ANNA SOUZA VS. SERGIO SOUZA (FM-16-0083-15, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0293-19
ANNA SOUZA,
Plaintiff-Appellant,
v.
SERGIO SOUZA,
Defendant-Respondent.
________________________
Submitted February 2, 2021 — Decided February 25, 2021
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FM-16-0083-15.
Anna Souza, appellant pro se.
Paul J. Giblin, Jr., attorney for respondent.
PER CURIAM
Plaintiff Anna Souza appeals from a July 15, 2019 order, which denied
her motion for relief from a dual final judgment of divorce. We affirm.
Plaintiff and defendant Sergio Souza were married for nine years and have
two children; an adult daughter who now resides with a grandparent, and a
teenage son who lives with plaintiff. Plaintiff filed a complaint for divorce in
2014. On August 21, 2017, one month before the divorce trial, a Family Part
judge signed an order memorializing the parties' agreement to enter binding
arbitration with a retired judge.
The arbitrator issued a written opinion adjudicating the equitable
distribution, alimony, child support, college contribution, and counsel fee issues
presented to him by the parties. Relating to the issues raised on this appeal, the
arbitrator credited defendant with $32,000 representing one-half of the funds
plaintiff unilaterally took from the children's 529 college savings accounts. The
arbitrator denied plaintiff's claim for alimony and made the following findings:
The [p]laintiff is [thirty-nine] years old. The [p]laintiff
. . . graduated . . . [c]ollege in 2005 or 2006. She has a
degree in [a]ccounting. Starting in 2007, she and her
husband formed a transportation business. Both sides
testified consistently that the [p]laintiff was the one in
charge of all books and records for the business and the
subsequent businesses that the parties owned. She did
all billing, collected all monies, paid all bills, etc.
The [p]laintiff has not work[ed] for the last two
years. She claims that she had an accident at her place
of work . . . . She was pulling out when she was struck
by another car. She says her car was damaged[,] but it
was still drivable[,] and she drove the car home after
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the accident. She was at home for the next four days
and then went to the doctor to complain of back and
neck pain. For this, she has received physical therapy
about three or four times a week from 2014 through
2017. She has not worked during this period, claiming
disability. She has not applied for nor received state or
federal disability. Despite her claims, the [p]laintiff
offers no proof of her inability to work for the last
several years nor has she given any proof of any
disability whatsoever.
The arbitrator also found plaintiff "did not offer any testimony concerning
her needs[]" and presented a case information statement (CIS) budget totaling
"more than both parties earn after taxes." The arbitrator concluded:
This [p]laintiff has not proven her need for alimony.
She submitted a [CIS] with exaggerated expenses . . . .
She's testified that she has a job earning $40,000
although she offers no proof of where she's working or
the amount that she makes. She claims she does not
want to disclose where she works to the [d]efendant.
The court offered to have her explain just to the court,
but she did not do so. Based on the absence of any
proof, this court will have to assume that the [p]laintiff
is able to cover her needs with her income . . . . She
has failed to prove any alternate lifestyle, any need and
any reasonable explanation why she does not have the
ability to earn sufficient income to support herself.
The arbitrator calculated child support for the parties' son pursuant to the
guidelines utilizing $40,000 and $68,800 as the income figures for plaintiff and
defendant, respectively. This yielded a child support figure of $166 per week,
which the arbitrator ordered defendant to pay through probation.
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The arbitrator denied plaintiff's request to retroactively increase pendente
lite support, which had been in place pursuant to a March 2015 order, finding
plaintiff "was capable of working as she totally failed to prove any disability
back at the time [her] supposed accident occurred, in between, or now. She
simply stayed at home and failed to work." However, the arbitrator granted
defendant's request to retroactively reduce the pendente lite support in
accordance with the arbitrator's findings regarding the parties' incomes.
The arbitrator analyzed the Rule 5:3-5(c) factors and granted defendant
counsel fees totaling $18,000 representing approximately one half of the sum of
the outstanding counsel fees due to his attorney. The arbitrator denied plaintiff's
request for fees finding "[n]o certification was received from any of the
attorneys that had represented [p]laintiff in this matter . . . [despite that t]he
court had requested several times that the [p]laintiff submit certifications of
services of her attorneys, and even, explained to her what a certification of
services was."
Defendant moved to confirm the arbitration award. On November 14,
2017, the court entered an order confirming the award.
