NOT FOR PUBLICATION WITHOUT THE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-3134-14T4
RONALD ATLAK,
Plaintiff-Respondent,
v.
MARIE FUCCILLI-ATLAK,
Defendant-Appellant.
_________________________________
Submitted September 13, 2016 – Decided March 24, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-257-14.
Shamy, Shipers and Lonski, P.C., attorneys for
appellant (Robert J. MacNiven, of counsel and
on the briefs).
Edward Fradkin, attorney for respondent.
PER CURIAM
Defendant Marie Fuccilli-Atlak appeals the February 2, 2015
order denying her Rule 4:50-1(f) motion to vacate a judgment of
divorce (JOD), or in the alternative, to modify the marital
settlement agreement (MSA) incorporated into the JOD. For the
reasons that follow, we affirm.
I.
Plaintiff Ronald Atlak and defendant were married for almost
ten years when he filed a complaint for divorce on August 15,
2013, alleging irreconcilable differences. Their union produced
two children, who were eleven and six years old, at the time of
the filing.
On August 7, 2014, the parties attended a mandatory pre-trial
settlement conference at which they resolved their property and
child custody issues, without the judge's1 participation. Counsel
advised the family court coordinator that they reached a
settlement, but they did not place the agreement terms on the
record. The parties were told to appear for an uncontested hearing
on September 23 to dissolve the marriage.
The next day, in accordance with the settlement, the parties
approved the marital home's listing with a realtor, and plaintiff
borrowed money from his pension and mailed a check for $22,198.87
to the bank's lawyer to bring the mortgage current in order to
1
The judge was tied-up with another matter, and she did not enter
the order that is being appealed.
2 A-3134-14T4
sell the home.2 Plaintiff's attorney subsequently drafted an MSA
memorializing the settlement, which was faxed and sent by regular
mail to defendant's attorney on August 19, 2014.
On or about September 2, however, after a disagreement over
custody arrangements, defendant pulled the marital home off the
market over plaintiff's objections. At the uncontested hearing
three weeks later, Judge Leslie-Ann M. Justus was advised that the
parties had not signed the MSA.3 Plaintiff's attorney reported
that, almost a month before the hearing, defendant's attorney told
him over the telephone that there were some minor language changes
to the MSA, but did not request the changes be made prior to the
hearing. The court adjourned the hearing to allow the parties
time to resolve their differences. The judge directed defendant's
attorney to write a letter to plaintiff's attorney detailing
defendant's concerns.
Defendant's subsequent letter requested material alterations
and additional provisions to the MSA. In turn, plaintiff filed a
motion to enforce the proposed MSA based upon the agreement reached
by the parties at the settlement conference, or in the alternative,
2
This check was lost in the mail, and a new check was reissued.
3
What transpired is gleaned from the parties' briefs because no
transcripts have been provided regarding the appearance.
3 A-3134-14T4
to conduct a Harrington4 hearing to determine whether the parties
had reached an agreement sufficient to enforce the MSA.
Plaintiff's supporting certification claimed that a settlement was
reached. Defendant opposed the motion, explaining the parties
reached a tentative agreement subject to plaintiff exhibiting the
same care and concern for the children as she does.5
Following oral argument on October 31, Judge Justus issued
an order granting plaintiff's motion to enforce the MSA terms.
The comprehensive order detailed the parties' arguments and their
supporting certifications, relevant portions of prior court
orders, and the judge's legal analysis. The judge also attached
her findings of fact and conclusions of law to the order. Judge
Justus rejected defendant's argument that the August 7 settlement
conference produced a tentative agreement conditioned on
plaintiff's conduct with respect to the children. She found
defendant failed to certify that no agreement was reached, but in
fact acknowledged that there was an agreement. The judge therefore
determined there was "no factual dispute that the parties had
4
Harrington v. Harrington, 281 N.J. Super. 39 (App. Div.),
certif. denied, 142 N.J. 455 (1995).
5
Defendant also filed a cross-motion to compel compliance with
previous court orders. The judge denied the motion based on the
finding that the MSA replaced the obligations addressed in those
prior orders.
4 A-3134-14T4
settled this matter." The judge found that the MSA prepared by
plaintiff's counsel and forwarded to defendant's counsel,
accurately memorialized the parties' agreement as evidenced by the
attorneys' handwritten term sheet and notes from the settlement
conference. She also reasoned that the parties' partial
performance of the agreement's obligations,6 and defendant's
complaint that plaintiff failed to perform other obligations,
demonstrated an agreement was reached. Consequently, a plenary
hearing under Harrington was unwarranted. The judge also granted
plaintiff's request to compel defendant to pay $2280 for his
counsel fees and costs associated with filing the motion. An
uncontested hearing was scheduled for November 17.
