DAVID A. D'ELIA v. ROBYN M. D'ELIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAVID A. D'ELIA,

Plaintiff-Respondent,

v.

ROBYN M. D'ELIA,

Defendant-Appellant.

___________________________________

December 14, 2016

Submitted May 2, 2016 Decided

Before Judges Nugent and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1026-13.

Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys for appellant (Matheu D. Nunn, on the briefs).

Gebhardt & Kiefer, P.C., attorneys for respondent (William W. Goodwin, Jr., and Diana N. Fredericks, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Defendant Robyn D'Elia appeals from a September 17, 2014 pre-judgment Family Part order, which among other things, enforced the "Marital Settlement Agreement (MSA) reached between the parties." Defendant also appeals from the November 17, 2014 order denying her motion for reconsideration and from the December 1, 2014 final dual judgment of divorce (DJOD). She contends the trial court erroneously determined - as reflected in the orders and DJOD - the parties had entered into a MSA on or about June 20, 2014. Alternatively, she argues the MSA must be vacated because plaintiff David D'Elia committed fraud during the negotiations and perpetrated a fraud upon the court. For the reasons that follow, we affirm.

Following the parties' eighteen-year marriage, plaintiff filed a divorce complaint in May 2013. During the ensuing year of litigation, the parties and their counsel engaged in protracted negotiations, including four-way meetings, mediation sessions, and six "Intensive Settlement Conferences between early February and mid-June 2014." They also exchanged multiple drafts of an MSA.

On June 20, 2014, the parties appeared in court and continued their settlement negotiations. Late that afternoon, their lawyers appeared before the court, and plaintiff's counsel stated, "I believe we have it resolved. I have an agreement that I've been marking up. I'd like to go back to my office and mark it up and submit that . . . ." The court stated: "This matter was listed for an intensive settlement conference this afternoon at 1:30. . . . It has resulted in a satisfactory resolution of the matter[.]" Plaintiff's counsel responded, "[y]es." The court continued: "So let me commend you for your efforts this late Friday afternoon, and upon your representations, I'll accept that there will be a judgment of Divorce with the appropriate agreement to be submitted on the papers." The parties had not yet signed the MSA.

The next day, June 22, 2014, plaintiff's counsel sent defense counsel the latest draft of the MSA and asked defense counsel to prepare the DJOD. A section of the MSA entitled "Support and Maintenance" set forth defendant's employment compensation. This section also stated plaintiff held a New Jersey real estate license, served as an independent contractor for Weichert Realtors, and listed his "highest income as a real estate salesperson."

The MSA included comprehensive provisions concerning alimony defendant was to pay plaintiff. These provisions included the following statement

The parties have been made aware by their attorneys that there may be changes in the statutory law relating to alimony as a result of an "alimony reform movement" and that those changes may apply retroactively to cases settled prior to the change in legislation. Mindful of the potential for such changes and their potential impact on their settlement of this issue, the parties confirm that the settlement of the alimony issue arose out of an appearance before an Early Settlement Panel and that the parties essentially followed the recommendations of the panelists. The panelists recommended, and the parties accepted, that alimony should be permanent in duration despite [plaintiff's] age. However, in consideration of [plaintiff's] age and the fact that the issue of duration was considered a "close call[,]" the panel recommended and the parties agreed to an amount of alimony equal to 27.5% of [defendant's] income as opposed to a more standard "formula[.]" In short, [defendant] agreed reluctantly to pay permanent alimony and [plaintiff] agreed reluctantly to a lower amount.

Four days after receiving the revised draft of the MSA from plaintiff's attorney, on June 26, 2014, defense counsel responded: "I spent an hour with my client reviewing the [MSA] and she is requesting some changes. I don't believe any of the changes materially affect the spirit or intent of our settlement." Concerning the alimony provision referencing pending legislation, defense counsel wrote: "[B]oth [defendant] and I recall that the sentence in which the close call language appears was to be stricken. At the end of the last sentence of that paragraph we think that after lower amount, it should read 'than he believed he would be entitled to.'" Defendant did not dispute she had agreed to pay plaintiff permanent alimony.

On July 14, 2014, defendant changed her position concerning alimony. Her attorney wrote to plaintiff's attorney

We are currently scheduled to have an uncontested hearing in the above matter on Monday, July 21, 2014. As I'm sure you are aware, the legislature unanimously passed the alimony reform bill in record time. It is awaiting signature by the governor.1 Given the contents of that bill, my client will not agree to permanent alimony especially given the fact that her payments would be longer than the length of the marriage. We propose that the alimony be limited to [fifteen] years at the same rate.

