CHRISTOPHER GUIDO v. CHRISTINA GUIDOAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
August 27, 2014
Argued April 8, 2014 - Decided
Before Judges Sapp-Peterson, Lihotz and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1042-12.
Linda Mainenti-Walsh argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Mainenti-Walsh, on the brief).
Lizanne J. Ceconi argued the cause for respondent (Ceconi & Cheifetz, LLC, attorneys; Ms. Ceconi, of counsel and on the brief; Andrea Joy B. Albrecht, on the brief).
Defendant Christina Guido appeals from the Family Part order declaring the antenuptial agreement (Agreement) she executed nine days prior to her marriage to plaintiff Christopher Guido enforceable. We affirm.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN SUMMARILY GRANTING PLAINTIFF'S MOTION TO FIND THE ANTENUPTIAL AGREEMENT VALID AND ENFORCEABLE WITHOUT DISCOVERY AND A PLENARY HEARING DESPITE THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACT AFFECTING THE VALIDITY AND ENFORCEMENT OF THE AGREEMENT UNDER THE NEW JERSEY UNIFORM PREMARITAL AND PRE-CIVIL UNION AGREEMENT ACT OF 1988 (N.J.S.A. 37:2-38 ET. SEQ.).
THE TRIAL COURT ERRED IN FINDING THE PRENUPTIAL AGREEMENT IS NOT UNCONSCIONABLE AT [THE] TIME OF ENFORCEMENT PURSUANT TO N.J.S.A. 37:2-38(b) AND (c) AND THEREFORE FINDING IT ENFORCEABLE.
THE TRIAL COURT ERRED IN FAILING TO FIND DEFENDANT WAS NOT PROVIDED FULL AND FAIR DISCLOSURE OF [PLAINTIFF'S] EARNINGS, PROPERTY AND FINANCIAL OBLIGATIONS AND THE WAIVERS CONTAINED IN THE AGREEMENT DO NOT CONSTITUTE VOLUNTARY AND EXPRESS WAIVER AND SHE DID NOT HAVE ADEQUATE KNOWLEDGE OF THE PROPERTY AND FINANCIAL OBLIGATIONS OF PLAINTIFF, AND DID NOT HAVE "CONSULTATION" WITH INDEPENDENT LEGAL COUNSEL[.] THEREFORE, THE AGREEMENT IS UNENFORCEABLE PURSUANT TO THE NEW JERSEY PREMARITAL AND PRE-CIVIL UNION ACT OF 1988 [(]N.J.S.A. 38:2-38(c)(1)(2)(3) AND (4)[)].
THE TRIAL COURT ERRED IN FAILING TO FIND THE AGREEMENT IS THE PRODUCT OF FRAUD AND DEFENDANT DID NOT ENTER INTO IT VOLUNTARILY[.] THEREFORE, PURSUANT TO THE PRENUPTIAL AND PRE-CIVIL UNION AGREEMENT ACT OF 1988 [(]N.J.S.A. 37:2-38(9)[)]1[SIC], IT IS UNENFORCEABLE.
APPEAL, REVERSAL AND REASSIGNMENT ON REMAND IS WARRANTED AS THE TRIAL COURT HAS PREJUDGED AND DISPLAYED BIAS AGAINST DEFENDANT.
Plaintiff and defendant married on June 20, 1992. The parties signed an antenuptial agreement on June 11, 1992, nine days before their wedding. At the time, defendant was a twenty-three-year-old college graduate, and plaintiff was a twenty-eight-year-old law school graduate who came from a wealthy family and worked in the family business. Both parties were represented by counsel. Plaintiff's counsel's 1992 invoice indicated that he and defendant's counsel had numerous telephone conversations regarding the terms contained in the Agreement.
The Agreement provides that the parties freely and voluntarily accepted the terms contained in the Agreement, they entered into the Agreement "with the full knowledge of the extent and approximate present value of all the property and estate of the other," and they had a reasonable opportunity to investigate the property at issue, or waived and relinquished the right to do so. The Agreement also provides that the parties entered into the Agreement with "full knowledge of all the rights and privileges in and to such property and estate which would be conferred by law[,]" and that each party had the opportunity to obtain independent counsel in contemplation of the Agreement.
