G.M. v. R.M.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1341-16T4
G.M.
Plaintiff-Appellant,
v.
R.M.,
Defendant-Respondent.
____________________________
Argued December 20, 2017 – Decided February 2, 2018
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
FM-13-0369-15.
Robert H. Siegel argued the cause for
appellant (Ansell Grimm & Aaron, PC,
attorneys; Robert H. Siegel, of counsel and
on the brief).
Stephanie Palo argued the cause for respondent
(Adams Buchan & Palo, LLC, attorneys;
Stephanie Palo, of counsel and on the brief).
PER CURIAM
Plaintiff G.M. appeals from a September 30, 2016 order denying
her post-judgment motion to set aside the parties' Matrimonial
Settlement Agreement (MSA), conduct a plenary hearing on the issue
of alleged fraud, award her alimony, and award her attorney's fees
and costs. Plaintiff contends the MSA was induced by fraud and
is inequitable. We affirm.
We derive the following facts from the record. The parties
were married on May 26, 2000. Three children were born of the
marriage. In August 2013, the parties separated due to
irreconcilable differences. Two months later, the parties
retained experienced matrimonial counsel and engaged in lengthy
negotiations with the intent to reach a comprehensive MSA. The
parties also retained a joint financial expert regarding the
marital finances. The negotiations culminated in the parties
reaching a general consensus as to the terms of an MSA in late
July 2014. Defendant's attorney drafted a comprehensive MSA which
was executed by plaintiff on September 2, 2014, and defendant on
September 9, 2014. Because the MSA affected a trust for the
benefit of the children, the Trustee of the R.M. Children's Trust
(the Trust) also executed the MSA.
During the negotiation of the MSA, federal law enforcement
authorities investigated defendant in connection with his
embezzlement of more than $1.1 million from a medical practice,
in violation of 18 U.S.C. § 1341. Conviction of that offense
exposed defendant to a maximum prison term of twenty years and a
maximum fine of: (1) $250,000; (2) twice the gross amount of any
2 A-1341-16T4
pecuniary gain that any individuals derived from the offense; or
(3) twice the gross amount of any pecuniary loss sustained by any
victims of the offenses. 18 U.S.C. § 1341.
In October 2011, defendant entered into plea negotiations
with the United States Attorney for the District of New Jersey.
Under the terms of the resulting plea agreement, defendant would
plead guilty to one count of violating 18 U.S.C. § 1341.
The plea agreement did not include a recommended sentence.
Instead, the sentence was left "within the sole discretion of the
sentencing judge." The United States Attorney's Office
"reserve[d] its right to take any position with respect to the
appropriate sentence to be imposed on R.M. by the sentencing
judge." The plea agreement further stated:
The sentencing judge may impose any reasonable
sentence up to and including the statutory
maximum term of imprisonment and the maximum
statutory fine. This Office cannot and does
not make any representation or promise as to
what guideline range may be found by the
sentencing judge, or as to what sentence
[defendant] ultimately will receive.
United States District Court Judge Stanley R. Chesler
conducted the plea hearing on February 19, 2014, during which
defendant pled guilty to a single count of violating 18 U.S.C. §
1341.
3 A-1341-16T4
After several delays, defendant appeared for sentencing on
September 4, 2014. Judge Chesler concluded a noncustodial sentence
was warranted in light of the defendant's "extraordinary
cooperation."1 The judge imposed a five-year probationary term
with electronically monitored house arrest for one year. Defendant
was required to perform 2500 hours of community service and pay a
$75,000 fine within thirty days of sentencing.
Defendant is a board-certified anesthesiologist. During the
same period defendant was also subject to three complaints filed
by the Attorney General of New Jersey to have the New Jersey Board
of Medical Examiners suspend or revoke defendant's license to
practice medicine. Together the complaints alleged: gross and
repeated malpractice by defendant in his pain management practice,
indiscriminate prescribing of controlled drugs, excessive fees,
unreliable computer-composed and generated progress notes, failure
to disclose a financial interest in a self-owned health care
service to which he referred patients, Medicare inspection
deficiencies of one of his ambulatory surgery facilities, and
moral turpitude for his embezzlement of over $1.1 million from a
medical practice of which he was an owner and also the medical
1
The record contains only a portion of the sentencing hearing
transcript. The portions of the sentencing hearing containing the
arguments of the United States and defendant are omitted.
