DANIEL JUNIOR v. CHRISTINE DEZAO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANIEL JUNIOR,

Plaintiff-Appellant,

v.

CHRISTINE DEZAO,

f/k/a CHRISTINE JUNIOR,

Defendant-Respondent.

__________________________________________________

January 16, 2014

Telephonically argued January 8, 2013 Decided

 

Before Judges Messano and Hayden.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1579-08.

 

Eric S. Solotoff argued the cause for appellant (Fox Rothschild, L.L.P., attorneys; Mr. Solotoff and Robert A. Epstein, on the brief).

 

C. William Bowkley, Jr. argued the cause for respondent.

 

PER CURIAM

Plaintiff Daniel Junior and defendant Christine Dezao were married in 2001, had a child in 2005 and divorced in 2010. The final judgment of divorce incorporated a property settlement agreement (PSA) executed by the parties the same day. In February 2012, plaintiff filed a pro se motion seeking a decrease in alimony based upon changed financial circumstances. Defendant responded with a cross-motion, opposing any reduction and seeking other relief, including that plaintiff be ordered to pay his support and alimony obligations or be remanded to the county jail, and that he produce proof of compliance with the PSA's life insurance provision.

Defendant cited the PSA's anti-Lepis1 provision:

[T]he Husband represents to the wife that he understands that pursuant to the law of New Jersey as embodied in Lepis . . ., alimony and support may be revised and altered by the Court from time to time as circumstances may require. However, . . . the Husband hereby waives, now and forever, the right to make such a request for modification based upon such a change in circumstances or to seek alimony and support based upon such a change.

With regard to plaintiff's life insurance obligations, the PSA provided:

Husband will maintain a $350,000 policy for the benefit of the child naming the Wife as trustee. Wife will maintain a $150,000 policy for the benefit of the child naming the Husband as trustee. The parties are to obtain these policies within 90 days of the signing of this document. The parties will provide proof to the other on the first of each year that the policies are current and in place. Said policies are to be in effect until the child either graduates from a college, other secondary school or is deemed by a court to be emancipated. The parties agree that due to pre-existing conditions to each of them, that it may be difficult for either or both of them to obtain the proper amount of coverage as indicated above. Each party agrees to make all reasonable efforts to obtain the life insurance as indicated above and have agreed to pay above market rates as long as said rates are reasonable under the circumstances.

 

Plaintiff filed a reply certification, in which he claimed he had "been paying every month but [his] income [did] not justify the amount" he was required to pay. He further asserted that he was unable to obtain the required life insurance because he was a "Type I diabetic." He supplied a letter from a life insurance company, dated July 2010, which indicated without explanation that it was "unable to issue [him] a policy."

The judge entered an order dated April 4, 2012 (the April 4 order), denying plaintiff's request for a downward modification of his alimony obligations. The order also provided "that a one-missed-payment warrant provision shall be added to [p]laintiff's [p]robation account," and only a "full payment constitute[d] compliance." The order further required plaintiff to "obtain life insurance in the amount of $350,000[] within thirty . . . days . . . and provide proof of same to [d]efendant within seven . . . days thereafter."

In his written statement of reasons attached to the order, the judge concluded that plaintiff failed to "present[] a prima facie case of changed circumstances and, even if he did, the PSA contains an anti-Lepis clause . . . ." The judge noted that plaintiff was $22,321.66 in arrears on his child support and alimony obligations and had never made a full payment. Finally, the judge observed that plaintiff did not deny he failed to obtain life insurance and, pursuant to the PSA, he was obliged to make "all reasonable efforts" to obtain the insurance and "agreed to pay above-market rates as long as said rates [were] reasonable under the circumstances."

After retaining counsel, plaintiff filed a motion for reconsideration pursuant to Rule 4:49-2. Plaintiff reiterated that he was entitled to modification based upon changed financial circumstances. Plaintiff also asked the judge to reconsider "based on the fact that [he] provided proof . . . he [was] uninsurable[,]" and he sought reformation of the PSA which was the product of "mutual mistake . . . due to [plaintiff's] lack of insurability." In his supporting certification, plaintiff alleged that the judge "ignored [his] indication and underlying evidence" regarding the unavailability of life insurance because he was a diabetic. Plaintiff attached the same July 2010 denial letter.

He also certified that he made an effort to procure insurance since the April 4 order, and attached a copy of an application, apparently made to the same company, dated April 19, 2012. Plaintiff certified that he had not received an answer as of the date of his certification. Finally, plaintiff asked the judge to reconsider and "even modify the PSA as to me, since I acknowledge that I am required to provide security for alimony and child support, but am simply unable to do so by way of a life insurance policy."