The Agreement defined and limited joint property to "(a) property acquired in joint names; (b) furniture and furnishings purchased by either of the parties during the marriage for their principal residence; and (c) gifts in honor of the marriage." The Agreement defines separate property as any property acquired prior to the marriage, compensation for personal injuries, compensation for personal services, dividends, and "all other income of all kinds . . . from all sources, except income from marital property . . . ."
The Agreement provides that defendant would receive one-half interest in the martial home "on or before the fifth anniversary of the parties' marriage[.]" The Agreement also provides that in the event the marriage is terminated, defendant forfeits equitable distribution, spousal support, maintenance or alimony, in exchange for a lump sum, dependent on the length of the marriage. In relevant part, for year twenty through twenty-five, defendant is entitled to $600,000 if no children are born of the marriage. The amount payable to defendant will be decreased by $75,000, if title to the marital home is transferred to defendant as a joint tenant. The Agreement also provides that the lump sum "shall be adjusted in accordance with the Consumer Price Index of the United States Bureau of Labor Statistics for the New York/Northeastern New Jersey region[.]" The Agreement indicates that "[t]he purpose of the adjustment is to insure that the purchasing power of the monies paid to defendant is maintained in current dollars, as much as possible." It further provides that defendant
recognizes and acknowledges that certain business interests acquired by [plaintiff] may increase significantly in value as a result of these efforts and that this increase in value which would otherwise be subject to being equitably divided under the laws of this State and other states, is specifically being waived by her.
Schedule A of the Agreement lists the income, assets and liabilities of the parties. As of 1992, plaintiff's total liabilities and net worth were $3,828,500, which included salaries, bonuses, attorney income, a company car, health and dental insurance, life insurance, bank accounts, personal property, real property, investments, and mortgages. Schedule A listed plaintiff's investment companies as:
1. A.G. Ship and Maintenance, Corp.
2. Bay Container Repairs of N.J., Inc.
3. Palmer Industries, Inc.
4. UJG Charters, Inc.
5. Black Bullet Transport, Inc.
Defendant's assets included an engagement ring and a negligible bank account.
The parties married on June 20, 1992, and plaintiff filed for divorce in 2012. No children were born of the marriage. In August 2011, the American Institute of Certified Public Accountants issued a financial statement of the couple's net worth, which indicated that, as of July 2011, the couple's net worth was $14,835,843. The statement listed plaintiff's investment companies as:
1. A.G. Ship Maintenance Corp.
2. Red Hook Building, Co., LLC
3. 99 Chapel St. LLC
4. UCMR, LLC
Plaintiff filed a motion to enforce the Agreement. In her certification in opposition to the motion, defendant stated that during the marriage, plaintiff purchased very expensive cars and guitars, sometimes using the parties' home equity line. According to defendant, she "made significant non-financial contributions" to the marriage, including, caring for plaintiff, running their home, acting as his hostess, confidante, and friend. They took frequent vacations and "stayed in the best hotels."
Defendant additionally contends that throughout the entirety of their marriage, she remained financially dependent upon plaintiff, with, for example, his company, A.G. Shipping Corporation, paying her "sometimes over $70,000 per year which [she] used as [she] pleased . . . ." She also operated a small landscaping design business, which showed a profit of $4,767 in 2011, to obtain farmland assessment for the land surrounding the marital home.
Defendant argues the trial court erred in finding that she failed to prove by clear and convincing evidence that the Agreement was invalid and unenforceable and that enforcement of the Agreement would render her without reasonable means of support and provide a standard of living far below that which was enjoyed before the marriage. We disagree.
The law in this state as it relates to marital agreements is well-settled:
This State has a strong public policy favoring enforcement of agreements. Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability. Marital agreements, however, are enforceable only if they are fair and equitable. Any marital agreement which is unconscionable or is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship may be set aside. In fact, the law affords particular leniency to agreements made in the domestic arena and similarly allows judges greater discretion when interpreting these agreements. Such discretion is based on the premise that, although marital agreements are contractual in nature, "contract principles have little place in the law of domestic relations." Nevertheless, the contractual nature of such agreements has long been recognized and principles of contract interpretation have been invoked particularly to define the terms of the agreement and divine the intent of the parties. In interpreting the agreement, the court will not draft a new agreement for the parties.
