SCOTT DILLMAN v. LYNDA DILLMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SCOTT DILLMAN,

Plaintiff-Respondent,

v.

LYNDA DILLMAN,

Defendant-Appellant.

_____________________________________

Argued March 10, 2014 Decided May 21, 2014

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-45-07.

Robert D. Correale argued the cause for appellant (Brady & Correale, LLP, attorneys; Mr. Correale, on the briefs).

Jan L. Bernstein argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Ms. Bernstein, of counsel; Ms. Bernstein and Kristi L. Terranova, on the brief).

PER CURIAM

Defendant Lynda Dillman appeals from an order entered by the Family Part on January 11, 2013, denying her motion to vacate a final judgment of divorce dated January 29, 2008, and the property settlement agreement (PSA) incorporated therein. We affirm.

I.

The parties were married in November 1980. Two children were born of the marriage: Christopher, in 1985, and Heather, in 1989. The parties separated on December 29, 2005, and on June 29, 2006, plaintiff Scott Dillman filed a complaint for divorce. Plaintiff was a partner at PricewaterhouseCoopers. Defendant has a bachelor's degree from Gettysburg College and a master's degree in Management Science from Stevens Institute of Technology. At the time of the divorce proceedings, Christopher was emancipated and Heather was attending college.

Sometime in 2006, defendant became embroiled in disputes with her neighbors, which led to civil litigation and criminal complaints charging defendant with lewdness, stalking and endangering the welfare of a child. In November 2007, Paul Dasher, Ph.D., issued a psychological evaluation of defendant.

In his report, Dr. Dasher stated that defendant's speech was normal, although her affect was "somewhat flat." He said defendant's thought processes were "logical and coherent." Dr. Dasher also stated that "[t]here are no indications of psychosis or otherwise severe psychopathology." He said defendant would be a good candidate for pre-trial intervention (PTI). Defendant apparently was admitted to PTI.

On January 17, 2008, defendant and her attorney appeared at the office of plaintiff's counsel for her deposition in the matrimonial litigation. Previously, counsel for the parties had exchanged written settlement proposals. The parties and their attorneys agreed to convert the deposition into a settlement conference.

The parties reached an agreement, which was placed on the record and transcribed by the court reporter. The parties stated that they understood the terms of the PSA, and they initialed each page of the agreement.

The PSA provided that defendant would receive limited duration alimony of $11,500 per month from February 1, 2008 to February 1, 2010; $9000 per month from February 1, 2010 to February 1, 2012; and $7000 per month from February 1, 2012 to January 31, 2017. The PSA stated that alimony would terminate on January 31, 2017, regardless of the circumstances, "whether foreseeable or unforeseeable." However, alimony would terminate earlier if either party died, or upon defendant's remarriage or cohabitation "in accordance with case law at the time."

The PSA additionally provided that plaintiff would pay defendant a $150,000 credit from his share of the equity in the marital home, in exchange for the irrevocable termination of alimony as provided in the agreement. Defendant agreed to purchase plaintiff's remaining interest in the marital residence, and plaintiff agreed to pay off an outstanding home equity loan of about $48,000.

In addition, plaintiff agreed to contribute $27,000 towards defendant's $70,000 credit card debt. Defendant also was given specified percentages (either forty or fifty per cent) of plaintiff's retirement accounts and his pension. Defendant generally agreed to be responsible for child-related expenses while she was the parent of primary residence. Plaintiff further agreed to pay 85% of the tuition for Heather's three remaining years of college.

The parties appeared in court on January 25, 2008, to enter their settlement on the record. Defendant acknowledged the written agreement that she had entered into on January 17. She noted that she had initialed every page of the agreement, thereby indicating that she had read each page.

Defendant acknowledged that she had a master's degree and understood each and every term of the agreement before she agreed to it. In addition, defendant acknowledged that the agreement was a compromise, and it was fair and equitable under the circumstances. She stated that no one had forced her to sign the agreement. She also stated that she did not have any medical or psychological condition at the time.

The judge questioned defendant concerning the agreement. Defendant indicated that she understood what was taking place. She was asked whether she was willing to accept the agreement in lieu of a trial, and she replied that "we're cutting our losses." She said she was satisfied with the services provided by her attorney. The court accepted the settlement.

On January 29, 2008, the judge entered the dual final judgment of divorce, which incorporated the PSA. The order stated that, based on the parties' testimony, the court had determined "that the parties each have voluntarily entered into the [a]greement and have accepted the terms thereof as fair and equitable."

In April 2009, a Law Division judge found that defendant was not competent to stand trial on the criminal charges. The judge carried the matter to determine whether defendant required commitment pursuant to N.J.S.A. 2C:4-6.

