NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Althou gh 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
DOCKET NO. A-2817- 19 M.S 1,
Argued February 4, 2021 – Decided February 26, 2021
Before Judges Yannotti, Mawla, and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0670-15.
Robert M. Zaleski argued the cause for appellant (Law
Offices of Paone, Zaleski & Murphy, attorneys; Robert
M. Zaleski and John P. Paone, III, on the briefs).
Bonnie C. Frost argued the cause for respondent
(Einhorn, Barbarito, Frost & Botwinick, attorneys;
Bonnie C. Frost, Matheu D. Nunn, and Jillian P. Freda,
on the brief).
We utilize initials to protect the parties' privacy. R. 1:38-3(d)(1).
This matter returns after we affirmed in part and reversed and remanded
in part the trial court's post-judgment order adjudicating plaintiff M.S.'s request
to terminate or modify alimony payable to defendant M.A.S. M.S. v. M.A.S.,
No. A-3937-17 (App. Div. May 7, 2019) (slip op. at 1). Plaintiff now appeals
from a February 5, 2020 order denying the modification of alimony and granting
defendant counsel fees. We affirm.
The parties were married for nearly thirteen years and had two children
who reside with defendant. After filing a complaint for divorce, plaintiff filed
a case information statement (CIS) in June 2013 setting forth the marital lifestyle
at $32,091 per month. In November 2013, defendant filed a CIS depicting a
marital lifestyle of $17,526. The complaint for divorce was dismissed , and in
September 2014 the parties purchased a home in Basking Ridge where defendant
and the children resided. The parties executed a Divorce Settlement Agreement
(DSA) on August 28, 2015 and were divorced on December 8, 2015.
The relevant provisions of the DSA read as follows:
4. The parties acknowledge that the [plaintiff]
. . . is paid a base salary of $405,000 per year and is
eligible to earn additional incentive compensation
including but not limited to cash bonuses and stock
options. . . . The parties acknowledge that the
[defendant] is currently employed as a part time self-
employed consultant to the pharmaceutical industry.
For purposes of determining the [plaintiff's] alimony
obligations set forth herein, gross earned income of
$110,000 per year was imputed to the [defendant].
Her current income is uncertain, however in no event
shall gross earned income of less than $110,000 per
year be imputed to the [defendant].
5. The parties have agreed that the [plaintiff]
shall have a limited duration alimony obligation for a
total of ten . . . years. Specifically, he shall pay "base"
and "additional" limited duration alimony for eight . . .
years, followed by "base" alimony only for two . . .
years thereafter as follows:
5. (A) Commencing upon the [first] day of the
month following the execution of this [a]greement by
both parties, and for a period of eight . . . years, the
[plaintiff] shall also pay to the [defendant] base limited
duration alimony in the sum of $100,000 per year at
the rate of $8333.33 per month . . . .
(B) Commencing upon the [first] day of the
month following the execution of this [a]greement by
both parties, and for a period of eight . . . years, the
[plaintiff] shall pay to the [defendant] as "additional"
limited duration alimony, the sum of [twenty-five
percent] of any gross cash bonus paid to him during that
eight . . . year period. The parties specifically
acknowledge that this additional alimony obligation
applies only to any gross cash bonus paid to him and
does not apply to any other form of bonus or incentive
compensation including but not limited to stock or
stock options which may be earned by the [plaintiff] or
paid to the [plaintiff]. The [plaintiff] shall have no
"additional" limited duration alimony obligation to the
[defendant] after the expiration of this eight . . . year
6. Commencing upon the [first] day of the month
following the expiration of the eight . . . year period
provided for in paragraph . . . (5)(A) herein, and for a
period of two . . . years, the [plaintiff] shall pay to the
[defendant] limited duration alimony in the sum of
$75,000 per year at the rate of $6250 per month . . . .
[Plaintiff] shall have no "additional" limited duration
alimony obligation to the [defendant] during this two
. . . year period above and beyond his obligation to pay
$75,000 per year for two . . . years as provided for in
8. The parties have been advised of the [Lepis]
decision ([Lepis v. Lepis], 83 N.J. 139 (1980)), and
other appropriate statutes (including [ N.J.S.A.] 2A:34-
23), rules, and case law governing alimony. The parties
understand that the amount of alimony provided
hereunder may be modified or terminated accordingly.
