HELENE MIALE v. MICHAEL SEUL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5813-11T3

HELENE MIALE,

Plaintiff-Appellant/

Cross-Respondent,

v.

MICHAEL SEUL,

Defendant-Respondent/

Cross-Appellant.

______________________________________

Argued May 5, 2014 Decided July 31, 2014

 

Before Judges Yannotti, St. John and Manahan.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. FM-20-1411-06.

 

Corinne L. McCann argued the cause for appellant/cross-respondent (Wilentz, Goldman & Spitzer, P.A., attorneys; Ms. McCann, David M. Wildstein and Christine D. Petruzzell, of counsel and on the briefs).

 

Donald R. Belsole argued the cause for respondent/cross-appellant (Belsole and Kurnos, L.L.C., attorneys; Mr. Belsole, on the brief).

PER CURIAM

Plaintiff Helene Miale appeals from orders of the Family Part, which denied her motion to set aside the judgment of divorce and marital settlement agreement (MSA), denied her motion for reconsideration of that determination, and granted in part her motion for attorney's fees and costs. Defendant Michael Seul cross-appeals from the order awarding plaintiff counsel fees. For the reasons that follow, we affirm on the appeal, and dismiss the cross-appeal.

I.

The parties married in August 1993, and several years later formed BioArray Solutions (BAS), a high-tech company that utilized defendant's scientific discoveries to develop technologies for blood banking. Defendant was BAS's chief executive officer (CEO) and plaintiff participated in certain aspects of the company's operations. In October 2002, the parties began to experience marital difficulties. They separated in October 2005, and plaintiff filed a complaint for divorce on March 14, 2006.

On July 24, 2007, shortly before the scheduled trial date, the parties appeared before the court and presented a preliminary draft of the MSA. A judgment of divorce was entered on July 25, 2007, which required the parties to enter into a final MSA within a short period of time and then submit an amended judgment. The MSA was executed on September 14, 2007, and was incorporated into an amended judgment of divorce entered on the same date.

Under the MSA, plaintiff received: two million shares of stock in BAS in addition to the 500,000 she already owned; alimony of $50,000 for one year and $45,000 for an additional six years, subject to certain conditions; the marital home, valued at $431,000; a certificate of deposit in an unspecified amount that matured in March 2008, and one-half of the parties' retirement account.

Defendant received the other half of the parties' retirement account, a bank account worth $120,000, and property in New Mexico valued at $70,000. He also retained 9.4 million shares of BAS stock. The alimony and equitable distribution awards were made dependent on defendant's continued employment with BAS.

In the MSA, the parties acknowledged that they had not pursued discovery in the divorce proceeding. They noted, however, that during the course of negotiations, they had provided financial statements, records and other documentation relating to their respective finances, income, expenses, assets and liabilities. The MSA stated that each party "represents to the other the completeness, truthfulness and accuracy" of such information "with the understanding that the other party is relying thereon in accepting the terms of the" MSA.

On July 24, 2008, plaintiff filed a motion in the trial court to set aside the MSA on the ground that it was fraudulent and unconscionable, or in the alternative, to establish a discovery schedule. On September 19, 2008, the court entered an order permitting discovery through December 31, 2008.

On December 17, 2008, plaintiff filed a motion for summary judgment on the issue of whether the MSA should be vacated. On February 20, 2009, the court granted the motion, based on its determination that defendant failed to file an accurate case information statement (CIS) that accurately set forth the value of his interest in BAS.

On September 29, 2010, defendant filed a motion for reconsideration of the court's February 20, 2009 order. Defendant claimed that a deposition of the parties' joint expert, Seymour Rubin, established that, before plaintiff signed the MSA, she had been informed of negotiations to sell BAS including an offer to purchase the company for $75 million. The court found that Rubin's deposition testimony raised a genuine issue of material fact and entered an order dated December 20, 2010, vacating the prior order.

After hearing further argument on the matter, the court entered an order dated March 25, 2011, denying plaintiff's motion for summary judgment and ordering a trial to determine whether the MSA should be set aside. The trial took place in October 2011.

