Palko v. Palko

• Decision Date: 02 March 1976
• Citation: 375 A.2d 664,150 N.J.Super. 255
• Parties: Verna May PALKO, Plaintiff-Appellant, v. Daniel PALKO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 255

150 N.J.Super. 255

375 A.2d 664

Verna May PALKO, Plaintiff-Appellant, v. Daniel PALKO, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 17, 1975.

Decided March 2, 1976.

Frederic J. Rossi, Paterson, for plaintiff-appellant (Wegner & Wegner, Paterson, attorneys).

Walter R. Dewey, Hawthorne, for defendant-respondent.

David J. Goldberg, Trenton, for intervenor Linda Palko, an infant (George Warren, Trenton, guardian ad litem).

Before Judges FRITZ, SEIDMAN and MILMED.

PER CURIAM.

In this matrimonial action plaintiff wife sought, by motion dated July 17, 1974, and filed July 22, 1974, to reopen a final judgment entered May 16, 1972 and to set aside so much of that judgment as incorporated a separation agreement dated February 14, 1972. While the motion sought much more, including "equitable distribution," the only ground asserted on this appeal is a charge of error on the part of the trial judge in refusing this relief in view of plaintiff's allegations that her husband "intentionally and wilfully withheld material information as to the value of his holding during negotiations of the said property settlement agreement." It is to be observed that defendant died on June 18, 1973 and his will was admitted to probate on July 5, 1973.

While the procedure below, lacking an evidential hearing and ending in a determination in which the judge's findings had to be elicited by inference from his colloquy with counsel, left much to be desired, we are satisfied, as was the trial judge, that plaintiff set forth no substantial circumstances justifying the reopening of this judgment.

Moreover, it is noteworthy that the motion to reopen was not made for more than a year after probate of defendant's will and some 26 months after entry of the judgment sought to be set aside. We believe that nothing appears to invoke the relief available in R. 4:50, either by way of the specifics of R. 4:50-1(a), (b) or (c) (outlawed in this case by R. 4:50-2), or by the generality of the "other reason" provision in (f). See Doyle v. Chase Manhattan Bank, 80 N.J.Super. 105, 125, 193 A.2d 151 (App.Div.1963), certif. den. 40 N.J. 508, 193 A.2d 141 (1963).

We observe that plaintiff has enjoyed the advantage of defendant's fully executed covenant, incorporated in the judgment and now beyond modification, to leave unchanged a will executed prior to their agreement. In less compelling circumstances than these we have formulated and honored the "important policy that litigation must have an end." Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 434, 347 A.2d 353, 355 (1975).

The matter of relief from a judgment or order under our rules is one addressed to the sound discretion of the trial judge, whose decision will be upheld absent an abuse of that discretion. Greenberg v. Owens, 31 N.J. 402, 405, 157 A.2d 689 (1960). In the circumstances here present, we are unwilling to characterize the determination below as an abuse of discretion.

Affirmed.

SEIDMAN, J. A. D. (dissenting).

I disagree with the conclusion reached by my colleagues. The issue here, as I perceive it, is not whether plaintiff set forth "substantial circumstances justifying the reopening of the judgment." It is whether, on the record before him, the trial judge should have set the matter down for a plenary hearing and taken oral testimony. Cf. Hallberg v. Hallberg, 113 N.J.Super. 205, 207, 273 A.2d 389 (App.Div.1971). I think such hearing should have been held, followed by requisite findings of fact, and leading to a determination of whether the motion should be granted. I would therefore reverse and remand.

My colleagues acknowledge that "the procedure below, lacking an evidential hearing and ending in a determination in which the judge's findings had to be elicited by inference from his colloquy with counsel, left much to be desired * * *" I thoroughly agree with this appraisal. But their affirmance of the order dismissing the motion reflects a misconception of the real issue in this case.

Verna May Palko was married to Daniel Palko on April 19, 1952. Three children, two of whom are now adults, were born of the marriage. The parties were divorced by judgment entered May 16, 1972. Annexed to the judgment was a detailed settlement agreement which the trial court judge found "wholly suitable and adequate in Plaintiff's favor and in favor of the infant children born of the marriage," and which he "approved, sanctioned and allowed as a settlement in gross of Plaintiff's right to alimony present and future."

The agreement, among other things not pertinent here, (1) divided certain household goods between the parties, (2) required the husband to purchase the wife's one-half equity in the marital domicile, based upon an agreed valuation of $28,000; (3) obligated the husband not to change his will, a copy of which was annexed, in which the two younger children were the primary beneficiaries, and (4) provided for the support of the three children, until emancipation, in weekly amounts totalling $70.

On June 18, 1973 Daniel Palko died testate. His will, naming his brother as executor, was admitted to probate on July 5, 1973. Plaintiff's motion, filed July 22, 1974 sought (1) to reopen the divorce judgment and set aside the portion dealing with the separation agreement, (2) an accounting of the estate, (3) equitable distribution, (4) an increase in support for the remaining infant child, (5) counsel fees and costs, and (6) such further relief as the court might deem equitable and just.

In her supporting affidavit Mrs. Palko alleged that after the death of her former husband, she was "astounded to learn he left a personal estate in excess of $175,000; that during their marriage they led a frugal life and her husband "never divulged his salary, but always led me to believe we were just making it financially"; that at the time of the divorce he was unemployed because of a coronary attack and was collecting disability benefits, and for these reasons she agreed not to accept support; that "it appears now that the defendant maintained accounts in ten to fifteen different banks and had stocks"; that all during the pretrial negotiations and conferences she...