOD, AJOD, and July 13, 2001 order. He has presented no circumstances, let alone exceptional circumstances, that would excuse his manifestly unreasonable delay in seeking relief.

1 Forkin erroneously refers to the amended final judgment of divorce as an "amended consent order."

2 Defense counsel is deceased.

3 The Court previously suspended Forkin for multiple acts of unethical conduct in a number of matters, including violations of RPC 1.1(a) (gross neglect), RPC 1.1(b) (pattern of neglect), RPC 1.5 (failure to return unearned fee), RPC 1.14 (failure to communicate with client), RPC 1.16 (improper termination of representation), RPC 3.3(a)(1) (false statement of material fact to a tribunal), RPC 7.5(a)(1) (false or misleading letterhead), RPC 8.1(a) (false statement of law or fact to disciplinary authorities), RPC 8.4(c) (dishonesty, fraud, deceit or misrepresentation), and RPC 5.5(a) and Rule 1:26 (practicing law while ineligible). In re Forkin, 167 N.J. 154 (2001).

4 On July 24, 2002, the Court restored Forkin to the practice of law under the supervision of a practicing attorney for a period of two years. In re Forkin, 173 N.J. 390 (2002).