In February 2012, the court filed a written opinion in which it concluded that the MSA should not be vacated. The court found that plaintiff failed to establish fraud or misrepresentation by defendant. The court found that defendant had not withheld material information about the value of BAS, or other information about his employment, earnings and stock. The court further found that the MSA was not unconscionable. The court memorialized its findings in an order dated February 6, 2012.

Plaintiff then filed a motion for reconsideration, which the court denied by order entered on May 4, 2012. Plaintiff thereafter filed a motion seeking counsel fees and costs totaling $708,503.58. The court filed a letter opinion in which it reviewed the application in light of the factors enumerated in Rule 5:3-5(c) and RPC 1.5(a). The court found that an award of fees and costs was appropriate, and awarded plaintiff $150,000. The court's decision was memorialized in an order dated June 13, 2012.

Plaintiff's appeal and defendant's cross-appeal followed.

II.

We briefly summarize the pertinent facts, drawn from the evidence presented in the trial court. In December 2005, BAS had fifty-seven employees and approximately $9.5 million in assets, but was $21.3 million in debt. In May 2006, the trial court determined that Rubin would function as the parties' joint forensic expert.

In August 2006, Rubin met with plaintiff and Pam Copeland, her attorney at the time. Based on five years of tax returns, financial audits and reports, Rubin concluded that BAS had no market value in March 2006 because the company's debt far outweighed its profits.

On August 29, 2006, Gioacchino DeChirico, the president and CEO of Immucor, offered to buy BAS for $75 million. Defendant discussed the offer with the BAS's Board of Directors. On September 15, 2006, defendant informed DeChirico that the offer was inadequate because it did not account for BAS's future growth potential.

Thereafter, defendant met with Rubin and told him about the $75-million Immucor offer. Defendant also provided Rubin with a report which documented how BAS had previously raised revenue by selling shares of stock in series A, B, C, and D financing. At that time, Rubin did not disclose to plaintiff or Copeland what he knew about the Immucor offer because he believed the information was confidential. On October 10, 2006, DeChirico assured defendant that Immucor was still interested in acquiring BAS.

On November 5, 2006, law enforcement officers removed defendant from the marital home following an alleged incident of domestic violence. While defendant was out of the house, plaintiff found documents on the dining room table (the so-called "dining room table documents").

These documents included: 1) an unsigned employment agreement between BAS and defendant; 2) the BAS Board's minutes from a September 8, 2006 meeting and its November 6, 2006 agenda, which discussed defendant's employment agreement, his stock options, and the negotiations pertaining to Immucor's acquisition of BAS; 3) a report by Hempstead & Co. on the value of BAS stock; 4) a plan by which defendant could earn additional stock options if he were able to successfully raise revenue through series E financing; 5) a report that detailed the financing that BAS had already raised; and 6) an agreement by BAS to give defendant 417,500 stock options as an incentive for signing the employment agreement.

Plaintiff copied the dining room table documents. She gave the copies to her attorney and to Rubin. Plaintiff claimed, however, that because she was traumatized by the November 2006 domestic violence incident she did not read the documents until sometime in January 2007.

On November 30, 2006, defendant signed the employment agreement with BAS, which provided that he would continue as CEO of the company with an annual salary of $180,000 and receive $5000 per month of deferred compensation in the form of preferred shares of stock. As an incentive for signing the employment agreement, BAS gave defendant 417,500 stock options which permitted him to purchase BAS stock at a specific price.

The employment agreement also provided that when BAS attained series E financing, defendant would earn certain "true-up" stock options. These options were intended to protect defendant's 10% interest in the company from being diluted by the purchase of stock in the series E financing.

On December 14, 2006, Rubin informed Copeland of the $75-million Immucor offer. He assumed that Copeland communicated the information to plaintiff, but she apparently did not. Rubin also determined that BAS had a value of $86.25 million, which represented approximately 15% more than Immucor had offered, and he recorded this calculation on a handwritten worksheet. However, Rubin did not provide the worksheet or his calculation to the parties or their attorneys until several years later.

On December 18, 2006, defendant and DeChirico continued to negotiate a purchase price for BAS. By the end of 2006, BAS had revenues of $223,000 that would increase to approximately $1.2 million in 2007. However, the company's debt was much larger than its revenues. Moreover, the debt was increasing at a rate of approximately $1 million per month.

On January 3, 2007, Rubin told plaintiff that he believed the tax-loss records alone provided a sufficient understanding of BAS's value (or lack thereof), and that he would not conduct further analysis of BAS's patents. According to plaintiff, this prompted her to review the dining room table documents, at which time she learned of the $75-million offer.

On January 15, 2007, Rubin submitted a report (the January report), indicating that BAS had no market value in 2002, 2003, 2004, 2005, or in March 2006, when plaintiff had filed her divorce complaint. In his report, Rubin did not include information about the Immucor offer or his revised estimate of the company's value. Rubin explained that he did not do so because the parties had already agreed the company had no market value and that BAS would still not be viable for at least three to five years. Copeland agreed the company had no value.

In the January report, Rubin also expressed substantial doubt about BAS's ability to continue as a going concern because of its high debt. He believed that the future growth of BAS was totally dependent on the continued efforts of defendant. Rubin recommended that a fair solution for equitable distribution would be to place two million shares of stock in trust for plaintiff to be held until a date when the company might become viable.

Defendant submitted to the court his final case information statement (CIS), dated January 10, 2007. In the CIS, defendant listed his total shares of stock in BAS, but did not give a value for the company. It also did not disclose the $5000 monthly deferred compensation that he was then earning.

On January 16, 2007, defendant proposed to DeChirico that BAS was worth $225 million, but DeChirico disagreed. On January 31, 2007, defendant informed BAS shareholders, including plaintiff, that the company needed to raise $24.75 million in order to continue as a going concern. After Rubin issued his report, plaintiff discharged Copeland and sought a new financial expert. That same month, plaintiff retained expert Lawrence P. Zale to value BAS's patent portfolio. On February 4, 2007, Zale produced a report indicating that BAS's patent portfolio had a value of approximately $110 million.

On March 7, 2007, the parties met with mediator Cary Cheifitz to resolve the issue of the valuation of BAS. Cheifitz was not aware that Immucor had made an offer to purchase BAS for $75 million. He also was not aware that defendant made a counteroffer to DeChirico for $225 million. Defendant represented to Cheifitz that the negotiations to purchase BAS were "dead in the water."

On March 30, 2007, Martin S. Eller, a certified public accountant, prepared a report that compared Rubin's and Zales' reports. Eller noted that Rubin's report did not account for the potential value of the BAS patents. Eller found that plaintiff's marital share of BAS should be valued at between $500,000 and $4.7 million.

Plaintiff retained Michael Goldman, a certified public accountant and valuation expert, who opined that Rubin had not complied with industry standards for valuation of a company. Goldman did not offer an opinion as to the value of BAS. Rather, he said Rubin's method was faulty because Rubin did not consider the potential of the patents to generate future growth and income.

On June 21, 2007, public auditor Amper, Politziner & Mattia, P.C. (AP&M) audited BAS. AP&M informed the Board that BAS was in danger of having insufficient capital to continue as a going concern. William Gedale, who owned more than 50% of BAS's common stock and was a member of the company's Board, stated that the company was "burning" $1 million per month, and it needed to accept Immucor's offer because BAS was verging on bankruptcy.

The series E financing was nearly complete as of June 30, 2007. On July 16, 2007, the Board met and formed a "deal team" to negotiate and prepare for the sale of BAS. Defendant was not a member of the deal team.

On July 25, 2007, shortly before the parties signed the MSA, defendant's attorney disclosed to plaintiff and her new attorney the contents of Rubin's notes from the meetings he had with defendant in August and September 2006. The notes included Immucor's $75-million offer to purchase BAS.