In her opposition, defendant noted plaintiff failed to demonstrate that he could not procure the required life insurance policy because he was "uninsurable," or that he had made "reasonable efforts." Defendant also argued that there should be no reformation of the PSA based upon "mutual mistake" unless and until plaintiff actually demonstrated he could not obtain the policy. She noted that plaintiff's initial Case Information Statement filed "incident to the divorce proceedings" showed he already owned a $240,000 life insurance policy with another company.

Plaintiff filed a reply on May 24, 2012. He attached a letter from the insurance company dated May 15, 2012, denying his application based upon his medical history and information contained in medical reports and lab results. He also stated that the prior life insurance policy "ceased to exist" before the divorce "because the premium was unaffordable in light of [his] condition."

After considering oral arguments on July 13, the judge entered an order dated August 17, that generally denied plaintiff's motion for reconsideration, including reconsideration of the one-missed-payment bench warrant provision. However, the judge modified the provisions of his April 4 order regarding plaintiff's life insurance obligations:

Plaintiff shall provide a form of security in the amount of $350,000[] that shall be subject to the same conditions as that of the life insurance within thirty . . . days of this Order. If he cannot do so, he shall obtain life insurance in accordance with the PSA within thirty . . . days thereafter . . . .

Plaintiff filed his notice of appeal on October 1, 2012, seeking review of only the August 17, 2012 order.2 We limit our review to that order. See W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review.").

Plaintiff contends that the judge erred by failing to reconsider the one-missed payment provision in the April 4 order. He also contends the judge improperly modified the provisions of the PSA regarding his life insurance obligations. Plaintiff contends that, in each instance, the judge's decisions were unsupported by the record evidence and contrary to law. We have considered these arguments and affirm.

Motions for reconsideration are addressed to "'the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is to be utilized narrowly, and reserved for situations where the court relied "'on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005). (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, Comment 2 on R. 4:49-2 (2005)); and see Fusco v. Board of Ed., 349 N.J. Super. 455, 462 (App. Div.) (noting "'[r]econsideration should be used only for those cases which fall into that narrow corridor'" where "'the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or . . . the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence'") (quoting D'Atria, supra, 242 N.J. Super. at 401), certif. denied, 174 N.J. 544 (2002).

The judge's decision not to reconsider the one-missed payment provision of the April 4 order was not error. Plaintiff contends that the judge failed to consider his efforts to make the required payments and "the oppressive and unconscionable impact upon him of the anti-Lepis language" in the PSA. Plaintiff also claims the judge failed to make adequate findings as required by Rule 1:7-4(a), and that the order denied him due process.

We agree with defendant that the first argument is a thinly-veiled attempt to re-litigate the original motion plaintiff filed seeking modification of the PSA's alimony provisions. There was nothing in the reconsideration motion that causes us to conclude the judge mistakenly exercised his discretion by refusing to reconsider and modify the April 4 order in this regard.

We also conclude that the one-missed payment provision is explicitly permitted by Rule 5:3-7(b)(7) and (8), which provides that, "in addition to remedies provided by [Rule] 1:10-3," the judge may, upon "finding that a party has violated an alimony or child support order . . . issu[e] a warrant to be executed upon the further violation of the judgment or order" and order "any other appropriate equitable remedy." On reconsideration, the judge adequately stated his findings and conclusions for including this provision in the April 4 order, specifically plaintiff's outstanding arrearages and his failure to have ever made a full payment when due.

The one-missed payment provision did not violate plaintiff's due process rights. We acknowledge that a party's failure to pay support shall only result in incarceration "if such failure is willful, given his then-existing means." Morris v. Morris, 263 N.J. Super. 237, 244 (App. Div. 1993). And, prior to incarceration, a party is entitled to a due process hearing. Saltzman v. Saltzman, 290 N.J. Super. 117, 123 (App. Div. 1996). The party is entitled to be represented at the hearing, and if indigent, counsel must be appointed. Pasqua v. Council, 186 N.J. 127, 146 (2006).

