D.M.C. v. K.H.G.

Annotate this Case

(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1326-20

D.M.C.,1

Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
February 22, 2022

K.H.G., APPELLATE DIVISION

Defendant-Appellant.
_______________________

Argued January 27, 2022 – Decided February 22, 2022

Before Judges Alvarez, Haas, and Mawla.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-1271-16.

Darren C. O'Toole argued the cause for appellant (Law
Office of Darren C. O'Toole, LLC, attorneys; Darren C.
O'Toole and Alexa N. Joyce, of counsel and on the
briefs).

Bonnie C. Frost argued the cause for respondent
(Einhorn, Barbarito, Frost & Botwinick, PC, attorneys;
Bonnie C. Frost and Jessie M. Mills, on the brief).

The opinion of the court was delivered by

1
We use the parties' initials pursuant to Rule 1:38-3(e).
MAWLA, J.A.D.

Defendant K.H.G. appeals from a January 8, 2021 order denying her

motion to vacate a January 25, 2018 final judgment of divorce (FJOD), which

incorporated a property settlement agreement (PSA). We affirm.

In April 2016, plaintiff D.M.C. filed a complaint for divorce ending the

parties' thirty-one-year marriage. During the marriage, defendant was employed

as a guidance counselor and later vested in the Teachers' Pension and Annuity

Fund (TPAF); plaintiff owned a tavern, other businesses, and properties. Since

2000, defendant has been diagnosed with bipolar disorder, manic type with

psychotic features, schizophrenia, paranoid type, and schizoaffective disorder,

bipolar type. After her initial diagnosis, defendant experienced fifteen

psychiatric inpatient hospitalizations, including a breakdown following the

filing of the divorce complaint.

In September 2016, the parties' counsel entered a consent order appointing

Diana L. Anderson as defendant's guardian ad litem (GAL). The order granted

Anderson, an attorney specializing in elder and guardianship matters, "full

access to all information regarding defendant's situation" and provided for a six -

month review of her role as GAL. The order also memorialized defendant's right

to revoke her consent to the GAL's appointment.

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The court also entered a case management order in October 2016

memorializing that defendant retained a forensic accountant "to value plaintiff's

business interest in [the tavern,] . . . his interests in various real estate entities,

determine the plaintiff's economic cash flow from all sources, prepare a marital

net asset statement, and perform a tracing analysis as it relates to specific marital

bank accounts." Plaintiff retained his own expert to "perform a forensic

evaluation of [the] business and cash flow."

In February 2017, the court entered a pendente lite order adjudicating

various relief sought by the parties. Defendant sought $6,000 per month in

pendente lite support and plaintiff argued the figure should be $2,000 per month.

The court noted both children were emancipated and awarded defendant $4,100

per month. In April 2017, the court entered an order, noting it heard oral

argument and took testimony from the GAL, appointing the GAL as attorney-

in-fact for defendant "to make any and all financial decisions," and allowing the

GAL to attend all court proceedings on defendant's behalf. The order directed

defendant to undergo psychiatric evaluation, permitted the GAL to accept

defendant's Social Security Disability (SSD) retroactive payment, and ordered

her to establish an account for the SSD and pendente lite funds.

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The GAL filed an order to show cause in the Probate Part asking the court

to grant a judgment of guardianship appointing the parties' two adult children as

co-guardians. The application cited two 2017 assessments diagnosing defendant

with "Schizoaffective Disorder, Bipolar Type, Continuous with Paranoia ." The

evaluations, which were based on a review of defendant's medical records and

interviews, concluded defendant did not have the cognitive capacity to make

decisions for herself. 2 One doctor found that since February 2015, defendant

"demonstrated continuous severe psychiatric issues with fixed delusions[,] . . .

[and] impulsive behavior, including excessive spending . . . ." The other doctor

reached a similar conclusion.

On October 16, 2017, the Probate Part judge entered a judgment declaring

defendant incapacitated, finding her "incapable of governing herself and

managing her affairs and unable to consent to medical treatment." The court

appointed the parties' son and daughter, then approximately twenty-eight and

twenty-six years of age, as defendant's permanent co-guardians and directed the

co-guardians to participate in the divorce on defendant's behalf.

