NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1363-17T2
FRANCES J. HOFFMAN,
Plaintiff-Respondent,
v.
BRUCE W. HOFFMAN,
Defendant-Appellant.
Argued January 16, 2019 - Decided February 15, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-0908-98.
Bruce W. Hoffman, appellant, argued the cause pro se.
Frances J. Hoffman, respondent pro se.
PER CURIAM
Plaintiff Frances J. and defendant Bruce W. Hoffman were married in
1981; had four children, the youngest of whom was emancipated in 2016;
entered into a property settlement agreement (PSA), after days of negotiations,
in November 1999; and were divorced on January 19, 2000. During negotiations
to reach the PSA, as well as the divorce proceedings, both parties were
represented by counsel and had forensic accountants.
Now, nearly twenty years and "a multitude of motions" later, defendant
maintains that (1) plaintiff committed fraud during the execution of the PSA; (2)
defendant is entitled to $225,000 in counsel fees; (3) defendant's alimony and
arrearages should have been terminated; and (4) under Rule 4:50, defendant is
entitled to an equitable distribution plenary hearing. Defendant has essentially
been making these four arguments repeatedly since approximately 2003, and
each court that has heard these arguments has denied defendant relief. We now
affirm the most recent denial of relief.
Throughout his appellate brief, defendant's primary argument is that
plaintiff committed fraud and "cooked books" of Hoffman's Ice Cream, which
defendant owned. Defendant asserts that plaintiff fraudulently imputed to him
a net income of $290,000 per year. According to plaintiff, it was defendant who
provided the forensic accountants "with all of the information they requested
and required."
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2
Defendant stopped making his support payments approximately eleven
months after the judgment of divorce (JOD) was entered and has been arrested
at least four times as a result. After leaving a successful ice cream business, and
subsequently working minimum wage jobs, defendant asserts that his support
obligations should be terminated. The trial court found defendant failed to
provide sufficient evidence of changed circumstances.
Defendant made multiple motions to vacate the PSA, all of which were
denied. His previous appeals were also unsuccessful. In our last opinion we
wrote:
Defendant's numerous attempts to reduce his alimony
and child support obligations, re-litigate the equitable
distribution, and vacate the JOD have been rejected by
the trial court and affirmed by this court. Hoffman v.
Hoffman, No. A-986-03 (App. Div. May 27, 2004);
Hoffman v. Hoffman, No. A-4509-05 (App. Div. May
4, 2007); Hoffman v. Hoffman, No. A-4259-07 (App.
Div. June 1, 2009); Hoffman v. Hoffman, No. A-4309-
10 (App. Div. Dec. 2, 2011); Hoffman v. Hoffman, No.
A-5632-12 (App. Div. June 26, 2014). Appeals to our
Supreme Court have resulted in dismissals. Hoffman v.
Hoffman, 200 N.J. 365, 981 (2009), cert. denied, 559
U.S. 903 (2010); Hoffman v. Hoffman, 210 N.J. 27
(2012). The United States Supreme Court has denied a
petition for certiorari, Hoffman v. Hoffman, 559 U.S.
903 (2010), and a subsequent motion for rehearing,
Hoffman v. Hoffman, 559 U.S. 1117 (2010).
The present appeal arises out of a January 29, 2015
order in which the Family Part judge addressed a
A-1363-17T2
3
myriad of applications made by defendant, including
terminating his alimony and child support obligations,
re-litigating equitable distribution, requiring plaintiff to
pay him a retainer for counsel fees and other issues.
[Hoffman v. Hoffman, No. A-3117-14 (App. Div. Feb.
6, 2017) (slip op. at 2-3).]
We determined in our most recent prior appeal that defendant failed to supply
current financial information as ordered by the trial court to allow an alimony
adjustment. Id. at 2-4. We also affirmed the court's denial of defendant's request
to eliminate child support arrears. Id. at 3-4.
