ALAN J. MEYERS v. SUSAN M. MEYERS

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1944-19

ALAN J. MEYERS,

          Plaintiff-Appellant,

v.

SUSAN M. MEYERS,

     Defendant-Respondent.
_________________________

                   Argued October 14, 2021 – Decided December 21, 2021

                   Before Judges Gilson, Gooden Brown, and Gummer.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Somerset County,
                   Docket No. FM-18-0775-10.

                   Grant W. Waterson argued the cause for appellant
                   (Skoloff & Wolfe, PC, attorneys; Grant W. Waterson
                   and Patrick T. Collins, on the briefs).

                   Bonnie C. Frost argued the cause for respondent
                   (Einhorn, Barbarito, Frost & Botwinick, attorneys;
                   Bonnie C. Frost, of counsel and on the brief; Matheu D.
                   Nunn, on the brief).

PER CURIAM
      In 2011, after thirty years of marriage, the parties divorced, and plaintiff

agreed to pay defendant just over $12,900 per month in permanent alimony. In

2016, plaintiff moved to reduce his alimony, representing that he had lost his

executive-level job, was disabled, and was unable to work. In 2018, the parties

signed a consent order under which defendant agreed to accept a reduced

alimony of $3,200 per month.

      Shortly thereafter, defendant learned that plaintiff had taken a new

executive-level job with a high salary. She moved to vacate the consent order

under Rule 4:50-1. Following a plenary hearing, the family court found that the

consent order had been procured by plaintiff's fraud and it would be

unconscionable to enforce the consent order. Accordingly, the family court

vacated the consent order, reinstated plaintiff's prior support obligations, and

awarded defendant fees.

      Plaintiff appeals, arguing the consent order incorporated the parties'

settlement agreement and that agreement should have been enforced, defendant

did not prove fraud, the settlement agreement was not unconscionable, and the

family court erred in awarding fees to defendant. We reject these arguments and

affirm.




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                                        I.

      The parties were married in October 1979 and divorced in January 2011.

The judgment of divorce incorporated a marital settlement agreement (MSA),

through which they resolved the issues concerning their divorce, including

support obligations.

      At the time of their divorce, plaintiff, the former husband, was the Chief

Scientific Officer of Revlon, and he was receiving a base salary of $450,000 per

year plus an annual bonus. Defendant was not employed at that time.

      Under the MSA, plaintiff agreed to pay defendant $12,916.68 per month

in permanent alimony plus 32.85% of his gross bonus. Plaintiff also agreed to

pay the cost of defendant's health insurance until she was eligible for Medica re

and to maintain life insurance to secure his support obligations.

      In 2014, plaintiff's employment with Revlon ended. He sued Revlon,

contending that he was a victim of discrimination and anti-whistleblowing

retaliation.   In March 2015, plaintiff settled with Revlon and received

$3,500,000, which included $1 million in severance pay.

      Between 2015 and 2018, the parties filed a series of motions in which

defendant sought to enforce the support obligations under the MSA and plaintiff

sought to reduce those obligations. In support of his position, plaintiff filed


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certifications representing that he was disabled, he was receiving disability

insurance payments, and he was "completely unable to work at [that] time and

it [was] unclear whether [his] condition will ever improve to the point where

[he] can become meaningfully employed again."

      The family court scheduled the motions for a plenary hearing. In support

of his motion to reduce his support obligations, plaintiff submitted reports and

letters from a psychiatrist. Plaintiff's expert opined that plaintiff remained "fully

psychiatrically and psychologically disabled at the current time and is unable to

work and will be unable to work for the foreseeable future."

      On April 30, 2018, the day the plenary hearing was to begin, the parties

entered into a settlement agreement and placed the terms of that agreement on

the record. Under the agreement, plaintiff's alimony obligation was reduced

from $12,916.68 per month to $3,200 per month and it was changed from

permanent alimony to term alimony that would end when plaintiff turned sixty-

eight years old. Plaintiff's obligation to pay defendant's health insurance was

also eliminated, and his insurance obligation was reduced. In addition, plaintiff

paid $220,000 to defendant.

