Newland v. Newland, 012121 NJSUP, A-0482-19T2

Docket Nº:A-0482-19T2
Opinion Judge:PER CURIAM
Party Name:ROLAND M. NEWLAND, Plaintiff-Appellant, v. MARIA A. NEWLAND, Defendant-Respondent.
Attorney:Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the briefs). Graziano & Flynn, PC, attorneys for respondent (Ronald A. Graziano and Karina E. Hehn, on the brief).
Judge Panel:Before Judges Ostrer, Accurso, and Enright.
Case Date:January 21, 2021
Court:Superior Court of New Jersey

ROLAND M. NEWLAND, Plaintiff-Appellant,


MARIA A. NEWLAND, Defendant-Respondent.

No. A-0482-19T2

Superior Court of New Jersey, Appellate Division

January 21, 2021


Submitted December 9, 2020

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0966-15.

Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the briefs).

Graziano & Flynn, PC, attorneys for respondent (Ronald A. Graziano and Karina E. Hehn, on the brief).

Before Judges Ostrer, Accurso, and Enright.


In this post-judgment matrimonial matter, plaintiff Roland M. Newland appeals from the September 20, 2019 denial of his motion for reconsideration, as well as the underlying orders preceding this denial, which reformed the judgment of divorce (JOD) in favor of defendant Maria A. Newland. He also appeals from the January 24, 2020 order awarding defendant counsel fees. We affirm the challenged orders, substantially for the reasons set forth by Judge James J. Ferrelli's well-reasoned, comprehensive opinions.

I. The Parties' Education, Marital and Work History

Defendant was born in Spain in 1963 and has the equivalent of a high school diploma. Plaintiff was born in Panama in 1950 and has a medical degree. The parties married in 1988 and had a daughter together in 1993. Defendant performed data entry and secretarial work in the early years of the parties' marriage, but stopped working in 1998. She bore primary responsibility for raising the parties' daughter, and plaintiff was the principal wage earner throughout the parties' marriage. Due to injuries defendant suffered in an automobile accident in 2013, she cannot sit or stand for long periods of time, takes several prescribed medications and uses a cane to walk outside her home.

During the marriage, the parties constantly moved to enhance plaintiff's career. In 2001, plaintiff was employed as a physician for the Bureau of Prisons (Bureau) in Mississippi and in 2015 transferred from the Bureau to the Department of Defense (Department), Veteran's Affairs. When he retired from the Department in 2017, his gross income was approximately $205, 000. In 2018, plaintiff began working as a contract physician at a federal prison in Mississippi, and his total gross income was $325, 771.

The parties experienced marital and financial difficulties in the years leading up to their divorce in 2015. In 1997, plaintiff filed individually for bankruptcy but did not inform defendant. Additionally, he relocated to Puerto Rico in 1998, without defendant, to pursue his career. As a result of the parties' separation, defendant moved back to Spain with the parties' daughter.

The record reflects plaintiff did not provide financial support to defendant for some time after the separation, so she initiated a job search. When defendant received a job offer in 1999, plaintiff urged her to decline the offer and care for their daughter. Plaintiff also promised he would resume supporting the family. Defendant agreed to this arrangement and never returned to the job market.

Although the parties reconciled in 2000, defendant continued to live in Spain, whereas plaintiff worked at different locations in the United States. In March 2015, while living in New Jersey, plaintiff filed a pro se complaint for divorce, seeking only the dissolution of the parties' marriage. Further, he wrote "N/A," on various lines of the complaint form to confirm issues pertaining to custody, child support, alimony, or equitable distribution were "not applicable" in his divorce action. At the time of his filing, the parties had not yet reached any formal agreement on these issues.

In April 2015, the parties drafted two versions of a support agreement, one in English (ESA), and the other in Spanish (SSA). According to defendant, she prepared the SSA consistent with plaintiff's instructions. On April 16, 2015, the parties signed the ESA and SSA before a notary public in New Jersey. The ESA confirmed plaintiff would pay permanent alimony and that the parties' daughter would have plaintiff's "full financial support until she completes her education goals." Both versions of the agreements provided for plaintiff to pay defendant approximately 3000 Euros per month.

On April 17, 2015, the parties appeared at the Spanish Consulate in New York and signed a property agreement (PA), which allowed plaintiff to retain exclusive rights to his Thrift Savings Plan (TSP) and provided defendant with exclusive rights to the parties' home in Spain. Defendant subsequently testified that when the PA was prepared, she believed the parties' only assets were the home in Spain, the TSP, and their two vehicles.

