MICHAEL C. STEELE VS. JANE D. MCDONNELL STEELE (FM-18-0584-16, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5172-18

MICHAEL C. STEELE,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. April 30, 2021

JANE D. MCDONNELL APPELLATE DIVISION

STEELE,

Defendant-Appellant.
_______________________

Argued January 27, 2021 – Decided April 30, 2021

Before Judges Ostrer, Accurso, and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0584-16.

James P. Yudes argued the cause for appellant (James
P. Yudes, PC, attorneys; James P. Yudes, of counsel;
Kevin Mazza and Elsie Gonzalez, on the briefs).

Thomas D. Baldwin argued the cause for respondent
(Chiesa Shahinian & Giantomasi, PC, attorneys;
Thomas D. Baldwin, on the brief).

The opinion of the court was delivered by

ENRIGHT, J.A.D.
 Defendant Jane D. McDonnell Steele appeals from a declaratory judgment

finding the marital agreement (MA) she and plaintiff Michael C. Steele signed

after the parties' marriage was a valid, enforceable agreement. Additionally,

defendant appeals from the final judgment of divorce (JOD) which

incorporated the MA. We conclude the trial court erred by deeming the MA to

be in the nature of an enforceable pre-marital agreement. Further, we are

convinced the inherently coercive circumstances accompanying the negotiation

and execution of the MA here warrant heightened judicial scrutiny to assure it

was fair and equitable. We reverse the declaratory judgment and that portion

of the JOD which enforced the MA, vacate the denial of defendant's counsel

fee request, and remand for further proceedings. Moreover, we identify

several factors the trial court should consider on remand when assessing

whether to enforce the agreement.

I.

Each party was previously married and divorced before the parties began

dating in 1989. Plaintiff had no children from his first marriage; defe ndant

had a son from her prior marriage. Defendant received no financial settlement,

aside from child support payments, when she divorced her first husband.

Once the parties' relationship intensified, defendant relocated with her

son from California to New Jersey, and the parties began living together in the

A-5172-18
2
summer of 1990. During their courtship, plaintiff told defendant, a

schoolteacher, that he operated several businesses. Years later, when

defendant was asked in her deposition whether plaintiff "came from reasonable

wealth" "along the lines of [her] upbringing," defendant answered

affirmatively. However, the term, "reasonable wealth," was not defined.

Defendant also testified that from the inception of the parties' relationship,

plaintiff "never told [her]" "how much money he ma[de]," even though she

asked him.

In January 1990, almost two years before the parties' marriage, plaintiff

retained a New York law firm to draft a premarital agreement (PMA) for his

review. That same month, he received an initial draft of a PMA, which

provided that in the event of a divorce, his future ex-spouse would receive

$3000 per month in taxable alimony, for the number of months equal to the

number of months the parties were married. Approximately one week later,

plaintiff's attorney forwarded a revised PMA to plaintiff "with the dollar

amounts deleted," which would "enable [plaintiff] . . . to give this to a possible

future fiancé[e] without getting into financial details, which vary, of course,

with each individual situation." Plaintiff testified that before he proposed to

defendant, he did not discuss any terms of a PMA with her.

A-5172-18
3
 In January 1991, unbeknownst to defendant, plaintiff's counsel obtained

the name of an attorney in New Jersey who could represent defendant in the

event a PMA were to be negotiated between the parties. When this referral

was provided, the parties were not yet engaged, and there is no evidence

plaintiff or his counsel informed defendant of the referral at that time.

Nonetheless, plaintiff's attorney wrote to the attorney who provided the

referral, stating, "[w]e have recommended the name to a Jane D. McDonnell of

Gladstone who we hope will be calling, although it is possible she will retain

some other attorney."

Plaintiff's counsel commenced working with plaintiff's accounting

employee to draft a financial disclosure statement to accompany a proposed

PMA. On January 8, 1991, plaintiff's counsel sent plaintiff a draft financial

disclosure statement for his review. The disclosure described plaintiff's six

primary assets as follows: (1) more than 96% common stock interest in R.

Markey & Sons, Inc., valued at $8,000,000 to $10,000,000 "based on a

multiple of 1990 earnings"; (2) an approximate 30% interest in a revocable

trust dated February 20, 1978, created by the children of Edward C. Steele,

with Edward C. Steele as Trustee, valued at approximately $369,394; (3) an

interest in an irrevocable trust dated February 19, 1972, as amended December

20, 1976, holding "extremely valuable" shares of E.C. Steele, Inc.; (4) a 70%

A-5172-18
4
interest in a cooperative apartment in New York City, conservatively valued at

$225,000; (5) a trust created by Suzanne C. Steele with a fair market value of

$60,000; and (6) "other property," including furniture and personal effects not

exceeding $50,000. The disclosure statement concluded with the following

language:

In summary, Mr. Steele's personal net worth could be
as high (or higher) as $12,000,000 plus a very
substantial beneficial interest in the Irrevocable Trust
containing stock of E.C. Steele Co., Inc., and
containing reinvested dividends from E.C. Steele Co.,
Inc. These values could go up very substantially over
the years. In addition, Mr. Steele has an expectancy
of inheriting ultimately very substantial assets from
his father and mother.

II.

Defendant accepted plaintiff's marriage proposal in the spring of 1991.

A few weeks after he proposed, plaintiff informed defendant for the first time

that he wanted her to sign a PMA. According to plaintiff's deposition

testimony, defendant's reaction was "initially negative. She resisted the idea."

Plaintiff also testified he had a few more conversations with defendant about

signing a PMA but she continued to be unwilling. However, contrary to

defendant's testimony, he asserted that sometime between July and September

1991, defendant relented and was willing to sign a PMA. Despite the fact

plaintiff had drafts of a PMA and financial disclosure statements, there is

A-5172-18
5
nothing in the record to demonstrate he presented defendant with these

documents prior to the wedding. In fact, during his deposition, plaintiff

specifically was asked if he showed a draft PMA or his prepared financial

disclosure statements to defendant prior to the marriage. He answered,

"Probably not." He provided the same response when asked if prior to the

marriage, he told defendant he had an accountant prepare his financial

disclosure statements, or whether he discussed terms he would offer defendant

under the PMA.