On June 12, 2009, defendant filed a motion in the Family Part to modify the financial terms of the PSA. In support of her application, defendant submitted a certification dated May 29, 2009. She asserted that changed circumstances warranted an increase in the amount of alimony, as well as a modification making alimony permanent. Among other things, defendant claimed that her economic opportunities had been limited by her mental illness, and the economic recession had "drastically affected" her career field.

By order entered on June 26, 2009, the Law Division judge in defendant's criminal case remanded defendant to the Commissioner of Human Services for placement in an appropriate institution until such time as it could be determined whether she continued to present a danger to herself or others, or whether it was substantially probable that she could regain her competence in a foreseeable time.

On August 14, 2009, the Family Part judge considered defendant's motion to modify the PSA and placed his decision on the record. The judge denied the motion, noting that the problems stemming from defendant's criminal matters were not plaintiff's concern. The judge suggested that defendant's diminished-employment-potential application was premature. The judge entered an order dated August 14, 2009, memorializing his decision.

The Law Division judge in defendant's criminal case conducted a hearing on March 31, 2010, and entered an order dated April 1, 2010, finding that defendant was competent to stand trial and no longer posed a danger to herself or others. The court ordered defendant's release from the custody of the Commissioner of Human Services. The court's order required that defendant immediately seek psychiatric care and comply with all terms and conditions of the PTI program.

II.

In November 2012, defendant filed a motion in the Family Part to vacate the final judgment of divorce and the PSA or, in the alternative, to schedule a plenary hearing after the exchange of discovery. Defendant claimed that, at the time she had entered into the PSA, she had been mentally impaired "to the degree" that she did not "fully comprehend" the agreement. She asserted that her attorney had not "properly counseled or protected" her interests.

Defendant asserted that her mental health issues were the result of "radioactive iodine treatment" that she had received for overactive thyroid disease in 2000. She noted that in the PSA, reference is made to the fact that she was suffering from "this autoimmune disease." She stated that her mental health had deteriorated to the point where weekly intensive therapy had been advised to prevent institutionalization. She claimed that it was "only now" that she was able to properly review and understand "the tragedy of the divorce proceedings."

In support of her motion, defendant submitted medical records of her stay at Ann Klein Forensic Center from October 2009 to April 2010. Defendant also submitted certifications and medical reports from Dr. Lee J. Suckno, a psychiatrist; Dr. Roger D. Colonna, a psychologist; and Dr. Lucy Covello, an endocrinologist.

In addition, defendant submitted a certification from Kalman A. Barson, a certified public accountant, who opined that the financial settlement reflected in the PSA was "grossly inequitable." According to Barson, under the terms of the agreement, defendant received about $4,000,000 less than she should have received.

Plaintiff opposed defendant's motion. He also filed a cross-motion seeking an award of counsel fees and costs.

Judge Terry Paul Bottinelli considered the motions on January 11, 2013. The judge found that an evidentiary hearing was not required on defendant's motion, and defendant had not presented sufficient evidence to show that she had been unable to understand or comprehend the nature of the agreement when she had agreed to its terms. The judge pointed out that the reports defendant had provided addressed her mental state after the divorce, "[a]nd there's no indication from anyone that as of the time of divorce [defendant was suffering from] any mental condition which would lead one to believe that she was incapable of entering into this agreement."

The judge entered an order dated January 11, 2013, denying defendant's motion and plaintiff's cross-motion for fees and costs. This appeal followed.

III.

Defendant argues that the motion judge "misapplied" his discretion by refusing to vacate "a grossly unfair divorce settlement" where she had lacked capacity to comprehend and understand its terms, thereby causing a manifest injustice. Defendant further argues that there were material issues of fact which warranted a plenary hearing. We disagree.

Here, defendant sought relief from the final judgment pursuant to Rule 4:50-1. Relief under the rule is "'granted sparingly.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009) (quoting F.B. v. A.L.G., 176 N.J. 201, 207 (2003)). A trial court's decision granting or denying such relief will not be disturbed "'unless it represents a clear abuse of discretion.'" Ibid. (quoting Housing Auth. v. Little, 135 N.J. 274, 283 (1994)).

Defendant asserts that the court should have granted her relief pursuant to Rule 4:50-1(f), which allows a court to grant relief from a judgment or order for any reason not otherwise permitted under the rule. "Because of the importance that [the courts] attach to the finality of judgments, relief under Rule 4:50-1(f) is available only when 'truly exceptional circumstances are present.'" Little, supra, 135 N.J. at 286 (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)).

In determining whether relief is warranted, the court should consider such factors as the "'extent of the delay in making the application for relief, the underlying reason or cause, fault or blamelessness of the litigant, and any prejudice that would accrue to the other party.'" In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002) (quoting C.R. v. J.G., 306 N.J. Super. 214, 241 (Ch. Div. 1997)).