Now, approximately two years after our prior decision, we review a
September 15, 2017 order again denying defendant's motion to (1) require
plaintiff to pay defendant $225,000 in counsel fees; (2) terminate defendant's
alimony requirements; (3) eliminate alimony arrearages; (4) eliminate child
support arrearages; (5) reinstate defendant's passport; and (6) hold a plenary
hearing for equitable distribution. We also review an October 27, 2017 order
denying reconsideration.
In the PSA, which was placed on the record on November 10, 1999, the
parties agreed that starting December 1, defendant would pay $50,000 in
alimony and $45,000 annually in child support until September 1, 2000, when
alimony would increase to $80,000 annually.
A-1363-17T2
4
The parties also agreed that plaintiff would be entitled to the former
marital home. Defendant would transfer his interest in the home to plaintiff.
Plaintiff also agreed "to waive any and all interest that she may have in the
business known as Hoffman's Ice Cream of Spring Lake and the Hoffman's ice
cream business which is in Point Pleasant." As a result, defendant would "make
sure and provide proof that [plaintiff had] been taken off of any accounts
associated with the business . . . ."
As for defendant's income, the PSA indicated: "It's further agreed that the
support that was just enunciated to the [c]ourt will be based upon the $290,000
net income to the, to [defendant] and zero income to [plaintiff]."
Defendant's counsel added that the parties agreed that neither would make
an application to modify the support before March 2002, "absent some
extraordinary change in circumstance. . . . We used the word extraordinary as a
defining character." Defense counsel continued:
As a discovery disclosure we have agreed that the
parties have relied upon the advice of their respective
accountants and financial advisors in negotiating this
agreement. Each party agrees that the reports prepared
by their experts will not be utilized in any subsequent
court proceeding or application for financing except
that which has already been submitted to the [c]ourt as
part of a pleading.
A-1363-17T2
5
Defendant confirmed that he understood the PSA and believed it was "fair
and equitable under all of the circumstances of [the] case." Defendant did,
however, indicate a concern about his "ability to maintain the [ice cream] stores
at the current level." The court informed defendant that under the PSA, until
March 2002, defendant could not seek a modification to his support obligations,
and defendant's counsel and the court informed him that modification would not
occur "[a]bsent an extraordinary circumstance" such as a natural disaster or a
"medical or physical or emotional disability."
The court also asked several questions of defendant:
Q: You had severa1 accountants and an attorney
representing you in this matter because of the
complexity of the financial issues, correct?
A: Yes.
Q: And you relied on the information they provided to
you?
A: That is correct.
Q: And you're satisfied with their services, correct?
A: Yes, Your Honor.
In his July 2017 motion, defendant argued that plaintiff provided a
fraudulent cash flow analysis identifying his income, improperly imputing a
$290,000 yearly income to defendant. Defendant acknowledged that eleven
A-1363-17T2
6
months after the JOD was entered, he ceased all payments of child support and
alimony.
Defendant also indicated his disagreement with prior court determinations
that plaintiff did not commit a fraud or inflate his income. In addition, he asserts
his ice cream business began to run into trouble in 2003, and stores closed in
2004 as a result of unpaid rent.
Defendant also argued that plaintiff fraudulently misrepresented to the
court the value of their marital home when she stated it was worth $625,000 but
sold it eight months later for $1,799,000. Plaintiff agreed at oral argument
before the judge that the house increased in value due to an upswing in the
housing market.
In addition, defendant claimed that as a result of an expert's employability
evaluation in 2005, he could only expect a base salary of $8.26 per hour. As a
result, defendant's net pay after wage garnishment and child support put him
below the poverty level. Defendant's arrearages exceed one million dollars.
In her opposition to defendant's motion, plaintiff alleged that defendant
was abusing the judicial process, for many years, in order to be released from
his obligations under the PSA. Plaintiff pointed out that it was defendant's
A-1363-17T2
7
choice to remove himself from the ice cream business, and despite his arguments
to the contrary, the stores expanded.