The parties further understand that the duration or term
of the [plaintiff's] limited duration alimony obligation
may only be modified upon a showing of unusual
circumstances as set forth in [ N.J.S.A.] 2A:34-23.
The parties also agreed alimony would terminate on either party's death,
defendant's remarriage, and could suspend or terminate upon defendant's
cohabitation as defined by statute.
The other relevant DSA provisions were as follows:
12. The parties have been made aware of the case
of [Crews v. Crews], 164 [N.J.] 11 (2000) and the
related case law. The parties agree that based upon the
terms of this [a]greement, they each have the ability to
maintain the standard of living established during the
19. Commencing upon [plaintiff] paying
alimony and child support as provided for herein, the
[plaintiff] shall satisfy [two-thirds] and the [defendant]
shall satisfy [one-third] of the cost of reasonable
extracurricular activities for the [children], provided
that these items are discussed and mutually agreed upon
by the parties, other than as set forth herein. However,
based on the support provisions in the [a]greement,
100% of the stabling costs for the pony, shall be paid
entirely by the [defendant]; but incidental costs
incurred in connection with the pony such as veterinary
bills or equipment shall be paid [two-thirds] by
[plaintiff] and [one-third] by [defendant] provided they
are discussed and agreed upon by the parties.
Similarly, paragraph twenty required plaintiff to bear two-thirds and defendant
one-third of the children's private school education costs.
The DSA also required defendant to "remove the [plaintiff's] name from
the mortgage indebtedness on the [Basking Ridge property], through refinance,
assumption, or otherwise" within ninety days of the agreement. The DSA stated
defendant had been previously represented by counsel but was self-represented
at the time of entry of the agreement having voluntarily waived her right to
counsel. It also stated defendant entered into the agreement voluntarily and was
"fully informed" of her rights and obligations under the agreement, which was
a product of negotiation and "settlement conferences with counsel (when
[defendant] was still represented . . .) and [plaintiff's] forensic experts . . . ."
In November 2017, plaintiff filed a motion to terminate alimony
retroactive to April 2016, arguing the increase in defendant's income from the
imputed amount of $110,000 to $190,000 constituted a change in circumstances.
The motion judge agreed and entered an order reducing alimony to $73,500 per
year retroactive to the motion filing date without holding a plenary hearing.
Plaintiff appealed from the trial judge's decision. We upheld the judge's
finding of a change in circumstances. M.S., slip op. at 20. However, we
concluded the judge "improperly resolved disputed, material questions of fact
regarding the parties' marital standard of living without a plenary hearing, and
failed to explain the factual basis for the $73,500 modified amount." Id. at 21.
We remanded the matter for a plenary hearing and directed the judge to "provide
factual findings consistent with Rule 1:7-4 detailing the bases for modifying the
limited term alimony from $100,000 to $73,500 per year." Id. at 22.
Following the remand, the motion judge conducted a seven-day plenary
hearing and considered testimony from both parties. Plaintiff stipulated to his
ability to pay the alimony set forth in the DSA. Therefore, his income was not
an issue and the bulk of the testimony concerned the meaning of the DSA
alimony provisions and defendant's financial circumstances.
Plaintiff testified the majority of the DSA negotiations took place in the
"latter half of 2013 and early 2014" with the aid of the parties' attorneys and the
forensic expert. However, the DSA was not signed until 2015 because the
parties had not reached an agreement regarding the disposition of the Basking
Ridge residence. He testified there were two or three draft agreements prepared
between 2013 and 2014 and the DSA contained all the terms that were agreed to
from the prior drafts. Plaintiff further testified defendant was no longer
represented by counsel at "the time [the parties] got to the final point where
[they] had incorporated the language into the agreement that dealt with the new
property" in 2015. He noted both parties utilized the forensic expert to assist
them in negotiating the terms related to the residence.