Defendant testified that when plaintiff first asked her to sign a PMA, he

mentioned people "would" or "might" "lose their jobs" if she did not sign the

PMA. Plaintiff denied making any such statement. Defendant also testified

that after the parties' engagement, plaintiff asked her a number of times to sign

a PMA. Defendant declined these requests and recalled that each discussion

on this topic lasted for approximately one minute. She viewed the PMA as

"this thing that was very distrustful that he wanted to insert into our marriage,

and I wanted nothing to do with it." Still, she acknowledged the issue of a

PMA "was always there between us" "[w]hether we talked about it or not."

She explained that during their brief conversations about the PMA, plaintiff

was "at times frustrated, at times angry, and he just got really quiet and

wouldn't talk to me, and was clearly upset. And that continued throughout the

A-5172-18
6
entire time period while I was being asked to sign this agreement." Neither

party asserts plaintiff threatened not to marry defendant if she refused to sign a

PMA.

Defendant acknowledged that even though plaintiff did not share

information with her about his financial circumstances prior to the marriage, it

did not matter to her whether he was "worth a billion [dollars] or worth zero."

Defendant testified she did not care "what his economic circumstance was" and

she would have married plaintiff "anyway" because the parties "were madly in

love."

III.

Defendant became pregnant in October 1991. The parties arranged to be

married in Paris on November 30, 1991. Shortly after the wedding ceremony,

plaintiff again requested that defendant sign a PMA. On December 30, 1991,

defendant retained the attorney recommended to plaintiff's counsel in January

1991, so the parties could commence negotiating an agreement. Plaintiff

received and paid the invoices from defendant's attorney.

Shortly after defendant retained counsel to negotiate the MA, she

provided her attorney with an informal accounting of her property and inc ome.

On January 23, 1992, defendant's attorney wrote to plaintiff's attorney,

requesting changes to what she referred to as the parties' "premarital

A-5172-18
7
agreement," even though the parties were married by this time. One of the

changes involved increasing the proposed taxable alimony figure from $3000

to $5000 per month for each month the marriage endured, in the event the

parties divorced. This requested change was accepted by plaintiff. Also,

defendant's attorney asked for the equitable distribution section of the

agreement to be modified to reflect that if the parties remained married for

over five years, defendant would receive $50,000 versus $35,000 in equitable

distribution payments for each year the marriage lasted. Plaintiff rejected this

change. Significantly, even though defendant was pregnant when the parties

negotiated the terms of the MA, her attorney made no request to modify the

proposed MA to include a provision for child support or life insurance for the

child's benefit after her birth.

On February 12, 1992, plaintiff's attorney disclosed to defendant's

counsel that he "circulated" a "draft premarital agreement" prior to the parties'

marriage, but he did not identify who received the draft. The letter also

addressed changes to the agreement proposed by defendant's counsel and

referred to the parties' draft agreement as the "Steele/McDonnell Marital

Agreement." Defendant's attorney then forwarded the letter to defendant for

her review. Several weeks later, defendant's attorney wrote to plaintiff's

counsel and requested that the MA include a clause confirming, "the parties

A-5172-18
8
have fully intended at all times to enter into this agreement but were married

prior to its execution, and nonetheless desire that the Agreement be executed

by them and deemed enforceable in a court of law, consistent with their

intentions and wishes." Plaintiff accepted this change.

A revised draft of the MA was submitted to defendant's attorney on

April 22, 1992. Although the parties appeared at the office of defendant's

attorney in April 1992 to sign the updated MA, the meeting was adjourned

after defendant stated she thought she "should ask for something" and her

attorney reportedly "threw the question back at" her, responding, "well, what

do you want?" Defendant recalled that in this moment, she did not know what

she should be "asking for" and that her attorney "was absolutely no help to

[her] at all." Defendant later testified she "never felt like [her attorney] was

[her] advocate."

Additionally, in April 1992, the parties selected, and plaintiff purchased

the parties' first marital home. Plaintiff paid $406,000 for the home, subject to

a $170,000 mortgage, and placed title to the marital residence in his name

alone.

In early June 1992, plaintiff's attorney revised the financial disclosure

statement to accompany the MA and submitted it for review by plaintiff's

accounting employee. The updated financial disclosure statement referenced

A-5172-18
9
plaintiff's income and seven primary assets, namely: (1) 95.6% interest in the

common stock of R. Markey & Sons, Inc., with a "total estimated value of

$3.7-4.2 million" based on a "downturn in 1991," together with 21% of the

common stock of Keymar, Inc., worth approximately $551,800; (2) 37.4%

interest in the Revocable Trust dated February 20, 1978, created by Edward C.

Steele, with Edward C. Steele as Trustee, worth approximately $505,000; (3)

an interest in the Irrevocable Trust dated February 19, 1972, as amended

December 20, 1976, holding the "extremely valuable shares of stock in E.C.

Steele Co., Inc."; (4) plaintiff's New York cooperative apartment, which was

noted as sold, with the proceeds returned to the Revocable Trust; (5) the trust

under the Will of Suzanne C. Steele worth approximately $96,000; (6) whole

ownership of Steele Associates, Inc., worth approximately $82,000; and (7)

other property including IRAs worth $26,000, securities worth $40,000,

personal property not exceeding $125,000 in value, and a home in Far Hills

worth $406,000 with a $170,000 mortgage. The updated financial disclosure

statement reflected a marked decrease from the first statement as to the value

of R. Markey & Sons, Inc. Also, the statement indicated different accounting

methods were used to calculate the values of plaintiff's companies and did not

reflect plaintiff's companies made certain distributions to him in 1991 totaling

over $300,000.

A-5172-18
10
 In June 1992, plaintiff's attorney forwarded a revised MA to defendant's

attorney for her review. On July 10, 1992, plaintiff's attorney forwarded a

"final" copy of the MA to plaintiff, asking him to review and sign it. Further,

plaintiff's attorney requested that plaintiff deliver his signed copy to defendant

for consideration and review with her attorney.

The parties' first child was born in July 1992. When defendant's former

counsel was deposed in 2018 about her role in negotiating the terms of the

MA, she testified she had no recollection of defendant being pregnant or

having any special health problems at that time. Asked if she would have had

"concerns about a pregnant woman who's married and about to give birth

entering into a post-marital agreement," defendant's former counsel stated, "I

think so." Additionally, during the deposition of defendant's former counsel,

the following exchange occurred between her and defendant's current counsel:

Defendant's Current Counsel: Do you have any
recollection of this case at all in terms of the parties or
what happened in this case?