      The terms of the settlement were reduced to a written agreement and

incorporated into a consent order that was entered by the family court on May


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23, 2018 (the 2018 Consent Order). The 2018 Consent Order also stated, in

relevant part:

            The provisions set forth in this Consent Order,
            including the amount of monthly support to be paid, are
            final and are not modifiable under any circumstance,
            whether foreseeable or not. This Consent Order
            constitutes a final resolution of all claims between the
            parties. . . . Absent a failure to make payments provided
            for herein, there shall be no further Court applications
            or proceedings between the parties.

      Shortly after the 2018 Consent Order was entered, plaintiff obtained a new

executive-level job working for a cosmetic company.           His compensation

included a base salary of $400,000 per year and bonuses. When defendant

learned plaintiff was re-employed, she moved to vacate the 2018 Consent Order

under Rule 4:50-1(b), (c), and (f). The family court found that defendant had

made a prima facie showing of fraud. On February 22, 2019, the court entered

an order allowing discovery to be followed by a plenary hearing.

      A six-day plenary hearing was conducted in October and November 2019.

Four witnesses testified at that hearing: plaintiff, defendant, and two experts.

The parties also submitted numerous documents into evidence.

      On December 3, 2019, the family court made detailed findings of facts

and conclusions of law that were placed on the record. The court found that in

and before May 2018, plaintiff had "lied" when he claimed he was unable to

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work. The court also found that when plaintiff made those false statements,

plaintiff was planning to go back to work once his alimony was reduced. The

court detailed plaintiff's numerous false and misleading statements about his

alleged disabilities and his inability to work. Among the false statements, the

court placed special emphasis on plaintiff's representations that in 2018 he was

unable to read and respond to emails and engage in any type of work-oriented

functions. In that regard, the court found that plaintiff had engaged in "a pattern

of lies" to the court, to defendant, and to his own expert and that all those lies

were designed to convince defendant that he could not work.

      The court also detailed plaintiff's actions in seeking and obtaining work

almost immediately after defendant agreed to reduce the support obligations.

The court found that plaintiff had lied to a recruiter and his new employer by

representing that he had been continuously employed. Based on all of plaintiff's

lies and false statements, the court found that plaintiff was incredible.

      By contrast, the court found defendant to be credible. The court found

defendant had relied on her inability to rebut plaintiff's false statements in

agreeing to the 2018 Consent Order.

      Based on its findings of facts and conclusions of law, on December 3,

2019, the court entered an order (1) vacating the 2018 Consent Order; (2)


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reinstituting plaintiff's support obligations under the MSA; and (3) awarding

defendant fees and costs of $165,142. The court also gave plaintiff credit for

the $220,000 he had paid under the 2018 Consent Order. In doing so, the court

offset that lump sum payment against plaintiff's past alimony obligations and

gave him a credit against the fee award for the remaining amount. 1

                                        II.

      Plaintiff now appeals from two orders:       the February 22, 2019 order

setting the matter down for a plenary hearing; and the December 3, 2019 order

vacating the consent order, reinstating plaintiff's prior support obligations , and

awarding fees and costs to defendant. Plaintiff contends that the family court

erred in (1) setting aside and failing to enforce the parties' "non-modifiable"

2018 Consent Order; (2) finding plaintiff had committed fraud; (3) finding the

parties' 2018 Consent Order unconscionable; and (4) directing plaintiff to pay

$165,142 in fees and costs to defendant. Given the facts found by the family

court based on the evidence presented at the plenary hearing, we reject plaintiff's

arguments and affirm the orders entered by the family court.



 1 The December 3, 2019 order also stated in paragraph two that plaintiff's
motion to modify his alimony was denied without prejudice. On January 28,
2020, the court entered an order vacating paragraph two of the December 3,
2019 order.
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      Because the family court made fact findings after conducting a plenary

hearing, our standard of review is limited and deferential.       See Milne v.

Goldenberg,  428 N.J. Super. 184, 197 (App. Div. 2012). Appellate courts defer

to factual findings made by a family court based on an evidentiary hearing when

such findings are supported by adequate, substantial, and credible evidence.

Gnall v. Gnall,  222 N.J. 414, 428 (2015). Accordingly, we will only reverse a

family court's factual findings when they are "so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice." Rova Farms Resort, Inc. v. Invs. Ins. Co. of

Am.,  65 N.J. 474, 484 (1974) (internal quotation marks omitted) (quoting

Fagliarone v. Twp. of N. Bergen,  78 N.J. Super. 154, 155 (App. Div. 1963)).

By contrast, a "trial judge's legal conclusions, and the application of those

conclusions to the facts, are subject to [a] plenary review." Reese v. Weis,  430 N.J. Super. 552, 568 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan,  140 N.J. 366, 378 (1995)).

      1.    The Decision to Vacate the 2018 Consent Order

      In his first three arguments, plaintiff contends that the consent order was

not subject to modification, the family court erred in finding that he had




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perpetuated a fraud on defendant, and the family court erred in holding that the

consent order was unenforceable because it was unconscionable. We disagree.

      It is well-established that public policy favors enforcement of settlement

agreements.    Gere v. Louis,  209 N.J. 486, 500 (2012).           Accordingly,

"[s]ettlement of disputes, including matrimonial disputes, is encouraged and

highly valued in our system." Quinn v. Quinn,  225 N.J. 34, 44 (2016). "The

prominence and weight we accord such [settlements] reflect the importance

attached to individual autonomy and freedom, enabling parties to order their

personal lives consistently with their post-marital responsibilities." Weishaus

v. Weishaus,  180 N.J. 131, 143 (2004) (quoting Konzelman v. Konzelman,  158 N.J. 185, 193 (1999)).

      Nevertheless, marital settlement agreements "must reflect the strong

public and statutory purpose of ensuring fairness and equity in the dissolution

of marriages." Miller v. Miller,  160 N.J. 408, 418 (1999) (citing Petersen v.

Petersen,  85 N.J. 638, 644 (1981)). Consequently, "[i]f a settlement agreement

is achieved through coercion, deception, fraud, undue pressure, or unseemly

conduct, or if one party was not competent to voluntarily consent thereto, the

settlement agreement must be set aside." Peskin v. Peskin,  271 N.J. Super. 261,

276 (App. Div. 1994). Moreover, unconscionability in the negotiation of a


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settlement may serve as a basis for reforming or setting aside a marital

settlement agreement. See Miller,  160 N.J. at 419; see also Pacifico v. Pacifico,

 190 N.J. 258, 266 (2007) ("'[T]he law grants particular leniency to agreements

made in the domestic arena,' thus allowing 'judges greater discretion when

interpreting such agreements.'" (quoting Guglielmo v. Guglielmo,  253 N.J.

Super. 531, 542 (App. Div. 1992))).

      Initially, plaintiff argues that both parties waived their right to challenge

or seek to modify the 2018 Consent Order. We have no hesitancy in rejecting

that argument. Defendant's agreement was procured by fraud. Consequentially,

the non-modification provision in that agreement can be set aside because that

provision, like the other provisions, was procured by fraud.

      In his second argument, plaintiff contends that there was no proof of fraud.

The evidence and findings of facts made by the family court following the

plenary hearing rebut that argument. The family court correctly identified the

elements of fraud, which are "(1) a material misrepresentation of a presently

existing or past fact; (2) knowledge or belief by the [person making the

statement] of its falsity; (3) an intention that the other person rely on it; (4)

reasonable reliance thereon by the other person; and (5) resulting damages."




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Allstate N.J. Ins. Co. v. Lajara,  222 N.J. 129, 147 (2015) (quoting Banco Popular

N. Am. v. Gandi,  184 N.J. 161, 172-73 (2005)).

      The family court found that defendant had proven each of these elements

by clear and convincing evidence. First, the court found that plaintiff had lied

when he represented to defendant that he was unable to work. Second, the court

found that plaintiff had known he could work and, therefore, his representations

were lies. Third, the court found that plaintiff had intended that defendant rely

on his lies and misrepresentations. Fourth, the court found that defendant

reasonably had relied on plaintiff's lies. In making that finding, the court noted

that while defendant may have questioned plaintiff's credibility, she had no

evidence to rebut his lies and misrepresentations and, therefore, had to rely on

them in entering the 2018 Consent Order. Finally, the court found that defendant

had suffered resulting damages in the reduction of her alimony and in her

corresponding change in lifestyle.      All those factual findings are amply

supported by the evidence at the plenary hearing. Moreover, the family court

correctly applied the law to those factual findings. See R. 4:50-1(c); Gnall,  222 N.J. at 428.

