RODNEY H. GILYARD VS. KELLY A. HICKS-GILYARD (FM-20-0596-16, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2810-19

RODNEY H. GILYARD,

Plaintiff-Respondent,

v.

KELLY A. HICKS-GILYARD,

Defendant-Appellant.
__________________________

Argued September 7, 2021 – Decided September 15, 2021

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FM-20-0596-16.

Ada A. Davis argued the cause for appellant.

Gail Mitchell argued the cause for respondent
(Schwartz Barkin & Mitchell, attorneys; Gail
Mitchell, on the brief).

PER CURIAM
 In this post-judgment matrimonial matter, defendant/ex-wife appeals

from the January 31, 2020 Family Part order denying her motion for

reconsideration of an October 1, 2019 order. The October 1, 2019 order

denied defendant's request to compel plaintiff/ex-husband to sell their marital

home and required defendant to sign a quitclaim deed to the residence. We

affirm.

The parties divorced on December 7, 2016, after a twenty-one-year

marriage. They entered into a comprehensive Marital Settlement Agreement

(MSA) which was incorporated into the Judgment of Divorce (JOD). The

MSA delineated plaintiff's obligation to pay defendant alimony, provided for

the distribution of marital assets and allocation of marital debt, and addressed

other issues related to the dissolution of the marriage.

Regarding the marital home, paragraph sixteen of the MSA provided

"[w]ife shall receive sole right to live in the [m]arital [h]ome for two years,"

after which "[w]ife shall either purchase the home from [h]usband, or the

home is to be sold by [h]usband." Paragraph seventeen provided "[w]ife shall

be responsible for one-third of any tax liability for debt forgiveness related to

the sale of the home" and "[h]usband shall be responsible for two-thirds of any

tax liability for debt forgiveness related to the sale of the home."

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 Notably, paragraph eighteen provided:

Wife shall pay the mortgage, insurance, and
taxes due on the current mortgage encumbering the
property for the period of two years after [h]usband
brings mortgage current. Said mortgage shall be kept
current. If the mortgage payment becomes two
months or more late, the house shall be placed on the
market for sale.

The equitable distribution provisions in the MSA addressed distribution

of "the marital estate pursuant to N.J.S.A. 2A:34-23," but made no mention of

the marital home. Paragraphs thirty-six and thirty-seven provided that each

party "accept[ed] the provisions [in the MSA] . . . in lieu of and in full

settlement and satisfaction of any and all claims and rights against" the other

party. Further, paragraph forty-eight specified the parties "waive[d] their

rights" to obtain discovery "identifying and valuing assets subject to equitable

distribution," and paragraph seven acknowledged the agreement "represent[ed]

a compromise of the [p]arties' various positions."

In paragraph fifty-two, the parties agreed any "modification or waiver of

any of the provisions of th[e a]greement . . . shall be effective when and only if

made in writing and executed with the same formality as th[e a]greement."

Further, "[t]he failure of either [p]arty to insist upon strict performance of

any . . . provision . . . shall not be construed as a waiver of any subsequent

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default . . . ." In various provisions throughout the agreement, the parties also

agreed the MSA was "equitable and fair," was not "the result of any fraud,

duress or undue influence," was executed "freely and voluntarily," and with a

full understanding of "the terms and provisions" of the agreement "as well as

their rights." Defendant was represented by counsel in the drafting and

execution of the MSA while plaintiff was not.

Approximately two years after the JOD was entered, plaintiff moved to

terminate his alimony obligation, alleging cohabitation. Defendant opposed

the motion and moved for enforcement of litigant's rights, seeking to compel

plaintiff to sell the marital home pursuant to paragraph sixteen of the MSA. 1

Plaintiff opposed defendant's motion, certifying he was "not in violation of

[their] agreement."

According to plaintiff, notwithstanding the provision in paragraph

sixteen of the MSA, the parties had subsequently agreed that he "would be

moving back into the home" after defendant vacated the residence and they

would only sell the home if they both agreed. Plaintiff acknowledged there

was no written modification of the MSA to that effect, as required in paragraph

1
Defendant sought other relief not pertinent to this appeal.
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fifty-two, but stated defendant had told him "it was not necessary." Plaintiff

attached text messages between the parties corroborating his account.

Plaintiff further averred he "did not list the home based on [defendant's]

representations." However, he completed "a loan modification that put the

mortgage in [his] name" alone. Plaintiff added, "[n]othing in the agreement

indicate[d] that [d]efendant [was] entitled to anything from the home so there

[was] absolutely no reason for the home to be sold."

