PATRICIA WENZ VS. DEAN WENZ (FM-13-0831-16, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1703-17T2

PATRICIA WENZ,

Plaintiff-Appellant,

v.

DEAN WENZ,

Defendant-Respondent.
_________________________

Argued October 24, 2018 – Decided November 8, 2019

Before Judges Nugent and Mawla.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-0831-16.

Charles F. Shaw, III argued the cause for appellant
(Pandolfe, Shaw & Rubino, LLC, attorneys; Jeff
Thakker, of counsel; Charles F. Shaw, III, on the brief).

Thomas W. Madden argued the cause for respondent.

The opinion of the court was delivered by

NUGENT, J.A.D.
 This appeal involves a post-judgment motion in a Family Part action.

Plaintiff, Patricia Wenz, appeals from an order that denied her motion to open

discovery and modify the parties' Matrimonial Settlement Agreement (MSA).

She also appeals the award of counsel fees to defendant, her ex-husband, Dean

Wenz. Plaintiff contends defendant fraudulently withheld information about his

pension benefits. She asserts the trial court erred by finding to the contrary

without giving her the opportunity to take discovery to prove the fraud.

The parties acknowledged in the MSA that discovery was incomplete,

there was an inherent risk in waiving further discovery, but despite this risk they

had instructed their attorneys to memorialize their agreement to settle their

outstanding issues. The MSA stated that information about the disability portion

of defendant's pension was currently unknown, but plaintiff nonetheless agreed

to accept a specified monthly payment for the share of defendant's pension she

would have received in equitable distribution.

Because plaintiff's claims of fraud are speculative, and because the trial

court did not abuse its discretion by denying post-judgment discovery, we affirm

the order denying plaintiff's motion to modify the MSA. We vacate the award

of counsel fees, however, because the trial court did not consider the parties'

ability to pay and did not otherwise explain, adequately, the basis of its award.

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 I.

The parties presented these facts to the Family Part judge who denied

plaintiff's motion. The parties divorced after thirty-nine years of marriage.

When they divorced, their only child was emancipated. Plaintiff filed the

divorce complaint in November 2015. The court entered the Judgment of

Divorce (JOD) nine months later, in August 2016. The MSA the parties had

signed was attached to the JOD.

The MSA included the following paragraphs relevant to this appeal.

1. Incomplete Discovery. Both parties
acknowledge that discovery is incomplete. However,
both husband and wife are fully familiar with the issues
in dispute, as well as the assets and liabilities the[y]
attributed to the marriage. The parties acknowledge
that despite the incomplete discovery, they have
instructed their attorneys to memorialize their
agreement into this writing. Both parties have been
advised of their right to seek further discovery and
continue the divorce process. Both parties
acknowledge their formal waiver to seek any further
discovery and their willingness to enter into this
Agreement, despite the inherent risk of waiving further
discovery.

2. In signing this Agreement, the parties release his
or her attorney from any liability or responsibility
associated with this Agreement, for any reason, as
neither attorney has had an opportunity to review
completed discovery and that the discovery provided by
the parties is limited. The parties recognize that their
respective attorney only agreed to create this

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Agreement based upon the parties assurance that these
terms were fully acceptable to each party and that there
was no need to seek further discovery or expend time
or resources pursuing any further discovery. The
parties acknowledge that neither attorney has provided
any tax advice, nor does either attorney have any
expertise in such matters and that the parties have been
instructed to seek such advice from a qualified
professional if needed.

....

9. Equitable Distribution/Alimony Payment. The
parties acknowledge that the husband has a Post Office
Pension and a Department of Corrections Pension that
are both in pay status. The parties acknowledge that a
portion of the Dept. of Corrections pension is related to
the husband's disability, although the portion is
unknown. Despite the lack of complete discovery or
information, the wife agrees to accept a monthly
payment of [$1400] for her share of the husband's
pensions that she would have received in equitable
distribution. These payments shall be considered
support in the event the husband attempts [to] discharge
this obligation through bankruptcy. The parties
acknowledge that these payments may be subject to tax
or eligible for tax deduction as alimony.

....

12. The parties acknowledge their waiver to further
discovery, their right to a trial and are fully satisfied
with their entry into this Agreement. The parties
acknowledge that they are each of sound mind and not
under the influence of any substance that might alter or
inhibit their ability to fully understand this proceeding
or the magnitude of all of the provisions of this
Agreement. They further acknowledge that although

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 this agreement was written in haste, at the Courthouse,
on the day of their divorce, they have each had
sufficient time to review it and that they each
understand it and intend to fully comply with all of its
terms and provisions.

