JEFFREY R. PESOT v. SUSAN PULEO (FM-18-0195-08, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-0960-20

JEFFREY R. PESOT,

Plaintiff-Appellant,

v.

SUSAN PULEO, f/k/a
SUSAN PESOT,

Defendant-Respondent.
________________________

Submitted December 15, 2021 – Decided January 24, 2022

Before Judges Gilson and Gooden Brown.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0195-08.

Jeffrey R. Pesot, appellant pro se.

Zimmerman Law Group, attorneys for respondent
(Jean-Marc Zimmerman, on the brief).

PER CURIAM
 In this post-judgment matrimonial matter, plaintiff/ex-husband appeals

from the November 2, 2020 Family Part order denying his motion to modify the

parties' marital settlement agreement (MSA) and his request for a plenary

hearing. We affirm.

We glean these facts from the record. The parties were married on August

23, 2003. They have two children together, one born prior to the marriage in

1999, and the other born after the marriage in 2004. Defendant/ex-wife has two

older children from a prior marriage.

Approximately one month before the marriage, on July 29, 2003, the

parties entered into a prenuptial agreement delineating their rights in any

property in which either party had an interest, as well as the terms for property

disposition in the event of the marriage's dissolution. The agreement specified

that at the time, plaintiff had an income of over $1.1 million 1 and a sixty-eight

percent ownership interest in a company valued at $3.5 million. In contrast,

defendant had no income.

The marriage was relatively short lived, lasting less than five years. The

parties divorced on February 25, 2008, by way of a final judgment of divorce

1
Plaintiff's 2002 federal income tax return attached to the prenuptial agreement
reflected this income.
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(FJOD) which incorporated an MSA of the same date. The MSA expressly

"modified" certain provisions in the prenuptial agreement and acknowledged

that "any provisions . . . not so modified . . . remain[ed] in full force and effect."

Both parties were represented by counsel in the divorce proceedings and the

negotiation of the MSA, and both agreed it was "fair, equitable and satisfactory."

The parties also acknowledged that the MSA was "entered into voluntarily and

. . . not the result of any undue influence, fraud, or duress."

The MSA addressed alimony, equitable distribution, child support,

custody and parenting time, as well as other issues related to the dissolution of

the marriage. Regarding equitable distribution, paragraphs thirty-eight and

thirty-nine of the MSA provided plaintiff would pay defendant "a lump sum

payment" of $1,015,000 in exchange for defendant waiving "any interest she

may have" in plaintiff's investment "in a Hedge Fund."2 Pursuant to paragraph

thirty-nine, the $1,015,000 lump sum payment was payable to defendant as

follows:

The sum of $100,000 shall be payable once the marital
home is under a fully-signed contract for sale and the
mortgage contingencies have been met . . . . The

2
Defendant also waived her interest in a residence the parties owned in Montana
but the "[d]eed transferring her interest" was not to be recorded until she
"received in full her equitable distribution payment of $1,015,000[]."

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 balance of $915,000[] shall be paid out of the closing
proceeds upon the sale of the former marital home. If
there is a shortfall in this payment after applying all of
the net proceeds and after reimbursing [plaintiff] for
any credit due him from paragraph [twenty-five,3] the
balance shall be paid as follows: up to $100,000 within
[twelve] months; anything above $100,000 up to
$200,000 within [twenty-four] months; anything above
$200,000 within [thirty-six] months with [five percent]
per annum interest applied to any outstanding balance
from the date of closing to the date of payment. [4]

After the divorce, plaintiff failed to comply with paragraph thirty-nine of

the MSA, resulting in defendant filing numerous enforcement actions leading to

the entry of four judgments against plaintiff in favor of defendant: a February

7, 2012 judgment for $100,000; a February 22, 2013 judgment for $100,000; an

October 31, 2013 judgment for $100,000; and a December 12, 2016 judgment

for $477,488.40. All four judgments remain unpaid.

In the statement of reasons accompanying the December 12, 2016 order

of judgment, in granting defendant's request to enforce paragraph thirty-nine of

the MSA, the motion judge recounted that upon the "September 8, 2011" sale of

3
Paragraph twenty-five pertained to the emancipation of the children.
4
In contrast, the prenuptial agreement specified that "[i]n an [e]vent of [m]arital
[d]iscord," "[t]he marital residence shall be sold" with "the greater of fifteen
percent . . . of the net proceeds or . . . [$100,000]" allocated to defendant "and
the remainder to [plaintiff]."
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the former marital home, defendant "received $393,009.33 . . . at [the] closing"

and was owed "$477,488.40 representing the amount still owed to her from the

lump sum [equitable distribution] payment in the MSA less the judgments "

totaling $300,000.00, including interest. In that regard, the judge rejected

plaintiff's claim that the "downturn in his business" should excuse him from

"paying [defendant] the balance of the equitable distribution" she was owed.

See Rosen v. Rosen, 225 N.J. Super. 33, 36 (App. Div. 1988) ("[I]n contrast to

alimony which may be adjusted after divorce to reflect unanticipated changes in

the parties['] circumstances, a property division may not be adjusted." (citing

Mahoney v. Mahoney, 91 N.J. 488, 498 (1982))).

The judge also rejected plaintiff's claim that the MSA should be

invalidated based on fraud, explaining:

[Plaintiff] stated his lump sum obligation should be
dismissed because of fraud and nondisclosure on the
part of [defendant] for her transfers of money into the
parties' daughter's bank account. [Plaintiff] contended
he never knew about these accounts and this
information was never disclosed during any of the
parties' negotiations and had he [known] about the
account, he would not have agreed to the terms in the
MSA. The [c]ourt through its own initiative found and
reviewed its April 1, 2015 decision from the parties'
plenary hearing in which the accounts [plaintiff] raises
in the present motion were submitted. During . . . [o]ral
[a]rgument, [plaintiff] acknowledged that these
accounts had been addressed in the past. . . . The [c]ourt

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 is satisfied [plaintiff] has had plenty of opportunities to
raise issues regarding accounts and finds [defendant] is
entitled to the lump sum payment which was agreed to
by both parties and their respective counsels.

Plaintiff never appealed the December 12, 2016 order of judgment.

In an effort to collect on the December 12, 2016 judgment, on February

18, 2020, defendant served an information subpoena requesting financial

information from plaintiff. When plaintiff failed to respond, defendant moved

to compel an answer, which motion was granted on July 10, 2020. Plaintiff

failed to comply with the July 10, 2020 order, resulting in the court issuing an

order on September 11, 2020, finding plaintiff in violation of litigant's rights

and requiring him to respond to the subpoena.

On September 18, 2020, plaintiff moved to modify the MSA, contending

it was no longer equitable given the respective financial circumstances of the

parties. Specifically, plaintiff again claimed he was experiencing financial

difficulties while defendant had married a wealthy individual. Plaintiff also

repeated his prior allegation that defendant had fraudulently concealed assets at

the time the MSA was entered in 2008. Relying on paragraph forty-four of the

MSA, which acknowledged that each party relied upon the other's

"representation that there [were] no other marital assets subject to equitable

distribution" and would be "entitled to set aside the related portions" of the MSA

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"[s]hould a party locate any marital assets or income which were not disclosed

by the other party," plaintiff claimed defendant concealed an $80,000 bank

account in their older child's name and that he only learned of the alleged fraud

during a child support modification hearing in 2014. Plaintiff urged the court to

reduce the $1,015,000 equitable distribution lump sum payment to the $100,000

payment specified in the prenuptial agreement as defendant's share of the

proceeds from the sale of the marital residence. In response, defendant denied

marrying the individual and moved to enforce the information subpoena.

Oral argument on the motions was conducted on October, 30, 2020. In a

November 2, 2020 order, the judge denied plaintiff's motion. In an

accompanying written statement or reasons, the judge found no "factual or legal"

basis to set aside the MSA. Regarding the purported change in financial

circumstances, the judge explained neither "[t]he relationship between

defendant and a third-party" nor "the fact that plaintiff allege[d] . . . he ha[d]

fallen on hard times financially" was relevant "to the validity of the MSA." See

Rosen, 225 N.J. Super. at 36.

Further, in rejecting plaintiff's claim of "fraud, duress and

unconscionability" based on the alleged "non-disclosure of an asset," the judge

relied on paragraph sixty-one of the MSA in which the parties expressly

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acknowledged that they had "not exchanged discovery and undisclosed assets

may exist that [were] subject to equitable distribution" but were "willing to

proceed" with the agreement "without this information." See Petersen v.

Petersen, 85 N.J. 638, 642 (1981) (recognizing "matrimonial agreements

between spouses . . . which are fair and just, fall within the category of contracts

enforceable in equity" and are "entitled to considerable weight"). The judge

noted "[t]he MSA also took into consideration the parties' premarital ag reement

from 2003."

Additionally, the judge relied heavily on the December 12, 2016 order in

which the identical claim was raised and rejected by a different judge. Thus, the

judge concluded plaintiff was barred by "the doctrines of res judicata and

la[]ches" from requesting "any further . . . relief in this regard." See Velasquez

v. Franz, 123 N.J. 498, 505 (1991) ("[T]he doctrine of res judicata provides that

a cause of action between parties that has been finally determined on the merits

by a tribunal having jurisdiction cannot be relitigated by those parties or their

privies in a new proceeding." (citing Roberts v. Goldner, 79 N.J. 82, 85 (1979)));

Knorr v. Smeal, 178 N.J. 169, 180-81 (2003) ("[The doctrine of laches] is

invoked to deny a party enforcement of a known right when the party engages

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in an inexcusable and unexplained delay in exercising that right to the prejudice

of the other party.").

On the other hand, in granting defendant's motion to enforce the

information subpoena, the judge explained:

Despite the court's enforcement orders, plaintiff
continues to portray himself as a victim and conflates
his lack of compliance with the information subpoena
with his inability to pay the judgments previously
entered by the court in favor of defendant for plaintiff's
failure to comply with certain MSA provisions. The
issue is not ability to pay; it is compliance with a
lawfully issued information subpoena routinely used by
creditors to assist in collecting judgments pursuant to
court rules.

This appeal followed.

On appeal, plaintiff, who represented himself before the trial court and

here on appeal, reiterates that "the existence and concealment of [the account in

their daughter's name] constitutes fraud and deceit within the meaning of

procedural unconscionability, rendering the further application of the MSA

unjust." Plaintiff urges the reversal of the judge's decision and the reduction of

the equitable distribution payment in the MSA to the $100,000 allocated to

plaintiff in the prenuptial agreement upon the sale of the marital residence.

We have considered these contentions in light of the record and applicable

legal principles and conclude they are without sufficient merit to warrant

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discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief

comments.

Our limited scope of review of Family Part orders is well established. See

Cesare v. Cesare, 154 N.J. 394, 411 (1998). We accord deference to Family Part

judges due to their "special jurisdiction and expertise" in the area of family law.

Id. at 413. We will not disturb the judge's factual findings and legal conclusions

"'unless [we are] convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v.

Inv.'s Ins. Co., 65 N.J. 474, 484 (1974)). Conversely, a trial judge's decision on

a purely legal issue is subject to de novo review. Crespo v. Crespo, 395 N.J.

Super. 190, 194 (App. Div. 2007).

The doctrine of unclean hands denies relief to a wrongdoer. Borough of

Princeton v. Bd. of Chosen Freeholders of Mercer Cnty., 169 N.J. 135, 158

(2001). "[W]hile general iniquitous conduct will not operate to bar plaintiff

from relief by reason of unclean hands, iniquitous conduct relating to the

particular matter or transaction to which judicial protection is sought will

operate to bar relief." Pollino v. Pollino, 39 N.J. Super. 294, 299 (Ch. Div.

1956). "In this respect, equity follows the common law precept that no one shall

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be allowed to benefit by his own wrongdoing. Thus, where the bad faith, fraud

or unconscionable acts of a petitioner form the basis of his lawsuit, equity will

deny him its remedies." Rolnick v. Rolnick, 290 N.J. Super. 35, 45 (App. Div.

1996) (citations omitted).

We are satisfied the judge's factual findings are amply supported by

substantial credible evidence in the record and his legal conclusions are

unassailable. Thus, we discern no abuse of discretion. Additionally, given

plaintiff's contumacious conduct, the doctrine of unclean hands is another

ground for denying relief to plaintiff.

Affirmed.

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