Plaintiff conceded that she learned of the $75-million offer just prior to her signing the MSA. On July 25, 2007, the parties agreed to the MSA's terms as set forth in an initial draft of the agreement. Series E financing closed in August 2007. On September 4, 2007, BAS and Immucor agreed on a purchase price of $155 million for BAS. Based on this offer, Hempstead calculated the value of the stock in September 2007 at $0.94 per share.

In January 2008, Immucor withdrew the offer to purchase BAS for $155 million. However, the Board wanted to pursue the deal, and they continued discussions with Immucor without defendant's consent. In August 2008, Immucor purchased BAS for $117 million, which translated to $0.734 per share, with $20 million held in escrow.

Shareholders received $0.607 per share prior to the disbursement of the escrowed funds. However, when the escrow moneys were eventually disbursed, each shareholder received an additional $0.062 per share. As a result of the sale, and exclusive of a contemporaneous charitable donation that affected the tax impact of the transaction, defendant realized approximately $6 million: $4.644 million, after taxes, from sale of his shares of stock; $917,810 for the exercise of his options; and an additional $580,000 from the escrowed monies. Plaintiff netted approximately $1.275 million from her shares.

III.

Plaintiff argues that the trial court erred by refusing to set aside the MSA. She asserts that the MSA was explicitly based on the accuracy of the CIS the parties filed. She contends that defendant's CIS was misleading and inaccurate, and for this reason, the MSA should have been set aside.

"New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." Konzelman v. Konzelman, 158 N.J.185, 193 (1999). "Voluntary agreements that address and reconcile conflicting interests of divorcing parties support our 'strong public policy favoring stability of arrangements' in matrimonial matters." Ibid.(quoting Smith v. Smith, 72 N.J.350, 360 (1977)). "The interpretation, application, and enforceability of divorce agreements are not governed solely by contract law." Id.at 194. Spousal settlement agreements will, however, be enforced if found to be fair and just. Ibid.(citing Schlemm v. Schlemm, 31 N.J.557, 581-82 (1960)).

Here, plaintiff argues that defendant breached a material term of the MSA, which required that he submit an accurate CIS. As noted previously, the MSA indicated that during the course of negotiations, the parties had exchanged financial information. They represented that the information was complete, truthful and accurate. They acknowledged that the other party had relied upon the information provided in accepting the settlement.

The MSA also stated that the parties had negotiated the agreement with the help of their attorneys. They acknowledged that both parties had not answered interrogatories, and depositions had not been taken. The MSA stated, however, that the parties each had furnished a CIS to the other party. They said the information in their respective CISs was "true and accurate."

Plaintiff asserts that defendant's final CIS, dated January 10, 2007, was not "true and accurate." She says defendant did not place a value on his BAS stock, leaving that part of the CIS blank. According to plaintiff, defendant also commingled the amount of his stock and stock options, misrepresented the amount of his salary, and failed to include the stock options, restricted stock or other non-cash compensation that he was going to receive when the series E financing for BAS closed.

In its decision, the trial court noted that, on his CIS, defendant indicated that he owned 11,850,000 shares of BAS stock as of March 14, 2006. The court pointed out that, at trial, defendant testified that this figure included his holdings of 11,400,000 shares and his 417,500 stock options. The court therefore rejected plaintiff's assertion that defendant's statements regarding his stock on the CIS were misleading.

The court also found that defendant did not wrongfully fail to disclose the stock and options he would receive upon the closing of BAS's series E financing. The court noted that defendant's rights to these shares and warrants did not arise until the financing closed, which was after the parties entered into the MSA. The court thus found that defendant's statements in the CIS concerning the shares were accurate at the time they were made.

Plaintiff insists that, because the financing was imminent at the time the parties entered into the MSA, defendant should have disclosed the stock and options in his CIS. We are convinced, however, that the record supports the court's determination that, because defendant did not own the stock or options at the time he completed the CIS or entered into the MSA, disclosure of the options was not required.

