M.W. VS. C.W. (FM-20-0735-19, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3494-19

M.W.,

Plaintiff–Respondent,

v.

C.W.,

Defendant-Appellant.
___________________________

Submitted March 3, 2021 – Decided April 1, 2021

Before Judges Whipple and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-0735-19.

Howard D. Lipstein, attorney for appellant.

Lawrence Law Firm, LLC, attorneys for respondent
(Jeralyn L. Lawrence and Kristyl M. Berckes, on the
brief).

PER CURIAM
 In this post-judgment dissolution matter, defendant C.W. 1 appeals from

the Family Part's April 17, 2020 order denying his motion to vacate the final

judgment of divorce (FJOD) under Rule 4:50-1. We affirm.

I.

We discern the following facts and procedural history from the record on

appeal. The parties were married in 1996 and have two children, J.W., born in

2001, and R.W., born in 2003, who is autistic. C.W. is fifty-seven years old and

is employed as a math teacher by the Elizabeth Board of Education earning a

base salary of $67,000. He was diagnosed with epilepsy in 2013 and is

prescribed Lamotrigine daily to prevent epileptic episodes. Plaintiff, who is also

fifty-seven years old, is employed by Serta Simmons Bedding, LLC, earned a

base salary of $80,344.08 in 2018, and received a $13,855.62 bonus. Both

parties have rental income, defendant receiving approximately three times more

than plaintiff.

In September 2018, plaintiff first raised the possibility of a divorce with

defendant. On October 4, 2018, defendant suffered a seizure while driving and

rear-ended a vehicle operated by an undercover police officer. Fearing

defendant would be involved in another accident, he alleged plaintiff demanded

1
We use initials to protect the parties' privacy interests. See R. 1:38-3(d)(1).
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a turnover of all marital assets into her sole name; otherwise, she would contact

the New Jersey Motor Vehicle Commission and have his driver's license

suspended. Plaintiff sought a divorce as a result of defendant's unstable lifestyle

of constant employment changes and relocating the family.

After speaking with a mutual friend who is a wealth management

accountant, the parties agreed to retain a mediator and shared the costs of his

services. At defendant's request, a spreadsheet was jointly prepared of the

parties' assets for equitable distribution purposes and forwarded to the mediator.

The parties were self-represented at mediation. The mediator prepared a marital

settlement agreement through mediation (MSA), which was signed by both

parties and notarized on November 10, 2018.

Of significance in the MSA is the distribution of three properties the

parties owned as tenants by the entirety. Plaintiff retained sole title of the former

marital home and the existing mortgage encumbering the property was evenly

divided. Defendant received unencumbered title to the parties' Poconos property

and a rental property in Cranford. Child support was waived, but each party

agreed to contribute $200 monthly towards clothes, activities, and necessities

for the children. Given the ages of the children, neither party was designated as

the parent of primary residence. Both parties waived alimony.

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 On November 13, 2018, plaintiff filed a complaint for divorce as a self-

represented litigant and defendant assisted her with drafting the pleading,

providing insurance-related details. An uncontested hearing date was moved up

at defendant's request from February 4, 2019, to January 16, 2019, to alleviate

stress for the family.

On January 9, 2019, defendant had another epileptic episode resulting in

a seizure while he was driving. His vehicle was totaled after striking a guardrail,

and he was transported to the hospital where he was treated and discharged.

Plaintiff drove defendant to the January 16, 2019 hearing because the parties

were still residing together at that time and due to his history of accidents arising

from epileptic episodes. Defendant now claims he thought he was going to an

Individualized Education Program for their son R.W. when the parties left the

home that morning, and he was unprepared for the hearing.

At the hearing, which was scheduled as a default hearing in light of th e

executed MSA, and defendant not filing a responsive pleading, both parties

appeared as self-represented litigants. After administering the oath to both

parties, the judge conducted voir dire of the parties as to their familiarity with,

understanding of, voluntariness, and agreement to the terms set forth in the MSA

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marked as J-1 in evidence. The following colloquy took place between the judge

and defendant:

Judge: All right. Sir, same thing. You also recognize J-
1?

Defendant: Yes.

Judge: And did you sign it?

Defendant: Yes, I did.

Judge: And are you comfortable you understand it?

Defendant: Now is there any chance to change that or
anything?

