ERICAH. MERCADO v. EDWIN MERCADO

NOT FOR PUBLICATION WITHOUT THE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-1772-16T4


ERICA H. MERCADO,

        Plaintiff-Respondent,

v.

EDWIN MERCADO,

     Defendant-Appellant.
______________________________

              Submitted November 27, 2017 – Decided January 25, 2018

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FM-09-1700-15.

              Law Offices of Ashton E. Thomas, attorneys for
              appellant (Ashton E. Thomas, of counsel and
              on the brief).

              Laterra & Hodge, LLC, attorneys for respondent
              (Matthew N. Tsocanos, on the brief).

PER CURIAM

        Defendant Edwin Mercado appeals the December 9, 2016 Family

Part     orders    enforcing     a   marital    settlement     agreement     (MSA)
regarding college expenses without an evidentiary hearing and

awarding plaintiff attorney's fees.             We affirm.

     The parties were married on June 20, 1990 and had a daughter.

In 2015, they divorced and entered into a MSA which provided,

among   other     things,   the    parties   would       share    equally     their

daughter's education expenses.

     Approximately a week before the daughter's sophomore year at

a college in Arizona began, plaintiff filed an emergent application

seeking defendant's contribution for college expenses.                On the day

the motion was heard, defendant secured a loan and paid his share

of the tuition.

     Defendant cross-moved seeking relief from future student loan

debt.   He argued the MSA was premised on an underlying agreement

the daughter would become an Arizona resident after her first

year, which would significantly lower tuition expenses.                The trial

court denied defendant's cross motion, ordered him to reimburse

plaintiff   for    certain      back   expenses,    and    granted    plaintiff

attorney's fees under Rule 1:10-3.

     Defendant moved for reconsideration, and plaintiff cross-

moved   seeking    to    enforce   the   MSA.      The    trial    court     denied

defendant's     motion    for   reconsideration      in     its    entirety      and

essentially ordered defendant to abide by the MSA.                  This appeal

followed.

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     On appeal, defendant argues: (1) the trial court applied an

incorrect legal standard regarding reformation of contracts; (2)

the trial court improperly failed to conduct a plenary hearing;

and (3) the trial court erred in awarding plaintiff attorney's

fees.    We disagree.

                                    I

     Defendant argues the trial judge erred by concluding an

ambiguous agreement is necessary to support mutual mistake.               He

further contents that, in this case, a mutual mistake of fact

supports reformation of the MSA.         We reject these contentions.

     A    settlement    agreement   is    governed   by   basic   contract

principles.     J.B. v. W.B., 
215 N.J. 305, 326 (2013) (citing

Pacifico v. Pacifico, 
190 N.J. 258, 265 (2007)).             "[W]hen the

intent of the parties is plain and the language is clear and

unambiguous, a court must enforce the agreement as written, unless

doing so would lead to an absurd result."            Quinn v. Quinn, 
225 N.J. 34, 45 (2016).      "To the extent that there is any ambiguity

in the expression of the terms of a settlement agreement, a hearing

may be necessary to discern the intent of the parties at the time

the agreement was entered and to implement that intent."             Ibid.

(emphasis added).

     Our Supreme Court has observed it is "shortsighted and unwise

for courts to reject out of hand consensual solutions to vexatious

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personal matrimonial problems that have been advanced by the

parties themselves."      Konzelman v. Konzelman, 
158 N.J. 185, 193

(1999) (quoting Petersen v. Petersen, 
85 N.J. 638, 645 (1981)).

Thus, "fair and definitive arrangements arrived at by mutual

consent should not be unnecessarily or lightly disturbed."             Quinn,


225 N.J. at 44 (citation omitted).           Moreover, "a court should not

rewrite a contract or grant a better deal than that for which the

parties expressly bargained."              Id. at 45 (citing Solondz v.

Kornmehl, 
317 N.J. Super. 16, 21-22 (App. Div. 1998)).

     Reformation of a contract is justified only where there has

been "mutual mistake or unilateral mistake by one party and fraud

or unconscionable conduct by the other."              St. Pius X House of

Retreats, Salvatorian Fathers v. Diocese of Camden, 
88 N.J. 571,

577 (1982).      "The doctrine of mutual mistake applies when a

'mistake was mutual in that both parties were laboring under the

same misapprehension as to a particular, essential fact.'"             Bonnco

Petrol,   Inc.   v.   Epstein,   
115 N.J.    599,   608   (1989)   (quoting

Beachcomber Coins, Inc. v. Boskett, 
166 N.J. Super. 442, 446 (App.

