TIBISAY NISBETT v. ROBERT NISBETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1680-08T11680-08T1

TIBISAY NISBETT,

Plaintiff-Appellant,

v.

ROBERT NISBETT,

Defendant-Respondent.

________________________________________________________________

 

Submitted January 13, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1614-07.

Cassandra T. Savoy, P.C., attorney for appellant.

Gustavo G. Garcia, attorney for respondent.

PER CURIAM

Tibisay Nisbett (Tibisay) appeals from an order that granted the motion of her former husband, Robert Nisbett (Robert), enforcing litigant's rights and denied her motion to modify the property settlement agreement (PSA) in this matrimonial action. We affirm.

We summarize the facts relevant to this appeal.

Tibisay and Robert were married for approximately eighteen years and had three children. A dual judgment of divorce was granted in March 2008 that incorporated the terms of a written PSA. The portion of the PSA relevant to the appeal is the alimony provision contained in Article III:

The wife shall pay directly to the husband the amount of $45,000, representing alimony and marital distribution of personal assets obtained and acquired during the course of the marriage. The wife shall make payments to the husband during a period of twelve (12) months beginning June 1, 2008, the amount of $10,000, September 1, 2008, $10,000, December 1, 2008, $10,000, and March 1, 2009, $15,000 which should be the last payment due and owe[d] by the wife to the husband. At the end of such payment the wife's obligation to the husband should terminate in accordance with the terms and conditions of this agreement.

Tibisay failed to pay the first installment, due June 1, 2008. In September 2008, Robert filed a motion in aid of litigant's rights, asking the court to compel Tibisay to comply with this provision.

Tibisay filed a cross-motion for "equitable reformation" of the property settlement agreement she had entered into just six months earlier. In her supporting certification, she acknowledged that she had agreed to the terms in the alimony provision. She stated, however, that she had received poor advice from her attorney regarding her potential liability to pay alimony; that he pressured her to settle the case despite her resistance to do so; and that she had warned her attorney that she did not have $45,000 to pay her husband in alimony. She asked the court to vacate the alimony portion of the PSA because it was unfair for her to pay alimony based upon the following factors: his earning capacity; the equitable distribution he had received; his excellent health; the inadequate child support she received; and her loss of employment. She also asked the court to revisit other issues: to award her sole custody of the children; to increase child support; and to award her fifty per cent of Robert's pension.

By order dated November 14, 2008, the trial court denied Tibisay's motion and granted Robert's motion. The order required Tibisay to pay Robert $20,000, the amounts due in June and September 2008 pursuant to the PSA, within ten days. The court set forth the reasons for its ruling on the record:

The courts have made it clear that the fact that [Tibisay] could have done better is an insufficient basis to justify looking behind the property settlement agreement itself. New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversy. It's Konzelman v. Konzelman, 158 N.J. 185 [(1999)]. New Jersey law further finds that settlement agreements, if found to be fair and just, are specifically enforceable in equity, Schlemm v. Schlemm, 31 N.J. 557 [(1960)].

Here, Ms. Nisbett claims that because her attorney misinformed her about the law she did not knowingly enter into the settlement agreement. Generally, a settlement agreement may be reformed if found to be unconscionable or overreaching by one of the parties. See Addesa v. Addesa, 392 N.J. Super. 58 [(App. Div. 2007)]. However, Ms. Nisbett is not claiming that Mr. Nisbett or his attorney coerced her into signing the settlement agreement.

Ms. Nisbett's claim is actually that her own attorney persuaded her into signing something that she was uncomfortable with. Court Rule 4:50-1 provides avenues for property settlement agreements to be attacked. Courts in New Jersey are more likely to set aside a property settlement agreement if there's been a showing of fraud, coercion or overreaching by one of the parties. See Harrington v. Harrington, 281 N.J. Super. 39 [(App. Div.), certif. denied, 142 N.J. 455 (1995)] and Peskin v. Peskin, 271 N.J. Super. 261 [(App. Div.), certif. denied, 137 N.J. 165 (1994)].

Here, there's been no showing of fraud or coercion. Ms. Nisbett asserts that she was not comfortable with having to pay alimony to Mr. Nisbett, but agreed to the settlement agreement at the insistence of her attorney . . . . Here, Ms. Nisbett agreed that she had entered into this agreement freely, voluntarily and under no duress or compulsion, as specifically set forth in the Judgment of Divorce.