[Massar v. Massar, 279 N.J. Super. 89, 93, (App. Div. 1995) (internal citations omitted).]
Furthermore, in reviewing the trial court's determinations, the Family Part's expertise in matrimonial matters is owed deference due to the specialized nature of the court. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "a question regarding the interpretation or construction of a contract is a legal one and our review is plenary, with no special deference to the trial judge's interpretation of the law and the legal consequences that flow from the established facts." Barr v. Barr, 418 N.J. Super. 18, 31 (App. Div. 2011).
Prenuptial agreements are enforceable assuming full disclosure and absent unconscionability. Rogers v. Gordon, 404 N.J. Super. 213, 219 (App. Div. 2008) (citing Marschall v. Marschall, 195 N.J. Super. 16, 29-31 (Ch. Div. 1984)). Pursuant to N.J.S.A. 37:2-38, the party seeking to invalidate a premarital agreement must prove by clear and convincing evidence that "[t]he party executed the agreement involuntarily," or that the agreement is unconscionable. Subsection (c) of the statute also provides that an agreement is unconscionable, if before the execution, the party
(1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
(4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.
The court in Marschall2 defines an unconscionable agreement as one "which would leave a spouse a public charge or close to it, or which would provide a standard of living far below that which was enjoyed both before and during the marriage." Rogers, supra, 404 N.J. Super. at 219 (citing Marschall, supra, 195 N.J. Super. at 31).
Judge Angela F. Borkowski granted plaintiff's motion to enforce the agreement, finding the parties' Agreement is presumptively valid and enforceable pursuant to Hawxhurst v. Hawxhurst, 318 N.J. Super. 72 (App. Div. 1998) and Marschall. The judge noted that the Uniform Premarital Agreement Act (UPAA), N.J.S.A. 37:2-31 to -41, establishes that for the parties' premarital agreement to be set aside, "[d]efendant would need to show by clear and convincing evidence . . . that the [A]greement was unconscionable at the time enforcement was sought[,]" which defendant failed to prove. The judge found defendant entered into the marriage with "no substantial assets, other than her engagement ring . . . and she is set to leave with, at a minimum, a lump sum in lieu of alimony award which will be adjusted for inflation over $700,000." The judge also found the Agreement was not unconscionable because, comparing her pre-martial life to post divorce life, "[d]efendant can hardly be called a public charge, and she will neither be rendered without means of reasonable support, nor will she be forced to enjoy a standard of living far below that which she enjoyed prior to the marriage." Since this factor was determined as a matter of law, Judge Borkowski found no need for a plenary hearing.
Judge Borkowski properly concluded the Agreement was enforceable. The evidence in the record does not support defendant's claim the Agreement was unconscionable and would leave her a "public charge." If the Agreement is enforced and the marital home sells for the appraised $3,100,000, defendant will receive one-half of approximately $2,363,000 or approximately $1,100,000 after payment of the mortgage and line of credit. In addition, plaintiff estimates defendant will receive half of the furniture and furnishings from the martial home and $355,000 in retirement assets, including a 401K in her name valued at $225,000, and half of a MetLife annuity/pension in the amount of $130,000, which is titled jointly. Plaintiff states defendant will receive the 1970 Porsche gifted to her during the marriage, which is estimated to be valued at $125,000. Lastly, defendant is set to receive a lump sum of approximately $779,636. Thus, not including the estimated price of the Porsche, defendant is entitled to over $2.5 million.
Further, it is undisputed defendant is a college graduate and maintains a landscape design business. The record is completely devoid of any evidence, as she asserts, that she is "utterly incapable of supporting" herself. Bare conclusions unsupported by factual evidence will not create a question of fact warranting a hearing to resolve the disputed fact. Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 87 (App. Div. 2001).
