SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
SHARON BORNSTEIN
v.
ARTHUR BORNSTEIN,
________________________________
|
Argued May 7, 2012 - Decided
Before Judges A. A. RodrÃguez, Sabatino, and
Ashrafi.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1106-03.
Bonnie C. Frost argued the cause for appellant
(Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Ms. Frost, on
the brief).
Respondent has not filed a brief.
PER CURIAM
This
matrimonial case returns on appeal following further proceedings in the trial
court regarding the application of defendant Arthur Bornstein (the
"ex-husband") to reopen the terms of an interspousal agreement
incorporated into the parties' 2003 divorce judgment because he allegedly
lacked sufficient mental capacity to assent to the terms negotiated by the
parties' counsel. After an
extensive evidentiary hearing that explored in depth the history of the
ex-husband's mental condition, as well as his interactions with his former
attorney during the divorce proceedings, the trial court denied the motion to
reopen the judgment. We affirm.
We
incorporate by reference the facts and procedural history set forth in our 2007
unpublished decision that preceded the trial court proceedings and the current
appeal. See Bornstein v.
Bornstein, No. A-3156-05 (App. Div. Aug. 24, 2007). Only a few points bear repeating. The parties were married in 1993 and
had no children together. In 1978,
long before the marriage, the ex-husband was involved in an accident that
caused him permanent cognitive disabilities, and which entitled him to receive
Social Security Disability payments.
At the time of the divorce proceedings, the ex-husband, although he was
licensed as a real estate agent, was not regularly employed. His spouse, plaintiff Sharon Bornstein
("the ex-wife"), was employed and earned about $65,000 annually.
The
parties and their respective counsel appeared before the Family Part on November
20, 2003, at which time their agreement was presented for the court's
approval. As reflected in the
transcript excerpts quoted at length in our prior opinion, see id.
at 3-8, the parties were questioned extensively by the judge. They each confirmed their assent to the
terms of the agreement, which they acknowledged were fair; their mutual ability
to make an informed decision; their denial of being affected by medication or
substances that could affect their judgment; and their lack of questions for
their respective counsel or the court.[1] Pursuant to the agreement, the
ex-husband waived a claim for alimony, although he received a $35,000 lump sum
in addition to his half-share of the equity in the marital residence.
In
2005, the ex-husband filed a motion pursuant to Rule 4:50-1 seeking to
vacate the terms of the divorce judgment and, in particular, to repudiate his
alimony waiver. He based his
motion upon a claim that he was suffering from ongoing mental impairment at the
time of the 2003 divorce proceedings and that he did not understand what he was
doing. The ex-husband supported
his 2005 motion with letters and reports from several mental health
professionals who had evaluated him.
The ex-wife opposed the application. The trial court rejected the ex-husband's motion, finding
that the ex-husband's brain injury had not markedly changed since his 1978
accident, and that the opinions in the doctors' reports that he lacked
sufficient capacity to enter into the divorce in 2003 were speculative. The court further concluded that the
substantive terms of the divorce were not inequitable, and that the
ex-husband's alimony waiver was a fair quid pro quo in
exchange for his receipt of an enhanced sum in equitable distribution.
The
ex-husband then appealed, contesting the trial court's denial of his motion to
reopen the divorce judgment. We
affirmed that decision in our August 24, 2007 opinion, agreeing with the trial
court that the ex-husband's medical proofs were inadequate to demonstrate that
he lacked sufficient capacity to enter into the interspousal agreement. Bornstein v. Bornstein, supra,
slip op. at 10-12. We also
sustained the court's finding that the ex-husband had failed to sustain his
burden of proving that the terms of the divorce were unconscionable. Id. at 12-13.
Shortly
after our opinion was issued, the ex-husband moved for reconsideration. In support of that motion, the
ex-husband furnished us with additional mental health records and reports that
had not been supplied to the trial court in 2003 nor on the appeal. On September 26, 2007, we issued an
order denying reconsideration.
That order was without prejudice and specifically stated that defendant
could file a renewed motion in the Family Part to seek relief under Rule
4:50-1. Our order also required
the ex-husband to justify, in any such proceedings, why the supplemental
medical materials had not been previously supplied to the trial court.
Thereafter,
defendant filed a motion in the Family Part seeking relief under Rule
4:50-1. The trial court conducted
four days of evidentiary hearings in May and August 2010 to further develop the
record of the ex-husband's mental condition and to re-examine whether he lacked
capacity at the time of the 2003 divorce.
The ex-wife participated in those hearings, pro se, and presented the
testimony of her former attorney who represented her during the divorce in 2003,
and the testimony of her ex-husband's former attorney who had represented him
in the divorce proceedings. The
ex-husband, represented by new counsel, presented testimony from a
neuropsychiatrist, his physician, his sister, and the ex-wife. The ex-husband also testified on his
own behalf. The trial court was
also supplied with the voluminous mental health records that were thereafter
reproduced on appeal for our own consideration.
The
gist of the ex-husband's proofs, including the expert testimony of the
neuropsychiatrist, is that he lacked the mental capacity in 2003 to appreciate
what was occurring in the divorce case and that, had he been more cogent, he
would have insisted that his then-attorney negotiate an alimony award. In particular, the neuropsychiatrist
opined that the ex-husband's cognitive limitations were of a latent nature,
such that he could appear to be cogent to others and not realize that he, in
fact, was not fully understanding the import of the negotiations.