2
Contrary to defendant's arguments on appeal that the doctors performing the
evaluations did not meet with her, each doctor noted defendant refused to meet
with them, which was symptomatic of her paranoia.
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On October 27, 2017, the Family Part judge entered an order denying

plaintiff's motion to reduce the pendente lite support citing defendant's

incapacitation and the costs of her care. The judge also denied defendant's

requests for counsel fees, finding the fees excessive because defendant's

attorney requested $100,000 and predicted she would need an additional

$50,000 to attend mediation. The judge also noted defendant's counsel lacked

the authority to request fees because defendant was declared incapacitated and

the decision should be left to the guardians "who . . . were just appointed, [to]

determine whether continued litigation at the expense of the marital estate is

prudent or necessary."

The judge also reviewed a certification filed by the forensic accountant,

noting his firm had incurred over $48,000 in fees and was seeking nearly

$23,000 for outstanding fees and an advance of $10,000. The expert opined

plaintiff's 2015 monthly cash flow was $21,633 but attached no analysis to

support the opinion. The judge also noted the expert's bills provided only a

summary "with no breakdown" and "[s]ome of the monthly totals, which exceed

$10,000, appear excessive. Moreover, the court has reviewed [defendant's

expert's] certification and notes the same is close to a net opinion in that he

provides little factual support necessary for his conclusions." The judge denied

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the request for expert fees, observing they exceeded plaintiff's expert fees, "who

appears to have handled the bulk of assembling the financial information." The

judge ordered Anderson continue serving as GAL.

The co-guardians terminated the expert and retained new divorce counsel.

The court held a settlement conference, which was attended by both counsel,

plaintiff, the co-guardians, and the GAL. On January 25, 2018, the matter

settled, and the court entered the FJOD. Anderson was dismissed as GAL the

same day. Plaintiff was sixty-two and defendant fifty-seven years of age when

they divorced.

The PSA required plaintiff continue paying defendant the monthly $4,100

pendente lite support until sale of the marital residence. Defendant received a

$61,500 tax free alimony buyout, which the PSA stated was based on the

following considerations:

A. [Plaintiff] had a 2016 cash flow of $97,731 as
calculated by his forensic accounting expert . . . ;

B. Upon entry of a divorce judgment [plaintiff] will
lose the medical insurance coverage he currently
receives as part of [defendant's] retirement package
which will cost him approximately $1,500 per month
post-divorce judgment;

C. [Defendant] has [a] pension income of $3,036 per
month or $36,432 annually; [and]

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D. [Defendant] has [SSD] [i]ncome of $1,967 per
month or $23,604 annually.

The PSA stated the buyout would be included in the monthly equitable

distribution payment, which is discussed below.

The PSA contained a mutual alimony waiver and stated: "In entering this

waiver of alimony, both parties recognize that generally alimony waivers are

modifiable based upon significant changes in circumstances. The parties,

however, have agreed that the alimony waiver contained herein shall be non-

modifiable." The parties also agreed they could not maintain the marital

standard of living set forth in their respective Case Information Statements

(CISs).3

Regarding equitable distribution, the parties agreed to sell the marital

residence and equally divide the proceeds. The PSA identified plaintiff's

seventy percent interest in three corporate real estate entities, valued at

$790,551, of which defendant received forty percent. The PSA noted plaintiff

owned fifty-two percent of the tavern, valued at $270,400, and awarded

defendant thirty percent of the value.

3
The PSA did not attach the CISs or otherwise identify them. The appellate
record only contains plaintiff's July 13, 2016 CIS showing a joint marital
lifestyle of $14,955 per month and three pages of defendant's December 6, 2016
CIS without the budget section of the document.
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Other assets included three loans receivable. One note paid $7,027 per

month with a balloon payment due in April 2020 of $719,000. The parties

agreed plaintiff would retain the monthly payments on the note to pay the costs

of the marital residence pending its sale. After the sale of the marital residence,

the PSA provided for an equal equitable distribution of the note and the interest

until the balloon payment was made. On the second note, defendant received

$35,000 representing fifty percent of the principal balance and an additional

equitable distribution payment of $2,800, in exchange for plaintiff retaining the

note. Plaintiff retained the third note and defendant received $24,668.50,

representing thirty percent of its value and an additional equitable distribution

of $2,467.

The PSA also gave defendant a credit in equitable distribution for 100%

of a $50,000 loan made to the parties' son. The value of the parties' private

retirement accounts was equalized by crediting plaintiff fifty percent of the

difference, or $134,017. Plaintiff waived any interest in defendant's TPAF

pension benefits.

The PSA attached an equitable distribution schedule prepared by

plaintiff's expert setting forth the value of each asset and showing an equal final

distribution of the value of the marital assets of $919,789 to each party. The

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parties' assets were largely comprised of retirement accounts, the loans

receivable, and the business assets. The PSA stated plaintiff would pay

defendant her share of the assets in 180 monthly installments of $4,945.84

following the closing on the marital residence.4 Defendant's equitable

distribution obligation was secured by a stock pledge agreement of his fifty-two

percent interest in the tavern and a mortgage against his seventy percent interest

in one of the commercial properties.

The PSA also established an irrevocable trust naming defendant as the

beneficiary to "privately pay for [defendant's] long-term care, whether at home

or in a facility, and [in consideration of plaintiff's] anticipated expenses related

to his remaining in the community . . . ." The trust's term was a minimum of

sixty months and could be terminated by the children, who were appointed as

trustees. The trust also named the children as the remainder beneficiaries.

Plaintiff was required to deposit $4,100 within thirty days of the divorce

judgment to fund the trust.

The PSA stated each party would retain all other assets, property, and

debts held in their individual name, free and clear of the other's interest. Each

4
The total payout was $890,252, representing the sum plaintiff owed defendant
net of the marital assets subject to equitable distribution in her name.
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party was also responsible for their own counsel and expert fees incurred while

negotiating the PSA.

The PSA also memorialized the parties had fully disclosed all income,

assets and liabilities to each other, were advised of the right to retain experts

and engage in discovery, and waived "the right to complete formal discovery

proceedings." The agreement stated:

The parties further acknowledge that [plaintiff] has
provided [defendant's attorney] with the opportunity to
review financial information including, but not limited
to, balance sheets, personal and business tax returns,
insurance information and other documents relating to
[plaintiff's] financial affairs. [Defendant]
acknowledges that she is waiving the right to have such
financial analysis completed deeming, once again, the
terms and provisions of this [a]greement to be fair and
equitable notwithstanding the failure to complete such
an analysis.

In February and April 2019, defendant obtained evaluations from two

doctors different than those who evaluated her when the guardianship complaint

was filed. Each doctor concluded she had returned to mental competency and

could make decisions for herself. A third evaluation took place in September

2019, conducted by one of the doctors who previously declared her

incapacitated. He, too, concluded defendant could make her own decisions and

was "no longer a candidate for guardianship" but recommended her children

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monitor her for "signs of psychiatric decompensation[,] . . . medication

noncompliance and have a mechanism to enforce psychiatric treatment and

protect her finances" because "she is of high risk of having another psychiatric

decompensation and/or deciding to stop taking her medications" given her

history. In December 2019, the Probate Part judge terminated the guardianship

and declared defendant competent.

In November 2020, defendant filed a post-judgment motion challenging

the PSA. In pertinent part, the motion sought to: vacate the judgment of divorce

and PSA; schedule a plenary hearing to address alimony and equitable

distribution; schedule a case management conference to set a discovery

schedule; and modify alimony and equitable distribution obligations based on

changed circumstances.

Defendant certified the children should not have been involved in the

divorce because they "were not neutral parties" and were under plaintiff's

"financial influence and control." She asserted the children did not protect her

interests and were influenced by plaintiff because they were negotiating a

settlement including assets they stood to inherit and "[p]laintiff was paying their

expenses . . . ."

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Defendant claimed the PSA's alimony and equitable distribution

provisions were "grossly inequitable" because "[p]laintiff retained the vast

majority of [the] marital assets, and [she] was left with nothing . . . ." She

alleged the income derived from plaintiff's CIS and relied upon during the

settlement process was low because it did not explain how the parties supported

the marital lifestyle budget, and the alimony provision was based on a cash flow

analysis by plaintiff's expert, who was partisan. She further asserted the alimony

calculation included her pension income, which was subject to equitable

distribution, and could not be used to calculate alimony. She requested open

durational alimony "of at least $5,000 per month" and noted she previously

received $4,100 per month pendente lite. Defendant's certification did not

include an updated CIS.

Defendant also argued she was entitled to a fifty percent equitable

distribution of all the marital assets. She characterized the payment of equitable

distribution over time and into a trust as "patently unfair," and contended there

was a substantial change in circumstances because she was no longer

incapacitated and did not require long-term care. She accused plaintiff of

structuring the equitable distribution as a long-term payout because he was

funding the children's lifestyles, undervaluing the marital assets, and improperly

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omitting interest from the equitable distribution payout. Furthermore, she

alleged she should have been paid interest on the equitable distribution of the

notes receivable or received a lump sum and should have shared in the note once

the balloon payment was tendered. She asserted the equalization of the

retirement accounts, including the accounts in her name, was unjust.

Plaintiff's opposition to the motion explained the lengthy history of the

case, including the process of appointing the GAL and guardians. He certified

his income declined after the PSA was signed due to the COVID-19 pandemic

and because the tavern had a fire. He explained his CIS was accurate, noting

the income information was derived from the parties' tax returns and the alleged

increased income defendant claimed actually comprised both parties' incomes.

The assets were valued by the forensic accountant and the properties were

formally appraised; the equitable distribution protected defendant from her own

"unstable behavior." Defendant had a GAL, guardians, was represented by

counsel, and "had trusts created on her behalf and received $890,252 equitable

distribution[,]" evidencing the fairness of the process.

The parties' daughter, a mental health counselor and a Board-Certified

Behavior Analyst, denied any financial influence from her father and stated she

became a guardian "to protect [defendant] and hired the appropriate

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professionals to assist . . . in ensuring that she receive[d] what she [was] entitled

to and that the divorce settlement was fair." She terminated the first divorce

attorney because defendant "was placing many calls, texts and emails in her

manic and paranoid state and was constantly being charged for these calls based

upon [her] review of [the] lawyer's bills." She certified the lawyer "appeared to

be taking financial advantage of [defendant]" and if she and her brother were

not protecting defendant's interests, defendant would have "spent hundreds of

thousands of dollars feeding into her delusions and paranoia." Plaintiff assisted

her with rent while she pursued her master's degree, but neither she nor her

brother received financial assistance or gifts from plaintiff. On the contrary, she

noted defendant offered to fly her to Maui during graduate school and promised

her she would never have to worry about money if she moved there with

defendant.5

Plaintiff also supplied a certification from Anderson confirming defendant

was unable to participate in the litigation and required the appointment of the

guardians. She certified she "participated in the four-way settlement

negotiations regarding the [PSA], worked with the [c]o-[g]uardians in creating

5
One of the doctors who submitted an evaluation opining defendant was
incapacitated recounted how defendant had impulsively moved to Hawaii and
become psychiatrically hospitalized there.
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[and] funding an irrevocable trust for [defendant]" and was not dismissed until

the FJOD was entered.

Defendant's reply averred Anderson only wanted to make money from her

and did not protect her interests. Additionally, she claimed the daughter

contacted her nurse practitioner and therapist, and lied about her mental health

status. She attached an undated text message supposedly authored by the

daughter, which read:

I just wanted to reach out after over a year of not talking
to you and let you know that you are STILL number one
on my list for the most selfish, self-centered,
HORRIBLE person. Yes you are schizophrenic (which
[I] do empathize and pray for you for) but that doesn't
give you an excuse for being a borderline/narcissistic
person. Your mother . . . was more of a MOTHER to
me my entire lifetime than you EVER were to me. Any
memory of my childhood[] was [g]rammy as my
motherly figure. Go play victim to whoever you want
in [your] new life because that's what you're good at.

Defendant accused plaintiff of understating his income following the fire to

obtain loans, stealing her jewelry, and mischaracterizing her spending habits.

The motion judge heard oral argument and concluded the settlement

process was fair. There was no bar to the children serving as guardians merely

because they stood to inherit from plaintiff, as the inheritance was a contingent

benefit. He found no evidence the children were financially motivated and

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rejected the argument the GAL was influenced because plaintiff paid her bills

from marital funds. The daughter's text did not explain how the son, the GAL,

and the divorce attorney failed to protect defendant's interests. Thus, there was

no evidence "the children dictated the scheme to the attorneys and the attorneys

simply presented it to the [c]ourt," or that the children, GAL, and the divorce

attorney were colluding against defendant.

Given the circumstances, the terms of the settlement were not

unconscionable. The judge opined the alimony provision was a product of

negotiation since plaintiff was approaching retirement age. The equitable

distribution amount was nearly equal and mere disagreement with the expert

who valued the assets was not grounds to undo the PSA. The judge noted

defendant's return to competency did not constitute grounds to set aside the

agreement because there was evidence she could relapse.

On appeal, defendant argues:

I. THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S NOTICE OF MOTION TO
VACATE THE FJOD PURSUANT TO NEW JERSEY
COURT RULE 4:50-l(F) AS DEFENDANT MADE A
CLEAR SHOWING OF INEQUITY AND
UNFAIRNESS.

...

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B. THE TRIAL COURT ABUSED ITS
DISCRETION IN FAILING TO GRANT
DEFENDANT RELIEF PURSUANT TO
R[ULE] 4:50-l(F) AS DEFENDANT FILED
HER APPLICATION WITHIN A
REASONABLE TIME.

C. THE TRIAL COURT ABUSED ITS
DISCRETION IN FAILING TO GRANT
DEFENDANT RELIEF PURSUANT TO
R[ULE] 4:50-l(F) AS DEFENDANT MADE A
SHOWING OF INEQUITY AND
UNFAIRNESS.

i. DEFENDANT MADE A
SHOWING THAT THE APPOINTMENT
OF THE CHILDREN OF THE
MARRIAGE AS HER CO-GUARDIANS
DURING THE DIVORCE
PROCEEDINGS WAS UNFAIR AND
UNJUST.

ii. DEFENDANT MADE A
SHOWING THAT THE PSA WAS
UNFAIR AND INEQUITABLE AS THE
EQUITABLE DISTRIBUTION SCHEME
WAS STRUCTURED BASED ON
NUMBERS PROPOSED BY
PLAINTIFF'S EXPERT WHICH WAS
REBUTTED BY DEFENDANT'S
EXPERT'S INITIAL REPORT.

II. THE TRIAL COURT ERRED IN FAILING TO
FIND THAT DEFENDANT'S RETURN TO
CAPACITY WAS A SUBSTANTIAL CHANGE IN
CIRCUMSTANCES WARRANTING A
MODIFICATION OF THE PARTIES' PSA.

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...

B. THE TRIAL COURT ABUSED ITS
DISCRETION IN DENYING DEFENDANT'S
APPLICATION TO MODIFY THE PSA
WHERE DEFENDANT MADE A PRIMA
FACIE SHOWING OF A CHANGE IN
CIRCUMSTANCES.

"Rule 4:50-1 provides for relief from a judgment in six enumerated

circumstances." In re Est. of Schifftner, 385 N.J. Super. 37, 41 (App. Div.

2006). Rule 4:50-1 does not provide "an opportunity for parties to a consent

judgment to change their minds; nor is it a pathway to reopen litigation because

a party either views his [or her] settlement as less advantageous than it had

previously appeared, or rethinks the effectiveness of his [or her] original legal

strategy." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). "Rather,

the rule is a carefully crafted vehicle intended to underscore the need for repose

while achieving a just result." Ibid. Thus, the rule "denominates with specificity

the narrow band of triggering events that will warrant relief from judgment if

justice is to be served" and "[o]nly the existence of one of those triggers will

allow a party to challenge the substance of the judgment." Id. at 261-62.

Rule 4:50-1(f) allows a party to petition for relief from a final judgment

or order for "any . . . reason justifying relief . . . ." Relief under the rule "requires

the demonstration of 'exceptional circumstances.'" Schifftner, 385 N.J. Super.

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at 41 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). A movant

must show that the enforcement of the judgment "would be unjust, oppressive

or inequitable." Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004)

(quoting Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div. 1995)).

We review a decision on a Rule 4:50-1 motion for an abuse of discretion.

U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of

discretion exists "when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123

(2007)). However, if a judge makes a discretionary decision but acts under a

misconception of the applicable law or misapplies the law to the facts, we "need

not extend deference." Johnson v. Johnson, 320 N.J. Super. 371, 378 (App. Div.

1999).

We do not address at length defendant's claim the motion judge predicated

his decision on her failure to file the Rule 4:50-1(f) motion within a reasonable

time. Although defendant filed her motion nearly two years after the settlement,

the motion was filed eleven months after the Probate Part declared her no longer

incapacitated, which was within a reasonable time. R. 4:50-2. A thorough

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reading of the transcript shows the judge reached the merits of the motion and

did not reject it on grounds of timeliness.

II.

Unconscionability exists when there is "overreaching or imposition

resulting from a bargaining disparity between the parties, or such patent

unfairness in the contract that no reasonable person not acting under compulsion

or out of necessity would accept its terms." Howard v. Diolosa, 241 N.J. Super.
222, 230 (App. Div. 1990). The characteristics of unconscionability are: "(1)

unfairness in the formation of the contract; and (2) excessively disproportionate

terms." Est. of Cohen ex rel. Perelman v. Booth Comput., 421 N.J. Super. 134,

157 (App. Div. 2011). Unconscionability contains two elements, procedural and

substantive. Id. at 158. Substantive unconscionability "suggests the exchange

of obligations [is] so one-sided as to shock the court's conscience." Ibid.

(quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564 (Ch. Div.

2002)).

Defendant asserts she demonstrated the settlement process and the

settlement itself were unfair and unconscionable, thereby meeting the

exceptional circumstances standard to vacate the PSA under Rule 4:50-1(f). She

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cites Marsico v. Marsico, 436 N.J. Super. 483, 493 (Ch. Div. 2013), which holds

that a GAL cannot have personal interest in the case, and if so, the interest must

be disclosed. She asserts the same principle applies to the children's

appointment as her guardians because they were not neutral and were under

plaintiff's control. She asserts the daughter had "extremely harsh and negative

feelings" towards her, and for the first time on appeal, she claims the son failed

to provide an accounting of her finances, which proves he could not represent

her best interests. She claims vacating the PSA would not be prejudicial.

Defendant points to the unequal distribution of the business and the notes

receivable, the lump sum alimony, the payout of equitable distribution over time,

and the division of her retirement account as evidence of the PSA's

unconscionability. She argues a more equitable settlement would grant her a

greater interest in the business and notes, continued spousal support, and a one-

time payment to fund the trust.

Rule 4:26-2(a) provides that a "mentally incapacitated
person shall be represented in an action by the guardian
of either the person or the property." When a "mentally
incapacitated person" is not represented by a guardian,
paragraph (a) authorizes the court to appoint "a [GAL]
. . . in accordance with paragraph (b) of this rule." Ibid.
A judicial determination of mental incapacity,
however, must precede the appointment of a guardian.

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See R. 4:86-1 to -8; N.J.S.A. 3B:12-24 to -35.
Paragraph (b) of Rule 4:26-2 sets forth the initial
procedure that follows when a person is alleged to be
mentally incapacitated.

[S.T. v. 1515 Broad St., LLC, 241 N.J. 257, 277
(2020).]

A GAL's role is to be "an independent factfinder who works to determine

what action is in the ward's best interests and makes that recommendation to the

court." Vill. Apartments of Cherry Hill, N.J. v. Novack, 383 N.J. Super. 574,

579 (App. Div. 2006) (citing In re M.R., 135 N.J. 155, 173-74 (1994)). A

guardian must "determine[] . . . what action is in the ward's best interest and

advocate[] for that position" and "serve[] the court on the ward's behalf." Ibid.

(citing M.R., 135 N.J. at 173-74).

In appointing a guardian, "the court should consider the recommendations

of the court-appointed attorney and the wishes of the incapacitated person, if

expressed. A person who is incapacitated may nonetheless still be able to

express an intelligent view as to his choice of guardian, which view is entitled

to consideration by the court." In re Guardianship of Macak, 377 N.J. Super.
167, 176 (App. Div. 2005). "If there is a significant issue as to the appropriate

choice of guardian, or as to the underlying issue of incapacity, the court may

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appoint a [GAL] to advise the court as to the person's best interests." Ibid.

(citing M.R., 135 N.J. at 176-78).

Defendant's reliance on Marsico is misplaced because that case addressed

the role of a GAL, and the children were not court appointed as GALs. Marsico

is not binding on us in any event.

Here, there was no impropriety in the appointment of the children as co-

guardians to warrant vacating the judgment under Rule 4:50-1(f). Following

defendant's breakdown in April 2016, Anderson was appointed as GAL. She

conducted her investigation and filed a complaint for the appointment of the

children as co-guardians, providing the court with the certifications of a

psychologist and physician opining defendant was unable to govern her own

affairs. The GAL testified before the Probate Part judge, who then declared

defendant incapacitated and accepted the GAL's recommendation to appoint the

children as co-guardians in October 2017.

Defendant produced no objective evidence to support her claim the

children, who were emancipated at the time of their appointment, were under

plaintiff's financial control or acted against her interests. Defendant failed to

provide context for the text message from the daughter. Although we cannot

ignore the words used in the text, as the motion judge observed, defendant failed

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to show they led to an unjust outcome in settling the divorce. Instead, the

objective evidence in the record shows the children protected defendant by

taking prudent measures to control the costs of the litigation and settling the case

in concert with a GAL who was a competent attorney and with the assistance of

a matrimonial attorney.

Defendant also produced no evidence beyond her self-serving certification

that the children controlled the GAL and the attorney. That defendant's children

were her co-guardians does not persuade us they should not have been

appointed.

"Equitable distribution of marital property is 'intimately related to

support,' and '[t]he power to distribute property equitably should be exercised to

relieve the strain of total reliance on support payments for financial security. '"

Conforti v. Guliadis, 128 N.J. 318, 324 (1992) (alteration in original) (quoting

Lepis v. Lepis, 83 N.J. 139, 153-54 (1980)).

This demands more than simply "mechanical
division[,]" it requires a "weighing of the many
considerations and circumstances . . . presented in each
case." Stout v. Stout, 155 N.J. Super. 196, 205 (App.
Div. 1977) . . . .

However, an equitable distribution does not
presume an equal distribution. See Rothman [v.

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Rothman, 65 N.J. 219, 232 n.6 (1974)]. Rather,
N.J.S.A. 2A:34-23.1, requires an equitable distribution
be "designed to advance the policy of promoting equity
and fair dealing between divorcing spouses." Barr v.
Barr, 418 N.J. Super. 18, 45 (App. Div. 2011).

[M.G. v. S.M., 457 N.J. Super. 286, 294-95 (App. Div.
2018) (first alteration in original).]

Pursuant to these principles, we fail to see the unjust result manifested in

the settlement itself. The fact the parties used the valuation figures presented

by plaintiff's expert to settle the case does not establish the alleged

unconscionability of the PSA and is not unusual in matrimonial cases. See N.H.

v. H.H., 418 N.J. Super. 262, 281, 283-84 (App. Div. 2011) (rejecting appellant's

argument the settlement was unconscionable because there was not "full and

broad discovery in search of comprehensive valuations of all of the parties'

assets" where instead the parties settled the case using the figures from the

expert's "agreed-upon streamlined valuation of the marital property."). Here,

defendant offered no evidence establishing the valuations the parties relied upon

were incorrect other than to argue the guardians should not have terminated her

expert.

Nor are we convinced the settlement was unconscionable because the

assets were not divided equally. This is not unusual where, as here, one party

operates a business subject to equitable distribution or retains the risk associated

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with an asset; i.e., plaintiff's retention of the loans receivable and the risk

associated with collecting them while paying defendant her share of the asset.