4 A-1341-16T4
director. The complaints further alleged defendant's conduct
violated
N.J.S.A. 45:1-21,
N.J.S.A. 45:9-6,
N.J.S.A. 45:9-19.16,
and
N.J.S.A. 45:9-22.4. Defendant either pled no contest or
admitted to the allegations.
The complaints led to defendant consenting to the terms of
an Administrative Action Final Order (AAFO) dated October 8, 2014,
which revoked his license to practice medicine effective October
10, 2014. The AAFO also required defendant to promptly terminate
all arrangements in which he served as medical director in any
medical practice and to terminate his professional affiliation
with any medical practice and medical health care service. In
addition, defendant was assessed a $120,000 civil penalty and
costs of $90,068.
The AAFO permitted defendant to apply for relicensure no
earlier than April 10, 2017, and, if granted by the Board, to be
effective no earlier than October 10, 2017. Defendant's license
to practice medicine has not been restored.
Pertinent to this appeal, the MSA includes a mutual waiver
of alimony, stating:
The parties do hereby specifically accept
the payments as set forth in this Agreement
and/or the division of property as set forth
in this Agreement as full and complete
satisfaction of all claims for alimony and
spousal support that one may have against the
other and each hereby waives their respective
5 A-1341-16T4
right to seek alimony at the present time.
Each party shall be solely responsible to
support him/herself and to pay for all of
his/her personal and other related expenses.
Notably, the MSA also provides:
Each party hereby specifically waives their
respective right to a fact-sensitive
determination by the court regarding the
standard of living and lifestyle enjoyed
during the marriage, as pursuant to Crews v.
Crews,
164 N.J. 11 (2000), Weishaus v.
Weishuas,
180 N.J. 131 (2004), and their
progeny.
The MSA also contains the following provisions regarding
custody, child support, and counsel fees: (1) the parties share
joint legal and physical custody of the children; (2) in lieu of
direct child support, plaintiff receives $15,000 per year per
child from the Trust, with the amount being adjusted every two
years to reflect cost of living changes; (3) the Trust also pays
for all of the children's extracurricular activities, health
insurance costs, unreimbursed medical and prescription medication
costs; (4) the Trust further pays for all of the children's
extracurricular activities, private education costs, and college
and graduate school expenses (except those paid by Section 529
accounts established for the children); (5) defendant would pay
for plaintiff's reasonable and necessary counsel fees in
connection with the divorce.
6 A-1341-16T4
With regard to equitable distribution, plaintiff agreed to
accept a one-time, non-taxable, lump sum equitable distribution
payment of $3,500,000 in the MSA. Defendant received the former
marital home located in Colts Neck, the Howell Township residence,
and his business and professional accounts, free and clear of any
claim by plaintiff. Plaintiff retained the Morgan Stanley Smith
Barney account in her name. Defendant retained the Morgan Stanley
Active Asset and Barclays accounts in his name. Each party
retained their own Individual Retirement Accounts. An additional
residential property located in Point Pleasant is held by the
Trust.
The MSA also contains the following provision regarding
waiver of discovery:
WAIVER OF DISCOVERY. The parties represent
to each other that they have fully and
completely disclosed their respective assets,
liabilities, income and expenses. Each party
represents that the financial information
provided to each other is true, accurate and
complete. Both parties knowingly and
willingly waive their respective rights to
take further discovery in this divorce matter
by way of answers to interrogatories, formal
responses to request to produce documents,
depositions, examination of the books and
records of the other party as well as all
rights to an independent, separate evaluation
and/or appraisals of the assets possessed or
controlled by the other or themselves (other
than real estate which was appraised), and
such other tools of discovery as may be
available pursuant to Court Rules. Both
7 A-1341-16T4
parties have had the opportunity to consult
with accountants and tax advisors prior to
entering into this Agreement.