Next, we conclude defendant's change in lifestyle resulting from the impending divorce is insufficient to deem the Agreement unenforceable. While defendant will likely not enjoy the same lifestyle enjoyed during the marriage, an award disproportionate to the amount of "assets does not necessarily render an agreement voidable because it is for the parties themselves to decide what is fair and equitable." Hawxhurst, supra, 318 N.J. Super. 72, 80 (App. Div. 1998)(citing DeLorean v. DeLorean, 211 N.J. Super. 432, 437 (Ch. Div. 1986)). Defendant asserts that she enjoyed an extraordinarily high lifestyle, evidenced by plaintiff earning over $1,000,000 per year, their possession of millions of dollars in cars, guitars, jewelry, a home worth $3,000,000 on twenty-three acres of land, frequent vacations, dining at the best restaurants, and $70,000 she earned from plaintiff's family's business, which she used as she pleased. However, the decrease in her standard of living is not a sufficient basis to invalidate the Agreement as unconscionable.
Defendant asserts she had a great life before marriage because her father was a doctor. However, the record reflects that defendant entered the marriage with her engagement ring and "negligible" assets. Defendant failed to provide any evidence of her lifestyle prior to marriage. Therefore, there is no basis to find that the Agreement will provide a standard of living far below that which was enjoyed prior to the marriage.
In short, defendant failed to raise a genuinely disputed issue of fact warranting a plenary hearing. Thus, the judge properly determined that defendant failed to establish the Agreement was unconscionable.
Defendant argues the court erred in finding she was provided with full and fair disclosure of the earnings, that she voluntarily and knowingly waived her rights to equitable distribution and alimony, and that she consulted with independent legal counsel prior to signing the Agreement. Defendant argues that she could not meet her burden of proving by clear and convincing evidence that there was not full and fair disclosure without a plenary hearing and discovery. Defendant also argues she did not have independent counsel because she has no recollection of conversations pertaining to the Agreement. We find no merit to these contentions.
An essential precondition to the enforceability of an antenuptial agreement is the right to "'full disclosure by each party as to his or her financial conditions, including the nature and extent of assets, income, and anything else which might bear on the other party's conclusion that the proposed agreement is fair, and his or her decision to enter into the agreement.'" Ibid. (quoting Marschall, supra, 195 N.J. Super. at 29). A party must have full knowledge of the right and intention to surrender to waive a substantial right. Ibid. (citing West Jersey Title, & Guaranty, Co. v. Indus. Trust Co., 27 N.J. 144, 153 (1958)). This right "can properly be considered known only if there is full awareness of the other party's income and assets, since those facts are critical elements in determining the potential awards of alimony and equitable distribution which the signer of the agreement is being asked to waive." Ibid. (citations and internal quotation marks omitted). "The 'easiest device' to evidence such knowledge is by annexing to the agreement a list of assets and their approximate values." Ibid.
The court found that defendant failed to present clear and convincing evidence that she entered into the Agreement without full and fair disclosure. The court noted plaintiff certified that his listed net worth at the time of the Agreement was $3,828,500. Defendant argued that figure was incomplete and did not reflect an accurate list of plaintiff's holdings in 1992. However, the court found that defendant was fully aware of plaintiff's income and assets and waived her rights knowingly. The court reasoned that "although [d]efendant argues that [p]laintiff must have not fully disclosed his assets, she provides no support for this contention other than the fact that [p]laintiff's assets have changed in the twenty (20) years that have elapsed since then."
Defendant also argued evidence supporting her contention that she did not knowingly waive her rights is borne out by the fact that she executed the Agreement only nine days prior to an extravagant wedding, which had been planned. She explained she did not want to sign the Agreement. In addition, she claimed she did not remember signing the Agreement, although she acknowledged the authenticity of her signature on the document. She stated in her certification that she signed the Agreement to avoid the humiliation of cancelling the wedding.
Judge Borkowski rejected these arguments. The judge found defendant failed to provide the court with any evidence that she did not enter the Agreement voluntarily, "other than to state that the Agreement was signed only nine days before the wedding and to reference the difference in the parties' age and educations." The judge found that defendant was not a "'babe in the woods' who did not comprehend, especially with the aid of independent legal counsel and the evident involvement of her mother, the consequences of her signing the Agreement." Most notably, the judge found defendant had the advice of counsel throughout the negotiation process and each party expressly acknowledged in the Agreement that they each had the right to independent counsel. The judge noted the "two correspondences" from plaintiff's counsel requesting defendant's counsel have defendant sign and return to him the Agreement, as well as "a log of [plaintiff's counsel's] billable hours" from 1992 indicating conversations with defendant's counsel and billings to plaintiff to "'examine changes to Agreement by [defendant's counsel].'"
