M.S.1 v. M.A.S

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         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
            this paragraph.


                   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

document's margins.

      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

in circumstances.

      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

evidence presented.

      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,

301 (1953).

      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.



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