Judge: To change this document?

Defendant: Or it's -- it's written in stone, right? We're
done?

Judge: Well, it's written stone if I approve it: That's
what we're trying to find out now.

Defendant: Okay.

Judge: If you -- you had enough time to think about it,
if you think it's fair?

Defendant: It's an even equity distribution.

Judge: Okay. And so it's okay with you if I make it a
part of your judgment of divorce?

Defendant: Yeah.

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 Judge: Okay.

The judge was satisfied from the parties' testimony that the MSA

"represents a settlement of all the issues in the marriage and they're willing to

be bound by it." The record shows the judge exchanged pleasantries with the

parties about his father, who was also a judge, which defendant acknowledged.

The FJOD was executed by the judge that day and incorporated the MSA.

Thereafter, on August 26, 2019, defendant filed a motion to vacate the

FJOD and to set aside the MSA under Rule 4:50-1. In his moving certification,

defendant claimed his medical condition, which resulted in epileptic seizures,

and the medications he took, prevented him from understanding the terms of the

MSA and the nature of the divorce proceeding. Plaintiff opposed defendant's

motion and filed a cross-motion to enforce her rights under the MSA.

On October 11, 2019, the same judge heard oral argument on the motions.

In his oral opinion, the judge noted he presided over the divorce hearing and that

he reviewed the hearing transcript when he received the motion and the day prior

to oral argument. The judge explicitly found, "there was nothing about

[defendant's] countenance, his appearance, his affect, or the way he presented

himself that day that suggested to me anything other than he was here w ith us,

understood what he was doing, understood what he was saying." Consequently,

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the judge denied defendant's motion to vacate the FJOD and granted plaintiff's

cross-motion, enforcing defendant's obligations pursuant to the MSA, and

ordering him to pay $9,647.50 towards plaintiff's counsel fees.

On January 15, 2020, after retaining new counsel, defendant filed a second

motion to vacate the FJOD. In his moving certification, defendant, for the first

time, raised the point that he was an alcoholic. In support of this contention,

defendant submitted a report from Dr. David J. Gallina, a board -certified

psychiatrist and neurologist, who interviewed defendant and concluded, based

on his history, he "was under the influence of alcohol at the time of the div orce

hearing." Plaintiff again opposed defendant's motion.

On February 28, 2020, the same judge denied defendant's motion, without

conducting oral argument, and placed his decision on the record. The judge

stated defendant's motion was "overwhelmingly similar" to his prior motion,

aside from the brand-new allegation of alcoholism, which the judge determined

was incredulous. Once again, the judge awarded plaintiff attorney's fees in the

amount of $7701, finding defendant was clearly an active and willing participant

in the preparation of the "eventual agreement" leading to the MSA as well as the

final hearing. In addition, the judge reiterated he "had the opportunity to observe

[defendant]. If I felt there was anything about his appearance that suggest [ed]

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to the [c]ourt he was under the influence of anything I certainly [would] have

inquired him about that." A memorializing order was entered.

On March 18, 2020, defendant filed a motion for reconsideration, which

was opposed by plaintiff. No oral argument was entertained. In his oral

decision, the judge denied defendant's motion and emphasized, "there's nothing

new here," and "this is literally the fourth bite at the apple." The judge awarded

plaintiff attorney's fees of $6,236.50 and entered a memorializing order. This

appeal followed.

On appeal, defendant argues that the judge erred in denying his motion to

vacate the FJOD by "failing to ensure [he] knowingly, willingly and voluntarily

entered into the [MSA]" before incorporating the MSA into the FJOD.

Defendant also alleges his subsequent motion to vacate was improperly denied

without the judge hearing oral argument.

II.

New Jersey has long espoused a policy favoring the use of consensual

agreements to resolve controversies, and "[s]ettlement of disputes, including

matrimonial disputes, is encouraged and highly valued in our system." Quinn

v. Quinn, 225 N.J. 34, 44 (2016). "An agreement that resolves a matrimonial

dispute is no less a contract than an agreement to resolve a business dispute [,]"

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and "is governed by basic contract principles." Id. at 45. "Among those

principles are that courts should discern and implement the intentions of the

parties[,]" and not "rewrite or revise an agreement when the intent of the parties

is clear." Ibid. "Thus, when the intent of the parties is plain and the language

is clear and unambiguous, a court must enforce the agreement as written, unless

doing so would lead to an absurd result." Ibid. However, "[t]o the extent that

there is any ambiguity in the expression of the terms of a settlement agreement,

a hearing may be necessary to discern the intent of the parties at the time the

agreement was entered and to implement that intent." Ibid.