As for defendant's ability to maintain his support obligations, plaintiff
informed the motion judge at oral argument:
My only and the strongest evidence that there is, that
the defendant could have maintained his support, is that
Hoffman's Ice Cream is still open. It is now owned by
his cousins or cousins in the family. The lines are still
out the door. There were never a new set of books
provided by the defendant to say this is where my
income has dropped. He just said I've been evicted by
my father and they have proceeded to open up two more
stores and it's successful and an ice cream truck, so I
don't see where the business could have failed nor has
he provided that proof.
I think everything that has been decided prior to all of
these dates and all of the history has been on target, has
been fair, and he's just not happy with it because he
chose to give up the asset that he received. I chose to
maintain it. I did not cash out the checks and store them
and compound interest on them. I used it to pay for the
house, pay for the children's education, medical, dental,
that he did not maintain, as he was suppose[d] to. I
supported the children in every way.
On September 15, 2017, the motion judge found that "much of
[defendant's] application is a motion for reconsideration of prior court rulings."
The judge found defendant's claims of fraud by plaintiff and his "application to
vacate the PSA and JOD and schedule a plenary hearing on those issues" were
A-1363-17T2
8
"addressed multiple times in the past," and rather than present new evidence,
defendant simply argued that the prior court rulings were incorrect. Defendant's
application for reconsideration was "well beyond the [twenty] day time period
[under Rule 4:49-2] for the court to revisit any such decisions and that, alone,
[was] a basis to deny the application . . . ." Defendant "merely [sought] to
reargue those matters specifically raised, and expressly addressed, by the prior
courts."
The judge next addressed defendant's argument that plaintiff committed
fraud, and therefore, under Rule 4:50-1, the JOD and PSA must be vacated. In
particular, "[d]efendant argue[d] that the income of $290,000.00 annually was
only imputed to him because the [p]laintiff inflated the income of the two ice
cream stores when she provided the books to her accountant." The judge found
that defendant failed to provide new evidence to support his claim that plaintiff
committed fraud. "[A]bsent 'unconscionability, fraud, or overreaching in the
negotiations of the settlement . . . no legal or equitable basis exists to reform the
parties' property settlement agreement.'" (alteration in original) (quoting Miller
v. Miller, 160 N.J. 408, 419 (1999)). The judge found defendant was represented
by counsel at the time of the PSA, and did not claim ineffective assistance of
counsel. He said "multiple courts have found [p]laintiff did not engage in any
A-1363-17T2
9
fraud and [d]efendant has not put forth any evidence upon which to reconsider
those prior rulings nor substantiate this court finding a question of fact on same,
nor that [plaintiff] withheld any information prior to, or since, the divorce."
Noting that "alimony obligations 'are always subject to review and
modification on a showing of "changed circumstances"'" under Lepis v. Lepis,
83 N.J. 139, 146 (1980), the judge found defendant failed to make a prima facie
showing of changed circumstances based on a reduction in income. In addition,
the judge found
[i]n the present case, [d]efendant outlines nothing he
has undertaken to improve his position nor to establish
any efforts on his part other than maintaining a
minimum wage job for [ten] years. The [d]efendant
was about forty-six . . . years of age when his career
through the [i]ce [c]ream business ended. That age is
well below the standard age of retirement, sixty-five
. . . . Further, many persons work well beyond sixty-
five . . . years of age. There is nothing to suggest the
[d]efendant was in poor health when he chose to leave
the ice cream store business.
The judge next denied defendant's request to vacate his support obligation
arrears because there was "no basis to grant such relief." The judge then
addressed defendant's request to have his passport reinstated and found
defendant failed to present an argument or rationale for his request. The judge
also denied defendant's request for a plenary hearing. On October 27, 2017, the
A-1363-17T2
10
judge denied defendant's motion for reconsideration, finding defendant was
merely rearguing the matter.