Defendant's Former Counsel: No.

Defendant's Current Counsel: So when [plaintiff's
counsel] asked you what you did or what you didn't
do, that's not based upon any recollection of [the] time
whatsoever, correct?

Defendant's Former Counsel: Correct.

A-5172-18
11
 Defendant's Current Counsel: It's simply conjecture
on your part of what you would have or might have
done, correct?

Defendant's Former Counsel: Correct.

IV.

The parties signed their MA on August 4, 1992. Defendant testified that

when she signed the MA in her attorney's office, she "didn't read the whole

thing." She remembered "looking at . . . Schedule B," which reflected her

husband's financial information. But she testified the MA was "difficult for

[her] to understand, and so [she] skipped to the part where it said the $35,000

and the $5,000 a month . . . to make sure it was in there." Further, she

affirmed that when she signed the MA, she was "breastfeeding on demand

every two hours, and was completely sleep deprived." She "decided to sign

the agreement to make [her] husband happy."

The MA was executed in four counterparts, and contained Exhibits A

and B. Exhibit A was a single page in length. It described defendant's

financial circumstances, including that she held a one-sixth income interest in

a trust, generating $6000 in annual income. Additionally, the exhibit listed

defendant's personal possessions of nominal value, her $10,000 student loan

debt, earned income of $1100 per month, and child support of $350 per month

for her son from her first marriage.

A-5172-18
12
 In contrast, Exhibit B was seven pages long and outlined plaintiff's

assets, liabilities, and income. The exhibit identified his assets as including:

(1) 95.6% interest in the common stock of R. Markey
& Sons, Inc., with a "total estimated value of $3.7-4.2
million" in light of a "downturn in 1991," together
with 21% of the common stock of Keymar, Inc., worth
approximately $551,800; (2) 37.4% interest in the
Revocable Trust dated February 20, 1978, created by
Edward C. Steele, with Edward C. Steele as Trustee,
worth approximately $505,000; (3) an interest in the
Irrevocable Trust dated February 19, 1972, as
amended December 20, 1976, holding the "extremely
valuable shares of stock in E.C. Steele Co., Inc."; (4)
the New York cooperative apartment was noted as
sold, with the proceeds returned to the Revocable
Trust; (5) the trust under the Will of Suzanne C. Steele
worth approximately $96,000; (6) whole ownership of
Steele Associates, Inc., worth approximately $82,000;
and (7) other property including IRAs worth $26,000,
securities worth $40,000, personal property not
exceeding $125,000 in value, and a home in Far Hills
worth $406,000 with a $170,000 mortgage.

Exhibit B also described plaintiff's personal net worth "as high as

$9,000,000 (or higher), plus a very substantial beneficial interest in the

Irrevocable Trust." It further stated: "[t]hese values could go up very

substantially over the years. In addition, [plaintiff] has an expectancy of

inheriting ultimately very substantial assets from his father and mother." Also,

Exhibit B reflected plaintiff's estimated income from various sources,

including his 1991 salary and bonus, which totaled $184,804. According to

defendant, Exhibit B did not reflect all of plaintiff's assets or income, such as

A-5172-18
13
"additional distributions" he received from his companies in 1991, and a

pension plan from R. Markey & Sons, in which plaintiff held an interest.

Nonetheless, the MA confirmed the parties were represented by counsel, were

"fully aware of each other's holdings" and "the parties . . . fully intended at all

times to enter into this agreement, but were married prior to its execution, and

nonetheless desire that the Agreement be executed by them and deemed

enforceable." Another clause in the MA stated defendant "declares and

acknowledges that [plaintiff] has informed her that his current net worth and

other assets and liability, and income are the approximate amount shown on

Exhibit B."

Paragraph 7.5 of the MA stated any party who attempted through legal

action "to vary the terms of" the MA became liable to pay "liquidated

damages" to satisfy the other party's "costs and expenses incurred" to defend

against the action. Also, the MA contained a waiver of estate rights, including

a waiver of each party's elective share, and stated that "no representations or

promises of any kind have been made to [either party] with respect to any

bequest, other testamentary benefit or appointment, or beneficial interest of

any nature." On the other hand, the MA specified plaintiff would establish an

estate plan to effectuate the MA's alimony and equitable distribution

A-5172-18
14
provisions "as if the parties' fifth wedding anniversary had already occurred

and the marriage had been dissolved thereafter."

The MA further confirmed each party would retain ownership of any

separate property, as set forth in Exhibits A and B of the MA. Additionally,

paragraph 1.3 of the MA described marital property as property the parties

acquired or purchased during the marriage that was owned or jointly held by

them. But this paragraph also specified that the term, "marital property,"

excluded "all real property jointly owned or held that is used . . . for residential

or vacation purposes." Therefore, although plaintiff purchased more than one

marital home in his name alone, including the home bought before the MA was

executed, defendant acquired no interest in same. Moreover, except for a joint

bank account used by plaintiff to deposit defendant's monthly allowance,

defendant contends no property was purchased or acquired in joint names

throughout the parties' twenty-four-year marriage.

The MA also stated if the parties divorced and any child born of or

adopted during the marriage had not reached majority, the marital residence

would not be sold until the earliest of the following events: all children were

emancipated or attained the age of twenty-three, or until the spouse living in

the home remarried or cohabited for over thirty days. Importantly, the MA

called for the custodial parent who remained in the marital residence to be

A-5172-18
15
responsible for all carrying charges on the home. Plaintiff's 2016 Case

Information Statement represented the parties' monthly shelter expenses,

exclusive of his New York apartment, totaled over $9000.

Under the terms of the MA, if either party filed for divorce after five

years of marriage, defendant was entitled to receive equitable distribution

payments in the sum of $35,000 for each year of marriage, to be adjusted

based on the Consumer Price Index. Defendant was to receive no such

equitable distribution payment if either party commenced an action to dissolve

the marriage less than five years after the parties wed.