A settlement agreement must be set aside when one party was not

competent to voluntarily consent to it. Jennings v. Reed, 381 N.J. Super. 217,

227 (App. Div. 2005). "[T]he longstanding rule is that 'where there is not the

mental capacity to comprehend and understand, there is not the capacity to make

a valid contract.'" Ibid. (quoting Wolkoff v. Villane, 288 N.J. Super. 282, 287

(App. Div. 1996)); see also Peskin v. Peskin, 271 N.J. Super. 261, 278 (App.

Div. 1994). A party to a contract possesses the requisite capacity when the party

has "the ability to understand the nature and effect of the act in which he is

engaged, and the business he is transacting . . . [the party's mind must not] be so

clouded or perverted by age, disease, or affliction, that he cannot comprehend

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the business in which he is engaging . . . ." Jennings, 381 N.J. Super. at 227

(quoting Eaton v. Eaton, N.J.L. 108, 113 (Sup. Ct. 1874)). The party seeking to

set aside a settlement agreement generally has the burden of proving his

incapacity or incompetence to contract. Ibid.

We have had prior occasions to review a trial judge's decision on a motion

to vacate an agreement or order based upon incapacity. Those cases turned on

the evidence of incapacity at the time of the agreement rather than when the

motion was made. See e.g., Barrie v. Barrie, 154 N.J. Super. 301, 305-06 (App.

Div. 1977) (affirming the denial of the plaintiff-wife's motion to either vacate

her property settlement agreement under Rule 4:50-1(f) or grant a plenary

hearing as to whether the court should rescind the agreement where she included

a certification from her psychiatrist that did not address her capacity at the time

she entered into an agreement); Fineberg v. Fineberg, 309 N.J. Super. 205, 215-

17 (App. Div. 1998) (affirming trial judge's denial of defendant-husband's

motion to set aside a divorce judgment on the grounds that he was hospitalized

and did not receive notice of the trial date, because he had previously opposed

the wife's motion to appoint a guardian ad litem for him by arguing that he was

competent).

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 Here, the motion judge rejected defendant's factual assertions that he

claimed supported a finding that he lacked capacity. The judge did not

specifically mention Dr. Gallina's report in his decision; however, we discern no

error or abuse of discretion.

The record shows Dr. Gallina had no prior history of treating defendant,

and the doctor's forensic report was premised almost exclusively on an interview

he conducted of defendant nearly a year after the FJOD was entered. Moreover,

Dr. Gallina's conclusions rested largely on the self-serving representations made

by defendant, which were subjective in nature, and not based on objective,

credible evidence. Under Rule 702,2 Dr. Gallina's report lacked the "differential

diagnostic methodology" required to ensure admissibility based upon objective

factors. Creanga v. Jardal, 185 N.J. 345, 357 (2005). And, his report was served

out of time in violation of Rule 1:6-2.

"'[T]he decision whether to vacate a judgment on one of the six specified

grounds [of Rule 4:50-1] is a determination left to the sound discretion of the

trial court, guided by principles of equity' and that decision must be left

2
Rule 702 provides: "If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise."
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undisturbed unless a clear abuse of discretion appears." Del Vecchio v.

Hemberger, 388 N.J. Super. 179, 186-87 (App. Div. 2006) (quoting F.B. v.

A.L.G., 176 N.J. 201, 207 (2003)). A determination on a motion for relief under

Rule 4:50-1 "warrants substantial deference, and should not be reversed unless

it results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume,

209 N.J. 449, 467 (2012). An abuse of discretion will be found "when a decision

is 'made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis.'" Ibid. (quoting Iliadis v. Wal-

Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

Rule 4:50-1(f) states in pertinent part that relief may be obtained "[o]n

motion, with briefs, and upon such terms as are just, the court may relieve a

party or the party’s legal representative from a final judgment or order for any

other reason justifying relief from the operation of the judgment or order."