When defendant refused to modify her new position concerning alimony, plaintiff filed a motion to enforce the terms of the MSA.

In support of his motion, plaintiff and his attorney, through certifications, recounted the foregoing facts and appended considerable documentation, including drafts of the MSA, correspondence between counsel, and e-mail chains evidencing the parties' extensive negotiations. Plaintiff's attorney certified the parties spent the afternoon of June 20, 2014, "in a small conference room outside [the Court] continuing and essentially completing our negotiations." He further averred: "[i]n fact, I have a specific recollection that the final substantive issue involved the amount of a credit our client would owe [defendant]." He went on to explain that when the parties were $1,000 apart, "[w]e were able to negotiate a compromise . . ., but only after defendant's counsel agreed to reduce her fees by $500 so as to 'make her client whole.'"

In opposition to the enforcement motion, defendant filed a certification in which she agreed with the history of the negotiations recited by plaintiff's attorney but disputed the parties reached a final agreement. Her attorney also filed a certification.

Defendant asserted that given her age and likely age of retirement, "[f]rom the very beginning I was upset about a settlement that resulted in the payment of permanent alimony by me to the Plaintiff." She averred she was "aware while negotiations were proceeding" of a pending alimony reform bill and "a movement . . . proceeding with the intention to put an end to permanent alimony." In view of her concerns and the pending legislation, she "insisted that language be placed in the [MSA] that would speak to the alimony reform bill and in fact leave the door open . . . to come back to court if the bill so allowed, to modify the term of my alimony."

Defendant acknowledged spending the afternoon of June 20, 2014 in court, but claimed "[t]he language about the alimony reform terminology had still not been agreed to." Shortly after June 26, 2014, defendant became aware the alimony reform bill had passed both houses of the Legislature and "limit[ed] alimony to a number of years of the marriage, which would affect the permanency of the alimony[.]" Defendant certified: "[g]iven that knowledge, and also given the fact that I did not sign any Agreement, I do not believe that there is a valid settlement."

Defendant's attorney filed a certification in which she agreed with the history of the parties' negotiations set forth by plaintiff's attorney. She asserted the parties spent considerable time while in court on June 20, 2014, "negotiating what kind of information regarding the alimony reform bill should be included in any final settlement agreement." She further averred the parties were unable to reach an agreement on this issue either that day or in the drafts they prepared following June 20, 2014. Once the Legislature enacted the alimony reform bill, defendant refused to sign any agreement "that includes a permanent alimony responsibility for her requiring more years of alimony than years of marriage."

In a reply certification, plaintiff emphasized that he would not have agreed to the other terms of the proposed MSA if alimony were not agreed upon. He asserted, "[i]f the alimony issue falls, then the entire [MSA] falls and we must begin our negotiations anew. This is certainly not a result I desire, however, I need the court to clearly understand that this is an 'all or nothing' proposition."

Plaintiff's attorney noted in his reply certification that in defense counsel's June 26 letter, she confirmed she had reviewed the draft with defendant, who was requesting some changes, but no changes that materially affected "the spirit or intent of 'our settlement.'" Plaintiff's counsel continued: "[w]hat is critical to this application is [defense] counsel's correspondence . . . poses no objection to the 'permanent' duration of alimony. In other words, there is nothing in counsel's correspondence of June 26th to suggest that her client objected to the payment of permanent alimony." Counsel asserted defendant had not made an issue of the new legislation until after she had agreed to the terms of the MSA. Lastly, plaintiff's counsel stated the disputed issue concerning alimony reform "was a 'what if' dilemma. In other words, as of June 26th, the question we were facing and attempting to resolve was: 'what if the legislature passes an alimony reform package and that legislation is applied retroactively and is therefore made applicable to cases previously settled.'" The legislation rendered that dispute moot.

In a thorough and thoughtful written opinion filed on September 17, 2014, Judge Anthony F. Picheca, Jr., determined the MSA, as last revised, was an enforceable agreement. After reviewing the law concerning such agreements and their enforceability, Judge Picheca noted, among other provisions of the MSA, the language acknowledging the parties' awareness of the pending legislation concerning alimony and their resolution of the issue based on the recommendation of an early settlement panel. The judge further noted that all subsequent communication between the attorneys concerned minor revisions to the agreement. The judge determined that these revisions and suggestions did not materially affect or alter the MSA, and though a minor addition to the section on support and maintenance had been raised by defense counsel, the addition did not refer to the issue of alimony. The judge concluded

Under a global view of the circumstances, the court finds there was an agreement between the parties and all material terms were agreed upon on or about June 20, 2014. Any non-material open issues shall be resolved by the parties via further negotiations within thirty (30) days of the entry of this Order. If the parties are unable to reach an agreement on those issues, counsel shall notify the court and the court will determine if a hearing shall be scheduled[.]