The MSA contains the following provision confirming the
parties entered into the agreement knowingly and voluntarily, with
the belief the agreement was fair and equitable:
VOLUNTARY AND INFORMED AGREEMENT. The Husband
and Wife each acknowledge they are entering
into this Agreement voluntarily, without
threat, force, coercion or duress being placed
upon their informed consent and voluntary act
by any person. They further acknowledge that
they are not under the influence of any drugs
or alcoholic beverages which would impair
their ability to understand this Agreement and
its consequences, nor have they been under
such influence at any time during the
negotiation of this Agreement. Each party
acknowledges that he or she has read this
Agreement in its entirety prior to signing.
Each party further acknowledges being fully
informed by counsel as to his or her legal
rights and obligations. Each party further
acknowledges that he or she believes that this
Agreement is fair, equitable and appropriate
under all of the circumstances of this case.
On August 27, 2014, plaintiff filed a complaint for divorce
alleging irreconcilable differences, which proceeded to a final
hearing as an uncontested action. On October 27, 2014, the parties
appeared with counsel for a final hearing on the uncontested
divorce. During the hearing, plaintiff testified under oath
regarding the fairness and voluntariness of the MSA. She testified
the MSA was the product of arms-length negotiations with her
8 A-1341-16T4
husband through counsel. Plaintiff confirmed she reviewed the
agreement with her attorney and fully understood the agreement.
Plaintiff also confirmed the basic provisions of the agreement.
With regard to her reasons for waiving alimony and agreeing
to the terms of the MSA, plaintiff stated it was "[b]ecause
[defendant's] supposed to go to court and not practice medicine
again." She confirmed defendant had pled guilty to a criminal
offense and there were several other pending court actions relative
to defendant's practice of medicine.
Plaintiff testified she thought the MSA was fair, equitable,
and just. She confirmed she signed the MSA of her own free will,
without anyone forcing, coercing, or threatening her to do so.
She further testified she was satisfied with her counsel's
services. She also testified she realized she did not have to
settle the case and could have "gone to court" to have the judge
decide all of the issues covered by the MSA. With that knowledge,
she indicated she felt entering into the MSA and giving up her
right to a trial was the right thing to do. Finally, she stated
she did not have any questions for her attorney or the court.
Based on the parties' testimony, which she found credible,
the judge determined the MSA was the product of negotiation through
counsel, and was entered into "freely, knowingly and voluntarily."
The judge granted a divorce to plaintiff on grounds of
9 A-1341-16T4
irreconcilable differences with the MSA incorporated into the
final judgment of divorce (FJOD).
On August 4, 2016, some twenty-three months after executing
the MSA, and more than twenty-one months after the FJOD was
entered, plaintiff filed a motion to: (1) grant her alimony; (2)
set aside the MSA; (3) conduct a plenary hearing on the issue of
fraud; (4) require defendant to prove payment to the children's
trust for rent; and (5) award her counsel fees and costs for the
motion and plenary hearing. Defendant filed a cross-motion to
deny plaintiff's motion and award him counsel fees and costs
incurred in opposing plaintiff's motion and preparing his cross-
motion.
In support of her application, plaintiff claimed for the
first time the MSA was inequitable and induced by fraud. Plaintiff
claimed she was "unjustifiably rushed into signing a complex MSA
after she had already agreed to its terms based upon false
representations made to her by the [d]efendant and his counsel
regarding [d]efendant's legal troubles, and a potential lengthy
prison sentence." Plaintiff further alleged defendant's counsel
misrepresented that defendant's legal situation had "worsened."
In support of her demand for a plenary hearing on the basis
of fraud, plaintiff contended defendant did not share adequate
information during the settlement discussions regarding the
10 A-1341-16T4
marital finances. In her July 13, 2016 certification, she stated,
"[d]efendant has lied, cheated, and defrauded me now and throughout
our marriage. He has controlled and manipulated all of our assets
without my knowledge, consent or input during the marriage."
In support of her alimony argument, plaintiff claimed she
believed alimony was waived at the time the MSA was signed, but
not indefinitely. Plaintiff stated:
My life changed radically after defendant
told me of our problems, and then left the
home, leaving me to deal with this and the
impending death of my mother. I cannot
express how totally distraught and frightened
I was after hearing our problems. I had waived
my claim for alimony at the time of the
agreement based upon the circumstances at that
time.
