Opinion
DOCKET NO. A-1244-15T3
12-09-2016
DONN HEIZMANN, Plaintiff-Respondent, v. PAULINE HEIZMANN, Defendant-Appellant.
Pauline Marie Heizmann, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Nugent and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-557-05. Pauline Marie Heizmann, appellant pro se. Respondent has not filed a brief. PER CURIAM
In this post-judgment matrimonial matter, defendant Pauline Heizmann appeals from the October 26, 2015 Family Part order denying her motion to vacate a July 13, 2015 consent order on the issue of alimony. We affirm.
The parties were married in April 1983, and divorced in June 2007. They have three children, who are now emancipated.
Prior to the parties' July 13, 2015 consent order, plaintiff was required to pay defendant $1250 per month in alimony. In March 2014, plaintiff filed a motion seeking to terminate his alimony obligation. Plaintiff asserted that defendant was now cohabiting with her boyfriend at his home. In addition, plaintiff stated that he was sixty-eight years old and wished to retire.
Defendant is ten years younger than plaintiff.
Defendant opposed plaintiff's motion. Defendant asserted that although she continued to live in a house with the individual referenced in plaintiff's motion, she was no longer dating him. Instead, defendant stated she was staying in a separate bedroom and paying this individual $75 per week in rent, which included utilities.
A trial judge subsequently referred the matter to mediation, and the parties met with the mediator, a retired Superior Court judge, on July 6, 2015. At the mediation, plaintiff was represented by an attorney, while defendant appeared on her own behalf.
At the conclusion of the mediation, the parties agreed that plaintiff would continue to pay defendant $1250 per month in alimony until he retired. However, if plaintiff retired prior to December 1, 2015, he would continue to pay defendant $1250 per month until that date. Subject to that condition, plaintiff agreed to pay defendant $625 per month following his retirement. Under the parties' agreement, plaintiff's alimony obligation would continue "until the earlier of these events: (a) his death, (b) [defendant's] death, or (c) [defendant's] remarriage." The parties further agreed that there would "be no other basis for alimony to increase, decrease or end as long as both are living." In addition, the parties agreed to an "anti-Lepis provision" which provided that "this modification of alimony [was] to be final and irrevocable."
Lepis v. Lepis, 83 N.J. 139 (1980). --------
At the conclusion of the mediation, the mediator incorporated the terms of the parties' settlement into a two-page written "Memorandum of Agreement" ("MOA"). Plaintiff and defendant initialed the first page of the document, and signed the second page. Both parties also signed a consent order, stating they agreed to "abide by the terms of the attached" MOA. Plaintiff's attorney then submitted the consent order and the MOA to the trial judge assigned to handle this case. On July 13, 2015, the judge signed and filed the consent order.
On August 1, 2015, defendant filed a motion to vacate the consent order. In an accompanying certification, defendant alleged that on the day after she signed the consent order and the MOA, she changed her mind and no longer wished to settle the alimony issue. Defendant stated she sent letters to the trial judge, plaintiff's attorney, and the mediator on July 7, 2015, advising them of her request to rescind the settlement. In her certification, defendant asserted she "was intimidated and coerced into signing an agreement that [was] against [her] best interests." Plaintiff did not respond to defendant's motion.
On October 26, 2015, the trial judge denied defendant's motion to vacate the consent order. In a written statement of reasons, the judge explained that defendant failed to establish "that her signature was procured by artifice or deception" or that her "dissatisfaction with the July 13, 2015 [consent] [o]rder [was] based upon mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud of any sort, misrepresentation, or misconduct." This appeal followed.
On appeal, defendant argues that the judge erred in denying her motion to vacate the consent order. We disagree.
The scope of our review of the Family Part's order is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Id. at 413. Thus, "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we 'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We will only reverse the judge's decision when it is necessary to "ensure that there is not a denial of justice because the family court's conclusions are []clearly mistaken or wide of the mark." Id. at 48 (alteration in original) (internal quotations omitted) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
In light of the record, defendant's arguments concerning the judge's decision to deny her motion to vacate the consent order reveal nothing "so wide of the mark" as to require our intervention. Ibid. A motion to set aside a marital settlement agreement must be founded upon a showing of inequity and unfairness under Rule 4:50-1(f). Rosen v. Rosen, 225 N.J. Super. 33, 36 (App. Div.), certif. denied, 111 N.J. 649 (1988). Indeed, it is also well-settled that absent a showing of "unconscionability, fraud, or overreaching in the negotiations of the settlement, . . . no legal or equitable basis exists to reform the parties' . . . settlement agreement." N.H. v. H.H., 418 N.J. Super. 262, 282 (App. Div. 2011) (first alteration in original) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).
Here, defendant's vague and unsupported allegations of being "intimidated" by plaintiff, plaintiff's attorney, or the mediator at the time of the execution of the consent order and MOA are insufficient to satisfy the high standard of unconscionability required to set aside a settlement agreement. Indeed, defendant agreed in the MOA that the parties had "reached agreement on all issues in dispute" and wished to incorporate the terms of the MOA into the consent order. She also stated that she "entered into this [MOA] voluntarily and not under duress or coercion," and wanted the MOA to "be fully enforceable now and in the future[.]"
Defendant also did not demonstrate that the terms of the consent order or MOA were inequitable or unfair. Plaintiff was sixty-eight years old at the time of his motion to terminate his alimony obligation. It was clearly appropriate for him to retire from working and, as a result, to seek a downward modification of the support order. At the same time, defendant was living in the home of her former boyfriend, which raised the issue of whether alimony should be terminated due to her possible cohabitation. By agreeing to the MOA, defendant was able to forestall a reduction in alimony due to plaintiff's retirement for at least five months, if not longer. In addition, plaintiff agreed to continue paying defendant $62 5 per month after his retirement unless defendant remarried or either party passed away. Under the circumstances, the terms of the MOA were very favorable to defendant.
Defendant's argument that the judge should have conducted a plenary hearing also lacks merit. We defer to the trial judge's determination as to whether to schedule a plenary hearing. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). "A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute . . . and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). See also Lepis, supra, 83 N.J. at 159 (holding that "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary"). Because defendant raised nothing more than bald allegations, which lacked factual support, we discern no abuse of discretion in the judge's decision to resolve the motion without conducting a plenary hearing.
As for the balance of any of defendant's arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION