PAUL C. GALLAGHER v. MARIA GALLAGHER ALTOBELLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4823-10T4

PAUL C. GALLAGHER,

Plaintiff-Respondent,

v.

MARIA GALLAGHER ALTOBELLO,

Defendant-Appellant.

___________________________

April 19, 2012

Submitted January 31, 2012 - Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1109-09.

Maria Gallagher Altobello, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Maria Gallagher Altobello appeals from a November 9, 2010 order of the Family Part denying her motion to vacate a property settlement agreement (PSA) that had been incorporated into a judgment of divorce (JOD) on November 19, 2009. The PSA, entered into by defendant and her former husband, plaintiff Paul Gallagher, included a mutual waiver of alimony as well as a provision commonly known as an "anti-Lepis[1] provision." The motion judge concluded that defendant had failed to demonstrate any basis for vacating the agreement or the specific provisions in issue. We agree and affirm.

These are the facts adduced from the limited record before us.2 Plaintiff and defendant were married in October 1989, and although no children were born of this marriage, both parties had children from prior relationships. The parties separated in August 2008. At the time of the divorce in 2009, plaintiff was a retired Navy Captain on pension-pay status. Defendant was employed by the Navy in a position that she assumed at approximately the same time she and plaintiff separated. The duration of the position was for a two-year period and was scheduled to terminate in November 2010. At the time of termination, defendant was earning approximately $93,000.

Both parties were represented by counsel during the negotiation of the PSA. Although defendant details difficulties she encountered with her former attorney, defendant was represented by different counsel at the time of the execution of the PSA.

According to the certifications filed by the parties in support and in opposition to the motion to vacate, the PSA, dated November 19, 2009, the same day as the JOD, was negotiated over a period of time. The parties had limited assets with the primary asset being the marital home with an equity approximating $100,000 to 150,000. In addition, the parties had modest brokerage accounts as well as pensions.

Under the terms of the PSA, both parties waived alimony. As to equitable distribution, defendant retained all of the equity in the residence, the parties each maintained their vehicles, personalty was divided by a separate agreement, and defendant was awarded a twenty percent interest in plaintiff's pension. Defendant retained her pension.

The agreement contained the following provision addressing the issue of alimony:

18. WAIVER OF ALIMONY; APL; COUNSEL FEES AND COSTS

Both parties expressly waive, discharge and release any and all rights or claims which he or she may have, now or thereafter, by reason of the parties' marriage, to alimony and alimony pendente lite. Further, each party agrees to be responsible for his or her own legal fees and expenses.

(A) NONMODIFIABILITY OF ALIMONY WAIVER - The parties hereto agree that the alimony waiver pursuant to the terms of this clause is non-modifiable in any respect by either party. The parties have envisioned and considered any and all foreseeable and unforeseeable events occurring to either of them. The parties have specifically considered increases or decreases in the cost of living; increases or decreases in their income; their loss or inability to secure employment; any prospective changes of employment; the subsequent acquisition or loss of assets by either of them; the dissipation, whether negligent or not, of the assets received by each of them as and for equitable distribution in this matter; and any other event or events which may or do change the quality of their economic life. Nevertheless, the parties agree specifically, that no [c]ourt shall have jurisdiction or power to modify this provision; both parties being familiar with and having been advised about their rights for modification based upon changed circumstances as set forth in the case of Lepis . . . , and its progeny.

The parties acknowledge that the rationale in the case of Lepis . . . has been explained to them in the sense that a substantial change of circumstances would permit either party to make an application to a [c]ourt of competent jurisdiction to modify the alimony waiver of the within Agreement. It is the intention of the parties hereto, that the rationale of the Lepis case not apply to any present or future interpretation of the reasonableness of the alimony waiver of this Agreement, for they intend, and they acknowledge, that the alimony waiver of this Agreement shall express their rights and obligations for now and for all time, despite substantial changes in their monetary circumstances.

(B) Specifically, both parties waive any right they may have under [Lepis] decision to later argue that subsequent changes and circumstances render the alimony waiver either unfair or unequitable.

(C) Each party acknowledges that they have been advised by their counsel of the Lepis change circumstances standard and further acknowledge that they understand their rights that they are waiving.

(D) It is the specific agreement of the parties to introduce concepts of collateral estoppel into this agreement to prevent either party from seeking any alimony whatsoever.

(E) CREWS/STANDARD OF LIVING - Both parties acknowledge that the combination of their equitable distribution, income and other assets will make it possible for both parties to maintain a standard of living comparable to the standard of living enjoyed during the marriage without the necessity of either party paying alimony to the other.

In addition, the agreement included a statement regarding representation by counsel3 and the parties' understanding of the agreement.

4. ADVICE OF COUNSEL

The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, Michael D. Fioretti, Esquire, for Wife, and William H. Donahue, Jr., Esquire, for Husband. The parties acknowledge that they have received independent legal advice from counsel of their selection and that they fully understand the facts and have been fully informed as to their legal rights and obligations and they acknowledge and accept that this Agreement is, in the circumstances, fair and equitable and that it is being entered into freely and voluntarily, after having received such advice and with such knowledge and that execution of this Agreement is not the result of any duress or undue influence and that it is not the result of any collusion or improper or illegal agreement or agreements.

. . . .

7. MUTUAL RELEASES

Husband and Wife each do hereby mutually remise, release, quitclaim and forever discharge the other and the estate of such other, for all time to come, and for all purposes whatsoever, of and from any and all rights, title and interests, or claims in or against the property (including income and gain from property hereafter accruing) of the other or against the estate of such other, of whatever nature and wheresoever situate, which he or she now has or at any time hereafter may have against such other, the estate of such other or any part thereof, whether arising out of any former acts, contracts, engagements or liabilities of such other or by way of dower or curtsy, or claims in the nature of dower or curtsy or widow's or widower's rights, family exemption or similar allowance, or under the intestate laws, or the right to take against the spouse's will; or the right to treat a lifetime conveyance by the other as testamentary, or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of (a) New Jersey, (b) any State, Commonwealth or territory of the United States, or (c) any other country, or any rights which either party may have or at any time hereafter have for past, present or future support or maintenance, alimony, alimony pendente lite, counsel fees, costs and expenses, whether arising as a result of the marital relation or otherwise, except, and only except all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any thereof. It is the intention of Husband and Wife to give to each other by the execution of this Agreement a full, complete and general release with respect to any and all property of any kind or nature, real, personal or mixed, which the other now owns or may hereafter acquire, except and only except all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any thereof. It is further agreed that this Agreement shall be and constitute a full and final resolution of any and all claims which each of the parties may have against the other for equitable division of property, alimony, counsel fees and expenses, alimony pendente lite or any other claims pursuant to the Laws of New Jersey.

In her accompanying certification in support of her motion4 to vacate the PSA, defendant asserted that she and defendant were negotiating issues even at the start of trial. She further claims that she was in "a very bad state of mind and frankly hysterical. I was in no state of mind to agree to anything." She claims to have suffered from mental health issues and alluded to plaintiff's "enjoying a much higher standard of living than he enjoyed in the Navy." She alluded to his receipt of his annual pension as well as income received as a result of a teaching position that he had secured following retirement from the Navy. Defendant makes great moment of plaintiff's relationship with a woman in Florida and her wealth, issues that are not germane to the motion before the Family Part. Finally, she stresses the fact that she had been terminated from her job, a fact which apparently had been contemplated at the time the parties had entered into the agreement.

In denying the motion to vacate the PSA, Judge Anthony Pugliese observed that the "anti-Lepis" language was drafted by defendant's attorney and was prominently displayed in the text of the agreement. He also noted that plaintiff was not present during the final negotiations so assertions in that regard were unavailing. In sum, he found no extraordinary circumstances to warrant vacating an agreement that had been entered into by the parties.

We have reviewed defendant's arguments as well as considered her submissions. We conclude that her arguments are without merit, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth in Judge Pugliese's oral opinion of November 9, 2010. We add the following comments.

The record suggests that during the parties' eighteen-year marriage, they had accumulated a modest marital estate consisting of various savings and brokerage accounts, a residence, motor vehicles, personalty and pension accounts. The equitable distribution reflected a division of property, which according to the limited record provided by defendant allocated the major asset -- the equity in the real estate -- to defendant with both parties allocating the other assets between them. In addition to the real estate, defendant shared in plaintiff's pension while at the same time retaining her pension.

The parties entered into an integrated agreement addressing the various issues including equitable distribution and support.

An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement. Chance v. McCann, 405 N.J. Super. 547, 564 n.6 (App. Div. 2009). When interpreting an integrated agreement, "[n]o one element stands alone and can be read without reference or consideration of the others." Glass v. Glass, 366 N.J. Super. 357, 373 (App. Div.), certif. denied, 180 N.J. 354 (2004). No provision in an integrated agreement is meaningless or unenforceable. Savarese v. Corcoran, 311 N.J. Super. 240, 248 (Ch. Div. 1997) (upholding the anti-Lepis provision in a PSA as part of the parties' overall agreement). In interpreting such agreements, courts must also adhere to basic principles addressing settlement agreements. Such principles inform our decision here.

New Jersey has a strong public policy favoring the enforcement of PSAs. These agreements are approached with the presumption that they are valid and enforceable, and they will be enforced if they are fair and equitable. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). The general rule is that PSAs be enforced as written. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). In interpreting a property settlement agreement,

[t]he basic contractual nature of matrimonial agreements has long been recognized. At the same time, the law grants particular leniency to agreements made in the domestic arena, thus allowing judges greater discretion when interpreting such agreements.

As a general rule, courts should enforce contracts as the parties intended. Similarly, it is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties. The court's role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the expressed general purpose.

[Pacifico, supra, 190 N.J. at 265-66 (internal quotations and citations omitted).]

In addition to the court's responsibility for interpretation of these agreements, the "equitable authority" of the courts to modify orders incorporating property settlement agreements is "well established." Conforti v. Guliadis, 128 N.J. 318, 323 (1992). However, we will not draft new agreements for the parties, Massar, supra, 279 N.J. Super. at 93, and we will not insert new terms into an agreement merely "because one party later suggests that a few changes would have made the agreement fairer." Dworkin v. Dworkin, 217 N.J. Super. 518, 523 (App. Div. 1987) (citation omitted).

To the extent that defendant argues that our decision in Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993), mandates that anti-Lepis provisions will only be enforced on condition "of a fixed payment or [the] establish[ment of] the criteria for payment to the dependant spouse," we perceive no such concrete requirements.

We conclude that the judge properly analyzed the record before him and did not err in denying the motion.

A

1 Lepis v. Lepis, 83 N.J. 139 (1980).

2 Plaintiff did not appear on this appeal, and our review is further constrained by defendant's failure to provide us with a transcript of the divorce proceeding, which included an incorporation of the challenged agreement in the final judgment. See Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282 (App. Div. 1984).

3 As we have noted, defendant's attorney, who apparently drafted the agreement, was not the attorney with whom defendant had a dispute.

4 The motion was filed on behalf of defendant by yet another attorney, not either the original attorney, who is the subject of the dispute, or the subsequent attorney who drafted the agreement and represented defendant at the divorce hearing.