Regarding spousal support, the MA provided that in the event of a

divorce, plaintiff would pay defendant taxable alimony of $5000 per month for

each month the parties were married, to be adjusted based on the Consumer

Price Index. Such payments terminated upon defendant's death, remarriage, or

cohabitation. Significantly, defendant was earning $11,000 a year as of June

1992, but stopped working at that time, anticipating the birth of the parties'

first child. Therefore, she had no earned income when she signed the MA.

She remained at home until 2013 to raise the parties' children.

The MA made no provision for child support or custody, even though the

parties' first-born daughter was nearly a month old when the MA was

executed. In fact, at Paragraph 5.1, the MA stated:

A-5172-18
16
 Each party acknowledges that no provision has been
made herein for the support or custody of children
who may be born or adopted into the marriage, and
they agree to defer consideration of such support or
custody for determination under the circumstances
that may exist at such future time as those issues may
arise.

According to the deposition testimony of defendant's former counsel, if she

knew defendant had just given birth a few weeks before the MA was signed,

she would have advised defendant not to sign the MA.

We also observe that paragraph 6.3 of the MA states:

This Agreement was first presented to [plaintiff] on or
about April 24, 1992, and to [defendant] on or about
April 30, 1992. Negotiations directly between them
and between their respective counsel began before the
marriage and continued after their wedding to account
for their marital status. Each party acknowledges that
he or she has had ample time to consider all of the
provisions and consequences of this Agreement and to
consult with his or her separate legal counsel.

[Emphasis added.]

However, negotiations between the parties and their respective counsel did not

begin prior to the parties' marriage, and the parties acknowledged as much

during their respective depositions. Defendant's former counsel also testified

she did not negotiate the terms of the MA before December 1991 and could not

have, because she was not retained until that month.

A-5172-18
17
 V.

Plaintiff filed a complaint for divorce in December 2015. The parties

attempted to mediate their differences but were unsuccessful. In February

2018, plaintiff sought a declaratory judgment to enforce the MA or

alternatively, to limit the scope of discovery to issues relating to the formation

of, and entry into, the MA, rather than the adequacy of financial disclosure

leading to its execution. Defendant filed a cross-motion, opposing

enforcement of the MA and asking that it be declared void ab initio;

alternatively, defendant sought to compel plaintiff to provide discovery

regarding the sufficiency of his financial disclosure when the parties

negotiated their MA. By order dated April 19, 2018, the trial court denied

plaintiff's motion for a declaratory judgment; determined a plenary hearing

was necessary to address the enforceability of the MA; denied plaintiff's

request that discovery be limited to "issues relating to the formation and entry

into the agreement, but not to the adequacy of financial disclosure"; granted

defendant's request that plaintiff comply with discovery, "including with

respect to the adequacy of the financial disclosure at the time the parties

entered into the agreement"; and ordered broad discovery, so the court could

determine "whether defendant voluntarily and knowingly entered into the

agreement . . . and [determine] the financial disclosures provided by plaintiff

A-5172-18
18
throughout preparation of the agreement and thereafter." (Emphasis added).

The order called for the parties to propound interrogatories and notices to

produce, as well as depose each other and fact witnesses.

Both parties moved for reconsideration of this order; their motions were

denied on June 15, 2018. By way of a separate order entered the same day, the

trial court also denied plaintiff's request for a stay of the denial of his

reconsideration request. The judge reasoned, in part, "the relative balance of

hardships favors a full and fair hearing with liberal discovery as to the parties'

finances, both at the time the parties executed the putative agreement, and

presently." (Emphasis added). Both parties moved for leave to appeal.

On August 10, 2018, we granted plaintiff's motion for leave to appeal

and denied defendant's cross-motion for leave to appeal. We summarily

reversed the June 15, 2018 discovery order "to the extent it provided for broad

and liberal pre-plenary hearing discovery." Additionally, we ordered

the Family Part to enter a modified order limiting pre-
plenary hearing discovery to issues relating to the
formation and signing of the August 4, 1992 Marital
Agreement. Thus, the pre-plenary hearing discovery
will address the events, communications,
representations, and circumstances - including
plaintiff's financial circumstances - at or about the
time of the August 4, 1992 Marital Agreement, and
relevant matters that preceded the Marital Agreement.

A-5172-18
19
Thereafter, the parties engaged in limited discovery, which included their

depositions, and the deposition of defendant's former attorney, given her role

in negotiating the MA on defendant's behalf.

On April 30, 2019, defendant filed a motion for partial summary

judgment, seeking to have the MA deemed a post-nuptial agreement, and

adjudicated as void ab initio. Alternatively, she asked that the court render the

MA unenforceable, arguing it was inequitable when it was executed since

plaintiff "failed to fully disclose his assets at the time of negotiating and

entering" the MA. She also contended it was unfair to enforce the MA under

her existing circumstances. Parenthetically, the record reflects that when

plaintiff initiated divorce proceedings in 2015, defendant had only recently re-

entered the job market, her annual earnings were less than $2000, and her

earnings were supplemented with dividend income of approximately $16,000

per year.

Plaintiff cross-moved for a declaratory judgment to enforce the MA.

The trial court conducted oral argument on the cross applications on May 31,

2019, during which plaintiff's counsel argued, "[t]here can be no reasonable

question that this is, as I've characterized it, a premarital agreement disguised

as a marital agreement, only by virtue of the timing." At the conclusion of the

hearing, the judge reserved his decision.

A-5172-18
20
 On June 28, 2019, the judge denied defendant's motion, and granted

plaintiff's cross-motion. In his lengthy written opinion, the judge found the

MA was akin to a PMA and enforceable. He acknowledged plaintiff's position

that the MA "constitutes a premarital agreement," "[d]espite the signing of the

agreement subsequent to the date of marriage." Further, the judge identified

201 paragraphs of undisputed facts taken "verbatim" from the parties'

submissions and found these facts were "not in dispute between the parties and

are sufficient to decide the case." Considering these facts, the judge analyzed

the definition of a premarital or pre-civil union agreement, as defined by the

2013 version of the Uniform Premarital and Pre-Civil Union Agreement Act

(Act), N.J.S.A. 37:2-31 to -41.1 He observed N.J.S.A. 37:2-32 defined a

premarital or pre-civil union agreement as "an agreement between prospective

spouses or partners in a civil union couple made in contemplation of marriage

or a civil union and to be effective upon marriage or upon the parties

establishing a civil union." (Emphasis added).

