RICKI R. ROGERS v. RICHARD S. GORDON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3843-08T13843-08T1

RICKI R. ROGERS,

Plaintiff-Appellant/

Cross-Respondent,

v.

RICHARD S. GORDON,

Defendant-Respondent/

Cross-Appellant.

________________________________

Argued February 3, 2010 - Decided June 16, 2010

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Burlington

County, Docket No. FM-03-277-06.

Bonnie C. Frost argued the cause for appellant/

cross-respondent (Einhorn, Harris, Ascher,

Barbarito & Frost, attorneys; Ms. Frost and

Timothy J. Ford, on the brief).

Ted M. Rosenberg argued the cause for

respondent/cross-appellant (Ted M. Rosenberg

and James T. Rosenberg, attorneys; Ted M.

Rosenberg, on the briefs).

PER CURIAM

The parties appeal and cross-appeal from certain provisions of an order entered by the trial court on April 2, 2009. After reviewing the record in light of the contentions advanced on appeal, we reverse in part, affirm in part, and remand for further proceedings.

The parties have been involved in protracted matrimonial litigation. This appeal is the second time these parties have been before this court. Their prior appeal resulted in our opinion, Rogers v. Gordon, 404 N.J. Super. 213 (App. Div. 2009), in which we upheld the validity of the prenuptial agreement the parties executed in May 1981. In that agreement, each agreed that in the event of an annulment, separation or divorce, "there shall be no property settlement or division of property between them . . . but each shall keep and retain sole ownership, enjoyment, control and power of disposal of all property of every kind and nature whatsoever now owned or hereafter acquired . . . ." In upholding that agreement, we noted that there had been full and fair financial disclosure at the time the parties executed the agreement, and that each party had separate counsel to offer independent legal advice. We stated, "The agreement defendant executed in 1981 and reaffirmed in 1987 was clear and unequivocal in its declaration that plaintiff would in all likelihood be a wealthy woman and that, in the event of divorce, defendant would not share equally--or even equitably--in that wealth." 404 N.J. Super. at 227. In reversing the trial court's determination that the agreement was unconscionable and unenforceable, we left open only the possibility that if, in the future, defendant experienced a change in his financial circumstances, leaving him unable to support himself, he could file an application for alimony. We remanded the matter to the trial court for further proceedings.

Those further proceedings have now concluded, resulting in the entry of a judgment of divorce and the order that is now on appeal before us. Plaintiff challenges Paragraph 3 of that order, which refused to enforce Paragraph 4 of the pre-nuptial agreement, and Paragraph 9 of that order, which granted defendant an award of $67,325.86 for his counsel fees and costs.

We set forth Paragraph 4 of the pre-nuptial agreement in full.

In the event of an annulment, a separation (whether legal or by mutual agreement), or a pending or final divorce between the parties hereto, or in the event that the parties hereto have lived apart for a period in excess of ninety (90) continuous days and one of the parties has no intention of returning, each agrees that there shall be no property settlement or division of property between them (other than as is hereinafter provided for the division of certain property acquired during the course of the marriage), but each shall keep and retain sole ownership, enjoyment, control and power of disposal of all property of every kind and nature whatsoever now owned or hereafter acquired by such party and all increments thereto free and clear of any rights, interest or claims of the other (including rights under community property laws). Upon the happening of any of the events mentioned in the immediately preceding sentence, each irrevocably waives any right, interest, claim or demand for any property settlement (including rights under community property laws), and each shall retain the sole ownership, enjoyment, control and power of disposal of all property of any kind or nature whatsoever now owned or hereafter acquired (except as hereinafter provided) and all increments thereto as if such parties had never been married. Furthermore, if any of such events should occur, each party does further waive any right, interest, claim or demand against the other for any counsel fees related to the adjudication, arbitration and settlement of any and all property rights.

Plaintiff stresses that in our earlier opinion, we held that, with the limited exception of defendant having the right to seek alimony in the future, "[t]he remainder of the [pre-nuptial] agreement continues in full force and effect." Id. at 227. She contends that the trial court had no authority to disregard this directive. She points out that the trial court, in its oral opinion, stated that it considered enforcement of Paragraph 4 of the pre-nuptial agreement in the context before the trial court would be "grossly inequitable" and "unconscionable."

While we agree the trial court was not free to disregard our earlier directive that the balance of the pre-nuptial agreement continued "in full force and effect," we do not consider that language dispositive of this appeal. We note that in the earlier matter we did not entirely set aside paragraph 14 of the pre-nuptial agreement, under which each party "waive[d] any and all claims which he or she might otherwise have for support, maintenance or alimony." Our limited holding, rather, was that circumstances could develop in the future which could make enforcement of that provision unconscionable. We clearly held that defendant was not entitled to any alimony or support at the present time in light of his ability to maintain an adequate standard of living by reason of his own efforts. We simply declined to foreclose the question of alimony in perpetuity.