Plaintiff testified the $110,000 imputed income figure for defendant was
a number she "felt comfortable committing to, based upon the uncertainty of her
earning capacity because she was a consultant, and not always working on a full-
time basis as a consultant." However, plaintiff did not recall discussing the
amount of income defendant earned during the settlement negotiations. He
noted defendant was represented by counsel at the time the $110,000 figure was
Plaintiff adduced a November 8, 2016 email correspondence between the
parties which noted defendant's 2015 income from all sources was $103,600.
The email stated defendant's projected income for 2016 would be $121,844 and
$190,000 for 2017. The 2017 income did not include a potential bonus. Plaintiff
pointed out defendant's certification in opposition to his motion to terminate
alimony also reflected these figures.
Plaintiff testified he was responsible for "settling the bills and doing the
finances" during the marriage. He stated the marital lifestyle was not accurately
depicted in his original CIS. He adduced a spreadsheet which suggested a lower
figure of $16,579 and explained the differences between his CIS and the
Plaintiff acknowledged that in 2013 he was aware defendant had
"demonstrated [an] earning potential of $190,000." He explained the $110,000
in paragraph four represented a "baseline" for determining alimony and "a
guarantee from [his] perspective that in the future . . . [he] can't be asked to
increase his level [of] support beyond that [which] . . . was agreed [to] in the
agreement based on her earning less than $110,000 a year." However, plaintiff
also stated it was his expectation that if he could establish defendant earned
more than $110,000 in the future, "it gave [him] the ability to reduce [his]
alimony obligation." He noted the DSA contained no guarantee for the
continuation of alimony as reflected by the Lepis provision which provided him
"the opportunity to modify alimony, based on a change of circumstances that
occurs after the agreement is signed." Plaintiff also noted the parties did not
renegotiate the $110,000 income amount after initially agreeing to it in 2014
through the time they signed the DSA in 2015.
Plaintiff testified he unilaterally ceased paying alimony in February 2017.
He conceded this was in violation of the DSA.
Defendant testified the $110,000 figure was included to protect plaintiff,
"so that [she] couldn't go to him and say [she] only made [eighty] grand this
year, you need to top me up on the alimony . . . ." She testified she did not agree
"to have [her] alimony reduced if [her] salary goes up" and never discussed the
scenario with plaintiff because "why would [she] take a job where [she] was
going to lose $100,000 from [plaintiff]?"
Defendant adduced a copy of the parties' DSA she believed was drafted
between 2013 and 2014, which she found on plaintiff's desk. A crossed-out
paragraph in the draft stated:
7. Commencing with the 2015 calendar year, in the
event that the [defendant] earns gross earned income in
excess of $150,000 per calendar year for any year
wherein [plaintiff] has an alimony obligation to the
[defendant], the [plaintiff's] alimony obligation for that
year shall be reduced by the sum of [one-third] of any
gross earned income by the [defendant] in excess of
$150,000 in that calendar year. In the event that the
[defendant] is self-employed doing consulting or
otherwise, her gross earned income from that self-
employment shall be deemed her gross profits/receipts
before any expenses. For example, if the [defendant]
has gross earned income as a traditional W-2 wage
earner (which shall be determined based on her
Medicare wages on her W-2) of $150,000 in a year in
addition to $50,000 of gross profit/receipts from self-
employment in that same year, the [defendant] shall
reimburse the [plaintiff] the sum of $16,666.67.
Additionally, for example, in the event the
[defendant's] only employment in a year is self-
employment, as a consultant or otherwise, and her gross
profits/receipts are $200,000, and she has business
expenses of $50,000, she shall reimburse the
[plaintiff] the sum of $16,666.67. The [defendant] shall
provide the [plaintiff] with her complete federal, state,
and local income tax returns commencing with the 2015
tax year no later than April 2016 of every year wherein
the [plaintiff] has an alimony obligation. The
[defendant] shall pay the [plaintiff] any money due to
be reimbursed to him no later than April 16 of every
year the [plaintiff] has an alimony obligation, with the
first potential reimbursement to [plaintiff] due in 2016
for the 2015 calendar year.