The judge then distinguished the parties' MA from the mid-marriage

agreement referenced in Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div.

1999). He concluded that unlike the wife in Pacelli who was presented with a

1
Reference to pre-civil union agreements was added to the short title in 2006.
See L. 2006, c. 103, § 26.

A-5172-18
21
mid-marriage agreement on a "take it or leave it" basis, here "some form of a

marital agreement was contemplated" by defendant prior to the parties'

marriage, and she was able to negotiate an "upward adjustment in her

entitlement" under the MA. He also compared defendant's circumstances to

those set forth in an unpublished appellate decision, which he found to be

"extremely similar" to the instant matter. The judge noted that in the

unpublished case, we found the agreement to be an enforceable PMA due to

the "relatively brief time which ha[d] elapsed since the parties['] nuptials."

Accordingly, the judge "adopt[ed] the same view," and found the MA in the

instant matter was similar to a PMA and enforceable. He stated,

in the present set of circumstances, the only thing that
appears to have prevented these parties from entering
into the agreement prior to marriage is that defendant
became pregnant with their first child. Subsequent to
the birth of the child, almost immediately thereafter,
the parties signed and entered into the Marital
Agreement.

The judge also rejected defendant's claim that plaintiff fraudulently

withheld financial information from her or that she was under duress when she

signed the MA. On the other hand, the judge found plaintiff "used before -tax

figures for some of his businesses and after-tax figures with regard to other

businesses. This affected his disclosure of income and valuations in his

businesses, resulting in differences of millions of dollars that he avoided

A-5172-18
22
disclosing." (Emphasis added). Additionally, the judge found the MA did

"not disclose . . . the value of plaintiff's share of the irrevocable trust dated

February 18, 1972, as amended December 20, 1976." Still, the judge

determined plaintiff did not knowingly undervalue his assets to avoid fully

disclosing material information to defendant. Further, the judge determine d

defendant failed to "ask questions or retain a financial expert" so the impact of

plaintiff's disclosures was "significantly offset by her lackluster desire" to

ascertain the true extent of plaintiff's finances. Moreover, the judge concluded

defendant did not demonstrate she relied on plaintiff's disclosures, since she

admitted in her deposition she read very little of the agreement, including

Schedule B. Also, the judge found defendant signed the MA "endorsing her

support that whatever disclosure was provided was sufficient to her," and he

concluded her previous counsel "obtained positive results" for her, including

"more favorable alimony and equitable distribution" provisions in the MA.

VI.

On appeal, defendant offers the following arguments for our

consideration:

POINT I

THE TRIAL COURT ERRED AS A MATTER OF
LAW IN DETERMINING THAT THE AUGUST 4,
1992 AGREEMENT WAS A PREMARITAL
AGREEMENT, AND AS SUCH ITS GRANTING OF

A-5172-18
23
DECLARATORY JUDGMENT TO THE PLAINTIFF
AND DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT ON THE ISSUE MUST BE
REVERSED.

A. THE TRIAL COURT ERRED BY
IGNORING THE LIMITS OF [ITS] AUTHORITY
AS DETERMINED BY THE LEGISLATURE IN
ESTABLISHING THAT A PRENUPTIAL
AGREEMENT MUST BE ENTERED INTO PRIOR
TO A PARTIES['] MARRIAGE, AND VOIDED
LEGISLATIVE INTENT.

B. THE TRIAL COURT ERRED IN RELYING
UPON AN UNREPORTED DECISION WHICH WAS
NOT CONTROLLING AND CLEARLY
DISTINGUISHABLE AS PRECEDENT IN MAKING
[ITS] DETERMINATION THAT THE AUGUST 4,
1992 AGREEMENT WAS PREMARITAL.

POINT II

BESIDES ITS ERROR IN RELYING UPON THE
UNPUBLISHED . . . CASE IN FINDING THE
AGREEMENT TO BE PREMARITAL, THE TRIAL
COURT FAILED TO APPLY THE CORRECT
STATUTE IN ENFORCING SAME.

POINT III

THE TRIAL COURT ALSO COMMITTED
REVERSIBLE ERROR BY FAILING TO MAKE
FINDINGS OF FACT REGARDING THE
ENFORCEABILITY OF A PRENUPTIAL
AGREEMENT UNDER THE ACT.

A-5172-18
24
 POINT IV

THE TRIAL COURT ERRED AS A MATTER OF
LAW IN REFUSING TO RECOGNIZE THE
PARTIES' AUGUST 4, 1992 AGREEMENT AS A
POSTNUPTIAL OR MID-MARRIAGE
AGREEMENT, AND IN SO DOING THE
DIFFERING STANDARD GOVERNING THEIR
ENFORCEABILITY.

POINT V

THE TRIAL COURT ERRED IN FAILING TO
GRANT DEFENDANT'S REQUEST FOR FINDING
AS A MATTER OF LAW THAT THE AUGUST 4,
1992 MARITAL AGREEMENT WAS VOID AB
INITIO AND/OR NOT FAIR AND EQUITABLE AT
THE TIME [] ENFORCEMENT WAS SOUGHT.

POINT VI

THE TRIAL COURT ERRED IN ESSENTIALLY
GRANTING SUMMARY JUDGMENT IN FAVOR
OF THE PLAINTIFF WHEN THERE WERE
MATERIAL FACTS IN CONTROVERSY.

POINT VII

THE TRIAL COURT ERRED IN FAILING TO
AWARD COUNSEL FEES TO THE DEFENDANT.

As a threshold matter, we agree with the contentions raised by defendant

in Points I, II and IV. Accordingly, we remand this case for further

proceedings and discovery consistent with this opinion, and are satisfied we

need not reach the arguments raised in Points III and VI. To the extent

defendant contends in Point V that the trial court erred in failing to recognize

A-5172-18
25
the parties' MA was void ab initio, we find this argument unpersuasive for the

reasons set forth herein.

We review summary judgment using the same standard that governs the

trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016). As the parties agreed on the material

facts for purposes of the motion, our task is limited to determining whether the

trial court's ruling on the law was correct. Manalapan Realty, LP v. Twp.

