Before Judges Petrella, D'Annunzio and Cuff
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
The opinion of the court was delivered by
At issue is the enforceability of a mid-marriage agreement resolving issues of equitable distribution and alimony in the event of a divorce. This appears to be a case of first impression in New Jersey. The trial court, after a plenary trial, determined that the agreement was enforceable. An order entered on October 25, 1996 memorialized that determination. Thereafter, on July 9, 1997, the court entered a judgment of divorce. The wife, defendant Francesca Pacelli, appeals.
The parties were married in June 1975. The husband, plaintiff Antonio Pacelli, was forty-four years of age at that time; defendant was twenty. Defendant had been born in Italy, but migrated to the United States when she was fourteen. Plaintiff was a builder and a real estate developer. He also owned a restaurant at the time of the marriage. Plaintiff testified that he was worth three million dollars when the parties married, but he presented no documents to support that statement.
Two children were born of the marriage. Tony was born in 1976 and Franco was born in 1977. The family lived in a very substantial home in Passaic County and enjoyed a high standard of living. Their income tax returns showed a gross income of $540,000 in 1984 and $476,000 in 1985. Defendant contributed no income to the family.
In mid-1985, plaintiff informed defendant that he would divorce her unless she agreed to certain terms regarding their economic relationship. To punctuate his demand, plaintiff moved out of the marital bedroom and into an apartment above their garage.
At or about the time he made this demand on defendant, plaintiff sought the advice of matrimonial counsel Barry Croland. Croland testified that he advised plaintiff of his economic exposure for equitable distribution and alimony. According to Croland, plaintiff admitted to a net worth of $4.7 million in 1985, $1.7 million more than he had when he married defendant. Croland informed plaintiff that any agreement between plaintiff and defendant, to be enforceable, had to be fair and made only after full disclosure of relevant information regarding the parties' assets. Croland also informed plaintiff that defendant should be represented by counsel.
The record establishes that defendant did not want a divorce. Upon being informed of plaintiff's demand and suggestion that she should retain counsel, defendant consulted matrimonial lawyer, Gary Skoloff, in July 1985. Skoloff advised defendant of her rights in the event of a divorce.
Defendant's next contact with Skoloff was in the fall of 1985. At that time, she informed Skoloff that plaintiff was going to pay her $500,000 in the event of a future divorce, as full satisfaction of plaintiff's equitable distribution and alimony obligations. Skoloff advised her not to sign such an agreement and that if she divorced plaintiff in 1985, a Judge would award her much more than $500,000 in equitable distribution and alimony. Defendant did not take Skoloff's advice. Defendant informed Skoloff that she wanted to preserve the marriage and did not want her children to grow up in a broken family. Skoloff testified that defendant told him that she would sign anything in an effort to preserve the marriage.
Thereafter, Skoloff received a form of agreement drafted by Croland and the family's tax returns for four years, through 1984. Croland also provided Skoloff with financial statements. Skoloff testified that the agreement was not negotiable and it was presented as an agreement to be signed as is, otherwise there would be a divorce.
Defendant signed the agreement in February 1986 and plaintiff signed it in March 1986. The parties resumed their marriage until 1994, when plaintiff filed a complaint for divorce. In 1994, plaintiff's assets totaled $14,291,500. He had a net worth of $11,241,500.
The issues are: whether the agreement was the result of coercion or duress and, therefore, unenforceable; and whether the agreement was unfair and, therefore, unenforceable. Regarding the fairness issue, a subsidiary issue is whether the agreement should be measured for fairness as the facts were in 1985 or as the facts were in 1994 when plaintiff filed his divorce complaint. Defendant also contends that in 1989, she and the plaintiff agreed to nullify the agreement and that plaintiff and she signed a paper to that effect. Defendant could not produce the signed paper at the trial, contending that plaintiff had stolen it from her and destroyed it.
The trial court, in a comprehensive letter opinion, summarized the evidence, made specific findings of fact and determined that the agreement was not the result of coercion or duress, that it was fair as measured in 1985, and that defendant's contention that the parties had nullified the agreement was not credible.
The court's determination that the parties had not nullified the agreement is supported by substantial credible evidence in the record and it is affirmed. Pascale v. Pascale, 113 N.J. 20, 33 (1988); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The other issues are more difficult.
Pre-nuptial agreements made in contemplation of marriage are enforceable if they are fair and just. D'Onofrio v. D'Onofrio, 200 N.J. Super. 361, 366-67 (App. Div. 1985); DeLorean v. DeLorean, 211 N.J. Super. 432, 435 (Ch. Div. 1986); Marschall v. Marschall, 195 N.J. Super. 16, 28 (Ch. Div. 1984). Agreements made at the end of a marriage in contemplation of a divorce and to fix each party's economic rights on entry of a divorce judgment are enforceable if "fair and equitable." Lepis v. Lepis, 83 N.J. 139, 148-49 (1980); Peterson ...