In a reply certification, defendant stated although the parties "discussed"

plaintiff retaining the house, rather than selling it as required under the MSA,

she denied agreeing to it or signing an agreement to that effect. Defendant

stated their discussions to relieve him of the obligation of selling the house

occurred "before [plaintiff] filed th[e] motion" to terminate his alimony

obligation, which motion made plaintiff untrustworthy in her eyes. As a result,

defendant did not want her name to "remain[] on the deed to the property" with

someone she no longer trusted and wanted the property sold so that she could

"receive [her] share of the value of the property." Contrary to plaintiff's claim,

defendant asserted she was "entitled to one half of the equity in the property

accumulated from the time [they] moved in until the divorce was finalized and

100% of the equity for the time [she] paid the mortgage herself."

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 A three-day plenary hearing was conducted on July 23 and 24, and

September 23, 2019. Although the proofs adduced at the hearing were

primarily focused on the cohabitation issue, in her testimony, defendant

acknowledged sending the text messages to plaintiff in which she agreed

plaintiff did not have to sell the house despite the contrary provision in th e

MSA. During the hearing, the parties' attorneys also agreed there was no

provision in the MSA for equitable distribution of the marital home because, at

the time, it was "under[]water" and had no equity. Thus, it was anticipated the

eventual sale would generate a loss, necessitating paragraph seventeen

allocating tax liability for debt forgiveness related to the sale.

Following the hearing, on October 1, 2019, the trial judge issued an

order denying defendant's application to "compel[] plaintiff to sell the marital

home" and ordered "[t]he parties . . . [to] execute a quitclaim deed by
2
November 1, 2019." In an accompanying written opinion, the judge

acknowledged that the MSA "[c]learly[] . . . require[d] plaintiff to sell the

home." However, according to the judge, "defendant could not articulate any

benefit or detriment to her if the property was not sold."

The judge stated:

2
The order also denied plaintiff's motion to terminate his alimony obligation
based on alleged cohabitation.
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 The reason articulated by defendant for her request
was that her name appears on the deed and she does
not want it to be. Defendant does not assert she would
be entitled to any proceeds from the sale. Plaintiff has
proposed the execution of a quitclaim deed to remove
defendant's name from the deed. It would also
absolve her of any liability under [p]aragraph
[seventeen] as plaintiff would then be solely
responsible. As this is a court of equity, this court
will not grant defendant's motion compelling a sale.
To do so under these circumstances would dispossess
plaintiff of his residence for no apparent purpose. As
there is no benefit for defendant in the sale, and the
only detriment, having her name on the deed, can be
accomplished by a quitclaim deed, there is simply no
reason to compel the sale.

Additionally, defendant agreed in the text
message exchange between the parties on October 8,
2018 . . . that she would not force him out of the
house. To force him out now, after he filed his
cohabitation motion, appears to be motivated by spite,
not reason.

Defendant moved for reconsideration of the October 21, 2019 order

pursuant to Rule 4:49-2. In a supporting certification, defendant confirmed

when the parties "negotiated the MSA, [p]laintiff had already moved out of the

[marital] home; the mortgage was several months behind; and the house was

believed to be worth less than the mortgage encumbering it." As a result, the

MSA "only include[d] a division of debt" related to the sale of the home.

Defendant acknowledged "originally," she was "willing to delay the sale of the

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house." However, because of the complete deterioration of her prior amicable

post-judgment relationship with plaintiff, she now wanted a "valuation of [her]

share" of the home so that she could "be compensated for it." Plaintiff

opposed the motion, reiterating that "[n]othing in the [MSA] indicate[d] that

[defendant] was entitled to any equity in the home" because "there was [no

equity]."

In a January 31, 2020 order, the judge denied "[d]efendant's motion for

reconsideration of the [c]ourt's [o]rder denying her motion to compel the sale

of the marital residence" and ordered defendant to "immediately execute a

quitclaim deed as required in the . . . October 1, 2019 [order]." In an

accompanying statement of reasons, the judge posited the issue presented by

defendant was whether "the court overstepped its authority by not enforcing

the parties' [MSA] . . . when it denied defendant's [motion] to compel plaintiff

to sell the marital home . . . as required by the MSA" and in relying on

"defendant's text messages in finding that she [had] agreed to allow plaintiff to

remain in the home." The judge also considered defendant's argument that

"the court [should have] scheduled a [plenary] hearing" to ascertain "the

parties' intention to divide any interest in the property upon its sale. "

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 In rejecting defendant's contentions, the judge stated "[t]he arguments

raised . . . [were] essentially the same as the arguments raised and considered

at the plenary hearing." The judge determined that he had not "based [his]

decision upon a palpably incorrect basis, or . . . failed to appreciate the

significance of probative, competent evidence." Instead, the judge explained

"[t]he court ruled as it did as it found that defendant had consented to plaintiff

residing in the marital home, and because defendant's request to compel the

sale was based upon her desire to remove her name from the deed, which could

be accomplished by a quitclaim deed."

