FRANK H. WHEATON, III v. MARY E. WHEATON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3180-07T13180-07T1

FRANK H. WHEATON, III,

Plaintiff-Appellant/

Cross-Respondent.

v.

MARY E. WHEATON,

Defendant-Respondent,

Cross-Appellant.

__________________________

 

Submitted May 11, 2009 Decided

Before Judges Reisner, Sapp-Peterson, and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FM-06-105-07.

Eisenstat, Gabage & Furman, attorneys for appellant/cross-respondent (Charles W. Gabage, on the brief).

Morgenstern & Rochester, attorneys for respondent/cross-appellant (Andrew L. Rochester, on the brief).

PER CURIAM

Plaintiff Frank H. Wheaton III appeals from the dismissal of his complaint, filed in the Family Part, seeking enforcement of the pre-nuptial agreement he entered into with defendant Mary E. Wheaton prior to their marriage. Defendant cross-appeals the trial court's refusal to award counsel fees requested as a sanction for frivolous litigation pursuant to Rule 1:4-8(b). We affirm.

Judge Julio L. Mendez issued a comprehensive, detailed, and well-reasoned twenty-two page opinion, issued February 5, 2008, dismissing the complaint and denying the request for counsel fees. In brief, the parties entered into their pre-nuptial agreement in New Jersey on May 27, 1988. They married the following day. They subsequently moved to the Bahamas and have lived there continuously since, at the latest, 1994. They currently are engaged in divorce proceedings in the Bahamas, where they have been permanent residents for approximately the last fifteen years.

Essentially, the trial court dismissed the complaint because it lacked subject matter jurisdiction to grant declaratory judgment or specific performance of the parties' prenuptial agreement. Judge Mendez also found that counsel fees or other sanctions were inappropriate in light of plaintiff's good faith pursuit of his cause of action, which the court did not consider frivolous although the arguments were ultimately unsuccessful.

On appeal, plaintiff raises numerous points of error, commencing with the argument that the court had jurisdiction to compel the parties to abide by the terms of the agreement, despite the fact that in addition to the parties being permanent residents of the Bahamas for many years, the overwhelming bulk of the marital estate is outside New Jersey. On the other hand, defendant urges that Judge Mendez's conclusion that plaintiff's legal theories were "tenuous" was, in actuality, a finding that the litigation was frivolous. It is defendant's position that the court therefore erred by not awarding counsel fees pursuant to the rule.

After careful review of the record, and in light of the applicable law, we conclude that plaintiff's contentions are without merit. R. 2:11-3(e)(1)(E). We reach a similar conclusion on defendant's arguments on appeal. We affirm substantially for the reasons expressed by Judge Mendez.

 
Affirmed.

(continued)

(continued)

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A-3180-07T1

June 26, 2009