Beyond evidence that plaintiff's net worth more than quadrupled in nineteen years, defendant failed to present a scintilla of evidence that plaintiff failed to disclose all earnings, property and financial obligations. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). For example, based solely on that fact alone, defendant presented no expert testimony that such an increase in net worth could not have occurred but for the concealment of assets. Defendant also raises the fact that the businesses listed in Schedule A and the businesses listed in the 2011 report are different, except for one business, A.G. Ship and Maintenance, Corp., raising the inference that plaintiff did not provide full and fair disclosure.
While the existence of different entities nineteen years after the parties entered their marriage may suggest plaintiff withheld information, this difference, standing alone in this case, does not warrant discovery or a plenary hearing. The three different companies listed in the financial statement are all limited liability corporations (LLC). Pursuant to N.J.S.A. 42:2C-18, an LLC must file a certificate of formation with the Division of Revenue in the New Jersey Department of Treasury upon its establishment. Therefore, a simple business inquiry search would provide when the businesses listed in the 2011 statement were established and whether they were established prior to 1992.
Schedule A also provides evidence that defendant knowingly waived her right to equitable distribution and alimony. See Orgler v. Orgler, 237 N.J. Super. 342, 349 (App. Div. 1989) (finding a list of assets attached to the agreement is evidence of knowledge). Therefore, without evidence to the contrary, this argument is also without merit.
Finally, defendant failed to prove by clear and convincing evidence that she did not consult with independent legal counsel. The statement in her certification that she does not "recall ever signing a Retainer Agreement with [her attorney,] who [p]laintiff alleges represented [her] in 1992[,]" is belied by the record. For example, defendant recalls her attorney negotiating with plaintiff's counsel to include her name on the marital property, which in fact occurred and was included in the Agreement. Defendant's lack of recollection that she received the advice of independent counsel does not create disputed issues of fact in this regard, nor do her self-serving assertions. See Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002). Therefore, as to this issue, there were no genuine issues of material fact that would have warranted a plenary hearing, nor did defendant provide clear and convincing evidence that she did not receive independent counsel.
So long as a spouse has sufficient opportunity to reflect on her actions, was competent, informed, and had access to legal advice and that of any relevant experts, a court should not, except in the most unusual case, interject its own opinion of what is fair and equitable and reject the wishes of the parties.
[Hawxhurst, supra, 318 N.J. Super. at 80 (quoting DeLorean, supra, 211 N.J. Super. at 437).]
Defendant argues the Agreement should be set aside because it is the product of fraud in the inducement. However, defendant argues that discovery was necessary to prove her fraud claim by clear and convincing evidence. Defendant asserts plaintiff fraudulently represented to defendant that he would not enforce the Agreement against her, except to protect his family businesses.
A contract that was induced by fraud may be deemed invalid and unenforceable under the law. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Bilotti v. Accurate Forming Corp., 39 N.J. 184, 199-205 (1963); Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.), certif. denied, 137 N.J. 165 (1994). The elements of fraud in the inducement are: a misrepresentation of material fact; knowledge or belief by the defendant of its falsity; intent that the other party rely on the misrepresentation; and reasonable reliance thereon by the other party. Nolan, supra, 120 N.J. at 472 (citing Jewish Center of Sussex Cnty. v. Whale, 86 N.J. 619, 625 (1981)). Fraud in the inducement does not differ materially from common-law fraud, as it provides a cognizable basis for equitable relief in the event a false promise induced reliance. See Lipsit v. Leonard, 64 N.J. 276, 283 (1974).
Judge Borkowski found defendant failed to provide the court with any evidence that she did not enter the Agreement voluntarily, "other than to state that the Agreement was signed only nine days before the wedding and to reference the difference in the parties' age and educations." The judge's conclusions are legally sound and supported by the record.