Turning to defendant's argument "that a plenary hearing should have

been scheduled regarding the intent" of the MSA, the judge "disagree[d],"

stating:

Initially, the court notes that neither party requested
additional testimony. Secondly, the intent of the
[MSA] provisions was clear based upon a plain
reading of the provisions. Further, the arguments of
counsel and testimony of the parties during the
hearing regarding the value of the home were more
than sufficient in highlighting the issues and what
would be accomplished by a sale. As the home would
be sold at a loss, neither plaintiff nor defendant would
benefit financially. Both would be exposed to the
potential tax liability for the debt forgiveness as set
forth in [p]aragraph [seventeen]. And, as defendant's
counsel represented on the record, defendant sought to

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 compel the sale because she did not want her name on
the deed.

Lastly, plaintiff and defendant both testified
extensively about . . . the text message exchange in
October 2018 in which defendant clearly indicates that
plaintiff need not sell the house. After thanking her
for "everything," . . . plaintiff advises [defendant] that
he will" . . . write up an agreement for [her] to sign
stating that [he does not] have to sell the house
because it's in the divorce agreement." [Defendant]
responds, "Yes, it is in your name. Why do you want
to write up an agreement, it's in the divorce, you didn't
force me out, so why would I force you out. I guess
someone told you to do that." Defendant further
acknowledged on cross-examination that she allowed
him to "stay" in the house, and on re-direct that she
"later changed [her] mind," but that she never told him
she changed her mind because "this came about,"
referring to plaintiff's filing of his cohabitation
motion.

In this ensuing appeal, defendant raises the following points for our

consideration:

I. THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S MOTION TO ENFORCE
LITIGANT'S RIGHTS BECAUSE THE PLAIN
LANGUAGE OF THE [MSA] REQUIRED
PLAINTIFF TO SELL THE MARITAL HOME.

A. Paragraph [Sixteen] Of The MSA
Clearly Requires The Plaintiff To Sell The
Marital Home Because Defendant Moved
Out.

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 B. The Court Abused Its Discretion When
It Relied On Text Messages And Oral
Communications To Modify The MSA
Because Paragraph [Fifty-Two] Of The
MSA Requires Any Modifications To Be
In Writing And Executed With The Same
Formality Of The MSA To Be Effective.

II. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT DENIED DEFENDANT'S MOTION FOR
RECONSIDERATION BECAUSE THE PLAIN
LANGUAGE OF THE [MSA] REQUIRED
PLAINTIFF TO SELL THE MARITAL HOME.

III. THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT INVOKED ITS
EQUITABLE POWERS TO REWRITE THE
PARTIES['] AGREEMENT.

A. The Trial Court Abused Its Discretion
When It Invoked Its Equitable Power To
Rewrite The Parties['] Agreement Despite
Clear Evidence That The MSA Was
Entered Into Voluntarily, Consensually,
And Knowingly By Both Parties.

B. The Court Abused Its Discretion When
It Invoked Its Equitable Power And
Ordered That [Defendant] Execute A
Quitclaim Deed Transferring Her Property
Ownership To [Plaintiff] Because It
Improperly Vacated The Parties'
Settlement Agreement.

IV. THE COURT ABUSED ITS DISCRETION
WHEN IT ORDERED DEFENDANT TO EXECUTE
A QUIT CLAIM DEED WITHOUT FIRST
HOLDING A PLENARY HEARING TO

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 DETERMINE THE ACTUAL VALUE OF THE
MARITAL HOME AND THE AMOUNT OF THE
MORTGAGE ENCUMBERING IT.

Our review of orders entered by the Family Part is generally deferential.

Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016). "[W]e defer

to factual findings 'supported by adequate, substantial, credible evidence' in

the record." Ibid. (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)).

"Reversal is warranted when we conclude a mistake must have been made

because the trial court's factual findings are 'manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as

to offend the interests of justice . . . .'" Ibid. (alteration in original) (quoting

Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

"However, when reviewing legal conclusions, our obligation is different; '[t]o

the extent that the trial court's decision constitutes a legal determination, we

review it de novo.'" Ibid. (alteration in original) (quoting D'Agostino v.

Maldonado, 216 N.J. 168, 182 (2013)).

Our review of motions for reconsideration under Rule 4:49-2 is also

governed by a deferential standard.

Motions for reconsideration are granted only under
very narrow circumstances:

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 Reconsideration should be used only for
those cases which fall into that narrow
corridor in which either (l) the Court has
expressed its decision based upon a
palpably incorrect or irrational basis, or
(2) it is obvious that the Court either did
not consider, or failed to appreciate the
significance of probative, competent
evidence.

[Fusco v. Bd. of Educ. of City of Newark, 349 N.J.
Super. 455, 462 (App. Div. 2002) (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.1990)).]