The draft also included typewritten comments in the margins from
plaintiff corresponding to the same paragraph. The first comment asked: "Can
we increase the threshold here to $200,000[?]" The second comment stated:
"We will delete this, so that [defendant] can earn as much as she likes without
penalty. However, we will look for recognition of the good-faith gesture." A
separate comment addressing a draft paragraph related to the children's
extracurricular activities stated: "The [two-thirds] split is reasonable,
particularly in light of [defendant's] income ($185,000 plus bonus)."
Defendant testified that when she began the process to refinance the
mortgage for the Basking Ridge property pursuant to the DSA, she asked
plaintiff for the deed. However, he would only turn over the deed "if [she]
agree[d] to terminate alimony."
Defendant provided detailed testimony regarding her employment history.
She explained she was hired as a full-time employee at a pharmaceutical
company in September 2013 at a salary of $185,000 plus a $24,000 sign-on
bonus. She also had the opportunity to receive a yearly performance bonus of
twenty-three percent of her base salary. In 2014, she was laid off and received
an $84,446 severance package that increased her taxable income from $152,672
to $237,118, which was reported on the parties' joint income tax return.
Defendant then worked as a full-time consultant for another company
from September 2014 to December 2014. She then left that firm and became a
full-time employee at a different company from December 2014 to August 2015,
earning a base salary of $180,000. Beginning in August 2015, she worked as a
consultant at a different firm and for other clients, and after a three-month period
of unemployment, began working as a salaried employee for a pharmaceutical
company earning $190,000 per year. In 2015, defendant filed a tax return
reporting wages of $123,757, business income of $50,000, and a total income
from all sources of $178,010.
The motion judge issued a comprehensive oral decision finding plaintiff
failed to prove a change in circumstances warranting a modification of alimony.
The judge denied plaintiff's request for counsel fees and awarded defendant
$31,500 in counsel fees.
The judge found plaintiff's "overall credibility [was] diminished by the
unreasonable positions that he [had] maintained." He found plaintiff sought to
downplay the marital lifestyle and his "analysis of the needs of the defendant
and his two daughters [was] wholly self serving . . . [and] prepared spreadsheets
and provided explanations which had the sole purpose of eliminating expenses
to reduce his support obligations."
Regarding the DSA, the judge found plaintiff's "insistence that both
parties knowingly agreed that the defendant's income was so uncertain that it
was reasonable to impute $110,000 per year to her for the purpose of alimony is
not believable." The judge noted that under this interpretation plaintiff "could
have moved to modify alimony the day after he was divorced." The judge
concluded plaintiff "unquestionably knew that the defendant was making
$185,000 per year plus bonus when the DSA was signed . . . ."
The judge also found plaintiff lacked credibility given the "the enormity
of the relief [he] sought [in his motion,]" namely, to reduce alimony by ninety-
three percent. The judge also concluded plaintiff's credibility was "severely
undermined by his [self-help] by both improperly attempting to reduce his
alimony obligation and then simply refusing to pay alimony."
With limited exceptions, the judge found defendant credible, noting her
testimony was "candid, straightforward, and entirely believable." The judge
noted her testimony was "very detailed" and on cross-examination she
"answered all questions directly and without hesitation."
The judge found defendant provided conclusive evidence plaintiff knew
she was earning $185,000 and the parties agreed she could earn as much money
as she wanted in the future without fear of an alimony modification. The judge
found defendant's income for the years 2001 through 2017 was as follows:
$137,849, $79,000, $188,758, $237,118, $176,684, $196,500, and $185,225. In
light of the objective evidence of defendant's income, he concluded the
imputation of $110,000 in paragraph four made "absolutely no sense because
both parties knew that was not the case." The judge noted defendant was not
represented when the DSA was signed and a "competent attorney would have
certainly questioned [the] inclusion [of paragraph four] and most likely would
have insisted it be removed."
