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Fern v. Fern

New Jersey Superior Court, Appellate Division


Decided: January 21, 1976.

RAYE L. FERN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
MORRIS FERN, DEFENDANT-APPELLANT AND CROSS-RESPONDENT

Fritz, Seidman and Milmed. The opinion of the court was delivered by Milmed, J.A.D.

Milmed

[140 NJSuper Page 122] On January 28, 1966 plaintiff (wife), then 68 and a divorcee, and defendant (husband), then 71 and a widower, entered into a prenuptial agreement. Three days later they were married in Florida. They lived together until sometime in the fall of 1969. Matrimonial litigation between them culminated in a judgment for divorce*fn1 on March 29, 1972 in the Chancery Division in Union County. By that judgment the husband was required, among other things, to pay $200 a week to the wife for her support and maintenance and to pay her attorneys a counsel fee of $2,500. The judgment recited that it was "without prejudice to the

[140 NJSuper Page 123]

rights and obligations and claims of the parties under" the prenuptial agreement.

In late summer, 1973, the husband applied for a reduction in the required weekly support payment claiming "a serious and substantial change" in his circumstances both with regard to his "health and financial resources." The wife thereupon applied, among other things, for an increase in support, for specific enforcement of certain provisions of the prenuptial agreement, and "to impress a constructive trust against defendant's assets and estate to the extent and value of the unperformed obligations" of such provisions. By his interim order the trial judge, among other things, denied the wife's application for an increase in support payments, granted a reduction in the weekly support from $200 to $100 until further order of the court, and denied the wife's application for specific enforcement of provisions of the prenuptial agreement, without prejudice to her right to institute a plenary suit on that agreement. Plaintiff's independent action for such specific enforcement and defendant's application for reduction in support payments were consolidated for trial. Following the taking of proofs, the trial judge rendered his oral opinion detailing his findings of fact and conclusions of law. Two orders were entered. The first denied defendant's application for reduction of the weekly support, vacated the previous temporary reduction in support payments, reinstated the $200 weekly support requirement, and required defendant to pay plaintiff's attorneys a counsel fee of $2,000 plus their actual disbursements of $532.32. The second order dismissed the wife's action on the prenuptial agreement, entered judgment in favor of defendant on his counterclaim therein, declared the agreement to be of no force and effect, and required defendant to pay plaintiff's attorneys a counsel fee of $2,000 plus court costs of $120.

Both orders are before us for review. Defendant has appealed from all of the first order and from that part of the second order which awarded a counsel fee of $2,000 and costs

[140 NJSuper Page 124]

of $120. Plaintiff has cross-appealed from so much of the second order as dismisses her action on the prenuptial agreement, enters judgment in favor of defendant on his counterclaim therein, and declares the agreement to be of no force and effect. We ordered the appeals consolidated.

We affirm the orders appealed from substantially for the reasons expressed by Judge McKenzie in his oral opinion of July 1, 1974. There is ample credible evidence in the record to support his findings. We discern no basis for disturbing them. State v. Johnson , 42 N.J. 146, 162 (1964). The results reached are sound. From our review of the proofs, we are entirely satisfied, as was the trial judge, that, in the circumstances*fn2 it is not unconscionable to require defendant to continue to pay the alimony that he agreed to pay and that is incorporated in the judgment for divorce of March 29, 1972. Defendant has shown no justification for a reduction of the support payments within the standards set forth in Berkowitz v. Berkowitz , 55 N.J. 564 (1970), and Schiff v. Schiff , 116 N.J. Super. 546 (App. Div. 1971), certif. den. 60 N.J. 139 (1972). We are equally satisfied, as was the trial judge, that the parties did not intend that their prenuptial agreement should continue in effect in the event of a divorce. The ostensible purpose of the agreement was, as the judge found, "to provide for Mrs. Fern as the widow of Mr. Fern upon his death," as well as to "protect his estate."*fn3 In the totality of the circumstances disclosed in

[140 NJSuper Page 125]

the record, it is clear that the agreement which was made in contemplation of the marriage was to terminate upon dissolution of that marriage. Cf. N.J. Title Guar. & Trust Co. v. Parker , 85 N.J. Eq. 557 (E. & A. 1915). And see, Seuss v. Schukat , 358 Ill. 27, 192 N.E. 668 (Sup. Ct. 1934).

Additionally, we reject defendant's contention that plaintiff's action to enforce provisions of the premarital agreement was not a matrimonial action within the provisions of R. 4:42-9(a) and R. 4:75. That litigation is specifically covered in the broad definition of "matrimonial actions" contained in R. 4:75, i.e. , it involved "claims between * * * former spouses as to property claimed to be owned by them." And in light of the record, including the proofs relating to the financial status of the parties, counsel's certification as to services and disbursements, and the extent of the presentation of the issues, the amount of the allowance of a counsel fee in each of the consolidated matters "may be considered to be within the broad limits of the trial court's discretionary authority." Schlemm v. Schlemm , 31 N.J. 557, 585 (1960).

The orders under review are affirmed.


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