Eight months after the divorce, plaintiff filed a motion seeking, among

other relief, an increase in support and equitable distribution, one-half of an

alleged award to defendant of back pay, and a period of discovery "to bring

about full financial transparency." Plaintiff filed the motion because she had

learned defendant had received a $250,000 lump sum pension payment from the

New York State and Local Retirement System (N.Y. Retirement System).

Although the motion was unopposed, the trial court denied it.

In its written decision, the court noted that a party seeking a modification

of alimony has the burden of demonstrating a change in circumstances

warranting relief from the support or maintenance obligations. The court also

noted the party seeking such a modification must make a prima facie showing

of changed circumstances to justify a plenary hearing. Finding "the parties

addressed in their MSA the very issue [p]laintiff is raising"; finding the parties

had waived discovery despite unknowns about defendant's pension; and finding

"no indication [p]laintiff entered this agreement under fraud, duress, or

coercion"; the court denied plaintiff's unopposed motion.

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 Several months later, defendant filed a motion for an order finding

plaintiff in violation of litigant's rights. Defendant certified that contrary t o a

MSA provision that required the parties to fully cooperate with defendant's

efforts to modify the mortgage on the former marital home, plaintiff had

withdrawn her authorization for defendant's loan modification attorney to deal

directly with the lender. Defendant's loan modification attorney certified

plaintiff had contacted him and told him, among other things, she was angry

about the outcome of her previous motion and the order that denied the relief

she had requested. Plaintiff filed but withdrew a cross-motion seeking the same

relief she had requested in her previous motion to modify the MSA.

The Family Part judge who heard the motion granted defendant the relief

he had requested concerning his efforts to modify the mortgage. In addition,

finding "[p]laintiff's good faith is questionable," the judge awarded defendant

some of the counsel fees he had incurred.

The judge entered the order granting defendant's motion on September 22,

2017. Three days earlier, on September 19, plaintiff had filed another motion

to modify the MSA. The same judge denied the motion and granted defendant's

cross-motion for counsel fees. Plaintiff filed this appeal from the memorializing

order.

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 In support of her second motion seeking modification of the MSA and a

period of discovery to obtain relevant documents from the N.Y. Retirement

System, plaintiff alleged fraud rather than changed circumstances. She filed a

certification in which she acknowledged that at the time of her divorce from

defendant she knew he was receiving monthly pension payments from the N.Y.

Retirement System and the United States Postal Service, as well as social

security. She noted that in his case information statement (CIS), defendant

represented he had no other pensions. He repeated those representations in a

memorandum he had submitted to a settlement panel. Plaintiff asserted she

relied on this information when she made the decision to forego additional

discovery and sign the MSA.

Plaintiff certified defendant had received a lump sum payment of

$251,276.09, which was reflected on one of his bank account statements as well

as a retirement account statement. Plaintiff did not explain how she had come

into possession of defendant's bank statement and retirement account statement.

She merely stated, "I received both of these documents in 2017. Needless to say

they were not given to me by the [d]efendant." Plaintiff asserted she was entitled

to "half of that money in equitable distribution."

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 Plaintiff also certified she had attempted to obtain relevant documentation

from the N.Y. Retirement System, but was unable to do so without authorization

from defendant. She suggested that discovery of the information would likely

reveal defendant "knew probably more than the year before the [JOD] that he

was receiving this lump sum from the State."

Defendant filed a cross-motion seeking, among other relief, sanctions for

plaintiff's bad faith, an order compelling plaintiff to disclose under oath how she

obtained the statements, which had been mailed to him, and counsel fees and

costs. He argued that plaintiff was attempting to "skirt" her failure to move for

reconsideration or appeal from the court's May 2017 order. He alleged plaintiff

had stolen his bank statements and mail. He also alleged the issues were fully

accounted for in the MSA and previously addressed in the court's May 2017

order.

Concerning the lump sum distribution, defendant averred:

I did receive pension/disability monies in a lump sum,
but it was all known at the time of our divorce. We had
extensive discussions about the unknown quantity of
what I might receive in the future, the fact that the
disability portion would not be subject to equitable
distribution, and [plaintiff] essentially waived any right
to any distribution or receipt of additional pension
monies . . . .