The
ex-husband's former attorney, however, testified that during his interactions
with him in 2003, the ex-husband had been lucid and had behaved as if he
understood what was going on. The
attorney stated that the ex-husband never advised him that he did not want to
go through with the settlement on the negotiated terms, that he did not
indicate in any way that he lacked understanding of what was going on in the
negotiations, and that he was "extremely actively involved" in the
case.
Upon
considering the amplified proofs, the trial court again concluded that the
ex-husband had not shown an entitlement to relief under Rule
4:50-1(f). In his order dated
February 2, 2011, the judge specifically found that the testimony and medical
evidence "fail[ed] to overcome the other available evidence of the
defendant's overall competence, as well as his knowledge of and participation
in the full divorce process, with the advice and assistance of competent
counsel." The judge further
noted that "[t]he evidence, taken as a whole, conclusively demonstrates
that the defendant was capable of understanding the process and intelligently
and voluntarily entering into his divorce."
In
his oral decision accompanying his order, the judge found that "[i]t's
clear to this [c]ourt by clear and convincing evidence that [the ex-husband]
understood what was going on and that there is no reason to nullify the
agreement or to set aside the judgment of divorce." The judge found particularly
significant the prior attorney's description of the substantive interactions
that he had with the ex-husband in negotiating the terms of the divorce. The judge also noted that, at the time
of the divorce litigation, the ex-husband had an opportunity to consult with
his sister. Additionally, the
judge observed that the ex-husband was cogent in his testimony during the 2010
remand proceedings and that, in fact, he had "match[ed] the wits" of
his ex-wife.
The
ex-husband now appeals, contending that the trial court erred in denying him
relief under Rule 4:50-1(f).
The ex-husband contends that the court improperly used his mental state
and courtroom demeanor in 2010 in a retroactive manner. The ex-husband further argues that the
judge was biased, and that the terms of the divorce, particularly the alimony
waiver, were manifestly unfair.
Having
considered these arguments and the copious record, we affirm the trial court's
renewed denial of the ex-husband's Rule 4:50-1(f) motion, substantially
for the reasons detailed in Judge Terence P. Flynn's extensive oral opinion of
February 2, 2011 and his corresponding order of that date. We add only a few remarks.
Judge
Flynn painstakingly considered the proofs that were adduced at the four days of
evidentiary hearings. The judge
rightly recognized that the ex-husband bore a heavy burden under Rule
4:50-1(f) to demonstrate "exceptional circumstances" to set aside the
negotiated terms of the divorce that were placed on the record in November
2003. Whether exceptional
circumstances are present to obtain relief under the Rule hinges upon
the totality of the facts, and is assessed on a case-by-case basis. In re Guardianship of J.N.H.,
172 N.J. 440, 473-74 (2002).
To obtain relief, the movant must demonstrate that the circumstances are
exceptional and that continued enforcement of the judgment would be
"unjust, oppressive or inequitable." Quagliato v. Bodner, 115 N.J. Super. 133, 138
(App. Div. 1971), superseded by statute on other grounds, Comparative
Negligence Act, L. 1987, c. 146, as recognized in Reichert
v. Vegholm, 366 N.J. Super. 209, 224 (App. Div. 2004).
The
judge specifically found that the ex-husband's testimony lacked credibility in
numerous respects. That
credibility assessment warrants our deference. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 483-84 (1974); see also Cesare v. Cesare, 154
N.J. 394, 411-12 (1998).
The judge also did not find the testimony of the ex-husband's experts to
be persuasive. Even though the
unrepresented ex-wife did not present any competing expert testimony, the
court, as fact-finder, was not obligated to adopt at face value the opinions of
the ex-husband's experts, despite their qualifications. See Brown v. Brown, 348 N.J.
Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193
(2002). The judge was entitled to
accord greater weight to the testimony of the ex-husband's trial counsel, whose
recollection of the ex-husband's cogent substantive involvement in the divorce
litigation and negotiations was corroborated by contemporaneous letters that
the ex-husband had sent his counsel in 2003 that commented upon the substance
of the case.
We
reject the ex-husband's claim that Judge Flynn gave improper consideration to
the ex-husband's courtroom demeanor in 2010 as relevant counter-proof of his
alleged lack of capacity in 2003.
It is impossible to replicate how the ex-husband actually presented
himself in 2003. The judge rightly
took into account the ex-husband's present demeanor as circumstantial evidence
of his prior condition, and also to the extent that it bore on the credibility
of his present sworn assertions.
The
ex-husband's contention that the trial judge was biased and showed favoritism
to the ex-husband's former counsel lacks sufficient merit to warrant
discussion. R.
2:11-3(e)(1)(E). The judge
reasonably considered the first-hand observations of the former counsel as
having substantial probative value in undercutting the ex-husband's claim that
he had been too impaired to participate in the divorce negotiations in a
meaningful fashion.
Lastly,
our conclusion from 2007 that the terms of the divorce were not unconscionable,
see Bornstein v. Bornstein, supra, slip op. at 12-13,
remains unaltered, even in light of the additional proofs that were tendered on
the remand.
Affirmed.
|
[1] Since the
parties are well aware of the background, there is no need in this opinion to
elaborate upon the history of the ex-husband's mental health condition,
diagnoses, or treatment, including the information contained within the
fourteen volumes of appendices furnished on this appeal, all of which we have
duly considered.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.