ROSE M. MAC NIVEN v. ROBERT J. MAC NIVEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROSE M. MAC NIVEN,

Plaintiff-Respondent,

v.

ROBERT J. MAC NIVEN,

Defendant-Appellant.

_______________________________

December 29, 2016

Submitted November 7, 2016 Decided

Before Judges Haas and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0354-14.

Robert J. Mac Niven, appellant pro se.

Oswald & Zoschak, P.C., attorneys for respondent (Jennifer Zoschak, on the brief).

PER CURIAM

In 2013, plaintiff Rose Mac Niven filed a complaint for divorce to end the parties' twenty-four-year marriage. The parties' son was emancipated; their daughter was in college. After a course of motion practice to set pendente lite expenses, defendant Robert Mac Niven filed an additional motion in November 2014, requesting plaintiff's contribution towards various expenses be increased. Oral argument was held on January 9, 2015; at the hearing Judge Angela White Dalton ordered the parties and counsel to participate in an intensive settlement conference (ISC). Settlement was not reached.

By order of January 28, 2015, Judge Dalton denied any modification of the existing pendente lite order and scheduled the case for trial in March. After the trial was adjourned, the judge ordered the parties to attend another ISC in May. Defendant, an experienced matrimonial attorney, had appeared pro se during the motion practice but retained counsel in preparation of trial.

After a full day of negotiations on May 5, 2015, the parties, through counsel, reached an agreement on all issues regarding their litigation, evidenced by the parties' signing of a four-page term sheet prepared by defendant's counsel. The case was scheduled as an uncontested divorce proceeding to be conducted on June 1.

On May 7, defendant advised the court that he had "further evaluated" one of the issues in the term sheet and now believed that "executing the agreement was a drastic mistake with substantial ramifications on [his] life." He requested the agreement be vacated. Defendant subsequently filed a motion, returnable on June 12, 2015, to vacate the agreement and any reference to a waiver of alimony.

On June 1, the date of the scheduled uncontested divorce hearing, defendant appeared pro se and informed the judge of his request to modify the settlement as to the mutual waiver of alimony or to vacate the agreement altogether. Judge Dalton advised that she had read the motion to vacate the settlement, and although aware plaintiff had not yet had the opportunity to prepare opposition, she nevertheless was willing to hear the parties' arguments at that time.

In response, plaintiff's counsel advised that, despite plaintiff being the dependent spouse during the marriage, she had waived her entitlement to significant assets and counsel fees and compromised on other issues in order to achieve the agreement. She asserted that both parties intended a mutual waiver of alimony. Defendant informed the court that he wanted the right to assert changed circumstances in any future application he might make for alimony.

In response to questioning, defendant admitted that no circumstances had changed since he had signed the agreement several weeks earlier. After hearing further discussion from plaintiff's counsel and defendant, Judge Dalton determined to enforce the agreement, stating

I find no basis to vacate this agreement. This agreement says what it says . . . . You signed it Mr. Mac Niven. You are a licensed attorney. You are not under any disability . . . . I'm not going to interpret this term sheet for what it says . . . . You have the right to seek whatever you want in the future . . . . But we have to deal with the facts today, and the facts today are that the parties on May 7th negotiated this agreement, they signed it, they entered into it, and I'm enforcing it, and we are going forward with the cause of action.

After further reviewing defendant's arguments in his letter brief accompanying the motion to vacate, Judge Dalton elaborated on her ruling, stating

And what Mr. Mac Niven is seeking today is not alimony today. He's still working. He acknowledges that he would not be entitled to alimony today. He's seeking the ability to seek alimony in the future . . . . This Court cannot make a better agreement tha[n] the parties make for themselves.

She noted the comprehensive term sheet defense counsel had prepared and which both parties had signed, encompassing an agreement as to personal property, the marital residence, rental properties, IRAs, and the disposition of arrears. Noting the strong public policy in this state of enforcing settlement agreements and achieving finality for litigants, Judge Dalton determined that the parties had signed a written document while represented by counsel, in addition to defendant being "an accomplished matrimonial attorney himself"; she therefore concluded that the term sheet was a "fully enforceable" agreement. After taking testimony from both parties, the judge entered a final judgment of divorce (FJOD) incorporating the May 5th term sheet.

Defendant appeals the January 28, 2015 pendente lite order and the June 1, 2015 FJOD.

In addressing the FJOD, we begin by restating well-established principles. Settlement agreements in matrimonial cases are contracts that should be enforced as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); see also Lepis v. Lepis, 83 N.J. 139, 146 (1980) (matrimonial settlement agreements are enforceable "to the extent that they are just and equitable") (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)). Our courts recognize a "'strong public policy favoring stability of arrangements' in matrimonial matters." Quinn v. Quinn, 225 N.J. 34, 44 (2016) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Ibid. (quoting Smith v. Smith, 72 N.J.350, 358 (1977)); see alsoDolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) ("Settlement agreements . . . are entitled to considerable weight with respect to their validity and enforceability in equity, provided they are fair and just.") (internal citations omitted). As in other contexts involving contracts, a court must enforce a matrimonial agreement as the parties intended, so long as it is not inequitable to do so. Id. at 45 (citing Pacifico v. Pacifico, 190 N.J. 258, 266 (2007)).

A narrow exception to the general rule of enforcing settlement agreements as the parties intended is the need to reform a settlement agreement due to "unconscionability, fraud, or overreaching in the negotiations of the settlement." Miller v. Miller, 160 N.J. 408, 419 (1999). Defendant does not allege fraud or any improprieties in reaching the agreement or even that the agreement is unconscionable. Rather, he informed the court several days after signing the agreement drafted by his counsel that upon further reflection he had changed his mind as to the alimony provision.

Defendant was represented in the negotiations of the settlement agreement by counsel; moreover, defendant is a seasoned matrimonial attorney himself. Although the judge properly made no findings as to the reasonableness of the contents of the agreement, she did find that the parties had "entered into this agreement freely, knowingly and voluntarily, each having been represented by counsel of her and his own choosing." We see no reason to disturb that finding. See Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (finding that a settlement agreement is a contract and is to be enforced despite a change of heart or mind).
 

As an experienced matrimonial attorney and through the advice of counsel, defendant signed his name to the term sheet, acquiescing to its contents and accepting the settlement. Absent inequity or unanticipated changed circumstances not addressed by the agreement, a court is obligated to enforce its terms when it was "entered [into] by fully informed parties, represented by independent counsel, and without any evidence of overreaching, fraud, or coercion." Quinn, supra, 225 N.J. at 55. Otherwise, "the court eviscerates the certitude the parties thought they had secured, and in the long run undermines this Court's preference for settlement of all, including marital, disputes." Ibid.

We find the remainder of defendant's arguments lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E) and, therefore, we need not comment on whether any future application by either party regarding alimony would be viable or not. We add only the following brief comments. In the January 28 pendente lite order, Judge Dalton recognized the increase in plaintiff's income as asserted by defendant and stated it would be addressed at the final hearing scheduled for March. We are satisfied the judge did not abuse her discretion in ruling as she did. The case was concluded three months later.

Affirmed.