Tolstunov v. Vilshteyn

• Decision Date: 30 July 2018
• Docket Number: DOCKET NO. A-1495-16T4
• Parties: VICTORIA TOLSTUNOV, Plaintiff-Respondent, v. ROSTISLAV VILSHTEYN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

VICTORIA TOLSTUNOV, Plaintiff-Respondent, v. ROSTISLAV VILSHTEYN, Defendant-Appellant.

DOCKET NO. A-1495-16T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued April 9, 2018

July 30, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sabatino and Ostrer.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1000-15.

Lawrence H. Kleiner argued the cause for appellant.

Ari H. Gourvitz argued the cause for respondent (Gourvitz & Gourvitz, LLC, attorneys; Ari H. Gourvitz and Elliot H. Gourvitz, on the brief).

PER CURIAM

In this matrimonial appeal, defendant-husband Rostislav Vilshteyn appeals from aspects of three overlapping trial court orders, including a final judgment of divorce (FJD). On October 24, 2016, the court entered an omnibus order that dismissed defendant's pleadings with prejudice for discovery violations; granted plaintiff partial summary judgment, mirroring provisions in a Partial Marital Settlement Agreement (PMSA), which, defendant argues, the parties intended to be temporary; allocated the parties' marital debt; and awarded attorney's fees to plaintiff. A second order denied defendant's cross-motion to reinstate his answer and counterclaim. The court also entered a FJD, which incorporated the PMSA, and the omnibus order. Defendant contends the court erred in (1) failing to provide a statement of reasons for its decision; (2) denying his motion to reinstate his pleadings and instead dismissing them with prejudice; (3) granting partial summary judgment; (4) enforcing the PMSA; and (5) awarding plaintiff attorney's fees. We reverse and remand for further proceedings.

I.

Plaintiff-wife Victoria Tolstunov filed her divorce complaint in February 2015, after less than seven years of marriage, including a period of separation. The parties have one child. Plaintiff alleged adultery as the sole basis for the divorce. She cited a January 2015 text message from defendant acknowledging he had a girlfriend.

During the marriage, defendant was convicted of Medicaid fraud and incarcerated between September 2013 and June 2014, and again between September 2015 and August 2016. See State v. Vilshteyn, No. A-4202-11 (App. Div. Aug. 20, 2013) (affirming conviction to second-degree health care claims fraud, N.J.S.A. 2C:21-4.2 and -4.3(c), and third-degree Medicaid fraud, N.J.S.A. 30:4D-17(b)). Defendant was sentenced to a five-year prison term and ordered to pay $200,000 in restitution, fines, penalties and assessments. Ibid.¹ Defendant was returned to custody in September 2015 after allegedly violating the terms of the Intensive Supervision Program (ISP). He was released again to ISP in August 2016, after he was exonerated of the violation.

Only some aspects of the extensive procedural history are relevant to the issues on appeal. The court entered default after defendant failed to answer the complaint. Rather than enter default judgment as plaintiff thereafter proposed pursuant to Rule 5:5-10, the court allowed, and then granted, defendant's motion to vacate default. In August 2015, defendant filed an answer denying plaintiff's factual allegations related to adultery, but did not assert a defense to the cause of action. He filed acounterclaim seeking divorce based on irreconcilable differences causing a breakdown of the marriage for more than six months.

In its October 2015 order, the court compelled the parties to exchange discovery, and defendant to pay plaintiff's reasonable attorney's fees associated with the motion, which it later set at $4583.19. A case management order a month later acknowledged that defendant was incarcerated, but ordered him to pay the full cost of a custody expert, and to file a completed case information statement (CIS) in a week.

In February 2016, on plaintiff's motion and pursuant to Rule 4:23-5(a)(1) and Rule 1:10-1, the court again dismissed and suppressed defendant's pleading. In response to plaintiff's motion, defendant contended he had complied with discovery, and provided copies of his newly minted responses to plaintiff's interrogatories, custody interrogatories, request for admissions, and notice to produce. The court credited plaintiff's contention that defendant's responses were incomplete, but the court did not specify the deficiencies. The court noted that defendant was incarcerated, but found no "viable explanation" for his failure to comply. The court awarded plaintiff fees of $2585. The court noted that "the parties may have enjoyed a luxurious lifestyle, [but] it was obviously based on criminal proceeds."