      We also reject plaintiff's third argument that the family court erred in

finding the 2018 Consent Order unconscionable. Initially, we note that the


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court's finding was an alternative finding, and the affirmance of the fraud finding

is sufficient to affirm the family court's orders.     The factual findings that

plaintiff lied and misrepresented his ability to work also supports the alternative

holding that it would be unconscionable to enforce the 2018 Consent Order that

had been procured through fraud. See R. 4:50-1(f); Miller,  160 N.J. at 419. See

also BV001 REO Blocker, LLC v. 53 W. Somerset St. Props., LLC,  467 N.J.

Super. 117, 121, 126 (App. Div. 2021) (a court may exercise broad power under

Rule 4:50-1(f), a catch-all provision that affords relief from a final judgment

under "'exceptional circumstances'" because "its boundaries are 'as expansive as

the need to achieve equity and justice'" (quoting Hous. Auth. of Morristown v.

Little,  135 N.J. 274, 290 (1994))).

      2.    The Fee Award

      Plaintiff contends that the family court improperly granted fees and costs

to defendant because it erroneously found that plaintiff had acted in bad faith.

We reject this argument.

      "Under the laws of New Jersey, the award of counsel fees and costs in a

matrimonial action rests in the sound discretion of the trial court." Guglielmo,

 253 N.J. Super. at 544-45 (citing Salch v. Salch,  240 N.J. Super. 441, 443 (App.

Div. 1990)). "Fees in family actions are normally awarded to permit parties with


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unequal financial positions to litigate (in good faith) on an equal footing." J.E.V.

v. K.V.,  426 N.J. Super. 475, 493 (App. Div. 2012) (alteration in original). In

determining the amount of counsel fees to award, the court should consider

            (1) the financial circumstances of the parties; (2) the
            ability of the parties to pay their own fees or to
            contribute to the fees of the other party; (3) the
            reasonableness and good faith of the positions
            advanced by the parties both during and prior to trial;
            (4) the extent of the fees incurred by both parties; (5)
            any fees previously awarded; (6) the amount of fees
            previously paid to counsel by each party; (7) the results
            obtained; (8) the degree to which fees were incurred to
            enforce existing orders or to compel discovery; and (9)
            any other factor bearing on the fairness of an award.

            [R. 5:3-5(c).]

"[W]here a party acts in bad faith[,] the purpose of the counsel fee award is to

protect the innocent party from the unnecessary costs and to punish the guilty

party." Welch v. Welch,  401 N.J. Super. 438, 461 (Ch. Div. 2008) (citing Yueh

v. Yueh,  329 N.J. Super. 447, 461 (App. Div. 2000)).

      When calculating a fee award, the court must determine the

reasonableness of the rates proposed by prevailing counsel and the

reasonableness of the time spent. Furst v. Einstein Moomjy, Inc.,  182 N.J. 1, 21

(2004) (citing Rendine v. Pantzer,  141 N.J. 292, 335-36 (1995)).                  To

demonstrate the reasonableness of the fee application, applicants must submit


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an affidavit of service addressing the factors enumerated by RPC 1.5(a). R.

4:42-9(b).

      A trial court's decision to grant attorney's fees in a family action will be

disturbed "only on the 'rarest occasion,' and then only because of clear abuse of

discretion." Strahan v. Strahan,  402 N.J. Super. 298, 317 (App. Div. 2008)

(quoting Rendine,  141 N.J. at 317). "[An] abuse of discretion only arises on

demonstration of 'manifest error or injustice.'" Hisenaj v. Kuehner,  194 N.J. 6,

20 (2008) (quoting State v. Torres,  183 N.J. 554, 572 (2005)). That abuse occurs

when the family court's "decision is 'made without a rational explanation, [and]

inexplicably depart[s] from established policies, or rest[s] on an impermissible

basis.'" Flagg v. Essex Cnty. Prosecutor,  171 N.J. 561, 571 (2002) (quoting

Achacoso-Sanchez v. Immigr. & Naturalization Serv.,  779 F.2d 1260, 1265 (7th

Cir. 1985)).

      The family court made detailed findings of facts concerning the factors

set forth in Rule 5:3-5(c). The court also reviewed the certifications submitted

by both counsel and found that defendant's counsel's rates were reasonable. The

court then reviewed the time incurred by counsel and disallowed some time and

determined which time had been reasonably spent. The court similarly analyzed

the request for expert fees. The court's determination that plaintiff had acted in


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bad faith was also amply supported by the facts found at the plenary hearing.

Accordingly, we discern no abuse of discretion in the fee award.

      Affirmed.




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