In July 2015, plaintiff filed a request to enter default. The trial court granted plaintiff a default JOD on October 19, 2015. The JOD referenced, but did not expressly incorporate, the terms of the ESA. Defendant was living in Spain at this time and did not appear at the default hearing. It is undisputed that she was not represented by counsel throughout the divorce action.

II. The Parties' Post-Judgment Litigation

In 2018, plaintiff fell behind in his alimony payments and defendant moved to enforce the JOD. She also sought to modify the JOD, pursuant to Rule 4:50-1, seeking equitable distribution of the marital portions of plaintiff's Federal Employee Retirement System (FERS) Annuity (which generated gross income of $6378 per month), and his Veteran's Administration (VA) benefits (which generated income of $140.05 per month). Defendant claimed she previously was unaware she had rights to these assets. Further, defendant moved for leave to file a Tevis1 claim for fraud, alleging plaintiff allowed two judgments to be entered against her during the marriage without her knowledge, and following the entry of the JOD, he created a potential tax liability for her by filing joint tax returns in 2016 and 2017. In response, plaintiff cross-moved for enforcement of the JOD.

On November 30, 2018, Judge Ferrelli enforced the JOD and compelled plaintiff to satisfy his alimony arrears. Further, the judge found defendant demonstrated "a prima facie case of overreaching conduct" by plaintiff, and that her signature on the ESA "was not knowing and voluntary, but rather was coerced and based upon incomplete and inaccurate information provided by" plaintiff. The judge declined to find the ESA "was intended to encompass all terms of the parties' agreement relating to the resolution of issues pertaining to their divorce." Moreover, the judge found the issues pertaining to the two judgments against defendant, as well as any potential tax liability arising from plaintiff's post-judgment filing of joint tax returns, were "more appropriately addressed in the context of equitable distribution." The judge ordered discovery and a plenary hearing "to determine the extent to which, if at all, the [JOD] and the [ESA] should be reformed," consistent with Rule 4:50-1(f). Additionally, he denied without prejudice each party's request for counsel fees.

Prior to the plenary hearing, plaintiff filed a motion to modify or terminate his alimony obligation, based on his prospective retirement. On April 18, 2019, Judge Ferrelli entered an order deferring plaintiff's motion until the plenary hearing. Also, the judge directed plaintiff to provide outstanding discovery as well as a prior and current Case Information Statement. Additionally, the judge ordered the parties to provide supplemental submissions regarding the issue of alimony. Defendant complied and filed a supplemental brief, opposing any change to her alimony payments; plaintiff failed to submit a supplemental brief.

III. The Plenary Hearing

On May 9, 10 and 13, 2019, Judge Ferrelli heard testimony from the parties on all outstanding issues. He found the parties presented "extensive conflicting testimony regarding their marital assets and liabilities," and that "[n]either party's testimony regarding the Property Agreement is completely credible." However, based upon the evidence presented as well as the parties' conduct following the entry of the JOD, the judge concluded the PA, allowing defendant to retain the Spain home and plaintiff to keep his TSP, should not be disturbed. He deemed this exchange to be a "fair and equitable distribution of a portion of the marital property between the parties," and that the parties "knowingly and voluntarily entered into that Agreement." Further, the judge concluded plaintiff's "testimony that the Property Agreement resolves all equitable distribution issues in this matter is not credible. He . . . had not provided [defendant] with information about his FERS pension or his VA [b]enefits" at the time it was executed. The judge added: [b]y failing to disclose [the FERS pension and VA benefits] Husband intentionally misrepresented to Wife that the FERS retirement account and the VA retirement account were not subject to equitable distribution in connection with the parties' 2015 divorce proceedings. Husband intentionally failed to include Wife in the . . . bankruptcy filing, and excluded Wife from pertinent information and knowing participation in the filing of the parties' income tax returns, resulting in judgments being entered against Wife. Husband took advantage of his superior financial position and education . . . [and] violated his duty to be fair to his wife . . . . [T]he court finds that Wife satisfied her burden of proof in showing exceptional circumstances under Rule 4:50-1(f) limited to the referenced equitable distribution issues such that it is appropriate to reform the parties' Agreement solely as to those...

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