We note that the pre-nuptial agreement contained separate paragraphs under which each party waived his and her potential rights to equitable distribution and to alimony from the other. The matter of equitable distribution was addressed in Paragraph 4, set forth above, while Paragraph 14 dealt with alimony and support. These paragraphs, however, are not mirror images of each other.

It is only in Paragraph 4, containing the waiver of rights to equitable distribution, that the language appears waiving counsel fees. There is no similar provision in Paragraph 14, containing the waiver of claims to alimony and support that would purport to waive counsel fees as well. This difference in content and structure is not without significance, in our judgment, in light of the fact that the entire agreement was clearly carefully drawn and structured and reviewed by attorneys for both parties.

Absent a written waiver such as is contained in Paragraph 4 of the pre-nuptial agreement, a party to matrimonial litigation would have the right to seek counsel fees in accordance with Rule 5:3-5(c) and Rule 4:42-9(a)(1). The waiver of such a right should be clear and explicit in its terms and scope, and, indeed, the waiver contained in Paragraph 4 is clear and explicit. No similar waiver appears in Paragraph 14, and it would, in our judgment, be inappropriate to insert such a provision by implication.

The challenge defendant initially mounted in the trial court had two prongs--he asserted a claim of entitlement to equitable distribution and a claim of entitlement to alimony. We agree with plaintiff that to the extent defendant sought an award of equitable distribution, he is not entitled to an award of counsel fees from plaintiff. To do otherwise would fly in the face of the clear language of the agreement we have deemed enforceable.

The difference in language between the two paragraphs leads to a different result, however, with respect to defendant's claim of alimony. Here, defendant is entitled to an award of counsel fees. That award, however, can only take into account the time and costs expended on the question of alimony, as opposed to equitable distribution. It must also account for the limited nature of defendant's success; our earlier opinion reversed the trial court's declaration that the pre-nuptial agreement was unconscionable and unenforceable, and held only that defendant may seek such an award of alimony in the future. Clearly, however, defendant's attorney did achieve some level of success for his client, who may not have received an immediate benefit from those efforts but has been assured that in appropriate circumstances he may seek further relief.

The analysis we have set forth, which rests in the language used by the parties to memorialize their understanding of their pre-nuptial agreement, makes it unnecessary to address in detail Strahan v. Strahan, 402 N.J. Super. 298, 316-18 (App. Div. 2008), in which we reversed the trial court's grant of counsel fees in the face of a clear provision in the parties' pre-nuptial agreement that each would be responsible for his or her own counsel fees in the event of a divorce action. We simply note that the language we considered in Strahan differed from the language at issue here.

The trial court, however, granted defendant the full amount he had sought for counsel fees and costs, excluding only that portion representing fees incurred in connection with the earlier appeal and fees that might be incurred in future litigation. We have reviewed the billing statements submitted in support of defendant's application for counsel fees in an attempt to determine which portion of those fees may fairly be attributed to the question of alimony, as opposed to equitable distribution and have come to the conclusion that it is not possible for us to make that allocation upon a reasoned basis. Nor is it possible to determine whether any portion of the expert fees may be attributable to the claim of alimony, as opposed to equitable distribution. While we regret remanding this matter yet again, with the parties experiencing further stress and aggravation, we would consider it an even greater disservice to the parties to enter an amount reached solely upon speculation on our part.

In the course of its oral opinion, the trial court spoke in glowing terms of the ability and integrity of both counsel. We are, of course, well aware of the intense emotions this litigation has generated on the part of the clients. We would, however, urge counsel to confer with each other in an effort to come to some reasonable compromise on the question of the quantum of fees and attempt to persuade their clients to resolve this limited dispute to avoid further protraction of the litigation aspect of this matter. No one would benefit from prolonging the dispute on this one discrete question.

Two remaining matters must be addressed. Plaintiff has included in her brief a challenge to the trial court's denial of her own application for counsel fees she incurred in opposing defendant's request for fees. The trial court's denial of that application was, however, oral and is not included in the order of April 2, 2009. Appeals can only be taken from judgments and orders, not opinions. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Heffner v. Jacobson, 100 N.J. 550, 553 (1985). It was, in any event, fully supported by the record and, in no sense, an abuse of the court's discretion. Williams v. Williams, 59 N.J. 229 233 (1971).

Defendant has filed a cross-appeal. In his brief, he candidly sets forth that he filed this cross-appeal only to preserve his right to seek certification from the Supreme Court with respect to our earlier opinion in Rogers v. Gordon, supra, and the trial court's disallowance of counsel fees for appellate counsel. Whether defendant is entitled to certification with respect to either of those questions, however, rests solely within the purview of the Supreme Court, and we express no views on that issue. An appeal or cross-appeal is intended to address a prejudicial error that a party alleges occurred in the trial court, and we are vested with appellate jurisdiction only through a properly-filed notice of appeal. Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994). Defendant's notice of appeal identifies only the order of April 2, 2009; he makes no such assertion as part of his cross-appeal that the trial court erred in entering that order, and we thus dismiss the cross-appeal.

The order under review is reversed in part, and the matter is remanded for further proceedings. The cross-appeal is dismissed.

 

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