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 In further support of his cross-motion, defendant included the certification

of the attorney he retained to seek a loan modification on the former marital

home. The attorney certified that after plaintiff withdrew her authorization for

him to speak directly to the lender, she telephoned him. During the

conversation, "[s]he specifically stated that she was angry at [defendant] for

receiving a job-related injury settlement and not giving her any of the money,

despite the fact that the [MSA] did not call for her receiving any of that money."

According to the attorney's certification, plaintiff made the statements "[o]n or

about August 15 th, 2017."

In a reply certification, plaintiff explained that one day while in the marital

home, she saw defendant's bank statement and annual pension statement opened

on the bed, so she photographed them with her cellular phone.

The Family Part judge denied plaintiff's motion. The judge noted

plaintiff's "request to reopen the terms of the MSA has previously been

addressed." The court cited language in the previous order confirming the court

"did not find [d]efendant's lump sum pension payment to be a change in

circumstances warranting a modification of the [p]laintiff's alimony or equitable

distribution." The judge also noted the finding in the previous order that

"[p]laintiff's newly discovered information regarding the [d]efendant's financial

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circumstances, namely his failure to mention a lump sum from his pension

payment plan, was addressed in terms of the MSA and was, therefore, not a

change in circumstances."

The court also determined plaintiff waived her right to further discovery

"multiple times in the MSA." The judge noted the MSA went to great length to

document the parties' knowledge that they were waiving further discovery and

protecting their attorneys from liability. The judge also noted plaintiff's

argument—defendant had failed to mention the lump sum payment—was

refuted by the MSA's reference to the disability claim. Concluding plaintiff had

failed to support her allegation that defendant committed fraud, the judge denied

the motion to modify the MSA, compel documentation concerning defendant's

pension, and compel defendant's New York counsel to turn over his file

concerning defendant's disability payments.

The judge also exercised her discretion to deny post-judgment discovery.

Concerning sanctions, the court awarded defendant some of the attorney's fees

he had requested. Citing the authority for awarding attorney's fees found in Rule

4:42-9(a)(1), (fee allowance in family actions), N.J.S.A. 2A:34-23 (authorizing

the court to award fees), and Rule 5:3-5 (authorizing the award of attorneys' fees

in certain family actions), the court found defendant had satisfied the

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requirements of the rules and statute. The court cited in its decision the factors

enumerated in Rule 5:3-5(c) a court should consider when awarding fees. In

addition, it cited case law requiring that a court presented with a fee application

consider such factors as financial need, ability to pay, good or bad faith of a

party, the nature and services rendered, and the reasonableness of the fees. Mani

v. Mani, 183 N.J. 70, 94 (2005).

The court noted that both attorneys had submitted certifications that were

compliant with the relevant rules and that the fees were reasonable. However,

the court decided that [a]fter review of the [Rule] 5:3-5(c) factors and the

Certification of Services," it should grant fees to defendant for all costs and fees

associated with the filing. Although neither party had submitted a current CIS,

the court found defendant had acted in good faith but plaintiff's good faith was

questionable, particularly considering she had filed multiple motions for the

same relief, some after her original motion was denied in May 2017. Moreover,

defendant had been "mostly successful in his request for relief," and plaintiff

had been "unsuccessful in her request for relief." The court concluded: "In total,

the factors indicate that the [c]ourt should award [d]efendant counsel fees for

this [m]otion." The court awarded defendant fees and costs of $3050.

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 II.

On appeal, plaintiff argues the Family Part judge erred by failing to

modify the MSA based on defendant's failure to disclose on his pre-divorce CIS,

the memorandum he submitted to a settlement panel, or the MSA, the lump sum

payment he expected to receive. Plaintiff argues that, alternatively, the Family

Part judge should have permitted discovery concerning the lump sum payment.

Last, plaintiff argues the Family Part judge abused her discretion when she

awarded defendant counsel fees.

Defendant insists the Family Part judge did not abuse her discretion.

Rather, she properly found the MSA fully accounted for the pension issue

plaintiff now raises, and plaintiff waived discovery concerning the issue.

Defendant also contends the issue plaintiff now raises was previously decided

and she did not appeal from the memorializing order.

III.

We begin with some fundamental principles that inform our review of the

trial court's decision. "New Jersey has long espoused a policy favoring the use

of consensual agreements to resolve marital controversies." Konzelman v.