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

Relevant New Jersey caselaw typically references three types of marital

agreements, namely PMAs, mid-marriage agreements, and property settlement

agreements. We acknowledge the circumstances surrounding the execution of

the MA make it somewhat difficult to conclude it belongs in any of these three

categories. But ultimately, we are persuaded under the totality of

circumstances, the parties' MA deserves the heightened scrutiny we have

applied to mid-marriage agreements, as in Pacelli. Much like other agreements

between partners or spouses, the MA need not bear a specific label for us to

address its enforceability.

Ordinarily, "[p]re-nuptial agreements establishing post-divorce

obligations and rights should be held valid and enforceable." Hawxhurst v.

Hawxhurst, 318 N.J. Super. 72, 80 (App. Div. 1998) (citing Marschall v.

A-5172-18
26
Marschall, 195 N.J. Super. 16, 27 (Ch. Div. 1984)). Such agreements made in

contemplation of marriage are enforceable if they are fair and just. Pacelli,

319 N.J. Super. at 189; DeLorean v. DeLorean, 211 N.J. Super. 432, 435 (Ch.

Div. 1986); Marschall, 195 N.J. Super. at 28, 31. The public policy supporting

enforcement of a pre-nuptial, as opposed to a post-nuptial, agreement is that

one party remains free to walk away before the marriage takes place. Pacelli,

319 N.J. Super. at 189-90, 195. Still, unconscionable PMAs are not

enforceable. Rogers v. Gordon, 404 N.J. Super. 213, 219 (App. Div. 2008)

(quoting Marschall, 195 N.J. Super. at 29-31).

Conversely, mid-marriage agreements are generally unenforceable as

they are "inherently coercive." Pacelli, 319 N.J. Super. at 191. A mid-

marriage agreement is "entered into before the marriage [has] lost all of its

vitality and when at least one of the parties, without reservation, want[s] the

marriage to survive." Id. at 190-91. Such agreements are carefully reviewed

because they are "pregnant with the opportunity for one party to use the threat

of dissolution 'to bargain themselves into positions of advantage.'" Id. at 195

(citation omitted).

Property settlement agreements generally are enforceable, so long as

they are "fair and equitable," as they assume the parties stand in adversarial

positions and negotiate in their own self-interest. Lepis v. Lepis, 83 N.J. 139,

A-5172-18
27
148-49 (1980). Property settlement agreements are prepared in contemplation

of divorce, "when relations have already deteriorated. Discovery is available,

parties usually deal at arms length and the proceeding - almost by definition is

adversarial." Marschall, 195 N.J. Super. at 29.

Given these legal precepts, we are persuaded the trial court mistakenly

found the MA was in the nature of a PMA and enforceable under the 2013

version of the Act to enforce it. In reaching this conclusion, we note when we

conducted oral argument, plaintiff's counsel promptly conceded the MA was

not a premarital agreement. Additionally, the MA simply is not a PMA, given

that the Act defines a premarital agreement as "an agreement between

prospective spouses … made in contemplation of marriage … and to be

effective upon marriage." N.J.S.A. 37:2-32 (emphasis added). Further, the

MA was not "in the nature of a PMA" as argued by plaintiff, because it was

not negotiated and executed under the circumstances common to actual PMAs.

Indeed, the parties could have, but did not negotiate or execute the MA upon

their engagement, or when defendant became pregnant. This is significant

because prior to the parties' engagement, plaintiff already had worked with

counsel to prepare more than one draft of a PMA and, with the assistance of an

accounting employee, had prepared financial disclosure statements. Also,

almost a year before the parties married, plaintiff obtained a referral for an

A-5172-18
28
attorney he thought could assist defendant in negotiating an agreement. Yet,

plaintiff did not submit a draft PMA or draft financial disclosure statement to

defendant for her review, nor reveal the name of the attorney referred to him

until after the parties married. Further, defendant did not retain counsel to

assist her in negotiating the terms of the MA until about a month after the

wedding. Also, the first time defendant saw a draft of the MA, she was well

into her pregnancy, and it was not until several months after the parties

married and purchased a home that they signed the MA. Because the MA was

neither a PMA nor in the nature of one, it is not entitled to any presumption in

favor of enforceability. Even if the MA qualified as a PMA, which it does not,

the 2013 iteration of the Act would not have governed its enforceability, given

its effective date; instead the 1988 version of the Act would have applied to a

PMA executed in 1992. The language of the 1988 version allowed for a

separate determination of whether a premarital agreement is unconscionable,

apart from reasons established in its subsections. By comparison, the 2013

version of the statute only allowed for a determination of unconscionability for

the reasons established in its subsections.

We also are convinced the parties' MA does not qualify as a property

settlement agreement. Plainly, it was not executed in contemplation of a

A-5172-18
29
divorce, whereby each party's economic rights would be fixed upon the entry

of a divorce judgment.

The parties' MA also differs somewhat from the mid-marriage agreement

referenced in Pacelli. In Pacelli, the parties had been married for ten years and

had two children when the husband informed his wife "he would divorce her

unless she agreed to certain terms regarding their economic relationship. To

punctuate his demand, [the husband] moved out of the marital bedroom and

into an apartment above their garage." Pacelli, 319 N.J. Super. at 187. The

wife wanted to "preserve the marriage and did not want her children to grow

up in a broken family," so she signed the mid-marriage agreement contrary to

her attorney's advice. Id. at 188.

Unlike the scenario in Pacelli, here, neither party was threatened with

divorce or separation to prompt the execution of a marital agreement. Instead,

both parties were happily married when they negotiated and signed their

agreement. Even defendant's counsel admitted during oral argument on May

31, 2019, as he argued in favor of summary judgment, this case was "not [like]

Pacelli because they were both happily married and testified to that."

Nevertheless, defendant, like the wife in Pacelli, already had entered the

legal relationship of marriage when she signed the MA. She also had left her

teaching job and given birth to the parties' daughter a mere few weeks prior to

A-5172-18
30
signing the MA. Defendant's former counsel had no recollection of defendant

being pregnant or having any special health problems at the time the

agreement was executed, but in her deposition, she testified she thought she

would have had "concerns about a pregnant woman who's married and about to

give birth entering into a post-marital agreement."

Additionally, when defendant recalled her circumstances at the time the

MA was executed, she testified, "[a]sking me to sign the agreement three

weeks after our child was born felt a little confrontational and opportunistic."