In this appeal, Tibisay advances the following arguments:

POINT I

THE TRIAL COURT ERRED WHEN IT ENFORCED ARTICLE III OF THE PROPERTY SETTLEMENT AGREEMENT BECAUSE THERE WAS NO LEGAL BASIS FOR AN AWARD OF ALIMONY AND APPELLANT PROPERLY SET FORTH A PRIMA FACIE CASE OF UNFAIRNESS WHICH COMPELLED THE COURT TO MAKE A FINDING OF FACT.

POINT II

THERE ARE GENUINE ISSUES OF MATERIAL FACT WHICH REQUIRED THE COURT TO CONDUCT A PLENARY HEARING BEFORE THE TRIAL COURT ORDERING ENFORCEMENT OF ARTICLE III OF THE PROPERTY SETTLEMENT AGREEMENT.

A. WHETHER THE $45,000 REPRESENTED EQUITABLE DISTRIBUTION OF ALIMONY.

B. WHETHER ENFORCEMENT MUST BE BARRED DUE TO PROCEDURAL AND/OR SUBSTANTIVE UNCONCSIONABILITY.

POINT III

HUSBAND IS NOT ENTITLED TO ATTORNEY FEES WHERE WIFE HAS ACTED REASONABLY, NO[T] ACTED IN BAD FAITH, AND HAS NO ABILITY TO PAY LEGAL FEES.

After carefully considering the record and briefs, we are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), except for the following brief comments.

Courts have the equitable authority to modify negotiated property settlement agreements for the purpose "of ensuring fairness and equity in the dissolution of marriages." Miller v. Miller, 160 N.J. 408, 418 (1999). See also Conforti v. Guliadis, 128 N.J. 318, 323 (1992). However, "[v]oluntary accommodations regarding matrimonial differences are highly desirable and make a major contribution to the fulfillment of 'the strong public policy favoring stability of arrangements.'" Petersen v. Petersen, 85 N.J. 638, 645 (1981); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). Because they are "essentially consensual and voluntary in character," such agreements are "entitled to considerable weight with respect to their validity and enforceability." Petersen, supra, 85 N.J. at 642.

Applications for relief from property settlement agreements are subject to Rule 4:50-1. Miller, supra, 160 N.J. at 418. Courts are directed to use the Rule "sparingly, in exceptional situations; the Rule is designed to provide relief from judgments in situations in which, were it not applied, a grave injustice would occur." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). Motions under the Rule are addressed to the sound discretion of the trial court, guided by equitable principles, St. James AME Dev. Corp. v. Jersey City, 403 N.J. Super. 480, 487 (App. Div. 2008), whose decision is "left undisturbed unless it represents a clear abuse of discretion." Hous. Auth. of Morristown, supra, 135 N.J. at 283-84.

Upon making this motion, the burden is on the moving party to set forth facts that trigger one of the Rule's provisions. See Connor v. Connor, 254 N.J. Super. 591, 601 (App. Div. 1992). To be entitled to a hearing on a motion to reform the property settlement agreement, the applicant must provide facts in her submissions to "show that there is a genuine issue as to a material fact." Shaw v. Shaw, 138 N.J. Super. 436, 440-41 (App. Div. 1976); see also Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006). In the "absence of unconscionability, fraud, or overreaching in the negotiations of the settlement . . . no legal or equitable basis exists to reform the parties' property settlement agreement." Miller, supra, 160 N.J. at 419. See also Addesa v. Addesa, 392 N.J. Super. 58, 66 (App. Div. 2007).

Although Tibisay contended that the PSA was unconscionable, the trial court correctly found that she set forth no facts to support her claim for relief. Under the circumstances, no plenary hearing was necessary for the trial court to conclude that the motion for reformation should be denied.

 
Affirmed.

There was a second motion to enforce litigant's rights and order, entered February 10, 2009, and subsequent negotiations between the parties. Only the order of November 14, 2008 is before us in this appeal.

The order that is the subject of this appeal does not award any counsel fees to Robert. In setting forth its ruling on the record, the trial court stated that "each party shall pay their own legal fees." As a result, we need not review this argument.

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A-1680-08T1

June 23, 2010