"[A] trial court's reconsideration decision will be left undisturbed unless

it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC

Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "An abuse of

discretion 'arises when a decision is "made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

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

(2002)). "Reconsideration cannot be used to expand the record and re argue a

motion," and "[a] litigant should not seek reconsideration merely because of

dissatisfaction with a decision of the [c]ourt." Cap. Fin. Co. of Delaware

Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008)

(alteration in original) (quoting D'Atria, 242 N.J. Super. at 401).

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 On appeal, defendant argues the judge abused his discretion by ignoring

the "plain language of the parties' MSA" requiring the sale of the marital

home; by "rel[ying] on the oral statements and text messages . . . to modify the

parties' MSA," contravening paragraph fifty-two requiring modifications to be

in writing; and by utilizing "equitable powers" to "rewrite the parties'

agreement" and compel her execution of a quitclaim deed without first holding

a plenary hearing to determine the value of the property, thereby depriving

defendant of her "share of the equity in the home."

"An agreement to settle a lawsuit is a contract which, like all contracts,

may be freely entered into and which a court, absent a demonstration of 'fraud

or other compelling circumstances,' should honor and enforce as it does other

contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983)

(quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)).

Marital settlement agreements "are generally favored by the courts as a

peaceful means of terminating marital strife and discord so long as they are not

against public policy." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div.

2006) (quoting Konzelman v. Konzelman, 158 N.J. 185, 194 (1999)); see

Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) ("Marital

agreements are essentially consensual and voluntary and as a result, they are

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approached with a predisposition in favor of their validity and enforceability."

(citing Petersen v. Petersen, 85 N.J. 638, 642 (1981))).

Thus, "[s]ettlement agreements in matrimonial matters, being 'essentially

consensual and voluntary in character, . . . [are] entitled to considerable weight

with respect to their validity and enforceability' in equity, provided they are

fair and just." Dolce, 383 N.J. Super. at 20 (alterations in original) (quoting

Petersen, 85 N.J. at 642). "To be sure, 'the law grants particular leniency to

agreements made in the domestic arena' and vests 'judges greater discretion

when interpreting such agreements.'" Quinn v. Quinn, 225 N.J. 34, 45-46

(2016) (quoting Pacifico v. Pacifico, 190 N.J. 258, 266 (2007)). "And while

incorporation of a[n] [MSA] into a divorce decree does not render it

immutable, nor its terms solely governed by contract law, nevertheless, if

found to be fair and just, it is specifically enforceable in equity." Eaton v.

Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).

Here, defendant does not argue that the MSA is unfair, unjust, or

unenforceable. On the contrary, she seeks enforcement of the provision

compelling plaintiff to sell the marital home after she vacated the premises and

he moved in. There is no dispute that the plain language of paragraph sixteen

of the MSA required such a sale. However, defendant also seeks her equitable

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share of the proceeds of the sale when neither the MSA nor the JOD entitled

her to receive a share regardless of whether the home was sold or not. The

only language in the MSA addressing the consequences of the sale of the home

was contained in paragraph seventeen, which delineated the "tax liability for

debt forgiveness related to the sale." Although the MSA contained numerous

provisions related to equitable distribution, there was no mention of equitable

distribution of the marital home.

Notably, defendant does not contend that any provision of the MSA

entitled her to a share of the proceeds of the sale of the home but appeals to the

court's equitable powers to allocate a percentage to her. While we understand

defendant's equitable argument, we decline to supply or insert such a

significant term into the MSA. "There is no dispute that courts possess the

equitable authority to modify privately negotiated property settlement

agreements." Addesa v. Addesa, 392 N.J. Super. 58, 66 (App. Div. 2007).

However, "we are not persuaded that the trial court's duty to scrutinize marital

agreements for fairness requires it to insert new terms because one party later

suggests that a few changes would have made the agreement fairer." Dworkin

v. Dworkin, 217 N.J. Super. 518, 523 (App. Div. 1987). Indeed, our Supreme

Court has instructed that "a court should not rewrite a contract or grant a better

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deal than that for which the parties expressly bargained." Quinn, 225 N.J. at

45.

That said, notwithstanding the text messages, it would have been

preferable for the judge to have granted defendant's motion to compel the sale

of the home as required under paragraph sixteen of the MSA. However, as

there was no detriment to defendant from plaintiff retaining the house and no

benefit to defendant from the sale, we decline to interfere with the judge's

order denying the motion to compel the sale and requiring defendant to

execute the quitclaim deed. "[W]hen 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." Ibid. "We reverse

only to 'ensure that there is not a denial of justice' because the family court's

'conclusions are [] "clearly mistaken" or "wide of the mark."'" Parish v.

Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (alteration in original)

(quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)).

Under the peculiar circumstances presented here, reversal is not warranted.

Affirmed.

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