In addition, the court determined that defendant's CIS was not materially inaccurate due to its failure to include the $5000 per month in deferred income that defendant had begun to earn, beginning in September 2006. The court pointed out that, even if defendant should have disclosed the deferred income on the CIS, plaintiff was not harmed by the non-disclosure. As the trial court found, the deferred income was specifically mentioned in the unsigned employment agreement contained in the dining room table documents, which plaintiff found and provided to her attorney before she entered into the MSA.

We therefore conclude that that the record supports the trial court's determination that defendant's CIS was not materially inaccurate. We are convinced that the court's findings on this issue are entitled to our deference because they are based on substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 483-84 (1974).

IV.

Next, plaintiff argues that the trial court erred by failing to set aside the MSA pursuant to Rule 4:50-1(c) on the basis of equitable fraud. Plaintiff contends that the MSA should have been vacated because defendant made material misrepresentations concerning the potential sale of BAS to Immunocor. Again, we disagree.

Settlement of litigation ranks high in our public policy. Puder v. Buechel, 183 N.J.428, 437-38 (2005). Enforcing a voluntary settlement agreement preserves the "right of competent, informed citizens to resolve their own disputes in whatever way may suit them." Lerner v. Laufer, 359 N.J. Super.201, 217 (App. Div.), certif. denied, 177 N.J.223 (2003). However, a settlement will not be honored if there is a demonstration of fraud. Guglielmo v. Guglielmo, 253 N.J. Super.531, 541 (App. Div. 1992). Furthermore, a court may relieve a party from a final judgment incorporating a settlement agreement if there is a showing of fraud. R.4:50-1(c).

To establish legal fraud, the following must be proven: 1) a material representation; 2) knowledge or belief by the defendant in its falsity; 3) intent that the plaintiff rely on the statement; 4) reasonable reliance by the plaintiff; and 5) damages to the plaintiff. Weil v. Express Container Corp., 360 N.J. Super.599, 612-13 (App. Div.), certif. denied, 177 N.J.574 (2003).

However, when a party is not seeking damages, the party asserting the claim is not required to establish all of the elements of legal fraud, but instead may establish only equitable fraud. Marino v. Marino, 200 N.J. 315, 341 (2009) (citing Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619, 625 (1981)). The plaintiff need not prove the defendant's knowledge of the falsity or his intent to obtain an unfair advantage. DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 336 (App. Div. 2013).

In fact, "equity looks not to the loss suffered by the victim but rather to the unfairness of allowing the perpetrator to retain a benefit unjustly conferred." Jewish Ctr., supra, 86 N.J. at 626. An MSA may be set aside on the basis of equitable fraud. Addesa v. Addesa, 392 N.J. Super.58, 74 (App. Div. 2007).

Plaintiff argues that defendant falsely represented that the deal between Immucor and BAS was "dead in the water." She says defendant also failed to disclose that the series E financing was all but secured. This, she says, would have indicated that BAS was a viable entity. Instead, according to plaintiff, defendant permitted plaintiff to believe Rubin's assessment that the company had no market value because of its significant debt, and that it might not have any value for at least three to five years.

We are convinced, however, thatthe record supports the trial court's finding that defendant's statement about the negotiations between BAS and Immucor was accurate at the time it was made in March 2007. In January 2007, defendant proposed to Immucor that BAS was worth $225 million, but Immucor did not agree. While the parties may have continued to discuss the transaction, defendant could reasonably believe that the transaction would not go forward when he made the statement.

Moreover, Immucor offered to purchase BAS for $155 million in September 2007, which was after the parties had agreed to terms via the initial MSA. Even so, Immucor withdrew that offer in January 2008 and the BAS Board elected not to pursue negotiations. However, negotiations began again and BAS was sold to Immucor for $117 million in August 2008, which was more than a year after the parties agreed to the MSA.

Furthermore, as the trial court found, plaintiff knew or should have known that BAS had value prior to the settlement, based on the numerous expert reports provided to her. Although Rubin had initially opined that BAS had no value as an ongoing concern, plaintiff knew that Immucor had offered to purchase the company for $75 million in August 2006, but the offer had been rejected.

That information was contained in the dining room table documents and plaintiff conceded that she was told of this information before she signed the MSA. In January 2007, plaintiff retained Zale to value BAS, and he found that BAS's patent portfolio had a value of about $110 million.