Unbeknownst to the court, plaintiff had filed a separate motion to vacate
the award on November 1, 2017. Her motion claimed the arbitrator "engaged in
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misconduct by effectively refusing to hear and consider evidence pertinent and
material to the controversy; engaged in misbehavior by which [plaintiff]'s rights
have been prejudiced, and acted in manifest disregard of the law." A Family
Part judge heard plaintiff's application on February 2 and April 6, 2018, denied
it, and signed the judgment of divorce on April 6.
Plaintiff's disability hearing occurred on March 27, 2018. On June 11,
2018, the Social Security Administration (SSA) determined plaintiff disabled
since July 1, 2014.
Defendant made a post-judgment application regarding college
contribution and the parties' daughter also intervened seeking a contribution
from the parties to her college expenses. In July 2018, the arbitrator heard the
matter and shortly after testimony began, defendant and the parties' daughter
resolved the amount he would contribute to her college education. As for
plaintiff, the arbitrator noted as follows:
The [p]laintiff also informed us that she was on
disability, that she had been awarded disability from the
[SSA]. When asked for a copy of the award letter, she
indicated that she had not yet received it yet. She had
some writing indicating . . . a disability, but she would
only allow us to see the first and last pages. There is
absolutely no reason why the [p]laintiff would not
honestly represent the status of any Social
Security/Disability claim to us. . . . [B]oth the
[a]rbitrator and counsel for the [d]efendant, [have]
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never heard of a disability award being made without
an award letter accompanying [it].
The arbitrator entered a judgment in favor of defendant against plaintiff for
$64,000 representing the full sum plaintiff took and failed to return to the
children's 529 accounts. The court confirmed the award on August 29, 2018.
On January 18, 2019, plaintiff filed a motion to vacate the judgment of
divorce pursuant to Rule 4:50-1, which the motion judge noted was essentially
a motion to vacate the arbitration award. Plaintiff's certification claimed: (1)
she did not give the arbitrator proof of her disability because she suffered from
anxiety, which constituted excusable neglect under Rule 4:50-1(a); (2) the
disability determination was not rendered until after the arbitration award was
confirmed and therefore constituted newly discovered evidence warranting
relief from the award under Rule 4:50-1(b); and (3) the overall result of the
arbitration was "unjust and unfair" requiring relief pursuant to Rule 4:50-1(f).
The motion judge denied plaintiff's motion finding the relief sought
pursuant to Rule 4:50-1(a) and (b) was time barred under Rule 4:50-2 because
plaintiff's motion was filed fourteen months after entry of the November 14,
2017 order confirming the arbitration award. Notwithstanding the time bar, the
judge considered the merits of plaintiff's motion and concluded plaintiff was not
entitled to relief pursuant to Rule 4:50-1(a) because "[p]laintiff did not attempt
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to produce any documentation or proofs [in arbitration] as to many financial
issues that were disputed in the parties' divorce." Regarding plaintiff's disability
determination the judge stated:
While the [p]laintiff did not have a determination of
disability from the SSA at the time that arbitration was
conducted, she could and should have provided other
proof . . . any proof . . . of her disability in the form of
medical records, medical testimony, her application for
social security disability, letters from the social security
administration, etc. She provided nothing. Again, this
is not the kind of mistake that is contemplated by Rule
4:50-1 as reflected in comment 5.1.1. to the [Rule]:
"The kind of mistake contemplated by the rule has been
described as one which the parties could not have
protected themselves from during the litigation[.]"
(emphasis added). Plaintiff could easily have protected
herself from the so-called mistake of not providing any
information about her disability. She could have
provided any of the documents or other evidence listed
above. Contrary to her attorney's claim in the current
motion, [p]laintiff was more than capable of finding
and/or providing such documentation. Plaintiff has
since filed two pro se motions to "Vacate Judgment and
Arbitration Order/Award" (one that was denied and one
that was withdrawn), and [p]laintiff managed to attach
numerous exhibits to those motions, including letters
from the [SSA] . . . . Plaintiff could have done the same
at arbitration. Plaintiff also could have hired an
attorney to represent her during the arbitration. She
clearly had the funds and ability to hire counsel as she
has, in fact, been represented by at least five . . .
different attorneys at various points throughout this
matrimonial matter[.]