Konzelman, 158 N.J. 185, 193 (1999). That is so because "[v]oluntary

agreements that address and reconcile conflicting interests of divorcing parties

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support our 'strong public policy favoring stability of arrangements' in

matrimonial matters." Ibid. (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

Thus, "fair and definitive arrangements arrived at by mutual consent should not

be unnecessarily or lightly disturbed." Id. at 193-94 (quoting Smith, 72 N.J. at

358).

Nonetheless, "'the law grants particular leniency to agreements made in

the domestic arena,' thus allowing 'judges greater discretion when interpreting

such agreements.'" Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (quoting

Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)).

This leniency is derived from the terms of the marital
agreement and the nature of some post-judgment issues,
such as custody of children and financial support for the
family, that may require modification of the marital
agreement over the years as events occur that were
never contemplated by the parties. Nevertheless, the
court must discern and implement the common
intention of the parties[,] . . . and enforce [the mutual
agreement] as written[.]

[Quinn v. Quinn, 225 N.J. 34, 46 (2016) (citations
omitted.]

In cases where equitable reasons for applying "normal tenets of contract

interpretation" do not exist, the Supreme Court has recognized that "[a] narrow

exception to the general rule of enforcing settlement agreements as the parties

intended is the need to reform a settlement agreement due to 'unconscionability,

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fraud, or overreaching in the negotiations of the settlement[.]'" Id. at 46, 47

(quoting Miller v. Miller, 160 N.J. 408, 419 (1999)). Thus, "while spousal

agreements are presumed valid, any agreement may be set aside 'when it is the

product of fraud or overreaching by a party with power to take advantage of a

confidential relationship.'" Guglielmo, 253 N.J. Super. at 541 (internal citation

omitted).

A motion to modify the equitable distribution provisions in a property

settlement agreement may be brought under Rule 4:50-1 entitled "Relief from

Judgment or Order." See Connor v. Connor, 254 N.J. Super. 591, 601 (App.

Div. 1992). The standard under Rule 4:50-1(f) "is quite different from the

changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 145-49 (1980)

which only applies to the modification of support." Ibid. (citing Schwartzman

v. Schwartzman, 248 N.J. Super. 73, 77 (App. Div. 1991)). Rather, relief from

a negotiated equitable distribution scheme "is not available absent exceptional

and . . . compelling circumstances." Ibid. Because "[a] motion under Rule 4:50-

1 is addressed to the sound discretion of the trial court," the court's decision to

grant or deny the motion "will be left undisturbed unless it represents a clear

abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283

(1994).

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 Here, plaintiff has failed to demonstrate such exceptional and compelling

circumstances as to persuade us the trial court abused its broad discretion by

denying her motion. In her previous motion, she alleged defendant's pension

payments had increased, which had resulted in the lump sum payment, and she

was thus entitled to, among other relief, an increase in alimony. The court

rejected that argument, so she now asserts defendant fraudulently withheld

information about his pension. Her allegations of fraud, however, are

speculative.

The MSA states expressly:

The parties acknowledge that a portion of the Dept. of
Corrections pension is related to the husband's
disability, although the portion is unknown. Despite
the lack of complete discovery or information, the wife
agrees to accept a monthly payment of [$1400] for her
share of the husband's pensions that she would have
received in equitable distribution.

Plaintiff does not claim that, put on notice that defendant would be

receiving a portion of his pension related to a disability, she made any inquiry

about the nature of the disability itself: its inception, its duration, or the method

by which the amount of disability would be computed. Rather than pursuing

available discovery to determine these issues, and for reasons not entirely clear

from the record, plaintiff chose to forego discovery, finalize the divorce, and

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accept monthly payments of $1400 for the share of defendant's pension she

would have received in equitable distribution.

Plaintiff's argument that she relied on defendant's CIS and a memorandum

he submitted to a settlement panel is unavailing. Plaintiff produced no evidence

that defendant knew anything more at the time he prepared those documents than

when he signed the MSA.

Plaintiff argues that the time between defendant's execution of the MSA

and his receipt of the lump sum payment is evidence defendant knew before

signing the MSA the amount he would receive. In her challenge to the court's

denial of her application, however, she implicitly concedes that only after seeing

defendant's pension documents will she know when he knew about the lump sum

and whether he committed fraud. Absent any other information concerning the

nature of the payment, whether it resulted from a disputed proceeding, resulted

from an increase in benefits as plaintiff once alleged, or how the lump sum was

computed and agreed upon, plaintiff's allegations are merely speculative.

