DANIELLE TIRENDI VS. THOMAS J. TIRENDI (FM-10-320-14, HUNTERDON 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NOT FOR PUBLICATION WITHOUT THE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-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

3 A-1543-15T4
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.

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 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

7 A-1543-15T4
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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