Defendant contended there is no basis to set aside the MSA
because it was a fair and equitable representation of the parties'
agreement and was entered into at arm's length. Defendant pointed
out plaintiff did not challenge the MSA until nearly two years
after the MSA was signed and FJOD entered, and after plaintiff had
already enjoyed the benefits of the $3,500,000 in tax-free lump
sum equitable distribution she received among other additional
equitable distribution and pursuant to the parties' MSA. Defendant
further noted he prepared a detailed case information statement
(CIS), which was submitted to plaintiff for the purposes of
11 A-1341-16T4
settlement negotiations and included 184 pages of financial and
trust documents.
The motion judge heard oral argument on September 30, 2016.
The judge made the following comments during the motion hearing:
Wife waived her claim to alimony because she
got $3.5 million in assets. She chose not to
engage in litigation at the time of the
divorce because I believe she was in fact
engaging along with the defendant in an effort
to -- I won't go so far as to say defraud the
Government. But to marshal assets so that the
Government could not then collect those assets
as a result of a criminal prosecution against
the defendant. She chose to move forward
without engaging, as you say, in full
litigation. She chose to accept no alimony
and she chose to accept $3.5 million in assets
at the time of the divorce.
She cannot come forward two years later,
without really presenting much of anything,
other than, I didn't think it was going to
work out this way, and seek alimony. I don't
think she's made any case for me to change the
parties' agreement from two years ago.
On the same day, the judge issued a seven-page order denying
plaintiff's motion and defendant's cross-motion in their
entirety.2 The judge found there was no fraud in the negotiation
of the MSA, reasoning:
In order to set aside the MSA, the
[c]ourt must find either fraud,
unconscionability, or some overreaching in the
negotiations of the settlement. Here, none
2
We note the judge inadvertently reversed the relief sought by
each party in the relief requested section of the order.
12 A-1341-16T4
of that is present. Both parties knew each
other's true intent. This could not be more
evident than Wife's receipt of $3,500,000.00
in equitable distribution, as well as
$45,000.00 per year in child support payments.
The argument that Wife could have or should
have received more is not proof of fraud, or
that the MSA should be set aside in order to
award Wife alimony. Wife waived her claim to
alimony and has presented no fraud or failure
to disclose assets that warrant her requests.
Further, Wife's claim that Husband was facing
impending legal charges during the MSA
negotiations has no bearing on whether there
was full disclosure of the assets or that the
agreement she entered [into] was not fair
because she still received a large equitable
distribution, and Husband did in fact face
criminal charges.
This appeal followed. On appeal, plaintiff argues: (1) the
trial court erred by not setting aside the MSA due to fraud,
overreaching, coercion, and duress;3 (2) the case should be
remanded to the trial court to determine defendant's alimony
obligation based on the former marital lifestyle; (3) the trial
court erred by not requiring defendant to submit an updated CIS;
(4) the trial court erred by not scheduling a plenary hearing to
review additional financial disclosures and take testimony
regarding the marital lifestyle to address whether defendant
should have a long-term alimony obligation (not raised below); and
3
Plaintiff did not raise the issues of overreaching, coercion, or
duress in her moving papers or during oral argument before the
motion court.
13 A-1341-16T4
(5) plaintiff should be awarded counsel fees and costs for all
services related to this appeal and the hearing on remand (not
raised below).
We have considered plaintiff's arguments in light of the
record and applicable law and are not persuaded by any of them.
For the following reasons, we find plaintiff's contentions to be
substantively without merit and procedurally barred.
Our review of a Family Part's order is limited. Cesare v.
Cesare,
154 N.J. 394, 411 (1998). We do not substitute our
judgment for that of the trial court unless a manifest injustice
would result. Id. at 412 (citing Rova Farm Resort, Inc. v.
Investors Ins. Co.,
65 N.J. 474, 484 (1974)). We accord
substantial deference to fact finding by the family court because
of its special jurisdiction and expertise. Id. at 413.