The judge also addressed the draft agreement defendant located on
plaintiff's desk and stated:
At the very end of the [p]lenary [h]earing a full
copy of the draft was located by [defendant] and
admitted into evidence . . . with the consent of the
parties. It is now clear that the handwriting which
neither party could initially identify is that of [the
forensic expert]. [Defendant] testified that the parties
met with [the expert] around April of 2015. On the first
page of [the document] the author of the handwritten
note states[:] . . . "Went over with [plaintiff] and
[defendant] on 4/6/15[.]" . . . This could only have been
written by . . . the parties' joint financial advisor. The
parties did not meet together with either attorney. It is
not their handwriting. It is definitely [the expert's]
Interestingly, his notes on page ten provide the
best explanation as to how the $110,000 per year
alimony was decided. He subtracted alimony and child
support from [plaintiff's] salary. Specifically his notes
on top of page ten have [$]405,000 minus [$]100,000
minus [$]30,000, comes to [$]275,000 that is circled.
To the right of that is another column where $185,000
is circled, $100,000 is added in, $30,000 is added in,
and the amount circled below is $315,000. That
[$]100,000 . . . on those pages is the agreed upon
alimony amount; the $30,000 is the agreed upon child
support; the $405,000 figure is what [plaintiff] was
earning which is reflected in paragraph four; and the
$185,000 is the amount that both parties knew that
[defendant] was earning; and that [plaintiff] provided
that information to [the accountant].
The judge also found that plaintiff wrote the typewritten comments in the draft
The judge rejected plaintiff's explanations regarding paragraph four and
the drafting process. He noted
plaintiff testified that [p]aragraph [four] was drafted
well in advance of the execution of the agreement. If
true, that suggests that the language in [p]aragraph
[four] imputing $110,000 per year to defendant was no
longer the case and should not have been included when
the DSA was executed in August of 2015. The changes
to [p]aragraph [four] as set forth in [the draft DSA]
suggest the plaintiff is incorrect as to the date the
language at issue here was inserted. This adds further
confusion to why that clause was inserted in
[p]aragraph [four], the $110,000. It makes even less
sense after reading the draft DSA.
Furthermore, the judge determined it would violate the parol evidence rule
to include draft paragraph seven in the final DSA because it would undermine
the language contained in the agreement whereby the parties agreed "the amount
of alimony . . . may be modified or terminated . . . according to the decision of
Lepis . . . ." The judge found if the DSA had "been silent on modification, that
would present a much stronger case for inserting [p]aragraph [seven] . . . ." He
concluded it "would be unjust and inequitable to construe the agreements as
suggested by the plaintiff."
He further concluded the language in paragraph four was not a "baseline"
for the modification of alimony because the DSA did not state that earnings
greater than $110,000 would constitute a change in circumstances, defendant
did not agree plaintiff could reduce alimony if she earned more than this
amount, and "both parties knew that [defendant] was making well in excess of
$110,000 per year." He stated: "This is a case where the proofs absolutely
establish that [plaintiff] at the time of the execution of the DSA and at the time
of the divorce, no question[,] . . . knew that [defendant] was making
approximately $185,000 per year."
The judge found the marital lifestyle was upper middle class to wealthy
and quantified it at $27,117 per month. He determined the lifestyle figure
beginning with the $32,091 monthly budget reported in plaintiff's CIS,
deducting $5214 plaintiff attributed to his monthly expenses after the parties
separated, and adding $240 for cell phone expenses paid by defendant omitted
from plaintiff's CIS. The judge concluded defendant and the children's needs
totaled $24,079 per month.
As a result, the judge found plaintiff did not prove a change in
circumstances to modify alimony because "defendant's financial needs [have]
not changed greatly since the time of the divorce" and "her income has remained
steady." The judge concluded "the proof establishes that the defendant needs
$100,000 alimony now more than ever" because she expected to receive
approximately $1,000,000 in equitable distribution from the sale of stock
options earned during the marriage by plaintiff, which did not occur.
