                                NOT FOR PUBLICATION WITHOUT THE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-3331-18T1

B.G.,

          Plaintiff-Respondent,

v.

P.G.,

     Defendant-Appellant.
______________________________

                    Argued telephonically February 12, 2020 –
                    Decided March 12, 2020

                    Before Judges Nugent and DeAlmeida.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Bergen County,
                    Docket No. FM-02-2243-13.

                    Timothy John Dey argued the cause for appellant.

                    Robert D. Kovic argued the cause for respondent.

PER CURIAM
      Defendant P.G.1 appeals from the portion of a March 29, 2019 order of

the Family Part denying his motion to vacate a January 17, 2018 consent order

waiving his right to receive alimony while incarcerated. We vacate the portion

of the order under review and remand for an evidentiary hearing.

                                       I.

      We are hampered in our recitation of the facts by P.G.'s failure to include

in his appendix the certification he filed in support of his motion to vacate and

by the trial court's disposition of P.G.'s motion without an evidentiary hearing.

We glean the following facts from the record.

      The parties were married in 1987. In 2014, the Family Part entered a final

judgment of divorce incorporating a property settlement agreement (PSA)

executed by the parties.2 Pursuant to the PSA, plaintiff B.G. is to pay P.G.

alimony of $2000 a month. The PSA allows for the cessation of alimony in five

specified circumstances, not including P.G.'s incarceration. In addition, the

agreement allows B.G. to seek a modification of her alimony obligation upon

her retirement but mentions no other grounds for seeking a modification.


1
   We identify the parties by initials to protect P.G.'s medical privacy in
accordance with Rule 1:38-3(d)(3).
2
  Although the PSA indicates it is thirty-three pages, P.G. included only thirty
pages of the agreement in his appendix.
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                                       2
      P.G. is disabled because of mental health issues. He receives social

security disability payments, a portion of which are provided directly to the

couple's child as P.G.'s child support. The remainder of the payments are

deposited into a bank account in P.G.'s name.

      P.G. was incarcerated on January 20, 2017. B.G. unilaterally stopped

making alimony payments on February 1, 2017.

      An attorney acting on behalf of B.G. drafted a consent order suspending

her alimony obligation while P.G. was incarcerated. The consent order provides

the suspension of alimony is retroactive to February 1, 2017 and that P.G. would

not seek retroactive reinstatement of any alimony payments withheld during his

incarceration.

      On October 10, 2017, the attorney mailed the draft consent order to P.G.

at his prison address, requesting his signature on the consent order. On October

31, 2017, P.G. signed the consent order. P.G. returned the consent order to B.G.,

who signed it on January 2, 2018.

      In January 2018, B.G. submitted the signed consent order to the trial court.

The court entered the consent order on January 17, 2018. 3


3
   Although the order is dated January 17, 2017, it is stamped by the court as
filed on January 17, 2018.


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                                        3
       Shortly after his release from prison in December 2018, P.G. moved

pursuant to Rule 4:50-1 to vacate the January 17, 2018 consent order. As far as

we can discern from the record, P.G. argued the consent order is invalid because:

(1) it was obtained through B.G.'s fraud, misrepresentation, or other misconduct,

Rule 4:50-1(c); (2) he lacked the capacity to agree to the consent order, Rule

4:50-1(d); and (3) the consent order is inequitable, Rule 4:50-1(f). He sought a

resumption of alimony and back alimony for the period of his incarceration in

the amount of $44,660.4 In addition, P.G. argued that while he was in prison,

B.G. misappropriated approximately $27,500 from the bank account to which

his social security payments were made. He sought recovery of those funds.

B.G. opposed the motion.

       The trial court decided the motion without an evidentiary hearing. The

court found "[t]here is not a scintilla of information in" the certification P.G.

submitted in support of his motion "that would persuade [it] to conclude that a

hearing is necessary in this matter[,]" even if P.G.'s allegations are taken as true.

       The court characterized the consent order as a settlement agreement,

which "will not be lightly disturbed" but "enforced so long as the terms are fair

and equitable." The court summarized P.G.'s argument as follows:


4
    B.G. voluntarily resumed alimony payments after P.G.'s release from prison.
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                                         4
            [t]he defendant certifies that the plaintiff informed him
            that she was in dire financial circumstances. And he
            claims that she pressed him, taunted him, and
            threatened him and guilted him while he was
            incarcerated.    He further certifies that plaintiff
            informed him that he was ineligible for alimony while
            he was incarcerated.

            He described the difficulties that he experienced in
            prison, getting into fights and so on which resulted in
            him being confined to solitary confinement from March
            to July of 2017. He asserts that plaintiff began visiting
            after he was out of solitary and that during these visits
            she expressed her financial woes.

