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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0192-18T1






                    Argued October 2, 2019 – Decided December 27, 2019

                    Before Judges Yannotti, Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Somerset County,
                    Docket No. FM-18-0749-15.

                    Andrew M. Shaw argued the cause for appellant/cross-
                    respondent (The DeTommaso Law Group, LLC,
                    attorneys; Andrew M. Shaw, on the briefs).

                    John E. Clancy argued the cause for respondent/cross
                    appellant (Townsend, Tomaio & Newmark, LLC,
                    attorneys; John E. Clancy, on the briefs).

      In November 1994, the parties signed a prenuptial agreement (the

Agreement); the following day, they married.        Nearly twenty years later,

plaintiff filed for divorce and sought a declaratory judgment invalidating the

Agreement.    After a plenary hearing, the trial court ultimately upheld the

Agreement, finding it valid and enforceable. Plaintiff now appeals from the

order upholding the Agreement, and both parties appeal from the final judgment

of divorce. We affirm.


      In late September 1994, defendant asked plaintiff to sign a prenuptial

agreement as he had already gone through two divorces. Defendant made it

clear that he would not marry plaintiff without a prenuptial agreement. Prior to

signing, both parties had independent counsel review the Agreement. Both

parties then signed the Agreement, with plaintiff also signing a document

confirming her counsel advised against her signing it.

      The Agreement contained provisions concerning alimony and the division

of property should the marriage fail.      The parties agreed that, during the

marriage, each could accumulate property in their own names which would not

be subject to division. They also agreed that each spouse would "remain free to

decide the precise use" of his or her income. The Agreement contained "no

provision . . . with respect to the payment of their living expenses during the


      The Agreement called for alimony payments to plaintiff, should the

parties divorce, dependent on the length of the marriage.            The Agreement

provided for the following alimony payments for plaintiff:

             Years 1 to 5: $10,000/year (for $50,000)

             Years 6 to 10: $15,000/year (for $75,000)

             Years 11 to 15: $20,000/year (for $100,000)

             Years 16 to 26 []: $25,000/year (for $275,000)

Thus, if the marriage lasted twenty-six years, plaintiff would receive a total of

$500,000 in alimony payments. 1 Both parties waived the right to assert a claim

against the other to maintain the marital standard of living. The parties further

acknowledged the Agreement constituted the entirety of their agreement relating

to their marriage and waived "any and all rights . . . to share in the separate

property of the other party as a result of the marital relationship . . . ."

  The Agreement provided that the amount of alimony owing "shall be paid to
[plaintiff] over a course of five (5) years in equal bi-monthly installments."
   The Agreement also contained a provision that the parties would pay their

own counsel fees regarding the negotiation, preparation, review and execution

of the Agreement. It further provided,

              Should either party fail to abide by the terms of this
              Agreement, then the defaulting party will indemnify
              and hold the other harmless for all expenses and costs,
              including attorney's fees and disbursements, incurred in
              successfully enforcing this Agreement, or asserting or
              defending his or her rights hereunder as against the
              other party or third parties.

      By the time the parties married, plaintiff had earned a master's degree in

International Business from Georgetown University and worked at a Manhattan

bank as vice-president of international banking.          Defendant ran several

businesses,    including   a   multi-million-dollar   printing   press   and   ink

manufacturing business he took over from his father.

      After the parties married, plaintiff left her job, which previously paid her

a maximum of $56,008 per year. She became a stay-at-home mom to the parties'

children until 2000, when she began to perform administrative and clerical

duties for defendant's company, earning a maximum of twenty-five dollars per

hour. The most she earned in a year at defendant's company was $48,627. After

their divorce, plaintiff took a position with a food importer, earning a salary of

$67,008 per year.

      In her complaint, plaintiff asserted claims of fraud, duress, and

insufficient time as reasons for the court to declare the Agreement

unenforceable. After the court granted defendant summary judgment as to the

claims of fraud, duress, and insufficient time to review the Agreement, plaintiff

amended her complaint to assert a claim the Agreement was unconscionable.

