Scott v. Scott

• Decision Date: 09 December 2020
• Docket Number: DOCKET NO. A-5232-18T3
• Parties: CATHERINE SCOTT, Plaintiff-Respondent, v. EARNEST SCOTT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

CATHERINE SCOTT, Plaintiff-Respondent, v. EARNEST SCOTT, Defendant-Appellant.

DOCKET NO. A-5232-18T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted November 12, 2020

December 9, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-0412-14.

King & King, LLC, attorneys for appellant (Sharon A. King, on the brief).

Fuhrman & Edelman, attorneys for respondent (Ronald B. Edelman, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant Earnest J. Scott appeals from a June 21, 2019 Family Part order that: (1) denied his motion to vacate the parties' property settlement agreement (PSA); (2) denied his motion to reduce or suspend his alimony obligation; and (3) granted plaintiff Catherine J. Scott's cross-motion to enter judgment against defendant to enforce his arrears. Defendant also appeals from a July 16, 2019 Family Part order that: (1) granted plaintiff's motion to satisfy the judgment entered against defendant through a Qualified Domestic Relations Order (QDRO) imposed against defendant's annuity fund and pension fund; (2) awarded plaintiff attorney's fees and costs in the amount of $2252.50, enforceable through a QDRO against defendant's annuity fund and pension fund. We affirm.

We derive the following pertinent facts from the record. The parties were married on June 13, 1997 and had two children. Plaintiff filed a complaint for divorce from bed and board on November 13, 2013. Prior to filing the complaint, plaintiff's counsel sent a proposed PSA to defendant in an attempt to resolve the matter. Defendant requested a meeting to discuss the proposed PSA.

The proposed PSA included a $325 per week permanent alimony award and $25,000 for plaintiff's share of the equity in the marital home. Defendant proposed reducing the alimony to term alimony of $300 per week for fifteenyears and reducing plaintiff's share of the equity in the marital home to $20,000. Plaintiff advised she would agree to those changes provided the term alimony would be non-modifiable.

Plaintiff's counsel sent the modified proposed PSA to defendant on November 21, 2013. No further modifications were made to the proposed PSA. Almost three months later, the parties executed the PSA on February 14, 2014. Although defendant remained unrepresented by counsel during the negotiations, he hired an attorney to review the final version of the PSA before signing it.

Under the terms of the PSA, defendant agreed that plaintiff would receive: (a) alimony in the sum of $300 per week for 15 years; (b) fifty percent of defendant's pension plan; (c) sixty-two percent of defendant's annuity fund purportedly valued at $230,036 but actually valued at approximately $300,000 at the time of rollover; and (d) medical insurance coverage under defendant's policy.

In addition, plaintiff agreed to waive her interest in the marital home. The parties "agree[d] and acknowledge[d] that the value of the property and attached land [was] approximately $168,000.00" and that the aggregate balance of the first and second mortgage was approximately $118,000. The PSA confirmed that plaintiff agreed to convey all right, title, claim, or interest in the property inexchange for distribution of "an additional twelve (12%) percent of [defendant's] Pointers Local 13 Annuity."

Notably, the PSA reveals that, prior to the settlement, the parties heavily disputed defendant's "obligation to pay alimony both as to the amount and duration." However, the PSA explains that "[i]n consideration of the terms and provisions of the agreement, [plaintiff] has agreed to accept and [defendant] has agreed to pay irrevocable and non-modifiable limited duration alimony." The PSA specifically provided that, "[not]withstanding any language contained in Lepis v. Lepis¹ or Crews v. Crews,² the alimony paid should be non-modifiable and that this provision is irrevocable even if defendant experienced "dramatic and substantial changes in income of whatever nature, scope or duration." The PSA further provided that the alimony is non-modifiable even in the event of "[a]ny illness or condition developed by the [plaintiff] or [defendant] at any time." The PSA then reiterates that:

G. Specifically, both [plaintiff] and [defendant] waive any rights they may have under the Lepis and/or Crewsdecision to later argue that subsequent changes or circumstances render the alimony waiver at the end of the term or the alimony non-modifiability during the term either unfair or inequitable. Each partyacknowledges having been advised by their counsel of their Lepis and/or Crews changed circumstance standard and further acknowledge that they have been supplied with a copy of the decision and fully understand the rights they are waiving. [Defendant] shall not have the right to modify his alimony obligation based on further beneficial financial changes on the part of [plaintiff] including but not limited to her earned or unearned income.