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The motion judge found plaintiff lacked the grounds for relief pursuant to
Rule 4:50-1(b) for similar reasons stating:
Again, [p]laintiff did not do her due diligence in
attempting to prove disability. She could have
attempted to prove it in a variety of ways, but made no
attempt whatsoever. What's more than that, and what
[p]laintiff does not address at all in her current motion
papers, is that [p]laintiff was actually working at the
time of arbitration. She was, by her own admission,
working and earning $40,000 per year.
The judge also addressed the disability determination. He stated:
Because a plaintiff who qualifies for social security
disability benefits is presumed to be disabled under
New Jersey law, Golian v. Golian, 344 N.J. Super. 337(App. Div. 2001), the SSA's decision may constitute a
substantial change in circumstances in this case, but it
is not grounds for vacating the arbitration award and/or
confirming order.
As this was and remains a highly contentious
matter, the court should also note that, even if [p]laintiff
were to make an application for support based on
changed circumstances, there is, of course, no
guarantee that she will be successful. For one thing,
subsequent decisions have more narrowly applied
Golian. Gilligan v. Gilligan, 428 N.J. Super. 69 (Ch.
Div. 2012), for example, . . . held that Golian does not
stand for the proposition that an SSD award letter itself
is automatically sufficient for the family court to
conclude that a disabled party cannot work in any
capacity or earn any income for support purposes;
rather, when a party alleges a post-divorce disability
that renders him or her unable to work, that party must
provide more evidence to the court than simply the SSD
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award letter itself to prove his or her case.
Additionally, [p]laintiff would be required to produce
her former and current [CIS] with any Lepis[1]
applications pursuant to [Rule] 5:5-4 in order to
establish that there is actually a need for support.
On appeal, plaintiff repeats the arguments she raised before the motion
judge under Rule 4:50-1(a) and (b). She also argues the motion judge erred by
not granting relief pursuant to Rule 4:50-1(f) because the arbitrator: failed to
consider evidence she presented of her disability; did not award alimony;
effectively terminated child support by awarding defendant a substantial credit
against it; erred in awarding defendant the $32,000 judgment because he failed
to consider the funds she removed from the children's 529 accounts were to meet
pendente lite expenses; did not consider her estranged relationship with the
parties' daughter and that the parties' son is young and his college plans are
unknown; and failed to consider her inability to pay counsel fees on account of
her disability.
"A motion under [Rule] 4:50-1 is addressed to the sound discretion of the
trial court, which should be guided by equitable principles in determining
whether relief should be granted or denied." Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 283 (1994). "The decision granting or denying an
1
Lepis v. Lepis, 83 N.J. 139 (1980).
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application to open a judgment will be left undisturbed unless it represents a
clear abuse of discretion." Ibid.We affirm substantially for the reasons expressed by the motion judge and
add the following comments. Plaintiff's arguments pursuant to Rule 4:50-1(a)
and (b) lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). Plaintiff's ability to seek relief from the judgment was clearly time
barred under Rule 4:50-1(a) or (b). See R. 4:50-2. Moreover, her refusal to
provide evidence of her disability to the arbitrator during both arbitrations, only
to attach the evidence in a motion seeking to overturn the arbitration award
neither constituted excusable neglect nor newly discovered evidence to warrant
relief pursuant to Rule 4:50-1(a) and (b).
The Supreme Court has stated: "No categorization can be made of the
situations which would warrant redress under [Rule 4:50-1](f). . . . [T]he very
essence of (f) is its capacity for relief in exceptional situations. And in such
exceptional cases its boundaries are as expansive as the need to achieve equity
and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009)
(quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) (second alteration
in original).
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The motion judge cited Gilligan for the proposition that an SSA
determination alone would not constitute proof of disability. However, we have
since repudiated that Chancery Division decision and affirmed our holding in
Golian that "a presumption of disability is established [by an SSA determination
of disability] and the burden shifts to the opposing party to refute that
presumption." Gormley v. Gormley, 462 N.J. Super. 433, 440 (App. Div.
2019).2
Regardless, there was no evidence presented of exceptional circumstances
warranting relief from the judgment pursuant to Rule 4:50-1(f) because plaintiff
refused to provide any evidence of her disability. As the motion judge noted,
the SSA determination may constitute evidence of a change in circumstances,
but it did not constitute grounds to set aside the arbitration award. 3 To the extent
we have not addressed an argument raised by plaintiff it is because it lacks
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
2
Gormley was released after the motion judge decided the matter.
3
We express no opinion whether plaintiff is entitled to relief going forward on
account of a change in circumstances.
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