We afford deference to the factual findings of the family court. Thieme
v. Aucoin-Thieme, 227 N.J. 269, 282 (2016). This is due to "the family courts'
special jurisdiction and expertise in family matters . . . ." Cesare v. Cesare, 154
N.J. 394, 413 (1998).
Fraud Allegations
Under Rule 4:50-1, a party may move for relief "from a final judgment or
order for the following reasons:"
(a) mistake, inadvertence, surprise, or excusable
neglect;
(b) newly discovered evidence which would probably
alter the judgment or order and which by due diligence
could not have been discovered in time to move for a
new trial under R. 4:49;
(c) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party;
(d) the judgment or order is void;
(e) the judgment or order has been satisfied, released
or discharged, or a prior judgment or order upon which
it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment or order should
have prospective application; or
A-1363-17T2
11
(f) any other reason justifying relief from the operation
of the judgment or order.
In order to timely raise a claim of fraud, or a claim arising under subsections (a)
or (b), the party seeking relief must file its motion "not more than one year after
the judgment, order or proceeding was entered or taken." R. 4:50-2. Requests
for relief arising under subsections (d), (e) and (f) of Rule 4:50-1 must be
brought "within a reasonable time . . . ." Ibid.
Defendant's allegations of fraud, purportedly occurring nearly twenty
years ago, have been litigated unsuccessfully by him many times. Repeated
litigation of the same issues is burdensome to the other party and the court
system, and is not permitted. See In re. Dawson, 136 N.J. 1, 20-21 (1994)
(explaining that collateral estoppel precludes a party from relitigating an issue
if there was a final determination of the same essential issue after litigation with
the same party); see also Linek v. Korbeil, 333 N.J. Super. 464, 471, 474 (App.
Div. 2000) (noting that collateral estoppel and res judicata bar claims when "the
opportunity to relitigate an issue is sought").
Modification of Spousal Support
Our Supreme Court created a two-pronged procedural standard for
modification of spousal support agreements. Lepis, 83 N.J. at 157. First, the
party seeking a modification bears the burden of making a prima facie showing
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12
of changed circumstances. Ibid. Changed circumstances that may warrant a
modification include:
(1) an increase in the cost of living;
(2) increase or decrease in the supporting spouse's
income;
(3) illness, disability or infirmity arising after the
original judgment;
(4) the dependent spouse's loss of a house or apartment;
(5) the dependent spouse's cohabitation with another;
(6) subsequent employment by the dependent spouse;
and
(7) changes in federal income tax law.
[Id. at 151 (citations omitted).]
Second, and only after the moving party has made a prima facie showing, the
court may then order discovery and a plenary hearing to determine whether the
supporting spouse has an ability to pay. Id. at 157. Defendant previously failed
to comply with such an order and we affirmed the dismissal of his claim.
Hoffman v. Hoffman, No. A-3117-14 (App. Div. Feb. 6, 2017) (slip op. at 2-4).
Counsel Fee Award
Defendant argues that because plaintiff is a "multimillionaire" who
committed fraud upon the court and because his employment opportunities are
poor, the trial court should have granted defendant's request for a $225,000
counsel retainer from plaintiff. Defendant acknowledges he moved for relief
from his support obligations due to changed circumstances on multiple
A-1363-17T2
13
occasions over the course of this litigation and the trial courts did not find any
changed circumstances. He also previously sought to eliminate his support
arrears and alleged fraud in the original PSA. An award of counsel fees to
relitigate issues already resolved is counterproductive and unwarranted.
Any remaining arguments not discussed above are without sufficient merit
to require discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendant has
not demonstrated any abuse of discretion or other error in the thoughtful and
comprehensive decisions of the motion judge.
Affirmed.
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FRANCES J. HOFFMAN VS. BRUCE W. HOFFMAN (FM-13-0908-98, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion