NOT FOR PUBLICATION WITHOUT THE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-1543-15T4
DANIELLE TIRENDI,
Plaintiff-Respondent,
v.
THOMAS J. TIRENDI,
Defendant-Appellant.
______________________________
Argued April 4, 2017 – Decided September 18, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon
County, Docket No. FM-10-0320-14.
Bonnie C. Frost argued the cause for appellant
(Einhorn, Harris, Ascher, Barbarito & Frost,
PC, attorneys; Ms. Frost, on the briefs).
Maria Patricia Imbalzano argued the cause for
respondent (Stark & Stark, attorneys; Ms.
Imbalzano, of counsel and on the brief).
The opinion of the court was delivered by
SUMNERS, J.A.D.
Defendant seeks to vacate a judgment of divorce (JOD) on the
grounds that it incorporates an unenforceable marital separation
agreement (MSA) that is a mid-marriage agreement he was
fraudulently induced to sign, and is unconscionable, inequitable
and unjust. Defendant also seeks a plenary hearing to modify
custody and parenting time set forth in the MSA. For the reasons
stated below, we affirm.
Plaintiff discovered that defendant was having an affair and
retained counsel to draft a MSA. Counsel forwarded the proposed
MSA to defendant and notified him that he had the right to seek
legal advice before executing the agreement. The MSA provided
that plaintiff has sole legal custody of the couple's three
children with defendant having parenting time on alternate
weekends and when mutually agreed upon by the parties. The couple
jointly owned and operated a marketing business from which
defendant was to pay alimony to plaintiff.1 Plaintiff would
receive the marital home, including all equipment and valuable
animals on the property, as well as the couple's retirement
accounts and a joint brokerage account. Defendant received a car,
and was responsible for the debt incurred in building an indoor
1
Management of the business was in accordance with an Operation
Agreement, which gave controlling power to plaintiff.
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horse-riding arena, and the $300,000 remaining mortgage on the
house.
Three days after receipt of the MSA, defendant signed it,
without reading it or obtaining the advice of counsel.
Approximately two months later, defendant received a complaint for
divorce forwarded by plaintiff's counsel. Four days later,
defendant signed a waiver of answer and consented to entry of a
JOD, which incorporated the previously executed MSA. Again,
defendant did not seek legal advice, despite being advised of his
right to do so. Less than two months later, the JOD was filed on
April 29, 2014.
Although divorced, the parties continued to live together for
several months, took family vacations together, engaged in sexual
relations, attended counseling, and operated their business. On
the other hand, they began dating other people. About seven months
after entry of the JOD, defendant moved out of the marital home
and into the property's pool house. Three months later, in
accordance with the MSA, defendant transferred the retirement
accounts to plaintiff. Defendant moved out of the marital home
four months thereafter.
Almost fifteen months after the JOD was entered, defendant
filed a motion to vacate the JOD under Rule 4:50-1(c) and (f), and
set aside the MSA. Defendant, however, points out that the motion
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was filed within eight months after he received a gold sealed copy
of the JOD. On November 2, 2015, the trial judge rendered an oral
decision and issued an order denying the motion and the request
for a plenary hearing on the validity of the MSA. The order
directed the parties to mediate custody and parenting-time issues.
In his oral decision, the judge held the MSA was not an
unenforceable mid-marriage agreement proscribed by Pacelli v.
Pacelli, 319 N.J. Super. 185 (App. Div.), certif. denied, 161 N.J.
147 (1999), because the facts indicated plaintiff wanted a divorce
when the MSA was forwarded to defendant. And although the judge
found the MSA was "disproportion[ally]" favorable to plaintiff,
he found it was enforceable under Glass v. Glass, 366 N.J. Super.
357, 379 (App. Div. 2004). The judge made note of the fact that
defendant, despite being advised to do so, did not obtain legal
counsel to review the MSA and the divorce complaint.
On appeal, defendant argues that the MSA should be set aside
because plaintiff fraudulently induced him into signing it as a
condition to saving their marriage after she discovered he was
having an affair.2 Defendant maintains that his motion to vacate
2
After plaintiff subsequently filed a motion to enforce litigants'
rights pursuant to the MSA, the trial court granted a stay pending
appeal and ordered the parties to continue running the business
as they had before.
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the JOD was timely filed under Rule 4:50-2 after he received a
sealed copy of the judgment, and that the JOD should be vacated
because of the "exceptional and compelling circumstances" that
compel modification of the unconscionable, inequitable and unjust
MSA. We disagree.
Parties to a divorce proceeding may apply under Rule 4:50-1
to vacate an MSA. See Connor v. Connor, 254 N.J. Super. 591, 601
(App. Div. 1992). Subsection (c) of Rule 4:50-1 provides that a
judgement may be vacated if it was obtained by "fraud . . . ,
misrepresentation, or other misconduct of an adverse party."