H. It is [the] specific agreement of the parties to introduce concepts of collateral estoppel into this agreement to prevent [plaintiff] and [defendant from] seeking modification of the alimony during or at the end of the term without which [defendant] and [plaintiff] would not have agreed to obligate themselves to make the economic adjustments made hereunder.

Defendant did not file an answer to the complaint. Default was entered against him. On March 11, 2014, a final judgment of divorce from bed and board was entered on the ground of irreconcilable differences. The judgment incorporated the terms of the PSA. An August 4, 2014 QDRO that provided for distribution of fifty percent of defendant's pension fund to plaintiff was entered by consent.

In September 2017, defendant moved to convert the judgment to a final judgment of divorce (FJOD). On November 17, 2017, the trial court granted the motion. Defendant's request for an award of counsel fees was denied.

In April 2018, defendant moved to reduce alimony, claiming he suffered a substantial reduction in income as a result of injuries sustained in a motor vehicle accident on April 10, 2018. Defendant certified that he was unable to work and receiving treatment at Cooper University Hospital Trauma Center. Defendant's certification did not set forth the nature or extent of his injuries. Nor did he provide competent medical evidence regarding any resulting disability from employment. Plaintiff opposed the motion and cross-moved for an award of counsel and costs totaling $1500.

On June 14, 2018, the court issued an order and written statement of reasons denying defendant's motion to reduce alimony and plaintiff's cross-motion for counsel fees. The court noted that defendant³ "failed to provide a current case information statement" (CIS), in violation of Rule 5:5-4(a). It further noted that defendant failed to provide "documentation regarding his claim that he is now disabled and unable to pay his alimony obligation." The court concluded that defendant did not make a prima facie showing of changed circumstances. As to his allegation that he is now earning significantly less income due to disability resulting from the accident, the court noted thatdefendant "did not provide a police report, an accident report, an injury diagnosis, a doctor's report, nor any proofs concerning his disability." As a result of these findings, the court did not reach the issue of non-modifiability of defendant's alimony obligation. Defendant did not appeal from that ruling.

As to plaintiff's counsel fee application, the court found "[d]efendant did not exercise bad faith" in moving for an alimony reduction. The court also found "that both parties [were] able to pay their own counsel fees" but noted defendant was unrepresented. The court noted that defendant earned $61,000 in 2017. The court declined to award counsel fees to plaintiff as a sanction against defendant.

On April 4, 2019, plaintiff moved to: (1) enter judgment against defendant for alimony arrears in the sum of $16,399; (2) an order allowing for payment of the judgment and future alimony payments from defendant's annuity and pension plans; and (3) an award of counsel fees and costs in the sum of $1355. The attorney's fees were billed at the rate of $290 per hour. Defendant cross-moved to reduce and suspend alimony.

Plaintiff's supporting certification noted that the PSA obligated defendant to pay her term alimony of $300 per week for fifteen years. Plaintiff averred that defendant owed her alimony arrears of $16,399 as of March 25, 2019.

Defendant's certification confirmed that he met with an attorney to review the proposed PSA. The attorney told defendant "that she thought the agreement was fair and suggested that [he] sign it." Defendant noted, however, that the attorney did not review any CISs or otherwise inquire about either party's financial circumstances or review the proposed equitable distribution. Defendant certified that the attorney he consulted "did not explain my rights under Lepis v. Lepis, or that the agreement contained an anti-Lepis clause, or the significance of this clause." Defendant certified that despite language in the PSA to the contrary, he was not advised of the Lepis or Crews decisions and "did not understand that [he] was waiving [his] rights under those decisions." Defendant stated that he stopped attending high school after the tenth grade and did not obtain a GED. He contended he did not understand his rights under Lepis or knowingly waive them. He claimed the PSA was not the product of negotiation.

Defendant claimed the PSA "was one-sided in favor of plaintiff." Defendant noted...