                  ....

            But no[]where in his certification does he say that that
            occurred while he was provided with the consent order
            or that it was with any effort to coerce him to sign that
            consent order, just that she has an obsession with
            money.

      The court rejected P.G.'s argument he was influenced by B.G.'s

representation she consulted an attorney and that she believed P.G. was not

entitled to alimony while in prison. The court found it was "inconsequential that

the consent order was prepared by an attorney" and held P.G. "could have sought

the advice of counsel prior to signing" the agreement, although it is unclear how

he could have done so, given that B.G. unilaterally stopped paying alimony

several months before she presented the consent order to P.G. and had also been

misappropriating his social security disability payments.

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                                       5
      In addition, the court found there was no evidence "of fraud, coercion,

trickery, or any other basis upon which" to consider vacating the consent order.

While recognizing B.G. had not applied for a reduction of alimony based on a

change in circumstances, the court concluded without having taken any

testimony that "[a]ll of plaintiff's day-to-day needs were being met by the State

of New Jersey" during his incarceration and "he would have been receiving

something of a windfall were the [c]ourt to impose the defendant to continue

alimony [sic]."    The court viewed the consent order as an "expeditious

resolution" of what would likely have been a successful application by B.G. to

suspend her alimony obligation and concluded there was nothing "unfair,

unreasonabl[e, or] untoward in any way with respect to [the] consent order."

      B.G.'s counsel acknowledged that she was obligated to return to P.G. the

social security payments she took while he was incarcerated. The court noted

although it "did not condone plaintiff's actions in . . . helping herself to [P.G.'s]

bank account" while he was in prison, "her character has no bearing on the

validity of the consent order."

      On March 29, 2019, the court entered an order denying P.G.'s motion to

vacate the January 17, 2018 consent order.




                                                                             A-3331-18T1
                                         6
      This appeal followed.     P.G. raises the following arguments for our

consideration:

            POINT I

            THE TRIAL COURT IGNORED N.J. COURT RULE
            1:6-2 WHEN RULING ON AN UNOPPOSED
            MOTION WITHOUT A HEARING WITH ALL
            MOVANT'S FACTS UNCONTROVERTED.

            POINT II

            THE TRIAL COURT RULED WITHOUT REGARD
            TO THE STANDARDS FOR RELIEF AS PER NJ R.
            [SIC] 4:50-1.

            POINT III

            THE CONSENT ORDER SHOULD HAVE BEEN
            VACATED: THE UNPRECEDENTED INEQUITY
            TO DEFENDANT ARE [SIC] "EXCEPTIONAL
            CIRCUMSTANCES" VALIDATING VACATION.

            POINT IV

            DEFENDANT DID NOT HAVE THE CAPACITY TO
            UNDERSTAND THE "CONSENT ORDER"; THE
            TRIAL COURT MISSED THE LAW APPLYING R.
            4:50-1 TO CONSENT ORDERS.

                                       II.

      Rule 4:50-1 provides, in relevant part:

            [o]n motion, with briefs, and upon such terms as are
            just, the court may relieve a party or the party’s legal
            representative from a final judgment or order for the

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                                       7
            following reasons: . . . (c) fraud (whether heretofore
            denominated intrinsic or extrinsic), misrepresentation,
            or other misconduct of an adverse party; (d) the
            judgment or order is void; . . . or (f) any other reason
            justifying relief from the operation of the judgment or
            order.

      An application to set aside an order pursuant to Rule 4:50 is addressed to

the motion judge's sound discretion, which should be guided by equitable

principles. Hous. Auth. v. Little, 135 N.J. 274, 283 (1994). A trial court's

determination under Rule 4:50-1 is entitled to substantial deference and will not

be reversed in the absence of a clear abuse of discretion. US Bank Nat'l Ass'n

v. Guillaume, 209 N.J. 449, 467 (2012). To warrant reversal of the court's order,

P.G. must show that the decision was "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)

(internal quotations omitted)).

      In determining whether a party should be relieved from a judgment or

order, courts must balance "the strong interests in the finality of litigation and

judicial economy with the equitable notion that justice should be done in every

case." Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App.

Div. 1985). Where a procedural violation is involved, additional considerations

are implicated, namely, "'[t]he defendant's right to have the plaintiff comply

                                                                          A-3331-18T1
                                        8
with procedural rules[, which] conflicts with the plaintiff's right to an

adjudication of the controversy on the merits.'" Abtrax Pharms. v. Elkins-Sinn,

139 N.J. 499, 513 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)).

In all cases, however, "'justice is the polestar and our procedures must ever be

moulded and applied with that in mind.'" Jansson, 198 N.J. Super. at 195

(quoting N.J. Highway Auth. v. Renner, 18 N.J. 485, 495 (1955)).