Plaintiff notes that, pursuant to Rule 4:50-2, a motion for relief under Rule 4:50-1(f) must be made within a reasonable time. Plaintiff contends that defendant's motion should have been denied because it was not submitted until five years after the judgment was entered, and plaintiff maintains that the delay in seeking relief was not reasonable. The judge did not deny the motion on this basis, but considered the delay in determining whether relief was warranted. Since we conclude Judge Bottinelli correctly denied the motion on the merits, we need not address this issue.

In his decision, the judge pointed out that defendant did not file her motion until almost five years after the judgment was entered. While defendant filed a motion in 2009 to modify the financial terms of the agreement, she did not seek to set aside the agreement based on mental incapacity at that time. Many of the medical records that defendant relied upon for her 2012 motion were available to her in 2009, and she provided no explanation for failing to seek relief from the judgment and agreement earlier.

Moreover, as the judge noted in his decision, plaintiff would be substantially prejudiced if the agreement were set aside five years after the parties entered into it. In that time, defendant has received the benefit of the agreement. Plaintiff has paid defendant alimony and child support. Defendant received a substantial lump sum payment and a share of plaintiff's pension. Plaintiff's interest in the marital home has been transferred to defendant, and other marital assets have been divided. Plaintiff complied with the agreement, assuming that the agreement was final and binding.

Defendant nevertheless insists that the judge should have set aside the agreement because she allegedly lacked mental capacity to enter into the agreement in January 2008. Judge Bottinelli concluded, however, that the record did not support defendant's claim. We agree with the judge's assessment of the evidence.

The judge noted that, when the parties entered into the agreement at the January 17, 2008 negotiating session, defendant was represented by counsel. Defendant stated on the record that she understood the terms that had been negotiated. Defendant acknowledged that she and her attorney had secured plaintiff's agreement to certain modifications to the proposed agreement, and understood that the agreement was a compromise.

Defendant stated that she recognized that the agreement would be enforceable, and she initialed every page of the document. She said she understood every page and agreed to be bound by it. Defendant noted that she was not at the time under the influence of alcohol or drugs, other than medication that she was taking for a thyroid condition. She stated that the medication did not interfere with her ability to understand what she was doing.

At the January 25, 2008 court hearing, defendant was questioned under oath. She again noted that she had initialed every page of the agreement. Defendant stated that she understood what was happening. She said the agreement was a compromise and it was "fair and equitable." The judge found that both parties had entered into the agreement voluntarily, with the assistance and advice of their attorneys.

Judge Bottinelli pointed out that there was nothing in the transcripts of the January 17 and 25, 2008 proceedings which indicated that defendant did not understand the nature of those proceedings. There also was no indication that defendant was under the influence of any substance which rendered her incapable of entering into the agreement. Judge Bottinelli noted that the judge who accepted the agreement found the parties had entered into the agreement freely, voluntarily and without coercion.

Defendant contends, however, that the medical evidence shows that she did not have the requisite mental capacity to enter into the agreement in January 2008. We cannot agree. Defendant cites an October 26, 1998 letter from Dr. Covello, who determined that defendant was suffering from a thyroid abnormality, including "Grave's disease," which was treated with medications. Dr. Covello did not, however, opine that defendant lacked mental capacity to enter into the agreement in 1998, let alone in January 2008.

Defendant also cites a November 11, 2007 report from Dr. Dasher, who evaluated defendant to determine whether she should be admitted to PTI. In his report, Dr. Dasher noted that defendant was experiencing consistent depression related to her marital separation, and she was anxious about her future. He found, however,that defendant's psychosocial history and current test results were "not indicative of antisocial personality orientation or sexual pathology." Dr. Dasher did not state that defendant was incompetent at the time he evaluated her.

In addition, defendant relies upon several post-judgment evaluations. In September 2008, Dr. Colonna issued a report indicating that defendant had a "paranoid personality." He said that those with that condition have no insight into their "emotional functioning" and "misread the intention of others as hostile." Dr. Colonna did not believe defendant was then "presently" capable of participating in her criminal defense.

In December 2008, Dr. Paul found that defendant was not competent to stand trial. In his report, Dr. Paul noted that defendant's thinking was "illogical, disorganized and influenced by delusional ideation." He stated that defendant was not able to evaluate the nature of the evidence against her or make reasonable decisions for herself. He said defendant also was "lacking in the ability to view herself objectively or understand the impact of her behavior, causing her to be even less capable of participating in her defense."

Furthermore, in March 2009, Dr. Suckno issued a psychiatric report in which he stated that defendant was "psychotic" and had been so "probably for years." He noted that defendant had refused to take medication. Dr. Suckno did not believe defendant presented an imminent danger to herself or others, and therefore she was not committable. He wrote that defendant's insight was "so nil" that she "sees none of the truth," but this did not render her dangerous at that time. He noted that defendant had the right "not to have medications forced upon her, especially when there is no danger involved."