Regardless, defendant received one-half the total value of marital assets.

Moreover, the payout of equitable distribution into a trust was appropriate

considering the context of the settlement, namely, defendant's ongoing

incapacity at the time of settlement.

We are unconvinced the alimony buyout rendered the PSA

unconscionable considering the equitable distribution, the parties' ages, that they

would have to support separate households, and the fact the PSA contemplated

"privately pay[ing] for long-term care, whether at home or in a facility." As the

motion judge noted, the buyout was a product of compromise. Moreover, the

level of pendente lite support does not convince us the alimony should have been

based on that number because the record lacks findings by the pendente lite

motion judge regarding pendente lite support amount or the marital lifestyle.

Further, the parties agreed they could not maintain the marital lifestyle, and the

record supports that conclusion as well.

III.

Defendant argues the motion judge erred by not finding a change in

circumstance warranting a modification of the terms of the settlement; her return

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to capacity and the dissolution of the guardianship signifies she does not require

long-term care contemplated by the PSA. Furthermore, she now can manage

her finances. She asserts the psychological assessments used to terminate the

guardianship support her position, and the doctor who expressed concerns she

would relapse was influenced by the daughter who "has been diligently,

willfully, and maliciously attempting to discredit and embarrass" her. On the

other hand, defendant acknowledges that doctor's opinion that safeguards are

necessary to ensure she takes her medications, but asserts she is now compliant

and intends to remain compliant.

Matrimonial agreements are enforceable as contracts, "subject, however,

to Lepis and [Rule] 4:50-1 considerations as well as considerations of

unconscionability, fraud or overreaching." Harrington, 281 N.J. Super. at 46.

When parties seek to modify an alimony award, they must "demonstrate that

changed circumstances have substantially impaired the ability to support

[themselves]." Lepis, 83 N.J. at 157. Whether a changed circumstance "has

endured long enough to warrant modification of a support obligation . . . turn[s]

on the discretionary determinations of Family Part judges, based upon their

experience as applied to all the relevant circumstances presented, which we do

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not disturb absent an abuse of discretion." Larbig v. Larbig, 384 N.J. Super. 17,

23 (App. Div. 2006).

The Lepis change in circumstances standard does not apply to equitable

distribution. Rosen v. Rosen, 225 N.J. Super. 33, 35-36 (App. Div. 1988).

Therefore, the motion judge did not err in declining to modify the equitable

distribution provisions of the PSA based on a change in circumstances.

The PSA's alimony clause included an anti-Lepis provision. Parties are

free to enter into agreements departing from the general "need-based" Lepis rule

and establish their own standards by which they agree to be guided in cases

involving "reasonably foreseeable future circumstances . . . ." Morris v. Morris,

263 N.J. Super. 237, 241 (App. Div. 1993). Anti-Lepis provisions, which

purport to waive the right to future modification, are enforceable in certain

circumstances, unless the agreement is "unreasonable" and are modifiable in

"extreme cases." Id. at 246.

The parties' anti-Lepis clause was enforceable given the totality of the

circumstances, including their ages, needs, and the equitable distribution terms.

Moreover, defendant did not establish her ability to support herself was

"substantially impaired," to warrant vacating the anti-Lepis clause. Lepis, 83 N.J. at 157. Indeed, any motion to modify a support obligation requires the

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movant to supply the court with both their current and prior CIS. R. 5:5-4(a)(4).

Defendant's motion did not append her current CIS. For these reasons, the

record lacked the evidence necessary to enable the motion judge to invoke the

court's "equitable powers" under Morris, notwithstanding the anti-Lepis

provision.

IV.

In sum, we hold the appointment of a party's adult child to serve as their

guardian in a divorce proceeding pursuant to Rule 4:26-2(a) does not in itself

render the subsequent settlement of the case unconscionable. The party seeking

to undo the settlement must demonstrate misconduct by the guardian and that it

led to an unconscionable settlement. Because defendant did not meet her burden

in either respect there is no basis to disturb the PSA.

Affirmed.

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