The judge awarded defendant $31,500 in attorney fees. He found
plaintiff acted in bad faith because he "originally exercised self[-]help by
terminating and reducing alimony without [c]ourt permission . . . despite his
undisputed ability to pay." The judge noted plaintiff had "no good reason not
to sign over the [d]eed to [defendant] when she refinanced the [Basking Ridge
property and] . . . used that refusal as . . . leverage to get [defendant] to reduce
or eliminate alimony." The judge also found plaintiff's insistence that he did
not know defendant was making $185,000 was unreasonable in light of the
"overwhelming evidence to the contrary . . . ." He noted defendant incurred the
fees to enforce the DSA and had prevailed.
On appeal, plaintiff argues the judge failed to enforce the terms of the
DSA as written and instead rewrote the parties' contract. He asserts paragraph
four's use of the term "imput[ation] confirms that the sum of $110,000 was
assigned to the [defendant] by mutual consent of the parties." He argues the
judge's admission of the draft DSA and application of parol evidence rule was
reversible error because the draft agreement was used to modify rather than
enforce the terms of the DSA. He argues the draft DSA had no probative value
because it was taken from him without his knowledge, was not authenticated,
and its admission violated attorney-client privilege.
Plaintiff challenges the judge's credibility and factual findings, namely,
that the parties knew defendant's income was $185,000 as well as the findings
related to the marital lifestyle, defendant's needs, and that there was no change
Plaintiff also contests the counsel fee award. He argues the finding of bad
faith is unsupported and the judge failed to consider defendant's "vastly
improved financial circumstances" before awarding her fees.
"The scope of appellate review of a trial court's fact-finding function is
limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's opinion is
"binding on appeal when supported by adequate, substantial, credible evidence."
Id. at 412 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484
(1974)). "Deference is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility.'" Ibid. (quoting In re Return
of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 412).
"Because a trial court 'hears the case, sees and observes the witnesses, [and]
hears them testify,' it has a better perspective than a reviewing court in
evaluating the veracity of witnesses.'" Cesare, 154 N.J. at 412 (alteration in
original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "We do 'not
disturb the "factual findings and legal conclusions of the trial judge unless . . .
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."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (alterations in original)
(quoting Cesare, 154 N.J. at 412). Therefore, "'[o]nly when the trial court's
conclusions are so "clearly mistaken" or "wide of the mark" should we
interfere[.]'" Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J.
88, 104 (2008)). However, "we owe no deference to the judge's decision on an
issue of law or the legal consequences that flow from established facts." Dever
v. Howell, 456 N.J. Super. 300, 309 (App. Div. 2018).
Our Supreme Court has stated:
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)). Among those principles are that courts should
discern and implement the intentions of the parties.
Pacifico, 190 N.J. at 266 (citing Tessmar v. Grosner, 23
N.J. 193, 201 (1957)). It is not the function of the court
to rewrite or revise an agreement when the intent of the
parties is clear. J.B., 215 N.J. at 326 (citing Miller v.
Miller, 160 N.J. 408, 419 (1999)). Stated differently,
the parties cannot expect a court to present to them a
contract better than or different from the agreement
they struck between themselves. Kampf v. Franklin
Life Ins. Co., 33 N.J. 36, 43 (1960) (citations omitted).
Thus, when 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. See Sachau v. Sachau, 206 N.J.
1, 5-6 (2011) ("A court's role is to consider what is
written in the context of the circumstances at the time
of drafting and to apply a rational meaning in keeping
with the expressed general purpose." (internal
quotations and citations omitted)). 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.
Pacifico, 190 N.J. at 267.
[Quinn v. Quinn, 225 N.J. 34, 45 (2016).]
We reject plaintiff's argument that the judge failed to adhere to Quinn and
instead modified the DSA. In context of the facts and circumstances of this case,
paragraph four was ambiguous, and each party had a plausible but different
understanding of its meaning. Contrary to plaintiff's argument, the judge
adhered to Quinn by assessing the totality of the circumstances, including those
surrounding the negotiation of the DSA, to understand the parties' intent in
crafting the imputation language. The substantial credible evidence supports the
judge's conclusion the provision was intended to prevent defendant from seeking
greater alimony in the event her income fell below $110,000. Interpreting the
provision otherwise would have required the judge to ignore the bulk of
We reject plaintiff's assertion the judge could not rely on the draft DSA to
determine the parties' intent. Plaintiff consented to the admission of the draft
DSA into evidence. Therefore, plaintiff's arguments the document was taken
from him without consent and his objections on grounds of authen tication and
attorney-client privilege lack merit.