Relief under subsection (c) must be sought within one year after
the judgment was entered. Rule 4:50-2. Subsection (f) of Rule
4:50-1 is a catch-all provision that authorizes a court to relieve
a party from a judgment or order for "any other reason justifying
relief from the operation of the judgment or order." The essence
of the subsection is to achieve equity and justice in exceptional
situations that cannot be easily categorized. DEG, LLC v. Twp.
of Fairfield, 198 N.J. 242, 269-70 (2009) (citing Court Inv. Co.
v. Perillo, 48 N.J. 334, 341 (1966)). Therefore, in order for
relief under the rule to be granted, the movant "must show that
the enforcement of the order would be unjust, oppressive or
inequitable." Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App.
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Div. 1971). An application under subsection (f) must be sought
within a reasonable time after entry of the judgment.
We review a court's determination of a Rule 4:50-1 motion to
vacate under an abuse of discretion standard. U.S. Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). There is "an abuse
of discretion when a decision is made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis." Id. at 467-68 (internal
quotation marks and citation omitted).
Initially, we address the timeliness of defendant's Rule
4:50-1 motion to vacate the JOD that was entered on April 29,
2014. Defendant's application under subsection (c) fifteen months
after entry of the JOD is beyond the one-year time limit. We find
no merit to defendant's contention that his filing was timely
because it was filed eight months after he obtained a gold sealed
copy of the JOD. He was well aware of the JOD well before receiving
a gold sealed copy because the judgment was entered two months
after he consented to its entry by waiving his right to answer the
divorce complaint. As for defendant's application to vacate the
JOD under subsection (f), we cannot conclude its filing fifteen
months after entry of the JOD was unreasonable. Nonetheless, we
address the merits of defendant's contentions under both
subsection (c) and (f) of Rule 4:50-1.
6 A-1543-15T4
Defendant seeks to vacate the JOD by attacking the validity
of the MSA, an essential part of the judgment. To determine
whether the parties reached a binding MSA, this court must consider
"whether there was sufficient credible evidence to support the
trial court's finding." N.J. Div. of Youth & Family Servs. v.
M.C. III, 201 N.J. 328, 342 (2010). Due to the special expertise
in family matters, we must "defer to the [family] court's
determinations 'when supported by adequate, substantial, credible
evidence.'" New Jersey Div. of Child Prot. & Permanency v. Y.A.,
437 N.J. Super. 541, 546 (App. Div. 2014) (citing N.J. Div. of
Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div.
2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998))).
Generally, mid-marriage agreements are unenforceable as they
are "inherently coercive," entered into "before [a] marriage
los[es] all of its vitality and when at least one of the parties,
without reservation, wanted the marriage to survive." Pacelli,
supra, 319 N.J. Super. at 190-91. 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. So too, property settlement agreements
prepared in contemplation of divorce are enforceable as they assume
the parties stand in adversarial positions and negotiate in their
own self-interest. Id. at 189-90, 195. Examination of the
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enforceability of the MSA must independently turn on whether
defendant can successfully prove his acceptance was procured by
fraud, overreaching, duress, or coercion. Rogers v. Gordon, 404
N.J. Super. 213, 219 (App. Div. 2008).
Under these guidelines, we see no reason to disturb the trial
court's ruling that the MSA was not a mid-marriage agreement and
should be enforced. The court's finding that plaintiff did not
deceive defendant to get him to execute the MSA is supported by
the record. No facts support defendant's argument that he executed
the agreement as a condition imposed by plaintiff to continue
their marriage. There is no credible evidence that the parties
intended to continue their marriage when the MSA was reached. The
mere fact that, for a short while after entry of the JOD, they
continued to live together, had sexual relations, and took family
vacations, does not demonstrate they intended to remain married
when the MSA was executed. The parties' decision to continue to
run their business after execution of the MSA was not an indication
that they intended to remain married, but was necessary to maintain
their post-separation financial stability. The fact that after
the JOD was entered, they dated other individuals, and that
defendant moved into the pool house before eventually leaving the
marital home altogether, further supports the court's ruling that
the MSA is enforceable. In addition, defendant's transfer of the
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retirement accounts to plaintiff under the MSA, belies his
contention that the MSA should be invalidated.
Finally, defendant's assertion that he was deceived or forced
to execute an unfair or unconscionable MSA, is undermined by his
failure to seek legal advice before executing both the MSA and the
waiver to answer the divorce complaint, despite being advised that
he had the right to do so. The credibility of defendant's position
is furthered weakened by his admission that he chose not to read
the MSA.
Given our determination that the MSA is not a mid-marriage
agreement and should be enforced, we need not address defendant's
remaining arguments to obtain a plenary hearing and to modify
custody and parenting time.
Affirmed.
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