      Relief under subsection (f) of Rule 4:50-1 is available only when "truly

exceptional circumstances are present."      Little, 135 N.J. at 286 (citation

omitted). "The movant must demonstrate the circumstances are exceptional and

enforcement of the judgment or order would be unjust, oppressive or

inequitable." Johnson v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999)

(citation omitted).

      Our review of the record reveals the trial court abused its discretion when

it denied P.G.'s motion without holding an evidentiary hearing. P.G. raised a

number of disputed factual issues that, if true, may constitute fraud,

misrepresentation, or other misconduct by B.G. under Rule 4:50-1(c), render the

consent order void for lack of consent by P.G. under Rule 4:50-1(d), or

constitute exceptional circumstances warranting relief under Rule 4:50-1(f).




                                                                         A-3331-18T1
                                       9
      Primary among the disputed issues is P.G.'s contention he lacked legal

capacity to agree to the consent order. It is undisputed P.G. receives disability

payments due to mental health issues. In his brief, P.G. states he "has been on

many psychotropic prescription medications" and was hospitalized after a

suicide attempt.   In addition, P.G. alleges that shortly after he began his

incarceration, he was involved in an altercation resulting in his hospitalization

and placement in solitary confinement. He alleges his six-month term in solitary

confinement was reduced to four months because "prison doctors found he ha d

become catatonic." According to P.G., B.G.'s prison visits began shortly after

his release from solitary confinement.

      These allegations, if true, raise questions with respect to whether P.G. had

the capacity to agree to the suspension of alimony. We recognize that P.G.'s

moving papers may not have specifically addressed his mental health or the

circumstances immediately preceding execution of the consent order that may

have caused a deterioration in his mental state. He argues, however, B.G. was

aware of his mental health issues, which existed during the marriage.            In

addition, his counsel was prepared to present two witnesses at what he thought

was a scheduled evidentiary hearing on P.G.'s motion. Those witnesses may




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                                      10
have been intended to illustrate why P.G. was susceptible to pressure to sign the

consent order without understanding its terms.

      P.G. also alleges when B.G. presented him with the consent order, he was

not   aware   she   had    unilaterally    stopped   paying   alimony    and    was

misappropriating his disability payments. If P.G. had the capacity to agree to

the consent order, his decision to do so may have been predicated on his belief

B.G. was acting in good faith and that he could rely on the disability payments

for support during and after his release from prison. These issues should be

explored on remand. We note our disagreement with the trial court's conclusion

that B.G.'s misappropriation of funds from P.G. is immaterial to the resolution

of the motion because B.G.'s character is not at issue. B.G.'s behavior casts

doubt on her credibility and is relevant to her state of mind, specifically whether

she intended to take advantage of P.G.'s incarceration and, perhaps, his mental

state, for her personal financial gain.

      The proceedings on remand should also examine the effect, if any, on P.G.

of B.G.'s representation that, after consulting an attorney, she believed he was

not entitled to alimony while incarcerated. Our research did not reveal a statute

or legal precedent which provides alimony is automatically suspended during

the recipient's incarceration. If, as B.G. purportedly told P.G., she truly believed


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                                          11
she was entitled to suspend alimony payments upon his incarceration, she would

not have needed to secure a consent order or his agreement to not seek

retroactive reinstatement of alimony upon his release from prison.         P.G.'s

allegations raise the question of whether B.G.'s statement was based on incorrect

legal advice or her misunderstanding of the law, or was an affirmative

misrepresentation to avoid a motion for a modification of alimony, which would

have triggered a hearing at which her unilateral cessation of alimony and

misappropriation of P.G.'s disability payments would surely have come to light.

      We also note our disagreement with the trial court's characterization of

the consent order as a settlement agreement. There was no pending dispute

between the parties when they signed the consent order. The consent order did

not, therefore, settle any claims. In addition, there is an apparent lack of

consideration to P.G. for executing the agreement. The consent order appears

to benefit only B.G., the party whose counsel drafted it. The enforceability of

the consent order is, therefore, in question.

      The PSA, on the other hand, is a settlement agreement. That agreement

specifies the circumstances in which the parties could seek modification of

alimony and in which alimony terminated. P.G.'s incarceration is not included

in those circumstances. On remand, the trial court shall consider the consent


                                                                         A-3331-18T1
                                       12
order as a departure from the settlement agreement that resolved the parties

divorce action and the equity of such a departure in light of what P.G. alleges is

B.G.'s significant income.

      To the extent we have not specifically addressed any of P.G.'s remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Vacated in part and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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                                       13