However, the April 4 order did not require plaintiff's incarceration without a hearing. It only provided for plaintiff's arrest in the event he missed another payment in full. If that contingency were to occur, we have no doubt that plaintiff would be entitled to the full panoply of due process rights required by the precedent cited. Plaintiff's motion for reconsideration failed to provide any basis to modify or vacate the April 4 order in this regard, and the judge did not mistakenly exercise his discretion by denying the request.3

Next, plaintiff contends that the judge erred in both enforcing and modifying the PSA's life insurance requirements. He claims the April 4 order, which directed plaintiff to procure life insurance within thirty days, impermissibly "transformed a permissive obligation into a mandatory obligation that was and remains impossible to perform." He also contends that the judge's improper modification of the PSA's terms continued upon reconsideration, since the judge ordered that he could replace the insurance policy with some other form of security without regard to his ability to pay for this alternate security. Alternatively, plaintiff contends the life insurance provision was the product of "mutual mistake."

Defendant counters by arguing that the judge correctly decided to enforce the PSA's provisions because plaintiff failed to demonstrate reasonable efforts expended to obtain a policy, much less that it was impossible to procure. Defendant also contends there was no mutual mistake regarding the PSA's terms, noting that the agreement itself recognized plaintiff's pre-existing medical condition and the potential need to pay above market rates.

As noted, we only consider whether the judge mistakenly exercised his discretion in deciding plaintiff's reconsideration motion. As the Court most recently explained in another context:

New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies. Courts recognize the contractual nature of those matrimonial agreements. As contracts, PSAs should be enforced according to the original intent of the parties. Therefore, as a general rule, absen[t] . . . unconscionability, fraud, or overreaching in negotiations of the settlement, a trial court has no legal or equitable basis . . . to reform the parties' property settlement agreement.

 

. . . .

 

When a party to a comprehensive negotiated PSA seeks to modify any support obligation, that party must meet the threshold standard of changed circumstances.

 

. . . .

 

Changed circumstances are not confined to events unknown or unanticipated at the time of the agreement. On the other hand, care must be taken not to upset the reasonable expectations of the parties. When a PSA addresses the changed circumstance, modification of the PSA may not be equitable or fair. . . .

 

[J.B. v. W.B., 215 N.J. 305, 326-27 (2013) (alteration in original) (emphasis added) (citations and internal quotations omitted).]

 

As to the negotiated terms contained in the PSA, the motion for reconsideration provided virtually nothing new. Indeed, plaintiff initially supplied only the same July 2010 rejection letter and indicated that he had recently applied again to the same company and was awaiting an answer. In his reply certification, plaintiff demonstrated that his second application to the same company had been denied based on his medical condition.

There was no proof that plaintiff attempted to comply with the provisions of the PSA by applying to other companies. His claim that his prior policy lapsed because the premium was unaffordable lacked any documentary support, including what that premium had been. In short, the judge did not mistakenly exercise his discretion in denying reconsideration of the April 4 order's essential requirement regarding life insurance under the PSA.

In a limited respect, the judge partially granted plaintiff's motion for reconsideration. As noted, plaintiff's certification specifically sought "modif[ication] of the PSA since [he] acknowledge[d] that [he was] required to provide security for alimony and child support, but [was] simply unable to do so by way of a life insurance policy." In his August 17, 2012 order, the judge permitted plaintiff to post an alternative form of security for his support obligations.4

In this regard, we reject plaintiff's argument that granting him the alternative relief he requested was the equivalent of a sanction, because the judge never ascertained whether plaintiff could afford to post alternative security. The contention lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). It suffices to say that any error was invited. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996) ("The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.").

We hasten to add that our decision is limited to the record on appeal, and we do not foreclose plaintiff the opportunity to demonstrate in the future that changed circumstances have made enforcement of the insurance obligations contained in the PSA "unfair, unjust, and inequitable." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999).

Affirmed.

1 Lepis v. Lepis, 83 N.J. 139 (1980). Subject to certain limitations that we need not discuss here, we have recognized the validity of anti-Lepis provisions in PSAs. See, e.g., Morris v. Morris, 263 N.J. Super. 237, 242 (App. Div. 1993).

2 Indeed, the appeal is only timely as to the August 17, 2012 order. R. 2:4-1.

3 At oral argument, plaintiff contended that the additional financial materials he furnished in support of the motion for reconsideration demonstrated he lacked the ability to pay, and, therefore, his failure to comply with his support obligations was not willful. As already noted, that is essentially a rehash of plaintiff's claims of changed circumstances warranting modification. We were also advised at argument that plaintiff's alimony obligations ceased on December 1, 2013, but that he continues to pay toward arrearages and child support. We therefore do not think, as defendant suggested, that plaintiff's argument regarding the one-missed-payment provision of the order is moot.

4 Defendant has not cross-appealed from this order. Therefore, to the extent this was a modification of the PSA, we choose not to consider whether it was warranted on the record presented.