On appeal from Superior Court, Chancery Division, Essex County.
Michels and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.
[222 NJSuper Page 404] In this matrimonial action, defendant appeals from the denial of his post-judgment motion to reform a ten-year old separation agreement so as to effectuate the asserted intention of the parties concerning the distribution of realty. It is contended that the Family Part judge failed to interpret the agreement in a manner which would give effect to the logical intent of the
parties considering all of the attendant circumstances at the time of its execution. Alternatively, defendant urges that, in view of the trial court's perceived difficulty in resolving the factual status of the claim, it erred in deciding the motion without conducting an evidentiary hearing. We agree with the trial judge's conclusion that defendant failed to demonstrate by clear and convincing evidence that reformation of the agreement was appropriate and, although not considered below, we also conclude that defendant's application was properly dismissed as being time-barred pursuant to R. 4:50-2. See Isko, et als. v. Planning Bd. of Tp. of Livingston, et als., 51 N.J. 162, 175 (1968).
The property settlement agreement entered into by the parties in January 1977 provides in pertinent part:
3. The Husband shall pay support for the two minor children in the following manner:
a) While it is understood and agreed that the Wife presently resides rent free at 102 Franklin Street, Belleville, New Jersey, the premises is owned by a corporation of which the Husband is a shareholder and whereas it is also understood that the Husband represents at the time of the execution of this Agreement that he is unemployed . . . the extent of the Husband's obligations for said support is satisfied by the free rental afforded by the landlord of the premises in which the Wife resides.
4) The Wife shall keep and the Husband shall release any and all interest in all household furnishings as well as her personal belongings and all bank accounts, stocks and real estate in her name. The Husband shall keep and the Wife shall release any and all interest in Husband's personal belongings and in any real estate the Husband owns in a corporation known as Set Point, Inc. Both the Husband and Wife shall execute the documents necessary to effectuate the aforesaid intentions.
5) The Husband shall indemnify and hold harmless the Wife from any and all notes, mortgages concerning Set Point Corporation and the lien of Midlantic Bank on the Husband's car and any and all other liens against the Husband.
11) This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants, or undertakings other than those expressly set forth herein.
In answers to interrogatories propounded during the divorce proceedings, plaintiff initially stated that she had no known interest in real property but subsequently modified that response to indicate a one-sixth interest in real estate located in Monroe Township. Defendant had certified in his answers that the Franklin Street property referred to in the agreement was owned by Salzano Realty Co. and that he held a 25% ownership interest in that corporation, with his two brothers and sister being the owners of the remaining 75% interest. The Franklin Street property was occupied by plaintiff until April 30, 1982 when she vacated the premises in response to an action instituted by defendant and his siblings to obtain possession of the property.
In support of the subject motion to compel plaintiff to convey her interest in this property to him, defendant alleged that two mistakes were made in the preparation of the agreement. One was the error in identifying the corporation in paragraph 4 as Set Point, Inc. instead of Salzano Realty Co., and the other mistake was that the Franklin Street property was not owned by a corporation but by defendant, his brothers and sister and their respective spouses. A certification by defendant's former attorney acknowledged that the agreement "incorrectly stated that the real estate owned by the husband was in a corporate name, specifically 'Set Point, Inc.,'" and that at the time the agreement was negotiated the parties were aware that they owned 25% of the subject property. The attorney annexed a copy of a letter sent by him in April 1976 to plaintiff's attorney setting forth that defendant was to keep the real estate he held in a corporate name and that the wife would also release her interest in the ...