RICHARD REPACK VS. ILONA AKIMOVA (FM-12-1223-18, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3014-19
RICHARD REPACK,
Plaintiff-Appellant,
v.
ILONA AKIMOVA,
Defendant-Respondent.
_________________________
Submitted April 26, 2021 – Decided May 18, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-1223-18.
Garces, Grabler & Lebrocq, PC, attorneys for appellant
(Arlindo B. Araujo, on the briefs).
Marlo J. Hittman, attorney for respondent.
PER CURIAM
Plaintiff Richard Repack appeals from a February 28, 2020 order denying
his motion to vacate a November 13, 2018 Dual Final Judgment of Divorce
(DFJOD) to seek an annulment of his marriage to defendant Ilona Akimova. We
affirm.
Plaintiff, a New Jersey resident, met defendant, a citizen of Russia, in
2009. On August 8, 2012, the parties married in Italy. After the marriage
ceremony, plaintiff claimed the parties rarely saw each other, spending roughly
two weeks physically living together. He also contended the marriage was never
consummated.
According to plaintiff, in October 2015, after defendant obtained her
"Alien Registration Card in November 2014," she sought to end the marriage.
The parties separated soon thereafter. Plaintiff claimed defendant married him
solely to obtain permanent legal status in the United States.
Defendant portrayed the marriage differently. She claimed the parties
lived together starting in September 2014, as soon as she was "lawfully allowed
to do so" based on her immigration status. Defendant wanted a "complete
marriage," including children. According to defendant, the parties had a
"normal marriage" for a brief time, including consummation of the marriage. In
addition, defendant explained, as a married couple, they vacationed, went out to
dinner, and resided in the same home.
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Due to various marital issues, the parties separated in 2015. Defendant
alleged plaintiff became "emotionally distant" and encouraged her to leave the
house. She also stated plaintiff's behavior became "extremely unsettling" and
"hostile."
On December 13, 2017, plaintiff filed a complaint for "annulment or
divorce." In his complaint, plaintiff asserted the following claims: annulment,
divorce by irreconcilable differences, fraud in the inducement, breach of the
implied covenant of good faith and fair dealing, deceit, breach of contract,
marital tort claims under Tevis v. Tevis, 79 N.J. 422 (1979), and unjust
enrichment. Plaintiff's complaint alleged the marriage was never consummated
and defendant owed him money. Defendant filed a responsive pleading, and the
parties exchanged discovery.
On November 13, 2018, the parties appeared in court with their counsel.
The parties, through counsel, advised the Family Part judge the matter settled.
Consequently, the judge questioned the parties regarding the settlement and
granted a DFJOD, incorporating and attaching a handwritten settlement signed
by parties.1 According to the settlement, the "parties agree[d] to divorce on
1
The record did not include a transcript of the November 13, 2018 divorce
proceeding before the judge.
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mutual irreconc[lia]ble differences" and "agree[d] to mutually waive any and all
claims" against each other. Plaintiff specifically agreed to the dismissal of his
annulment claim. The DFJOD reflected "the [c]ourt took no testimony as to the
merits of the settlement, and ma[de] no judgment with respect to it, except that
the parties entered into it freely and voluntarily, and that it [wa]s therefore
binding and enforceable."
On October 15, 2019, plaintiff filed a motion under Rule 4:50-1 to set
aside the DFJOD and seek an annulment. Plaintiff argued he was entitled to
vacate the DFJOD because defendant accepted a proposal to remarry during the
pendency of the divorce action and then married a woman less than a year after
the entry of the DFJOD. Defendant opposed the motion.
On February 28, 2020, the motion judge denied plaintiff's motion. In his
written statement of reasons, the judge explained "[T]he court does not find
plaintiff's argument pursuant to R. 4:50-1 . . . valid."2 The judge found plaintiff's
argument was "unsupported by the facts." He "note[d] the parties were married
for approximately eight years, went on various trips together and[,] at one point,
lived together." Consequently, the judge deemed plaintiff's argument the
2
Because plaintiff failed to present any arguments in support of vacating the
DFJOD under Rule 4:50-1(a) and (e), the judge declined to "consider vacating
the DFJOD under these provisions."
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marriage was never consummated based on "'newly discovered evidence"
unpersuasive.
The judge also rejected plaintiff's argument the DFJOD should be vacated
under Rule 4:50-1(c) because defendant defrauded him by marrying a woman
and was allegedly engaged to that woman during the marriage. The judge found
plaintiff's argument "nonsensical." He concluded plaintiff's insinuation of fraud
based on defendant's alleged relationship with another person while the parties
were married was "unpersuasive." In addition, the judge held plaintiff failed to
set forth "any other reason which would justify vacating the parties['] DFJOD,
pursuant to R. 4:50-1(f)."
Plaintiff appealed the February 28, 2020 order denying his motion to
vacate the DFJOD.3 On appeal, plaintiff argues the judge erred in denying the
motion because there was "newly discovered evidence that his then wife
admitted . . . she had accepted a marriage proposal . . . while still[] married to
him." Plaintiff asserts this new evidence "supported his contentions that the
marriage was never consummated and fraud was perpetuated on him." He also
claims the judge considered "extraneous filings[] in violation of the rules of the
3
Our review is limited to the February 28, 2020 order denying plaintiff's motion
to vacate the DFJOD because plaintiff never appealed the November 13, 2018
divorce judgment.