Further, as already mentioned, she stated that after she gave birth, but before

she signed the MA, plaintiff was "at times frustrated, at times angry, and he

just got really quiet and wouldn't talk to me and was clearly upset. And that

continued throughout the entire time period while I was being asked to sign

this agreement." Believing there were consequences to not signing the MA,

defendant explained there was the "possibility that I could become incredibly

vulnerable without support, being a mother of two children. Additionally, she

testified:

I felt tremendous pressure by him. I felt like he was
never ever going to let it go. That it was just going to
go on and on and on, and it would always be there,
and he would always be coming to me and pressuring
me to sign the agreement.

A-5172-18
31
 Under these circumstances, we have little difficulty concluding the

parties' MA is in the nature of a mid-marriage agreement and deserves

heightened scrutiny. Certainly, just as in the Pacelli case, there was a marriage

and a family to preserve. Moreover, though the purported pressure placed on

defendant differs from the tactics employed by the husband in Pacelli,

plaintiff's insistence on having defendant execute the MA months after the

marriage, so soon after the birth of the parties' daughter and while she was

unemployed, appears to be "inherently coercive." At that point, defendant was

not free to just walk away.

Despite the contextual differences between the various types of

agreements, our jurisprudence makes clear the parties' MA, much like other

mid-marriage agreements, as well as prenuptial or property settlement

agreements, is not enforceable if it is not fair and equitable. However, unlike

PMAs or property settlement agreements, we do not approach the question of

whether a mid-marriage agreement is enforceable with a predisposition in

favor of its enforceability, given the "inherently coercive" nature of mid -

marriage agreements.

Marital agreements "involve far more than economic factors and must

serve the strong public and statutory purposes of ensuring fairness and equity

in dissolution of marriages." Conforti v. Guliadis, 128 N.J. 318, 323 (1992)

A-5172-18
32
(internal quotation marks and citations omitted). But any marital agreement

that is unconscionable or the product of fraud or overreaching, particularly

where it exploits the confidential relationship between spouses, may be set

aside. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995); Guglielmo

v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992).

Further, a settlement agreement "will be reformed . . . where a party

demonstrates that the agreement is plagued by 'unconscionability, fraud, or

overreaching in the negotiations of the settlement.'" Weishaus v. Weishaus,

180 N.J. 131, 143-44 (2004) (quoting Miller v. Miller, 160 N.J. 408, 419

(1999)). Accordingly, a trial court has a "duty to scrutinize marital agreements

for fairness." Dworkin v. Dworkin, 217 N.J. Super. 518, 523 (App. Div.

1987). In doing so, a court must

must consider issues such as the adequacy of
the agreement at [its] inception, the presumed
understanding of the parties at that time, the
reasonable expectation of the parties during the life of
the agreement, [and] the manner in which the parties
acted and relied on the agreement.

[Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.
2004) (citing Konzelman v. Konzelman, 158 N.J. 185,
193 (1999)).]

This court has recognized that "[i]nterpretation and construction of a

contract is a matter of law for the court subject to de novo review." Fastenberg

v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div.

A-5172-18
33
1998) (citing Bradford v. Kupper Assocs., 283 N.J. Super. 556, 583 (App. Div.

1995)). That said, "[t]he law grants particular leniency to agreements made in

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

such agreements." Guglielmo, 253 N.J. Super. at 542 (citing N.J.S.A. 2A:34-

23).

We have long recognized that a family court is a court of equity, where

judges employ a "full range" of equitable doctrines to deal with matrimonial

controversies. See Kazin v Kazin, 81 N.J. 85, 94 (1979). Divorce agreements

are necessarily infused with equitable considerations and are construed in light

of salient legal and policy concerns. Konzelman, 158 N.J. at 194 (citing

Petersen, 85 N.J. at 642). The interpretation, application, and enforceability of

divorce agreements are not governed solely by contract law. Ibid. "[C]ontract

principles have little place in the law of domestic relations . . . . Thus,

settlement agreements, if found to be fair and just, are specifically enforceable

in equity. Ibid. (citations omitted).

Although we are not persuaded defendant was under duress when she

signed the MA, our review of the MA and the circumstances surrounding its

execution suggest the MA may have been unfair, if not unconscionable, when

it was executed, and when plaintiff moved to enforce it. Our concerns pertain

to three areas: the adequacy of plaintiff's financial disclosures before the

A-5172-18
34
parties signed the MA; the circumstances surrounding the MA's negotiation

and execution; and the adequacy of the settlement itself.

Regarding the sufficiency of plaintiff's disclosures before the MA was

executed, we note first, as the judge observed, the MA did not disclose the

value of plaintiff's share of the irrevocable trust dated February 18, 1972.

Second, different methods were used to value plaintiff's businesses, which, as

the trial court found, resulted in "millions of dollars that he avoided

disclosing." Third, defendant contends plaintiff had an interest in a pension

plan that was not disclosed in the MA at Exhibit B. We are mindful plaintiff

does not deny this claim. Moreover, his 2016 Case Information Statement

plainly lists an "R. Markey & Son Defined Benefit pension" with the

explanation that he "began participating in the pension on January 1, 1983"

and it is "exempt as per marital agreement." Defendant also suggests plaintiff

enjoyed additional income from his business interests which was not disclosed

in Exhibit B. Given these facts, if the remand court concludes plaintiff

significantly underreported his income or net worth prior to the execution of

the MA, agreement, the mere fact he disclosed other assets and income on

Exhibit B would not militate in favor of enforcement of the MA. A

right in question "can properly be considered 'known'
only if there is full awareness of the other party's
income and assets, since those facts are critical
elements in determining the potential awards of

A-5172-18
35
 alimony and equitable distribution which the signer of
the agreement is being asked to waive.'"

[Orgler v. Orgler, 237 N.J. Super. 342, 349 (App. Div.
1989) (quoting Marschall, 195 N.J. Super. at 32).]

As to the circumstances resulting in the execution of the agreement, we

already have addressed defendant's resistance to signing a PMA before the

parties' marriage, her belief plaintiff was "never ever going to let [his request

for an agreement] go," and her feelings of vulnerability when plaintiff

persisted in his request to have defendant sign the MA after the parties were

married, bought a home, had a child, and defendant was unemployed. We also

do not ignore defendant's testimony that she signed the MA to "make

[plaintiff] happy," at a time when she was "breastfeeding on demand every two

hours, and was completely sleep deprived."