Div. 1979)).     The party seeking reformation must present "clear

and convincing proof that the contract in its reformed, and not

original, form is the one that the contracting parties understood

and meant it to be."     Cent. State Bank v. Hudik-Ross Co., 
164 N.J.

Super. 317, 323 (App. Div. 1978) (citation omitted).

                                       4                              A-1772-16T4
     Contrary to defendant's contention, the MSA was unambiguous

and defendant presented no evidence of a mutual mistake of fact.

The plain language of the MSA, although it did state the daughter

would be attending a college in Arizona, did not mention or

contemplate any course of action regarding Arizona residency.    The

MSA simply stated the parties would share equally in the cost of

education.   There was no genuine issue of fact in dispute in the

motion proceedings, and notably, on appeal, defendant presents no

other material fact in dispute.       As such, we cannot agree the

trial court applied an incorrect legal standard in determining

whether the MSA here should be subject to reformation.

                                     II

     Next, defendant asserts the trial court erred by not granting

him a plenary hearing to determine whether, before entering into

the MSA, plaintiff told defendant their daughter would become an

Arizona resident after her freshman year.    We generally defer to

the trial court's judgment as to whether a plenary hearing is

necessary.   Jacoby v. Jacoby, 
427 N.J. Super. 109, 123 (App. Div.

2012).   "[I]t is only where the affidavits show that there is a

genuine issue as to a material fact, and that the trial judge

determines that a plenary hearing would be helpful in deciding

such factual issues, that a plenary hearing is required."     Ibid.

(quoting Shaw v. Shaw, 
138 N.J. Super. 436, 440 (App. Div. 1976)).

                                 5                          A-1772-16T4
     As noted above, the trial judge found no ambiguity existed

in the MSA and defendant did not present any evidence showing a

mutual mistake of fact warranting a plenary hearing.                  As written,

the MSA does not include any language requiring the daughter to

become an Arizona resident.           Defendant, who was represented by

counsel in the drafting of the MSA, bore the risk of that omission.

     Moreover, reformation of a contract for a mutual mistake of

fact requires both parties to be operating under the same mistake.

See Beachcomber Coins, Inc. v. Boskett, 
166 N.J. Super. at 445

(rescission for mutual mistake of fact occurs "where parties on

entering   into   a    transaction     that       affects   their     contractual

relations are both under a mistake regarding a fact assumed by

them as the basis on which they entered into the transaction[.]").

Indeed, mutual mistake requires "the parties must share this

erroneous assumption."         Bonnco Petrol, 
115 N.J. at 608 (emphasis

added).    Defendant     did    not   substantiate      with   contemporaneous

documentation     or   otherwise      demonstrate       plaintiff      also    was

operating under this purported mistake of fact.                Hence, there was

no necessity for an evidentiary hearing.

                                      III

     Finally,     defendant     argues      the    trial    court     abused   its

discretion in awarding plaintiff attorney's fees.                   We review the

imposition of fees against a litigant pursuant to Rule 1:10-3

                                       6                                  A-1772-16T4
under the abuse of discretion standard.            Innes v. Carrascosa, 
391 N.J. Super. 453, 498 (App. Div. 2007).

     Pursuant to Rule 1:10-3, "[t]he court in its discretion may

make an allowance for counsel fees to be paid by any party to the

action to a party accorded relief under this rule."                  Here, the

trial judge awarded plaintiff attorney's fees because defendant

was essentially silent and required plaintiff to file an emergent

motion to ensure the payment of tuition.           After hearing testimony

from both parties, the judge determined that even if defendant did

not act in bad faith, he failed to communicate with plaintiff.

Moreover, as noted by the trial judge, before filing her motion,

plaintiff's     attorney   sent      defendant   and     his    attorney     three

separate letters informing defendant of his tuition obligation

under the MSA, but defendant never responded.                  Accordingly, the

trial   court   was   within   its    discretion    in    awarding    plaintiff

attorney's fees in these circumstances.

     Affirmed.




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