The trial court declined to grant summary judgment as to plaintiff's

unconscionability claim, holding that factual issues existed, requiring a plenary

hearing, as to whether the "agreement would render respondent without a means

of reasonable support, as described in N.J.S.A. 37:2-32(c)(1)."

      The trial court initially issued an order stating that it could consider the

marital standard of living in determining whether the Agreement was

unconscionable. Defendant later filed a motion in limine to exclude evidence

relating to the marital standard of living. The court heard argument on the

motion in limine the same day as the hearing on unconscionability. The court

granted defendant's motion, excluding evidence on the marital lifestyle.

Plaintiff did not seek an adjournment in light of that decision. Further, plaintiff's

counsel informed the court he was ready to proceed with the unconscionability


      Following a plenary hearing where both parties testified, the court rejected

plaintiff's unconscionability claim and upheld the Agreement as valid and

enforceable. The court found plaintiff's job provided her roughly $67,000 in

yearly income, including an option for a 401(k) account.         She anticipated

receiving $500 in monthly retirement benefits from a separate pension. She also

had more than $379,000 in assets and would receive $350,000 in alimony under

the Agreement. Her monthly expenses amounted to little more than $2000, and

she lived with her parents, whom she described as "wealthier than defendant."

Noting that plaintiff "is slated to inherit a minimum of [two million dollars]

upon her parents' passing," the court determined plaintiff had reasonable means

of support, and upheld the Agreement.

      In July 2018, the court held the divorce trial, where plaintiff sought "a

credit for her sole income having been dissipated during the marriage [and] for

contribution to the defendant's Alexandria properties" based on an alleged oral

contract, predating the Agreement. The court rejected plaintiff's claim for a

credit, finding plaintiff lacked credibility. The court also rejected defendant's

application for attorney's fees, stating that plaintiff's attempt to contest the

validity of the agreement did not amount to a violation of the Agreement.

      These cross-appeals followed.


      Appellate "review of a trial court's fact-finding function is limited." Cesare v.

Cesare,  154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court

are binding on appeal when supported by adequate, substantial, credible evidence."

Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474,

484 (1974)). This is particularly true in matters emanating from the Family Part,

because of its special expertise. Ibid. Consequently, the factual findings and legal

conclusions reached by the Family Part trial judge will not be set aside unless the

court is "'convinced that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to offend the interests

of justice' or . . . we determine the court has palpably abused its discretion." Parish

v. Parish,  412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare,  154 N.J. at 412).

However, no special deference is owed to the trial court's conclusions of law.

Manalapan Realty, LP v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      Prenuptial agreements are enforceable assuming full disclosure and

comprehension, and absent unconscionability.          Rogers v. Gordon,  404 N.J.

Super. 213, 219 (App. Div. 2008). Pursuant to  N.J.S.A. 37:2-38, the party

seeking to invalidate a prenuptial agreement must prove by clear and convincing

evidence that "[t]he party executed the agreement involuntarily[,]" or the

agreement is unconscionable.        N.J.S.A. 37:2-38(c) 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

            (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

            (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.


   We first address the issues raised by plaintiff in her cross-appeal. Plaintiff

argues the trial court erred by finding that the Agreement is not unconscionable.

She contends the court's analysis was flawed because the court failed to consider

the parties' marital lifestyle in determining whether enforcement of the

Agreement leaves her with reasonable support. Plaintiff further argues the court

erred by granting defendant's motion in limine, which precluded her from

presenting evidence regarding the parties' marital lifestyle.

    Here, the parties agreed that the enforcement of the Agreement is governed

by the Uniform Prenuptial Agreement Act (UPAA),  N.J.S.A. 37:2-31 to -41,

which was in effect before it was amended in 2006 and 2013. In pertinent part,

the UPAA provided that a premarital agreement is enforceable unless the party

seeking to set aside the agreement proves by clear and convincing evidence that

the agreement was unconscionable when it was executed, either due to a lack of

property or un-employability:

             (1) [w]hich would leave a spouse . . . without a means
                 of reasonable support.

             (2) [w]hich would make a spouse . . . a public charge;

             (3) [w]hich would provide a standard of living far
                 below that which was enjoyed before the marriage
             [ N.J.S.A. 37:2-32 (prior to amendment).]

    The trial court found that enforcement of the Agreement would not leave

plaintiff without a means of reasonable support. The court noted that plaintiff

 2 In 2013, the Legislature adopted a statutory amendment to the UPAA that
severely restricts the grounds for setting aside a prenuptial agreement. See
 N.J.S.A. 37:2-32;  N.J.S.A. 37:2-38. As noted by defendant, "the entire
unconscionability analysis over which the parties litigated in this matter
(because their agreement was executed in 1994) has been excised from the
statutory scheme."

has monthly expenses of $2033. She will receive alimony of $70,000 per year

for five years, has assets of $379,120, and the ability to earn $67,000 per year.

Plaintiff anticipates receiving $500 per month in a pension and is slated to

inherit at least $2,000,000 when her parents pass away. We conclude the record

contains sufficient credible evidence supporting the trial court's finding that

enforcement of the Agreement will not leave plaintiff without a means of

reasonable support.

      Plaintiff argues, however, that the court was obligated to consider the

marital lifestyle in determining the issue of "reasonable support." Plaintiff

contends that the motion judge failed to abide by an earlier ruling by another

judge, who previously ruled that marital lifestyle was one of the factors that

should be considered in addressing the "reasonable support" issue.

      Because the plain language of the UPAA did not require consideration of

marital lifestyle, the motion judge was not bound by that earlier decision. It is

well-established that "the trial court has the inherent power, to be exercised in

its sound discretion, to review, revise, reconsider and modify its interlocutory

orders at any time prior to the entry of final judgment." Johnson v. Cyklop

Strapping Corp.,  220 N.J. Super. 250, 257 (App. Div. 1987). In Lombardi v.

Masso,  207 N.J. 517, 536-37 (2011), our Supreme Court acknowledged that

              where a litigation has not terminated, an interlocutory
              order is always subject to revision where the judge
              believes it would be just to do so. The rules governing
              final judgments, for example, that evidence must be
              newly discovered to be considered, R. 4:50-1(b), do not
              apply in the interlocutory setting. Nor is the judge
              constrained, as would a reviewing court be, by the
              original record.

              [Id. at 536-37.]

Thus, "the stringent constraints imposed on final judgments and orders under

Rule 4:50-1 . . . are wholly inapplicable to interlocutory orders." Id. at 534.

"Interlocutory orders are always subject to revision in the interests of justice."

Id. at 536.


      In his appeal, defendant challenges the trial court's decision denying his

claim for attorney's fees. Defendant argues the Agreement entitled him to fees

due to plaintiff's unsuccessful challenge of the Agreement as unconscionable

and her unsuccessful dissipation argument. He asserts plaintiff proceeded in bad

faith by "repeatedly [seeking] relief for which she knew or should have known

that no reasonable argument could be made and intentionally misrepresented the

facts." We disagree.

      Challenging the validity of the Agreement did not constitute a "fail[ure]

to abide by the terms" of the Agreement. Indeed, the Agreement does not

contain a provision concerning challenges to the validity of the Agreement.

Thus, defendant's argument lacks merit. Nor do we find any abuse of discretion

on the part of the trial court in denying defendant's request for counsel fees for

plaintiff's unsuccessful attempt to obtain reimbursement for dissipation and

contributions to living expenses.

      Additionally, defendant argues he should have been awarded attorney's

fees based on his claim that plaintiff pursued her claims in bad faith. When a

party's claim survives summary judgment, that party cannot "be deemed to have

litigated [a] matter in bad faith." United Hearts, LLC v. Zahabian,  407 N.J.

Super. 379, 394 (App. Div. 2009). Because plaintiff's unconscionability claim

survived summary judgment, we conclude the trial court did not abuse its

discretion when it rejected defendant's bad faith claim. See Strahan v. Strahan,

 402 N.J. Super. 298, 317 (App. Div. 2008) ("We will disturb a trial court's

determination on counsel fees only on the 'rarest occasion,' and then only

because of clear abuse of discretion." (citing Rendine v. Pantzer,  141 N.J. 292,

317 (1995))).



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