Moreover, in March 2012, Dr. Suckno issued another report. Dr. Suckno stated that he had been asked to comment on when defendant's illness began. He said that:

Obviously, it is hard to assign an exact date to the beginning of the illness, but one can see she must have been quite ill by at least 2006. It was at this time that her problems with the neighbors began. She was charged with exposing herself to the neighbors in 2006. Apparently she had been separated from her husband in 2005. I would say her illness started to become severe in between the separation and her troubles with the law. It is my opinion, within a reasonable degree of psychiatric certainty, that [defendant's] illness impaired her judgment. I think it impacted her ability to settle the divorce, her ability to rationally participate in the divorce process. Her condition was so severe that she was deemed incompetent to stand trial. I don't think she was very competent at the time she settled her divorce.

Thus, defendant's post-judgment evaluations did not establish that she lacked the mental capacity to enter into the PSA in January 2008. Several months after defendant agreed to the settlement, it was determined that defendant lacked the competency to participate in her criminal defense, but there is no psychological report specifically stating that she lacked the mental capacity to contract in January 2008. Even though Dr. Suckno's March 2009 report indicates that defendant may have been "psychotic for years," he did not specifically opine, within a reasonable degree of psychiatric probability, that defendant lacked the mental capacity to enter into a contract in January 2008.

Furthermore, in his March 2012 report, Dr. Suckno stated that defendant's illness impaired her judgment and this had an impact upon her ability to settle the divorce proceedings. Dr. Suckno stated that he did not think defendant was "very competent." However, the doctor did not opine that defendant lacked capacity to enter into the PSA.

We are therefore convinced that the record fully supports Judge Bottinelli's determination that defendant had not established that she lacked the mental capacity to enter into the PSA in January 2008. We conclude that the judge's decision denying defendant's motion was not an abuse of discretion.

In support of her appeal, defendant relies upon Chambon v. Chambon, 238 N.J. Super. 225 (App. Div. 1990). There, the defendant-wife appealed from the alimony and equitable distribution provisions of the divorce judgment. Id. at 226. While the divorce proceedings were pending, the defendant's relationship with her attorney deteriorated. Id. at 227.

In Chambon, the defendant was suffering from "a mental disturbance and was undergoing psychiatric care." Ibid. She also was "completely out of touch" with her attorney in the three months prior to trial. Id. at 230. The trial court had denied defendant's attorney's motion to be relieved as counsel. Id. at 228. The trial court also had ignored the defendant's motion to adjourn the trial due to her illness. Id. at 231. We reversed the judgment, finding that the proceedings were fundamentally unfair to the defendant. Id. at 226.

The facts in Chambon are clearly distinguishable from the facts in this case. We noted in Chambon that the "defendant's impaired mental abilities at the time of the divorce [were] not open to question." Id. at 232. Here, defendant failed to show that she lacked the mental capacity to enter into the PSA. Moreover, the defendant's relationship with her attorney in Chambon had broken down to such an extent that counsel did not believe he could properly represent her. Ibid. Here, defendant's relationship with her attorneys was intact when the agreement was made. Moreover, in this matter, defendant waited five years to claim that she had lacked the mental capacity to enter into the PSA. In Chambon, the defendant immediately challenged the divorce decree in a direct appeal. Id. at 226.

More on point is our decision in Barrie v. Barrie, 154 N.J. Super. 301 (App. Div. 1977), certif. denied, 75 N.J. 601 (1978). There, we affirmed the denial of the plaintiff's Rule 4:50-1(f) motion to vacate the PSA entered into with the defendant. Id. at 381. We held that the plaintiff had not demonstrated that she was mentally incompetent at the time of the divorce. Id. at 305-06.

In Barrie, we noted, among other things, that the transcript of the settlement proceedings showed that the plaintiff was coherent and competent, and that she had agreed to all of the PSA's terms. Id. at 306-07. We also noted that, although the plaintiff's motion had been supported by a certification from her psychiatrist, his opinions were not focused on any specific time, but rather ranged over the entire time he had been treating the plaintiff. Id. at 305-06. Here, as in Barrie, defendant has not shown she was mentally incompetent at the time of the divorce.

Defendant also contends that the judge erred by failing to conduct an evidentiary hearing on her motion. Again, we disagree. "[I]n matters that arise in the Family Part, a plenary hearing is only required if there is a genuine, material and legitimate factual dispute." Segal v. Lynch, 211 N.J. 230, 264-65 (2012) (citations omitted). Here, defendant failed to present sufficient evidence to raise a legitimate factual dispute as to her mental capacity on the date she agreed to the PSA. Therefore, an evidentiary hearing was not required.

Affirmed.