In order to obtain relief under the Rule the party seeking such relief is

required to present proof "of exceptional and compelling circumstances"

justifying the relief sought because the Rule is "[d]esigned to balance the

interests of finality of judgments and judicial efficiency against the interest of

equity and fairness." Harrington v. Harrington, 281 N.J. Super. 39, 48 (App.

Div. 1995) (citing Baumann v. Marinaro, 95 N.J. 380, 392 (1984)). "[T]o

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establish the right to such relief, it must be shown that enforcement of the order

or judgment would be unjust, oppressive or inequitable." Ibid. (citations

omitted). Relief under this Rule is granted sparingly, and a party is entitled to

a hearing on the application only upon a showing that there exists genuinely

disputed issues of material fact supporting the relief sought. Barrie, 154 N.J.

Super. at 303-04.

Moreover, not every factual dispute on a motion requires a plenary

hearing. A plenary hearing is only necessary to resolve genuine issues of

material fact in dispute. Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div.

2004); Harrington, 281 N.J. Super. at 47; Adler v. Adler, 229 N.J. Super. 496,

500 (App. Div. 1988). Genuinely disputed issues of fact are those having

substance as opposed to insignificance. Cokus v. Bristol Myers Squibb Co., 362

N.J. Super. 366, 370 (Law Div. 2002), aff'd o.b., 362 N.J. Super. 245 (App. Div.

2003).

A trial judge's decision whether to allow or deny such relief under the

Rule should be "left undisturbed unless it results from a clear abuse of

discretion." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:50-1

(2021) (citing Guillaume, 209 N.J. at 467).

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 Here, there is absolutely no proof that defendant did not participate

knowingly, willingly, and voluntarily in the final divorce hearing. On the

contrary, at the final hearing, the parties made a handwritten change to their

MSA—one that was beneficial to defendant—allowing him to remove himself

and his personal belongings from the marital home on March 1 instead of

January 1, 2020. The judge questioned defendant about his understanding of the

MSA and the parties' agreement to extend his stay in the marital home, to which

defendant responded affirmatively. The record further reveals the judge

questioned both parties regarding their willingness to be bound by the terms of

the MSA on the record.

Defendant ostensibly told Dr. Gallina that "[t]he night before [the hearing]

he thinks he drank about [thirteen] ounces of bourbon, and he drank about [six]

ounces of bourbon on the morning of the hearing." To reiterate, the judge

listened to the testimony not only upon receiving the motion to vacate, but again

the day before oral argument and stressed:

And so I can't accept the representation that he
was somehow incompetent on the day that he was in
court. I also say, all I have is I—as I mentioned
already—is a certification and printout of some
medication.

I don't have anything from any kind of a medical
provider suggesting that either at the time he negotiated

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 the [MSA], or on the day he was in court, that he was
not in possession of his faculties.

....

I will say also, I don't have anything from [the
mediator] saying that he had any concerns whatsoever
with [defendant] at the time [the] agreement was
not[ariz]ed (sic) . . . .

I think, with all due respect, there's an absolute
posit of information that would have supported
[defendant's] position here for setting aside the default
judgment.

. . . His certification and a printout of some
medication is a long way from anything that would have
provided this [c]ourt from any ability to buy into his
argument, which I do not, that he was somehow not in
a proper capacity to be able to make the decisions he
made and it's belied by the agreement.

It's belied by the fact that it was reached with a
mediator, who was an attorney. It was belied by his
appearance in the court that day and the answers that he
gave the court.

In family matters "'substantial weight' must be given to the judge's

observations of the parties' 'demeanor, comprehension and speech' when they

appeared before the court . . . ." Rolnick v. Rolnick, 262 N.J. Super. 343, 360

(App. Div. 1993) (quoting Barrie, 154 N.J. Super. at 307.) "Because of the

importance that [the courts] attach to the finality of judgment, relief under Rule

4:50-1(f) is available only when 'truly exceptional circumstances are present.'"

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Hous. Auth. v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann, 95 N.J. at

395).

To summarize, substantial, credible, and undisputed evidence in the

record demonstrates that defendant's motion to vacate failed to meet the

standards for relief from judgment under Rule 4:50-1(f). Moreover, the record

demonstrates defendant's understanding of the terms of the settlement and his

knowing and voluntary assent to its terms. Under such circumstances, a plenary

hearing was not necessary to ascertain the intent of the parties. In short, we

discern no basis on this record to conclude the judge abused his discretion in

denying the relief sought by defendant.