The record amply supports the motion judge's conclusion that
plaintiff had not made a prima facie showing of fraud. Fraud must
be plead with particularity. R. 4:5-8(a). To establish legal
fraud, a party must prove: "(1) a material representation by the
defendant of a presently existing or past fact; (2) knowledge or
belief by the defendant of its falsity; (3) an intent that the
plaintiff rely upon it; (4) reasonable reliance by the plaintiff;
and (5) resulting damage to the plaintiff." Weil v. Express
Container Corp.,
360 N.J. Super. 599, 612-13 (App. Div. 2003)
14 A-1341-16T4
(citing Jewish Ctr. of Sussex Cty. v. Whale,
86 N.J. 619, 624
(1981)).
Here, plaintiff has not shown the statements made by defendant
in advance of his sentencing were a material representation by the
defendant of a presently existing or past fact. On the contrary,
defendant was facing potential imprisonment for up to twenty years.
The plea agreement did not include a sentencing recommendation.
The United States Attorney reserved the right to argue for a
maximum sentence. The sentencing was in the sole discretion of
the federal judge. Defendant was not sentenced until after
plaintiff had executed the MSA.
Any statements made by defendant or his counsel regarding
defendant's sentencing exposure and worsening legal situation were
opinions, not statements of fact. Moreover, at the time they were
made, these opinions were not false or misleading. It was not
until he was sentenced that defendant learned he would receive "a
break" from the federal judge, who departed from federal sentencing
guidelines by sentencing him to probation with house arrest for
one year, rather than a significant term of imprisonment.
Plaintiff was represented by an experienced attorney in the
negotiation of the settlement agreement. She understood the terms
of the agreement. There are no substantiated allegations of fraud
in the negotiation of the MSA. Given these circumstances, there
15 A-1341-16T4
is no legal or equitable basis to set aside the MSA. See Miller
v. Miller,
160 N.J. 408, 419 (1999).
For the first time on appeal, plaintiff raises the issues of
overreaching, coercion, and duress. "An appellate court
ordinarily will not consider issues that were not presented to the
trial court." State v. Arthur,
184 N.J. 307, 327 (2005) (citing
Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973)); accord
Johnson v. Roselle EZ Quick LLC,
226 N.J. 370, 396 (2016)
(declining to address an issue not raised before the trial court
that was not an issue of sufficient public concern). We decline
to consider these issues not raised in her moving papers or during
oral argument before the motion court.
Plaintiff's motion is also procedurally barred. Motions to
reopen or set aside a judgment incorporating an MSA on grounds of
fraud or inequitableness are governed by Rule 4:50-1. See Pressler
& Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 4:50-1 (2018).
"Regardless of the basis, vacation of a judgment under Rule 4:50-
1 should be granted sparingly." In re Guardianship of J.N.H.,
172 N.J. 440, 473-74 (2002) (citing Pressler & Verniero, cmt. 1.1 on
R. 4:50-1 (2001)).
Rule 4:50-1 motions "shall be made within a reasonable time,
and for reasons (a), (b) and (c) of R. 4:50-1 not more than one
year after the judgment, order or proceeding was entered or taken."
16 A-1341-16T
4 R. 4:50-2. Here, plaintiff's motion to reopen the judgment and
set aside the incorporated MSA was filed on August 4, 2016, more
than twenty-one months after the divorce was granted. Moreover,
defendant was sentenced on September 4, 2014, fifty-three days
before the divorce hearing. The sentencing took place in open
court. The judgment of conviction is a matter of public record.
Plaintiff could easily have learned defendant was sentenced to
probation with house arrest before the divorce hearing. The record
does not support plaintiff's attempt to do so.
Plaintiff's motion was not filed within one year or within a
reasonable time of the entry of the FJOD. Plaintiff offers no
reason for the delay. Accordingly, plaintiff's motion to set
aside the MSA is time barred by Rule 4:50-2. For this additional
reason, the motion was properly denied without conducting a plenary
hearing.
In addition, plaintiff seeks to set aside only the alimony
waiver, not the equitable distribution, custody, child support,
or counsel fee aspects of the MSA. The MSA was an integrated
agreement. It not only resolved issues of custody and parenting
time, but also all of the marital financial matters including
equitable distribution and spousal and child support. "No one
element stands alone and can be read without reference or
consideration of the others." Glass v. Glass, 366 N.J. Super.
