Frequently, judicial opinions cite the cases that say settlement of disputes ranks high in New Jersey’s public policy. Accordingly, it is very difficult to get a trial court to set aside, and most of the time, a motion to set aside a judgment or order is required to be filed within one year . But what happens in the case of fraud and/or when the information regarding hidden assets and/or material misstatements made by a party does not come to light for many years? Is a litigant in those situations out of luck because they didn’t catch the fraud fast enough? In many cases, the answer is yes, but not always.
The analysis starts with Rule 4:50-1 which provides the grounds for relief from a judgment, as follows:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
Rule 4:50-2 provides that the motion should be made in a response time, “… and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken.”
That was the argument made by the alleged fraudster in the case of Baglivo v. Baglivo, an unreported (non-precedential opinion decided by the Appellate Division on October 7, 2021, In that case, the parties started their divorce in 2008 and it didn’t end until early 2012. During the case, the husband’s Case Information Statement (financial disclosure form) asserted that his business had a negative value and that he had a negative net worth. As to two businesses in Florida listed on the CIS (as employers, not assets), the husband asserted that they had no value and denied the wife’s allegation that he made a $2 million investment in them, stating that a friend owned all of the stock of the businesses and that his friend just asked him to take a non-paying position on one business’ Board of Directors. Based upon an interview with the husband, an accounting firm during the divorce opined that the known business had no value.
However, in 2017, the wife obtained copies of several depositions related to a Florida litigation, including that of the husband and his friend, which told a different story. Specifically, the friend testified that he believed the husband contributed $2 million to the business. The friend also testified that the husband told him that because of the ongoing divorce, when they started the first business, “…he couldn’t have his name on anything…” When they started another business, the friend testified that the husband said. ” …I can’t have my
name anywhere. I can’t have anything – I’m working on a few legal stuff.” The friend further testified that once the divorce was over, the husband, “…”turned 180” and stated … that he didn’t “need to hide anymore.”
As a result of uncovering these transcripts, the wife moved to vacate the judgment in February 2018. The judge held the matter in abeyance while the parties did discovery After more than a year of discovery, the husband filed a motion to dismiss, to which, the wife responded that a plenary hearing (trial) was necessary. The trial judge granted the motion without conducting a hearing. The Appellate Division reversed and held that a hearing was required. The Appellate Division specifically held that the passage of 8 years (actually 6), was not fatal. Specifically, they held:
First, that the passage of eight years from entry of judgment counseled that relief be “very sparingly” granted. We disagree. Certainly, a court’s vacatur power may be appropriately limited or denied when a movant has unreasonably delayed in seeking relief, see R. 4:50-2, but Kimberly didn’t wait eight years from the time she had strong reasons to doubt the accuracy of the information provided by Steven prior to the entry of judgment. She claims to have learned of Steven’s Florida deposition, which triggered her fraud allegations, in August 2017,1 and she moved for relief in February 2018. We reject Steven’s argument and the judge’s holding that this six-month passage of time was fatal to Kimberly’s motion for relief from the 2012 judgment.
The Court also held that the wife was absolutely entitled to a plenary hearing, holding:
Second, the judge erred in failing to conduct a plenary hearing about the significance of the considerable evidence that supported Kimberly’s contention that Steven misrepresented or withheld vital information about his financial situation in the prejudgment proceedings. Ultimately, without any deep analysis into the parties’ competing allegations – except to note that “extensive” documents were presented “in support of each party’s position” – the judge concluded that Kimberly’s showing was not substantial enough to warrant relief. That is, the judge appears to have recognized there was a factual dispute emanating from what she referred to as the parties’ “dizzying” and extensive submissions but that “in the end” Kimberly failed to “set forth sufficient divergence in accounting . . . to convince this court that any fraud or misrepresentation has been occasioned by” Steven. What the judge meant by this “divergence” went undescribed. And the judge failed to explain how this undescribed divergence lacked sufficient substance to warrant deeper examination at a plenary hearing. We find nothing insubstantial about the allegation – which finds support in the record – that Steven failed to disclose his access to or possession of two or three million dollars in out-of-state businesses when he had alleged prior to the entry of judgment that Statewide was on the verge of bankruptcy. (Emphasis added).
The bottom line is that the one year rule is not absolute and once a litigant finds evidence that might suggest relief from the judgment or order, they should move in a reasonable time with the court and not sit on their rights further. Certainly, in the face of fraud, arguing that the other side waited to long to catch them, may not be the strongest argument.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.