Judge Picheca also awarded plaintiff counsel fees.

Defendant filed a motion for reconsideration.2 In her supporting certification, defendant reiterated her belief that no agreement had been reached and emphasized the parties had never signed an MSA. She also noted that despite the MSA purporting to contain the terms of a global settlement, the parties had not agreed to all terms, as evidenced by the court's order directing the parties to attempt to resolve the non-material open issues. Defendant disputed the open issues were non-material to her. Defendant asked the court to reconsider its decision enforcing the MSA as well as its decision to award counsel fees to plaintiff.

In addition, defendant made a new argument, claiming plaintiff had perpetrated a fraud on her and on the court. She submitted an investigator's report that included references to surveillance and telephone conversations and established plaintiff was working as a broker associate with Weichert Realtors.

In a certification opposing defendant's motion for reconsideration, plaintiff pointed out defendant was aware of his relationship with Weichert, as his status as an independent contractor for Weichert and the highest income he had made in that capacity were set forth in the MSA.

Judge Picheca denied defendant's motion. In another thorough opinion dated November 17, 2014, the judge determined defendant had failed to meet the requisite standard for reconsideration, but instead had merely reiterated arguments she had previously raised. In rejecting defendant's fraud claim, Judge Picheca noted the language of the MSA concerning plaintiff's affiliation with Weichert and his income unambiguously contradicted defendant's claim.

Following a hearing attended by the parties and their attorneys on December 1, 2014, the court entered a DJOD. This appeal followed.

On appeal, defendant raises the same issues she raised before the trial court: the undisputed facts on the motion record, including plaintiff's attorney's communications, demonstrate the parties never reached a meeting of the minds concerning the material terms of the MSA; and, notwithstanding the MSA references to plaintiff's affiliation with Weichert, defendant did not know he was actually earning income as a real estate agent, a fact he misled her about during their negotiations. We reject these arguments and affirm, substantially for the reasons given by Judge Picheca in his September 17 and November 17, 2014 written decisions. We add only the following comments.

When we "review . . . a Family Part judge's motion order, we defer to factual findings 'supported by adequate, substantial, credible evidence' in the record." Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)). We will reverse only if "we conclude a mistake must have been made because the trial court's factual findings are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. . . .'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We review a trial court's legal determinations de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, Judge Picheca's factual findings are supported by adequate, substantial, credible evidence in the record. The parties had engaged in lengthy, intense settlement negotiations that continued nearly to the moment their attorneys walked into the courtroom on the afternoon of June 20, 2014, and represented to the court they had reached a satisfactory resolution. In the days following that announcement, during the exchange of communications concerning the MSA, defendant never disputed the MSA language concerning how she and plaintiff had settled their disagreement over alimony, including the amount and duration of alimony payments. When defense counsel wrote to plaintiff's attorney concerning changes defendant requested, defense counsel commented, "I don't believe any of the changes materially affect the spirit or intent of our settlement." The certifications of the parties and their attorneys led to virtually no other conclusion than defendant had agreed to the MSA's provisions concerning alimony but later changed her mind after their attorneys represented to the court that the matter had been resolved.

Defendant has repeatedly asserted the parties never signed the MSA. However, "to be enforceable, matrimonial agreements, as any other agreements, need not necessarily be reduced to writing or placed on the record." Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995). Significantly, with the exception of her belated attempt to renege on the parties' alimony agreement, defendant did not specifically dispute any material term in the MSA. "Where the parties agree upon the essential terms of a settlement, so that the mechanics can be 'fleshed out' in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact that the writing does not materialize because a party later reneges.'" Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div.), certif. denied, 134 N.J. 477 (1993) (citation omitted). Judge Picheca found such to be the case here. We find no basis in the record to conclude Judge Picheca's determination was manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.

We have considered defendant's remaining arguments, including her argument plaintiff had perpetrated a fraud, and concluded they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The statute concerning alimony, N.J.S.A. 2A:34-23, was amended effective September 10, 2014. L. 2014, c. 42, 1.

2 Plaintiff filed a cross-motion that is not at issue on this appeal.