17 A-1341-16T4
357, 373 (App. Div. 2004). Plaintiff cannot set aside the alimony
waiver, yet continue to enforce the equitable distribution and
other aspects of the agreement. See Lepis v. Lepis,
83 N.J. 139,
154 (1980) (noting courts have refused to consider an alimony
award in isolation and consider earnings received from investments
funded by an equitable distribution award); Esposito v. Esposito,
158 N.J. Super. 285, 300 (App. Div. 1978) (recognizing "support
payments are intimately related to equitable distribution and the
financial security and potential income available because of said
distribution").
Even more fundamentally, "[i]t is a well recognized rule that
a litigant who voluntarily accepts the benefits of a judgment is
estopped from attacking it on appeal." Tassie v. Tassie,
140 N.J.
Super. 517, 524 (App. Div. 1976). The rule is "a corollary to the
established principle that any act upon the part of a litigant by
which he expressly or impliedly recognizes the validity of a
judgment operates as a waiver or surrender of his right to appeal
therefrom." Id. at 525 (citing Sturdivant v. General Brass &
Machine Corp.,
115 N.J. Super. 224, 227-28 (App. Div. 1971)).
Here, plaintiff benefitted substantially from the MSA
incorporated into the FJOD. She accepted a $3,500,000 lump sum
equitable distribution payment and has received child support at
the rate of $45,000 per year. She cannot seek appellate review
18 A-1341-16T4
at this late date after receiving such payments. For this
additional reason, plaintiff's motion was properly denied.
Plaintiff argues the trial court erred by not conducting a
plenary hearing on the issue of her alimony claim. A moving party
is entitled to a plenary hearing only where he or she clearly
demonstrates the existence of a genuine issue of material fact
entitling the party to relief through competent supporting
documents and affidavits. Lepis,
83 N.J. at 159; Eaton v. Grau,
368 N.J. Super. 215, 222 (App. Div. 2004).
Support provisions contained in settlement agreements or
judicial orders are subject to the same standard of judicial
modification based on substantially changed circumstances. See
generally Lepis,
83 N.J. at 147-48; Smith v. Smith,
72 N.J. 350,
360 (1977). "An increase in support becomes necessary whenever
changed circumstances substantially impair the dependent spouse's
ability to maintain the standard of living reflected in the
original decree or agreement." Lepis,
83 N.J. at 152-53.
Plaintiff has not claimed or demonstrated substantially
changed circumstances since the divorce was granted. Absent a
prima facie showing of substantially changed circumstances,
plaintiff is not entitled to a plenary hearing or an alimony award.
Plaintiff further asserts the motion court erred by not
requiring defendant to submit a current CIS. We disagree. Under
19 A-1341-16T
4 Rule 5:5-4(a), the party seeking alimony modification must
demonstrate a prima facie showing of a change in circumstances
before the opposing party will be compelled to produce a current
CIS. See also Lepis,
83 N.J. at 157 ("A prima facie showing of
changed circumstances must be made before a court will order
discovery of an ex-spouse's financial status.") "Only after the
movant has made this prima facie showing should the respondent's
ability to pay become a factor for the court to consider." Ibid.
Plaintiff is not claiming, and has not made a prima facie showing,
of changed circumstances. Accordingly, defendant was not required
to produce a current CIS. Donnelly v. Donnelly,
405 N.J. Super.
117, 131 (App. Div. 2009).
Finally, plaintiff sought an award of attorney's fees for the
motion and requested plenary hearing. Awards of counsel fees and
costs are discretionary with the court and will only be disturbed
in clear cases of abuse. Rendine v. Pantzer,
141 N.J. 292, 317
(1995); Yueh v. Yueh,
329 N.J. Super. 447, 450 (App. Div. 2000).
The factors to be considered in determining whether to award
counsel fees are enumerated in Rule 5:3-5(c). The motion judge
found "no relevant factors warranting an award for counsel fees,
and decline[d] to award counsel fees to either [party]." We
discern no abuse of discretion in denying an award of counsel fees
in this matter.
20 A-1341-16T4
Affirmed.
21 A-1341-16T4
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