III.

Finally, defendant contends the judge committed error when he denied

defendant's second motion to vacate and for reconsideration without conducting

oral argument. We acknowledge that litigants should be permitted oral

argument of motions other than calendar matters and routine discovery

applications when requested "as a matter both of due process and the appearance

of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997);

see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 5:5-4

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(2021) ("[T]here is a strong presumption favoring argument of motions other

than calendar matters and routine discovery applications.").

To that end, Rule 5:5-4(a) expressly provides:

Motions in family actions shall be governed by [Rule]
1:6-2(b) except that, in exercising its discretion as to
the mode and scheduling of disposition of motions, the
court, shall ordinarily grant requests for oral argument
on substantive and non-routine discovery motions and
ordinarily deny requests for oral argument on calendar
and routine discovery motions.

"The discretion afforded by Rule 5:5-4(a) is designed to give the judge

'the option of dispensing with oral argument . . . when no evidence beyond the

motion papers themselves and whatever else is already in the record is necessary

to a decision.'" Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. Div. 2010)

(alteration in original) (quoting Fusco v. Fusco, 186 N.J. Super. 321, 328-29

(App. Div. 1982)). "In short, it is the sole purpose of these rules to dispense

with what is regarded as unnecessary or unproductive advocacy." Ibid. (quoting

Fusco, 186 N.J. Super. at 329).

However, a judge's inquiry does not end simply because the "nature of an

issue presented can be labeled as pertaining to a substantive issue" or when "the

parties do not agree on all facts." Id. at 286. "Other circumstances, such as the

sufficiency of the supporting facts alleged are also relevant to the exercise of

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discretion," especially "in the case of motions that seek a modification of

financial obligations or reconsideration or a prior order because the movant must

satisfy certain requirements before these motions are ripe for decision by the

court." Ibid. "When the record presented to the court in support of a motion is

deficient on its face to satisfy such requirement, oral argument does not afford

litigants an opportunity to cure such evidentiary deficiencies." Ibid.

In accordance with Palombi, we conclude the judge properly exercised his

discretion in denying oral argument. It is clear from the judge's October 11,

2019, February 28, 2020, and April 17, 2020 oral decisions that he was familiar

with the issues raised in defendant's motions, having conducted the final

hearing. Moreover, the judge aptly highlighted that defendant's repetitious

motions were "becoming an abuse of process." In his April 17, 2020 oral

decision, the judge held "it became clear" that defendant offered nothing new

"other than he keeps changing his argument. At one point it was that he was too

much of an alcoholic. Another point was that he was epileptic." The judge was

convinced the MSA was "an arm's length transaction."

Under these circumstances, oral argument would have been nothing more

than "unnecessary or unproductive advocacy." See Palombi, 414 N.J. Super. at

285 (quoting Fusco, 186 N.J. Super. at 329). Further, defendant's application

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failed to comply with Rule 4:49-2 as it did not set forth "a statement of the

matters or controlling decisions which counsel believes the court has overlooked

or as to which it has erred . . . ." Rather, the application was an improper attempt

to reargue matters resolved by the judge's prior decisions and orders.

Reconsideration is a matter within the sound discretion of the trial court,

which we review for abuse of discretion. See Palombi, 414 N.J. Super. at 288-

89. "Motions for reconsideration are granted only under very narrow

circumstances . . . ." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super.

455, 462 (App. Div. 2002). As such, reconsideration should be used only for

those cases where "either (1) the [c]ourt has expressed its decision based upon

a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either

did not consider, or failed to appreciate the significance of probative, competent

evidence." Ibid. (quoting D'Atria v. D'Atria 242 N.J. Super. 392, 401 (Ch. Div.

1990)); see R. 4:49-2.

Based upon our review of the record, it is clear that the motion judge did

not base his decision upon a palpably incorrect or irrational basis, or fail to

consider probative, competent evidence. The judge's decision was grounded in

his first-hand observations of the parties at the final hearing and produced a just

result. Accordingly, we conclude defendant failed to demonstrate the judge

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abused his discretion in denying oral argument and in denying defendant's

motion for reconsideration.

To the extent we have not specifically addressed any of defendant's

remaining contentions, it is because we find they have insufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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