Our Supreme Court has adopted the "expansive view of the parol evidence
rule, which was adopted in the Second Restatement of Contracts." Conway v.
287 Corp. Ctr. Assocs., 187 N.J. 259, 268-69 (2006). This view permits
a broad use of extrinsic evidence to achieve the ultimate
goal of discovering the intent of the parties. Extrinsic
evidence may be used to uncover the true meaning of
contractual terms. It is only after the meaning of the
contract is discerned that the parol evidence rule comes
into play to prohibit the introduction of extrinsic
evidence to vary the terms of the contract.
[Id. at 270.]
As we noted in Garden State Plaza v. S.S. Kresge Company, "[c]onstruing
a contract of debatable meaning by resort to surrounding and antecedent
circumstances and negotiations for light as to the meaning of the words used is
never a violation of the parol evidence rule." 78 N.J. Super. 485, 496 (App. Div.
1963). "Evidence of the circumstances is always admissible in aid of the
interpretation of an integrated agreement. This is so even when the contract on
its face is free from ambiguity." Atl. N. Airlines v. Schwimmer, 12 N.J. 293,
Here, paragraph four could be interpreted either as means of preventing
defendant from seeking an increase in alimony if her income dipped below
$110,000, or that plaintiff could seek a modification of alimony if defen dant's
income exceeded $110,000. The parties' common intent could not be
ascertained from reading the DSA alone. Therefore, the trial judge could use
parol evidence to interpret the DSA. Moreover, the resulting interpretation did
not modify the DSA, but rather interpreted it in a logical fashion consistent with
the parties' circumstances and the substantial credible evidence in the record.
We do not reach plaintiff's arguments challenging the judge's findings
relating to the marital lifestyle and defendant's need for alimony because we
have affirmed the finding there was no change in circumstances. Even if we
were to address the marital lifestyle findings, the judge complied with precedent
because he described the marital lifestyle and quantified it. S.W. v. G.M., 462 N.J. Super. 522, 532 (App. Div. 2020).
Finally, we affirm the counsel fee award. We reject plaintiff's assertion
the record did not support the judge's finding of bad faith and that the judge
failed to consider defendant's financial circumstances.
An award "of counsel fees is discretionary, and will not be reversed except
upon a showing of an abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46
(App. Div. 2011) (citation omitted). Rule 5:3-5(c) lists nine factors the court
must consider in making an award of counsel fees in a family action.
in awarding counsel fees, the court must consider
whether the party requesting the fees is in financial
need; whether the party against whom the fees are
sought has the ability to pay; the good or bad faith of
either party in pursuing or defending the action; the
nature and extent of the services rendered; and the
reasonableness of the fees.
[Mani v. Mani, 183 N.J. 70, 94-95 (2005) (emphasis
omitted) (citations omitted).]
Even when there is not a financial disparity between the parties, "where a
party acts in bad faith the purpose of a counsel fee award is to protect the
innocent party from unnecessary costs and to punish the guilty party." Welch
v. Welch, 401 N.J. Super. 438, 448 (Ch. Div. 2008) (citing Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000)); see also Kelly v. Kelly, 262 N.J. Super.
303, 307 (Ch. Div. 1992) (holding "where one party acts in bad faith, the relative
economic position of the parties has little relevance.").
Standing alone, the parties' dispute regarding the interpretation of the
DSA would not merit an award of counsel fees on grounds of bad faith.
However, defendant incurred substantial counsel fees due to plaintiff's admitted
refusal to comply with his obligations under the DSA to pay alimony and
transfer the residence into defendant's name. Plaintiff's stipulation that he could
pay the alimony required in DSA only compounded his bad faith refusal to pay
it. Because the record supports the bad faith finding, the judge was not required
to consider defendant's financial circumstances. Regardless, the counsel fee
award represented approximately thirty-eight percent of defendant's total
counsel fees and did not constitute an abuse of discretion.