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court," denying his right to due process. We disagree with plaintiff's arguments
and affirm the judge's denial of the motion to vacate the DFJOD.
Appellate courts should defer to a trial court's "disposition of a motion
under Rule 4:50-1" absent a "'clear abuse of discretion.'" Carrington Mortgage
Servs., LLC v. Moore, 464 N.J. Super. 59, 67 (App. Div. 2020) (citing Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994)).
Pursuant Rule 4:50-1(a) through (e), a court is authorized to relieve a party
from a final judgment or order based on mistake, inadvertence, excusable
neglect, newly discovered evidence, fraud, a finding the judgment or order is
void, or the judgment or order has been satisfied. Subsection (f) of the Rule,
known as the catchall provision, authorizes relief from a judgment or order for
"any other reason justifying relief . . . ."
Here, the judge correctly denied plaintiff's motion to vacate the DFJOD
based on plaintiff's failure to satisfy any of the grounds under Rule 4:50-1.
We disagree with plaintiff's contention there was newly discovered
evidence under Rule 4:50-1(b) to vacate the DFJOD. Plaintiff's complaint
included a request for annulment of the marriage because the marriage was never
consummated. However, plaintiff abandoned that claim as part of the written
settlement agreement incorporated into the DFJOD. Our courts favor use of
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consensual agreements to resolve controversies, and "[s]ettlement of disputes,
including matrimonial disputes, is encouraged and highly valued in our system."
Quinn v. Quinn, 225 N.J. 34, 44 (2016). If, as plaintiff argues, the marriage was
never consummated, plaintiff waived the ability to pursue such relief by signing
the settlement agreement. Moreover, defendant's subsequent remarriage,
whether the marriage was to a person of the same sex or opposite sex, has no
bearing on the consummation of the parties' marriage.
We also reject plaintiff's fraud argument pursuant to Rule 4:50-1(c).
Plaintiff argued defendant's engagement while the couple were separated but
still married and defendant's remarriage to a person of the opposite sex after the
divorce was finalized constituted fraud. Even assuming defendant's engagement
occurred prior to the entry of the DFJOD, defendant's relationship with another
person during the marriage does not support of finding of fraud. 4 Infidelity may
constitute a basis for granting a divorce but does not establish fraud for setting
aside a final judgment of divorce.
4
The sexual orientation of any individual with whom defendant may have had
a relationship with prior to the parties' DFJOD is irrelevant to the judge's
rejection of the argument defendant committed fraud during the marriage.
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In addition, plaintiff failed to cite any authority defendant's marriage to a
person of the same sex constituted fraud as a matter of law. Such an argument
contravenes the Supreme Court's determination in Lewis v. Harris, 188 N.J. 415,
423 (2006), concluding the denial of "rights and benefits to committed same-sex
couples that are statutorily given to their heterosexual counterparts violates the
equal protection guarantee of Article I, Paragraph 1."
We next consider plaintiff's argument the judge erred in considering
"extraneous filings" in denying his motion to vacate the DFJOD. We reject
plaintiff's assertion his due process rights were violated.
There is nothing in the record indicating the judge relied on "extraneous
material" in denying plaintiff's motion to vacate the DFJOD. In fact, there is no
mention in the judge's statement of reasons citing to "extraneous material"
provided by defendant in opposition to plaintiff's motion. The judge considered
plaintiff's arguments and applied Rule 4:50-1 in concluding plaintiff failed to
meet his burden to vacate the DFJOD.
We also reject plaintiff's argument the judge erred in failing to conduct
oral argument on his motion. Here, the judge concluded "the papers submitted
in this matter . . . provide a sufficient basis to make this decision on the papers
. . . ." Oral argument in family actions need not be granted if the court is satisfied
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the motion is made for the purpose of abusing the system and other parties.
Kozak v. Kozak, 280 N.J. Super. 272, 278 (Ch. Div. 1994) (holding matters
"sparked by a personal vendetta" do not compel oral argument). The judge
expressly found plaintiff's arguments in support of vacating the DFJOD
"nonsensical," implying plaintiff's motion sought retribution for defendant's
rejection of him.
In addition, where a motion fails to present substantive issues, a Family
Part judge is accorded "the option of dispensing with oral argument . . . when
no evidence beyond the motion papers themselves and whatever else is already
in the record is necessary to a decision." Palombi v. Palombi, 414 N.J. Super.
274, 285 (App. Div. 2010) (quoting Fusco v. Fusco, 186 N.J. Super. 321, 328-
29 (App. Div. 1982)). Family Part judges may "dispense with what is regarded
as unnecessary or unproductive advocacy." Ibid. (quoting Fusco, 186 N.J.
Super. at 328-29) Because plaintiff presented no meritorious arguments
requiring oral argument, the judge did not abuse his discretion in disposing of
the motion on the papers submitted.
Affirmed.
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