On appeal from the Superior Court, Chancery Division - Family Part, Somerset County.
Pressler, Baime and Ashbey. The opinion of the Court was delivered by Ashbey, J.A.D.
Plaintiff Yvonne Dworkin and defendant Howard Dworkin were divorced by judgment dated January 30, 1986. Their property settlement agreement, dated January 21, 1986, was incorporated in the judgment. Following its entry, defendant moved for an order requiring plaintiff to convey to him her interest in the parties' St. Maarten condominium pursuant to the terms of the agreement. Plaintiff cross-moved for an order requiring defendant to pay certain bills and for a division of the 1985 rentals from the condominium. By order dated May 23, 1986, the Family Part judge determined that plaintiff was entitled to one-half of the condominium rentals and to payment of the disputed bills. Defendant then moved to require plaintiff to share in the 1985 condominium expenses. On June 20, 1986 this motion was denied. Defendant appeals both orders and we reverse.
We first focus on the circumstances concerning plaintiff's claim to a share of the 1985 condominium rentals. Under the agreement plaintiff had received title to the marital residence and defendant had received title to the condominium. At issue is the meaning of the following terms of the agreement:
The parties jointly own a condominium located in St. Maarten (hereinafter referred to as "condominium"). The Wife shall convey her interest in the condominium to the Husband subject to all mortgages, liens and taxes. The Wife represents that she has no knowledge of any liens or mortgages on the condominium other than the mortgage held by Chase Manhattan. The Husband shall assume all responsibility for the condominium including but not limited to the mortgage, taxes, insurance, utilities, maintenance and repair. The Husband shall cause the Wife to be released from all liability under the mortgage and note (or bond) on the condominium or shall give the Wife an indemnification agreement holding the Wife harmless from all liability arising out of or in connection with such mortgage and note (or bond).
The Husband and Wife shall and do hereby mutually remise, release and forever discharge each other from any and all actions, suits, debts, claims, demands and obligations whatsoever both in law and in equity, which either of them ever had, now has or may hereafter have against the other upon or by reason of any matter, cause or thing up to the date of the execution of this Agreement, it being the intention of the parties that henceforth there shall be as between them only such rights and obligations as are specifically provided in this Agreement or any modification thereof. [Emphasis added].
In the papers supporting her cross-motion, plaintiff wife contended that her share of the 1985 condominium rentals was held by the condominium association agent and therefore was not subject to the subsequent marital agreement.*fn1 She urged that the asset represented part of her residual personal property. The balance of her certification respecting this issue recited equitable reasons for the order she sought but did not assert that the effect of the agreement as a whole was unconscionable.
As to plaintiff's claim concerning certain family debts which were not listed in the agreement, these included a cleaning bill for $800 (which defendant certified he was paying directly to the cleaner), housekeeper wages in the amount of $175 and a
dental bill of $1,230. (Defendant's certification that plaintiff incurred the dental bill some two weeks before execution of the agreement was supported by his proffer of the bill itself). In an unsupported certification plaintiff claimed that she had been unaware when the agreement was executed that the unlisted bills for which she now sought an order were unpaid because defendant misrepresented to her that they were paid. The agreement said:
The Wife warrants to the Husband that she has not heretofore incurred any obligations whatsoever for which the Husband or his estate may be or become liable. The Wife shall not at any time hereafter incur any debt or obligation for which the Husband or his estate may be or may become liable.
Defendant relied upon the plain language of the agreement as to both of plaintiff's claims. He further asserted that not only had he made no misrepresentations and been unaware of any dental bill but, more importantly, that the disposition of all marital bills had been the subject of settlement negotiation. This contention was corroborated by plaintiff's own handwritten modifications of the agreement concerning veterinarian, piano tuning and auto repair bills and the fact that plaintiff was represented by counsel during negotiations. The record does not contain a denial by plaintiff of defendant's statement that he was paying the cleaner or that the dental bill had been incurred by her just prior to the divorce and its existence was therefore more likely to ...