In addition, plaintiff's expert Goldman rejected Rubin's view that BAS had no value, although he did not value the company. Furthermore, Eller valued defendant's interest in the company at around $13 million and said that plaintiff would be entitled to up to $4.7 million based on the company's book value and its intellectual property.

We are therefore convinced that the trial court correctly determined that plaintiff had not established grounds for vacation of the MSA based on fraud. The court's factual findings on this issue are supported by sufficient credible evidence in the record. Rova Farms, supra, 65 N.J.at 483-84.

V.

Plaintiff further argues that the trial court should have set aside the MSA because it is unconscionable. Again, we disagree.

Marital settlement agreements that are unconscionable will not be enforced. Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995). A spousal agreement may be reformed when it is "unconscionable." Addesa, supra, 392 N.J. Super.at 66. An agreement is unconscionable if it is "shockingly unfair or unjust." Id. at 74. In general contract parlance, an agreement is unconscionable where "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.), certif. denied, 122 N.J. 414 (1990).

Here, the trial court determined that the MSA is not unconscionable. The court noted that plaintiff declined to settle the marital dispute based on a future percentage of her husband's interest in BAS and agreed to accept a defined number of shares in the company. The court also pointed out that plaintiff wanted to sever her ties with defendant and "move forward."

The court added that plaintiff was left with substantial assets as well as the ability to earn a substantial income in the future. The court said, "Admittedly in hindsight plaintiff would have been better served by agreeing to accept a percentage of the family's assets in BAS." However, the court stated that it was satisfied that "there was no fraud or misrepresentation by defendant." The record supports the court's findings. Rova Farms, supra, 65 N.J. at 483-84.

Plaintiff argues that the trial court failed to follow the principles announced in Addesa. In that case, the parties attended mediation and were not represented by attorneys. Id.at 66. They signed a negotiated agreement which purported to divide the assets equally, and the plaintiff represented to the defendant that a business at issue was worth $642,920. Id.at 68, 71.

One year later, the business was sold for $16 million. Id.at 68. We affirmed the judge's finding that the MSA was unconscionable because it did not adequately reflect the intent of the parties, which was to divide the assets equally. Id.at 71. Here, the trial court noted that the parties did not agree to split their assets equally. The parties also were represented by counsel, and the agreement reflected their intended disposition of the marital property.

Plaintiff further argues that the court erroneously relied upon N.H. v. H.H., 418 N.J. Super. 262 (App. Div. 2011). There, the parties had a mediated settlement agreement. Id. at 281-82. They had waived discovery and instead accepted the findings of their joint accountant. Ibid. We determined that the plaintiff had bargained for and received all that she was due as a result of her acceptance of the MSA. We rejected the spouse's claim that the lack of discovery made it impossible for her to know that she had gotten a fair bargain, because she received substantial equitable distribution and alimony. Id. at 283. We found completely unfounded the wife's argument that she was "kept in the dark." Id. at 284.

Plaintiff states that in this case, there was evidence that defendant deceived her because he did not disclose the ongoing negotiations with Immucor or the imminent completion of the series E financing. We are convinced, however, that the record supports the trial court's finding that there was no fraud or misrepresentation by defendant regarding the negotiations to sell BAS or the series E financing. Here, as in N.H., plaintiff did not establish that she was "kept in the dark" concerning matters material to the settlement.

Plaintiff also argues that the court erred by relying upon Miller v. Miller, 160 N.J. 408 (1999). In that case, the wife had accepted a larger alimony payment and smaller equitable distribution. Id. at 414. After the divorce, the husband moved to reduce his alimony payments based on changed circumstances. Id. at 415. The Court found that the agreement was not unconscionable because the wife had understood the risk and been represented by an attorney. Id. at 419.

Plaintiff distinguishes Miller, saying that here, even though she was represented by an attorney she did not understand the risk she was taking. We do not agree. As the trial court found, plaintiff was represented by a competent attorney, and she is an attorney herself. Plaintiff had the assistance of several financial experts, who provided advice concerning the value of BAS. Plaintiff agreed to the settlement and stated on the record that it was fair and reasonable.

