On appeal from Superior Court, Chancery Division, Family Part, Hunterdon County.
Dreier, Gruccio and Brochin. The opinion of the court was delivered by Gruccio, J.A.D.
The subject of this appeal is a property settlement agreement and the circumstances surrounding its construction. The effect of the agreement is an unconscionable one, and thus it is subject to reformation. We have fully reviewed the facts on record and affirm the orders of Judge Herr including her action
Plaintiff Marcia M. Guglielmo and Thomas M. Guglielmo were divorced by a judgment entered on March 11, 1982, which included a property settlement agreement concerning custody, child support, equitable distribution and attorney's fees. On June 30, 1983, a single-page amendment to the agreement provided for sale of the marital residence, division of the net proceeds between the parties and the assumption of outstanding financial obligations by defendant. In October 1988, plaintiff moved for post-judgment relief concerning support arrearages, educational expenses and an increase in child support. In addition, plaintiff sought a reformation of the agreement based upon allegations of mistake, overreaching and fraud, proportional allocation of defendant's Individual Retirement Account (IRA), return of monies which plaintiff lent to defendant after the divorce and other relief. Defendant cross-moved for the assessment of $32,402 against plaintiff which he claims resulted from her delay in selling the marital home.
The initial motion Judge (not Judge Herr) determined the matter based on filed certifications and oral argument but without taking testimony. He concluded that plaintiff was not entitled to any share of defendant's IRA because the parties' agreement did not mention the IRA, plaintiff was represented by counsel at the time of the execution of the agreement and the agreement contained a general release clause. The Judge found that notwithstanding the fact that plaintiff's attorney was obtained by defendant and was defendant's relative, neither the agreement nor the later amendment were invalid. He also concluded that plaintiff's personal loan to defendant after the divorce (to enable him to go on a honeymoon with his new wife) was not a part of the matrimonial litigation and that plaintiff would have to bring a separate cause of action for those monies. The Judge further found that plaintiff delayed the sale and closing of the marital home. As to the support and
tuition expenses, he concluded that as long as defendant was liable for tuition expenses, he was not liable for room and board at college because he was paying support. He found that no interest was due plaintiff on the monies defendant owed her from the proceeds of the marital home. At a subsequent hearing, he reaffirmed these rulings.
Judge Herr was then assigned to the case and executed an order which preliminarily denied plaintiff's request to amend or alter the orders previously entered; determined that defendant was in arrears on child support, which she ordered paid through the Morris County Probation Department at the rate of $100 per month; ordered a plenary hearing on defendant's claim of a credit against arrearages; ordered discovery, including inquiry into the Disposition of all income, expenses and assets; and denied plaintiff's request to direct immediate payment of arrearages. The Judge reserved decision on the issues of modification of the agreement, increase in child support, alimony, life insurance, fixing a date for defendant to pay plaintiff monies due on a December 9, 1988 order, including interest, and award of counsel fees.
Following a Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980) hearing, Judge Herr issued a letter opinion in which she denied defendant's request that $1,844 of college expenses paid by him in 1988 be credited against 1988 child support arrearages; increased to $200 per week defendant's obligation to support the unemancipated daughters of the marriage; after August 1, 1989, reduced to $112 per week defendant's child support obligation by virtue of the emancipation of the older daughter; awarded permanent alimony to plaintiff in the amount of $800 per month commencing November 23, 1988, to be made through the Morris County Probation Department; ordered defendant to pay on or before December 11, 1989, the balance due plaintiff on the sale of the marital home in the amount of $7,799, together with legal interest from December 9, 1988; ordered defendant to execute a release in favor of plaintiff to permit her to obtain, directly from the insurer on an ongoing basis,
proof of the insurance coverage required by the final judgment of divorce; and reserved judgment on the issue of counsel fees.
On April 18, 1990, Judge Herr determined defendant to be in violation of litigant's rights for failure to comply with the child support provisions of the January 16, 1990 order. She ordered defendant to pay $20,257.48 in child support and alimony arrearages and interest of $652.26 for late payment of equitable distribution; to protect litigant's rights, ordered that judgment be entered for the full amount of arrearages and interest, and issued an income withholding order against defendant's income which provides for the withholding and payment of current child support and alimony, together with an additional sum in the amount of $500 to reduce arrearages until the judgment is satisfied; denied a stay pending appeal; and granted plaintiff's attorney's fees of $1,066 on the litigant's rights application. On June 29, 1990, she ordered counsel fees of $14,500 to be paid by defendant to plaintiff.
On appeal, defendant attacks the provisions of the January 16, 1990 order increasing his support obligation for the two unemancipated daughters from $100 per week to $200 per week while they both remained unemancipated and setting the support obligation at $112 per week for the one remaining unemancipated daughter and awarding plaintiff $800 per month permanent alimony commencing November 23, 1988. Defendant also challenges the court's award of $14,500 counsel fees to plaintiff by the order of June 29, 1990. He claims a credit of $1,844 which he alleges he overpaid in child support; appeals the denial of his application for payment from plaintiff for home maintenance during a period when he claims she delayed the sale of the marital home; and finally, appeals the denial of his attorney's fees.
Plaintiff's cross-appeal challenges the original denial of her request for various items of support, counsel fees, a Lepis hearing to establish changed circumstances warranting the
allowance of alimony and modification of the separation agreement.
The facts relevant to this case are as follows. The parties were married for 17 years. Plaintiff was employed as a secretary until 1965. At defendant's request, plaintiff left the work force to become a full-time homemaker and mother. The parties enjoyed an upper-middle-class lifestyle and lived in a four-bedroom custom-built home on two acres of property with a running stream located in an affluent neighborhood. They owned a Lincoln, a 280Z and a jeep. They shopped at major department stores and vacationed in Bermuda, Nassau, Acapulco and Florida.
When plaintiff first approached defendant for a divorce, defendant suggested using his cousin as their attorney. At the first meeting of the parties with this attorney, counsel advised plaintiff to draw up a "rough budget" of her expenses. Apparently, plaintiff was unsophisticated in these matters and told her attorney that she never handled money. As a result, it appears that the budget drawn by plaintiff was vastly inadequate to support herself and her children.
Prior to the sale of the marital home defendant fully supported plaintiff and the children of the marriage. Thereafter, defendant paid child support to plaintiff in the amount of $50 per child per week. Following the divorce, due to defendant's meager payments, plaintiff and the three children moved into a two-bedroom home. Plaintiff and one of her children shared a bedroom; the other two children shared a bedroom. Prior to the divorce, each child had her own bedroom. In order to make ends meet, the children obtained part-time employment. Indeed, two of the children were only 14 years of age when they began working. On at least one occasion the children were in need of winter coats, but defendant told plaintiff to buy them with the support money.
The agreement provided that the child support figure would be reviewed by the parties one year from the date the house
was sold. Although plaintiff approached defendant on numerous occasions and stated that the amount of support was inadequate, defendant posited that was all he could afford. Plaintiff accepted his statement as true because ...