We thus turn to plaintiff's contention the court erred by not permitting her

to take discovery concerning the lump sum pension payment to defendant. The

discretion to grant or deny post-judgment discovery in family matters rests

within the sound discretion of the trial court. Welch v. Welch, 401 N.J. Super.

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438, 446 (App. Div. 2008). The parties seeking discovery are required to make

a preliminary showing concerning its necessity. To permit unfettered post -

judgment discovery would convert motion practice into unwieldy mini -trials

resulting in lengthy delays, a situation Rule 5:5-4 was specifically adopted to

avoid. Ibid.

Here, we find no abuse of discretion on the trial court's part, particularly

because of the clear, unequivocal, repeated representations by plaintiff in the

MSA that she was knowingly and voluntarily waiving any right to additional

discovery.

IV.

We turn to plaintiff's challenge to the trial court's award of fees to

defendant. Rule 4:42-9 authorizes a court to award fees in family actions

pursuant to Rule 5:3-5(c). Rule 5:3-5(c) requires a judge to consider the

following factors: (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

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incurred to enforce existing orders or to compel discovery; and (9) any other

factor bearing on the fairness of an award. Thus, in evaluating a fee application,

a 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,

183 N.J. at 94-95.

The court in Kelly v. Kelly, 262 N.J. Super. 303 (Ch. Div. 1992),

explained the circumstances warranting the imposition of fee shifting in

matrimonial matters when bad faith is demonstrated:

Fees in family actions are normally awarded to permit
parties with unequal financial positions to litigate (in
good faith) on an equal footing. Anzalone v. Anzalone
Bros.[,] Inc. and Anzalone, 185 N.J. Super. 481, 486-
[8]7 (App. Div. 1982). With the addition of bad faith
as a consideration, it is also apparent that fees may be
used to prevent a maliciously motivated party from
inflicting economic damage on an opposing party by
forcing expenditures for counsel fees. This purpose has
a dual character since it sanctions a maliciously
motivated position and indemnifies the "innocent"
party from economic harm. Fagas v. Scott, [251 N.J.
Super. 169, 194, 197-200 (Law Div. 1991).]

[Id. at 307.]

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 Here, in awarding fees, the court acknowledged it was "not in a position

to make any assumptions regarding [the parties'] financial circumstances." The

court noted plaintiff's good faith was questionable. Finally, the court noted

defendant's relative success in requesting relief, in contrast to plaintiff, who had

been relatively unsuccessful in requesting relief. The court's analysis was

inadequate to make an award of fees to defendant.

The court was aware from the record that defendant had received a lump

sum payment of $250,000. Moreover, the court was aware from the MSA that

plaintiff had received virtually nothing in equitable distribution other than a

future payment to transfer her interest in the marital home to defendant and the

$1400 monthly payment she would receive from defendant's pension payments.

Those factors suggest a disparity in financial positions that in and of itself was

a basis for either denying counsel fees or requiring the parties to submit

additional financial information.

Moreover, unlike plaintiff's conduct when she attempted to thwart

defendant's refinancing the marital home, there was no evidence plaintiff filed

her motion in bad faith. It is not insignificant that defendant could have easily

resolved questions about the nature of his lump sum payment by producing

relevant documents. He produced no such documents in response to either of

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plaintiff's motions. Thus, though the trial court exercised its discretion in

denying plaintiff post-judgment discovery, that does not resolve the question of

whether plaintiff pursued such discovery in good or bad faith.

For the foregoing reasons, we vacate that portion of the court's order

awarding attorney's fees to defendant. We do so without prejudice to defendant

to refile the application, supported by documentation relevant to his financial

condition and the parties' good or bad faith, including the nature of the lump

sum payment he received, how it came about, and when he first applied for it.

If plaintiff opposes the motion based on ability to pay, she must also file current

financial information. Upon receipt of the required information from both

parties, the court should be in a position to make an accurate determination about

whether defendant is in financial need, whether plaintiff has the ability to pay,

and whether plaintiff acted in good or bad faith in pursuing her motion. Mani,

183 N.J. at 94-95.

Affirmed in part and vacated in part. We do not retain jurisdiction.

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