On the other hand, we recognize defendant testified she "[d]idn't care

one way or the other what Mr. Steele's economic disclosure was in schedule B"

as "it wasn't important to her." Defendant testified it did not matter to her

whether plaintiff had a "billion dollars a year in income or zero dollars a year

in income." Further, she confirmed she "didn't care one way or the other what

[plaintiff's] economic circumstance was" and "would have married him

anyway" because the parties "were madly in love." These facts also must be

considered when assessing the enforceability of the MA.

A-5172-18
36
 Ultimately, to the extent defendant had a limited understanding of the

terms of the MA or its consequences once she was married, we are satisfied

her mindset did not relieve plaintiff of his obligation to treat defendant fairly.

To hold otherwise would effectively lead to ignoring defendant's contributions

as a spouse, parent, "homemaker and helpmate" and inequitably "preclude her

participation in post-agreement wealth." Pacelli, 319 N.J. Super. at 198.

Regarding the adequacy of the settlement itself, we observe the MA did

not acknowledge the existence of, or provide for the support of, the parties'

infant child, let alone health or life insurance coverage or other support -related

obligations for her benefit. Further, the MA required a waiver of defendant's

apparently extremely valuable elective share. Additionally, although

defendant stopped working two months before the MA was executed, in

anticipation of raising the parties' newborn daughter, the MA made no

provision for defendant to receive equitable distribution unless the parties

remained married for more than five years. Also, defendant is sixty-two years

old and has reported minimal earnings after being absent from the job market

from 1992 to 2013. The record is devoid of any indication she can enjoy any

semblance of the marital lifestyle, notwithstanding the taxable and non-taxable

distributions due her under the MA.

A-5172-18
37
 Therefore, we reverse the declaratory judgment and that portion of the

JOD which enforced the MA. On remand, we direct the trial court to employ

heightened scrutiny and review the MA for fundamental fairness, with

particular consideration to be paid to the concerns we have raised.

Specifically, the court shall consider the adequacy of plaintiff's pre -execution

financial disclosure; the circumstances surrounding the MA's negotiation and

execution; and the adequacy of the settlement itself. In anticipation of this

remand hearing, we lift our prior order limiting the scope of discovery so that

the parties can pursue discovery regarding their financial circumstances both at

the time they executed the agreement, and when plaintiff sought to enforce the

MA.

We turn next to defendant's contention that the trial court erred in

denying her request for counsel fees in conjunction with its entry of the JOD

on June 28, 2019. An award of counsel fees in matrimonial matters is

discretionary. R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). We

will not disturb a counsel fee decision absent a showing of "an abuse of

discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J.

Super. 248, 285 (App. Div. 2010). An abuse of discretion occurs when a trial

court makes "findings inconsistent with or unsupported by competent

evidence," utilizes "irrelevant or inappropriate factors," or "fail[s] to consider

A-5172-18
38
controlling legal principles." Elrom v. Elrom, 439 N.J. Super. 424, 434 (App.

Div. 2015) (citations omitted). An abuse of discretion is also demonstrated if

the court fails to consider "all relevant factors." Masone v. Levine, 382 N.J.

Super. 181, 193 (App. Div. 2005) (citing Flagg v. Essex Cnty. Prosecutor, 171

N.J. 561, 571 (2002)).

Rule 4:42-9(a)(1) permits the trial court to award counsel fees in a

family action pursuant to Rule 5:3-5(c). Rule 5:3-5(c) lists various factors the

trial court should consider in deciding whether to award a party counsel fees.

It is well established that

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).]

Here, we cannot discern the extent to which these factors were

considered or if the factors were discounted based on the judge's decision to

enforce the MA under the Act. What is evident, however, is that the judge

referenced Rules 4:42-9(b), 5:3-5(c) and New Jersey Rules of Professional

Conduct (RPC) 1.5(a) in denying both parties' counsel fee requests, but he did

not fully explain how the factors set forth in these Rules impacted his decision.

A-5172-18
39
Instead, he succinctly stated in his June 28, 2019 opinion:

The court finds that the fees presented by counsel are
reasonable and made in good faith. In addition, the
court finds that the submissions made by both parties
in this matter were made in good faith. As a result,
there is no award of counsel fees in connection with
this current motion. The parties are responsible for
their own fees and costs.

We are persuaded these findings fall short of what is required under the Court

Rules.

Additionally, we note that although the judge decided to enforce the

MA, he did not enforce paragraph 7.5 of the MA, which called for the party

seeking to vary the terms of the MA to pay, as liquidated damages, "all costs

and expenses incurred by the other party in defense" of the MA. Although

such "costs and expenses" presumably would have included plaintiff's counsel

fees in this action, the judge did not compel defendant to absorb plaintiff's

counsel fees. Given what appears to be a significant discrepancy in the parties'

earnings and assets, we do not take issue with this result, nor does plaintiff

cross appeal from the denial of counsel fees. However, given our discussion

about the circumstances under which a marital agreement should be enforced,

we direct the trial court to scrutinize for fairness the contents of paragraph 7.5,

along with the balance of the MA's provisions.

A-5172-18
40
 Accordingly, we vacate the June 28, 2019 denial of defendant's request

for counsel fees and remand for reconsideration of this issue, in tandem with

the remand court's consideration of the validity and fairness of the MA. Any

review of defendant's request for counsel fees should follow the Rules of Court

and RPC 1.5(a), so that her financial circumstances and ability to pay her own

fees are considered, along with plaintiff's ability to contribute to her fee s.

Finally, because the judge who heard this matter already conscientiously

expressed his opinion about the fairness of the MA, we are persuaded that to

preserve the appearance of a fair and unprejudiced hearing, it would be

prudent for another judge to preside over this matter on remand. See Pressler

& Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1(d).

The declaratory judgment is reversed, the portion of the JOD which

enforced the MA is vacated, the denial of defendant's counsel fee request is

vacated, and the matter is remanded for further proceedings consistent with our

opinion. We do not retain jurisdiction.

A-5172-18
41