In June 2016, invoking Rule 4:23-2 and Rule 4:23-5(a)(2), plaintiff sought dismissal and suppression with prejudice, contending defendant: failed to comply with the court's prior order to pay fees; failed to provide proof that he filed an amended tax return as required (although he provided a copy of the return); and failed to answer discovery, without specifying the deficiencies. Plaintiff also sought partial summary judgment on issues of child support, custody, alimony, marital debt, and medical insurance. She sought $322 per week in child support and allocation of the cost of the child's school and extracurricular activities; sole legal and physical custody of the child; mutual waiver of alimony; and allocation of the marital debt. As for medical insurance, plaintiff requested that defendant obtain his own; she would provide it for the child. She also sought to prohibit defendant from claiming the child as a dependent for tax purposes.

However, plaintiff postponed consideration of the motion, as the parties were engaged in discussions that ultimately led to the defendant and plaintiff signing a PMSA in early July, and a second one later that month.² The first PMSA reflected defendant'sreview, including his initials on each page, and next to individual provisions. The first PMSA included a mutual waiver of alimony. It also granted plaintiff sole legal and physical custody of the child, denied defendant parenting time, and barred him from contacting the child until further order or agreement of the parties. A separate provision acknowledged the parties' rights to seek post-judgment relief.

The parties mutually waived their rights to take further discovery and defendant acknowledged that he had "not substantially answered the discovery propounded," and his pleadings were "dismissed." Plaintiff stated she was "completely satisfied with the financial disclosures from her Husband." The PMSA stated that each party was to be responsible for their own counsel fees "associated with the dissolution of the marriage, except as otherwise stated in paragraph 6.2 above" — although there is no paragraph 6.2 — but granted a right to fees for enforcement of the PMSA.

The first agreement included defendant's handwritten cross-outs of numerous provisions, including those: setting his child support obligation at $250 a week; imputing $100,000 in annual income to him and $49,000 to plaintiff "for the sole purpose of [the child support] . . . calculation"; obliging defendant to pay sixty-four percent of the cost of the child's Montessori tuitionand extracurricular activities, and stating he would be entitled to receive information about the activities and school when he was released from prison; and suspending enforcement while he was incarcerated. Also crossed out were provisions obliging defendant to obtain $300,000 in life insurance; to pay sixty-four percent of the child's unreimbursed medical costs; identifying marital debt and allocating it equally; and affirming prior fee awards. The various cross-outs were in addition to changes reflected in the typescript, typical of a "redline" version. The word "Partial" was handwritten on the agreement's title page.

The second agreement mirrored the first, but it left intact, without further revision, provisions that were previously crossed-out. The second version restored the provision pertaining to child support and imputation of income, except the part stating that enforcement would await defendant's release remained crossed out. Instead, it was annotated, "Judge to decide." Also, restored were the provisions on life insurance and the costs of unreimbursed medical expenses, Montessori and extracurricular activities. The provision on marital debt remained crossed out, but it now included the annotation, "Judge to decide."

Two months after defendant's release from incarceration, he sought to reinstate his pleadings. He blamed his incarceration for his failure to pay ordered fees and his incomplete productionof documents. He said that his previous responses were truthful, although he incompletely produced documents, because he had no access to them while incarcerated. He stated that he provided additional financial and tax information after his release. Defendant did not object to the dissolution of his marriage, but he contested plaintiff's allegation of adultery.

Defendant objected to plaintiff having sole legal and physical custody of the child, asserting — contrary to plaintiff's allegations — he was an attentive and responsible father before his incarceration, and his lack of contact was plaintiff's fault. Defendant challenged the PMSA provision on custody, and other "financial agreements":

I do not dispute that while incarcerated on the wrongful I.S.P. violation I also agreed to give the Plaintiff sole legal and physical custody, as well as agreeing to a suspension of my visitation pending my incarceration. However that agreement, as well as various financial agreements, was solely conditioned upon my release, which has since occurred on August 26, 2016. . . . Therefore, as I no longer agree to the terms of the partial Marital

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