In addition, plaintiff argues that the trial court erred by failing to set aside the MSA because it allegedly did not provide her with the fruits of the marriage. In support of this argument plaintiff cites Cargulia v. Cargulia, 309 N.J. Super. 649 (App. Div. 1996). She argues that a wife is entitled to enjoy the benefit of the increase in her spouse's financial status if it was brought about by the "momentum of the marriage." Id. at 654 (citing Guglielmo, supra, 253 N.J. Super. at 543-44).

Plaintiff says the ultimate value and sale of BAS resulted from the "momentum of the marriage" since BAS had more than 100 patents when the complaint for divorce was filed. She contends that she believed there was no possibility for a sale of the company in the near future and she accepted substantially less than she would have accepted if defendant had not concealed "material facts" about the company.

However, as we have concluded, the record supports the trial court's finding that defendant did not conceal material facts concerning the potential sale of BAS. Plaintiff voluntarily entered into the agreement, and the record supports the court's determination that it was fair and reasonable. Thus, the court did not err by refusing to set aside the MSA on the ground of unconscionability.

VI.

Next, plaintiff argues that she should not be faulted for failing to pursue discovery in this matter. She contends that her right to discovery should not shield what she calls an "unconscionable and fraudulently induced MSA from being set aside." However, as we have determined, the record does not support plaintiff's contention that the MSA is unconscionable or fraudulently induced. Moreover, as defendant points out, when the parties entered into their settlement, plaintiff and her attorney knew "exactly the state of discovery." Plaintiff chose to waive further discovery and to settle the financial issues. As the court determined, she did so voluntarily.

Plaintiff also contends that defendant's failure to provide discovery and his "unclean hands" require that he be estopped from benefitting from what plaintiff characterizes as his obstructive acts. The contention is without sufficient merit to warrant comment. R. 2:11-3(e)(1)(E).

VII.

In addition, plaintiff argues that the trial court erred by awarding her only $150,000 of the $708,503.58 she sought in counsel fees. Again, we disagree.

Here, the court provided detailed reasons for its decision on plaintiff's fee application, which specifically addressed the relevant factors under Rule 5:3-5(c).The court noted that the defendant was in a better position to pay plaintiff's fees because he had substantial assets. According to the court, neither party had acted in bad faith, but plaintiff should not have brought the motion for reconsideration because she did not present any new law or facts.

The court additionally pointed out that plaintiff had incurred post-judgment fees and costs of $655,503.58, and defendant had incurred post-judgment fees and costs in the amount of $727,840.97. Further, the court said that while plaintiff had initially prevailed on her motion to set aside the MSA, the court later denied her motion for that relief, as well as her motion for reconsideration. The court noted that plaintiff had prevailed on other applications for relief during the course of the litigation.

The court analyzed the factors under RPC 1.5(a), as required by Rendine v. Pantzer, 141 N.J.292, 319, 343-46 (1995), and awarded plaintiff $150,000. Plaintiff contends that the court erred by failing to award her the full amount she claimed. She contends that defendant's financial circumstances are better than hers, and the award exacerbates a "grave injustice."

Generally, in matrimonial actions the award of counsel fees and costs rests in the discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233 (1971). "'[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine, supra, 141 N.J. at 317).

We are convinced that the trial court considered all the relevant factors in determining the amount of the fees to be awarded. Plaintiff has not shown that the award is a clear abuse of the court's discretion. Plaintiff's arguments on this point do not warrant further comment. R. 2:11-3(e)(1)(E).

As noted previously, defendant filed a cross-appeal challenging the award of counsel fees to plaintiff. Defendant did not address the cross-appeal in his brief. Thus, any challenge by defendant to the award of fees is deemed waived. Telebright Corp. v. Director, 424 N.J. Super. 384, 393 (App. Div. 2012); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2014).

A

ffirmed on the appeal; the cross-appeal is dismissed.