Defendant unsuccessfully sought to adjourn the uncontested
hearing so that she could file a motion for reconsideration of the
October 31 order enforcing the MSA, or in the alternative, to
amend the MSA. Noting that no motion had been filed, Judge Justus
proceeded with the hearing and entered a dual JOD that incorporated
the MSA.
On December 15, forty-five days after the October 31 order
enforcing the MSA was entered, defendant filed a Rule 4:50-1(f)
6
As noted, the marital home was placed on the market, and in order
to sell the property, plaintiff borrowed money and sent a check
to pay-off the mortgage arrears.
5 A-3134-14T4
motion to vacate the JOD on the basis that it incorporated a MSA
that was not agreed to, or in the alternative, amend the MSA to
address thirteen property and child care issues. Plaintiff opposed
and filed a cross-motion, seeking counsel fees for responding to
defendant's motion, and to enforce the MSA. Argument was heard
on January 31, 2015.
On February 2, Judge Justus denied defendant's motion to
vacate in a comprehensive order detailing her reasoning. The
judge initially stated that "portions of defendant's current
[motion to vacate were] actually requests for the [c]ourt to
reconsider portions of its October 31 [order]," and found that
defendant's motion was filed beyond the Rule 4:49-2 twenty-day
time limit for reconsideration. The judge next determined that
defendant had not articulated any exceptional and compelling
circumstances required by Rule 4:50-1(f) to justify either
vacating the JOD or modifying the MSA. The judge explained why
she was rejecting each issue raised by defendant to revise the
MSA. Finally, defendant was ordered to pay plaintiff's counsel
fees totaling $3280, because she "exhibited bad faith in her
prosecution of the current motion" by raising issues she could
have raised earlier, effectively making an untimely motion for
reconsideration, and taking positions contrary to her claims in
her earlier certifications.
6 A-3134-14T4
On March 13, defendant filed a notice of appeal from the
November 17 and February 2 orders. However, on May 4, we dismissed
defendant's appeal of the November 17 order as untimely, and
allowed the appeal of the February 2 order to proceed, "solely as
to the order denying the motion to vacate per Rule 4:50-1(f), and
in all other respects, [] dismiss[ing the appeal] because the
February 2 [] order [was] otherwise interlocutory."
Defendant presents the following points of argument:7
POINT I
PLAINTIFF FAILED TO PERFORM A CONDITION
PRECEDENT AND THEREFORE THE [MARTRIMONIAL
SETTLEMENT] AGREEMENT BETWEEN THE PARTIES WAS
VOID.
POINT II
THE TERMS SET FORTH IN THE MARTRIMONIAL
SETTLEMENT AGREEMENT WERE NOT AGREED UPON BY
THE DEFENDANT.
7
In her reply brief, defendant argues that pursuant to Willingboro
Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 263
(2013), as applied to matrimonial matters by Minkowitz v. Israeli,
433 N.J. Super. 111, 140 (App. Div. 2013), the settlement is void
because there is no signed MSA. Since this argument was raised
for the first time in her reply brief, it is not properly before
us. N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins,
D.C., LLC, 399 N.J. Super. 40, 50 (App. Div.), certif. denied, 196
N.J. 344 (2008). Yet, for the reasons discussed below, the
argument has no merit and there is no need to consider it to
prevent an unjust result per Rule 2:10-2. Alpert, Goldberg,
Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 543
(App. Div. 2009).
7 A-3134-14T4
POINT III
PLAINTIFF'S FRAUD IN THE INDUCEMENT IS A BASIS
FOR RELIEF FROM THE FINAL JUDGMENT.
POINT IV
ATTORNEY'S FEES.
II.
Initially, we note that this court "will decline to consider
questions or issues not properly presented to the trial court when
an opportunity for such a presentation is available unless the
questions so raised on appeal go to the jurisdiction of the trial
court or concern matters of great public interest." Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973)). An issue not argued in a
brief filed with the trial court is deemed abandoned. Noye v.
Hoffmann-La Roche Inc., 238 N.J. Super. 430, 432 n.2 (App. Div.),
(citing In re Bloomingdale Conval. Ctr., 233 N.J. Super. 46, 48
n.1 (App. Div. 1989) (stating that when an "issue has not been
briefed, we will not decide it")), certif. denied, 122 N.J. 146
(1990), and certif. denied, 122 N.J. 147 (1990).