Fraud must be proven by clear and convincing evidence. Albright v. Burns, 206 N.J. Super. 625, 636 (App. Div. 1986) ("Fraud of course is never presumed; it must be clearly and convincingly proven."). Defendant asserts that she relied upon plaintiff's misrepresentation that the Agreement would only be enforced as it pertained to protecting the family business. This contention is also contradicted by the record. Defendant, through her attorney, whom she, twenty years later, does not recall retaining, negotiated the inclusion of defendant's name on the deed to the marital home, which now entitles her to approximately $1,100,000 upon the parties' divorce. If defendant reasonably relied upon plaintiff's representation that he would only enforce the agreement as it pertained to his family businesses, it begs the question as to why she insisted on adding her name to the deed and otherwise negotiated the Agreement as opposed to accepting it "as is." This fact goes against reasonable reliance, which is an essential element of a fraud claim. See Byrne v. Weichert Realtors, 290 N.J. Super. 126, 137 (App. Div.), certif. denied, 147 N.J. 259 (1996) (finding that no reliance exists as a matter of law and is unreasonable where a party undertakes an independent investigation and relies on that).
Defendant argues the trial judge's decision reflects improper credibility assessments based upon a record that was replete with conflicting assertions of fact, thus evidencing the trial judge's bias. We disagree.
In the judge's written decision, she indicated several times that defendant failed to meet her burden. In analyzing defendant's arguments with the law, the judge found that defendant had not "presented 'competent evidential materials' to show a substantial issue of material fact warranting a plenary hearing on the validity of the Agreement." The judge also noted that she "did not find [d]efendant's argument persuasive" as it pertained to the voluntariness of her signature, and noted that defendant failed to provide the court with any contrary evidence. The judge also stated that she "[did] not find that [d]efendant has shown by clear and convincing evidence that the Agreement is unconscionable."
There is no evidence in the record the trial judge was biased. There is also no evidence that the judge did not find defendant credible. The judge merely found defendant failed to present competent, objective evidence. A party's self-serving assertion alone will not create a question of material fact sufficient to compel a plenary hearing. See Martin, supra, 346 N.J. Super. at 323.
The judge's decision reflects consideration of the evidence defendant presented and the conclusion reached from that evidence that it created no disputed fact warranting a plenary hearing. In reaching this conclusion, it was not necessary to engage in credibility determinations, which we are convinced the trial judge did not do. Rather, the judge's decision reflects she accepted the facts as alleged by defendant and determined whether those facts created a genuinely disputed issue of fact warranting a plenary hearing. The judge found no genuinely disputed issue of fact created as to the enforceability of the Agreement, as to whether it was unconscionable or the product of fraud, and, in doing so, did not credit plaintiff's evidence over defendant's evidence. The fact is that defendant presented insufficient facts, and given the legal issues raised and the evidence necessary to address those issues, additional discovery was unnecessary to resolve plaintiff's contentions.
Inshort, becausethe courtfound nogenuinely disputed issues surrounding the enforceability of the Agreement or fraud in its creation, defendant accuses the court of bias. Bias, however, cannotbe inferredfrom adverserulings againsta party. Strahan v. Strahan,402 N.J.Super. 298,318 (App.Div. 2008) (citing Matthews v. Deane, 196 N.J. Super. 441, 444-47, (Ch. Div. 1984)).
We will not disturb the trial court's determination that an antenuptial agreement is enforceable when the determination is supported by substantial credible evidence in the record. Orgler, supra, 237 N.J. Super. at 349 (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974)); D'Onofrio, supra, 200 N.J. Super. at 367. The record here compels that we refrain from such intervention.
1 There is no subsection (9) in N.J.S.A. 37:2-38.
2 The trial court and the court in Marschall cite N.J.S.A. 37:2-32(c), which was deleted by amendment, P.L.2013, c.72. Prior to the amendment, Subsection (c) defined unconscionability as follows: "Unconscionable premarital or pre-civil union agreement' means an agreement, either due to a lack of property or unemployability: (1) Which would render a spouse or partner in a civil union couple without a means of reasonable support; (2) Which would make a spouse or partner in a civil union couple a public charge; or (3) Which would provide a standard of living far below that which was enjoyed before the marriage or civil union." For purposes of this opinion, the factors analyzed by the trial court will be evaluated in this section, and the factors listed in the statute will be analyzed in the next section. See Bryant v. Burnett, 264 N.J. Super. 222, 225-26 (App. Div. 1993) (reviewing the trial court's interpretation of the statute at the time the case was decided below).