Here, our review of the record reflects that the arguments
defendant raises in Points I and III were not presented to the
trial court in her motion to vacate. There is no mention of either
argument in defendant's brief or certification, or during the
8 A-3134-14T4
motion's oral argument. Defendant's contentions addressed the
revisions she sought to the MSA.
In fact, during argument, Judge Justus noted that the motion
was based on Rule 4:50-1(f), and had nothing to do with Rule 4:50-
1(c), which allows for a judgment to be vacated on the basis of
"fraud, . . . misrepresentation, or other conduct of the adverse
party." The judge stated, "[t]here's no fraud, there's no
misrepresentation" by plaintiff. Defendant did not object, or
argue the issue of fraud, when the judge made the comment. Thus,
we decline to consider the arguments.
Moreover, we conclude the arguments lack merit. To determine
whether the parties reached an agreement, this court must consider
"whether there was sufficient credible evidence to support the
trial court's finding." N.J. Div. of Youth & Family Servs. v.
M.C. III, 201 N.J. 328, 342 (2010). Due to the special expertise
in family matters, we must "defer to the [family] court's
determinations 'when supported by adequate, substantial, credible
evidence.'" New Jersey Div. of Child Prot. & Permanency v. Y.A.,
437 N.J. Super. 541, 546 (App. Div. 2014) (citing N.J. Div. of
Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div.
2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998))).
With respect to contractual conditions precedent, our
Supreme Court has stated:
9 A-3134-14T4
The intention of the parties controls in the
making and in the construction of contracts.
The parties may make contractual liability
dependent upon the performance of a condition
precedent . . . . Generally, no liability can
arise on a promise subject to a condition
precedent until the condition is met . . . .
A condition in a promise limits the
undertaking of the promisor to perform, either
by confining the undertaking to the case where
the condition happens, or to the case where
it does not happen.
[Duff v. Trenton Beverage Co., 4 N.J. 595,
604-05 (1950).]
The record before us is devoid of any indication that there
was a condition precedent to carrying out the MSA. In support of
finding the parties reached a settlement, Judge Justus found that
both parties performed material parts of the MSA – defendant listed
the marital home for sale, and plaintiff brought the mortgage
account current. Accordingly, defendant's own partial performance
negates her assertion that performance of the MSA was subject to
an unmet condition precedent.
We further agree with the trial judge's determination that
Harrington did not require a hearing to determine the existence
of an MSA. In Harrington, there was no partial performance of an
essential settlement term that evidenced the existence of an
agreement between the parties, as in this case. The record
supported the judge's finding that there was no factual dispute
that the parties reached a binding agreement. Thus, there is no
10 A-3134-14T4
reason to disturb any of the orders that a binding MSA resulted
from the August 7, 2014 court appearance based upon defendant's
contention that there was a condition precedent to the MSA and
fraud in the inducement to entering the MSA.
Next, we address Judge Justus' order denying defendant's Rule
4:50-1(f) application to vacate the JOD based upon its inclusion
of the MSA. Parties to a divorce proceeding may apply for vacation
of an order finding the existence of an MSA. See Connor v. Connor,
254 N.J. Super. 591, 601 (App. Div. 1992). Subsection (f) of Rule
4:50-1 provides a catch-all provision that authorizes a court to
relieve a party from a judgment or order for "any other reason
justifying relief from the operation of the judgment or order."
The essence of subsection (f) is to achieve equity and justice in
exceptional situations that cannot be easily categorized. DEG,
LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (citing
Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Therefore,
in order for relief under the rule to be granted, the movant "must
show that the enforcement of the order would be unjust, oppressive
or inequitable." Quagliato v. Bodner, 115 N.J. Super. 133, 138
(App. Div. 1971).
A judge's decision under Rule 4:50-1(f) will not "be
overturned unless there was a clear abuse of discretion."
Schwartzman v. Schwartzman, 248 N.J. Super. 73, 77 (App. Div.),
11 A-3134-14T4
certif. denied, 126 N.J. 341 (1991). There is "an abuse of
discretion 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)).
Applying these principles, we conclude that Judge Justus did
not abuse her discretion in denying defendant's relief under Rule
4:50-1(f) to vacate the JOD by finding the parties reached a
binding MSA. Defendant has failed to show any compelling and
exceptional circumstances that the judge should not have found the
parties' entered into an MSA.
The remaining issue raised by defendant concerning attorney
fees is without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
12 A-3134-14T4