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Raevsky v. Brody

February 25, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1637-02.

Per curiam.


Argued January 12, 2009

Before Judges Lisa, Reisner and Alvarez.

Defendant Cely J. Brody appeals from two orders of the Family Part dated June 27, 2007 and August 24, 2007. We affirm in part and remand in part.


Plaintiff and defendant were divorced on June 26, 2002, after twenty years of marriage. A property settlement agreement (PSA) dated December 21, 2000, was incorporated into the judgment. Part of the agreement called for plaintiff to pay defendant "rehabilitative alimony" until July 15, 2006. Shortly before the alimony was to cease, defendant moved to vacate the entire PSA, contending that it was the product of fraud and overreaching, that its terms were unconscionable, and that at the time the agreement was negotiated she was under psychiatric care and not capable of entering into an agreement. In the alternative, she moved to convert her rehabilitative alimony into permanent alimony, arguing that she was incapable of supporting herself.

After a ten-day hearing in 2007, the trial judge*fn1 found no basis to vacate the PSA. He also declined to convert defendant's rehabilitative alimony into permanent alimony. In a subsequent order, the judge compelled defendant to pay plaintiff equitable distribution owed pursuant to the PSA, and other sums that had accrued as a result of a pendente lite court order.

Defendant appeals from both orders, arguing that the judge erred in not vacating the PSA, in not awarding her permanent alimony, and in requiring her to pay plaintiff his share of equitable distribution and other sums.

We affirm the Family Part orders insofar as they uphold the validity of the PSA and enforce its provisions for equitable distribution. However, because the judge who originally approved the PSA and entered the final divorce judgment failed to make any findings concerning the marital lifestyle, and because the trial judge also failed to make such findings, we remand for reconsideration on the issue of alimony. That reconsideration must include findings of fact on the marital lifestyle at the time of the divorce and findings as to whether, in light of defendant's current earning capability and the economic benefits she received in the divorce settlement, some extension of alimony is warranted.


To put this case in perspective, we review the trial evidence in some detail. The parties were married in 1981 and had two children, an older daughter born in 1983, and a younger daughter born in 1988. Plaintiff was a certified public accountant (CPA) who operated his own small firm. Defendant had a bachelor's degree in elementary education. Prior to the marriage, she worked briefly as a teacher for a Head Start program, and as a substitute teacher in the public schools for about a year, but then changed careers and went into the insurance business. She worked in various capacities, including a long-term disability underwriter, for seven or eight years. She stopped working when the parties' first child was born in 1983. Defendant testified that she did not return to the workforce for the duration of the marriage.*fn2 At the time of the divorce, plaintiff was forty-five years old and defendant was forty-six years old.

The parties had a neighbor, Joseph De Mesquita, who was a lawyer. He had represented defendant in the early 1990s when she was in a car accident. He also represented her in a 1998 application to change her name and helped defendant negotiate a homeowner's insurance claim in 1999.

Sometime in 2000, defendant approached De Mesquita about her deteriorating marriage. De Mesquita told her that his specialty was not divorce, but he would think about how to help. At their next meeting, De Mesquita suggested that he act as a mediator. De Mesquita called plaintiff and arranged to meet, at which time they discussed the possibility of De Mesquita's mediating a divorce settlement. When De Mesquita assured plaintiff that he could be impartial, plaintiff agreed to have De Mesquita act as a mediator. Defendant claimed that plaintiff made the final decision to use De Mesquita as a mediator.

The parties agree that they met with De Mesquita between twenty and thirty times for one to two hours each session. The PSA went through two drafts before the final agreement, dated December 21, 2000, was reached. Both plaintiff and defendant testified that the PSA was backdated and actually not signed until perhaps February or March 2001. Plaintiff admitted that she made handwritten comments on a "money schedule" draft of the agreement. At one point she wrote, "not acceptable." On another draft document she wrote, "I'd like to see the sales agreement."

In the PSA the parties agreed that plaintiff would pay defendant $1,666.67 per month as rehabilitative alimony and $3,780.33 per month "to be defined as spousal consideration in the form of a property settlement as to the assets borne of marriage including child support." Plaintiff's obligations, including child support other than college costs, were to end on July 15, 2006, a month after the younger daughter's expected high school graduation. Plaintiff agreed to pay the college tuition and associated costs for both daughters. Defendant was not responsible for any college costs for the girls.

Plaintiff was also responsible for paying defendant's medical insurance, dental insurance, and prescription drug expenses until July 15, 2006, or when defendant became eligible for coverage through her employment. He was also solely responsible for all of the insurance needs and unreimbursed medical expenses of the girls. Plaintiff was required to maintain a whole life insurance policy for the benefit of the children until they had both "completed all of the future educational needs" and were "fully emancipated."

The parties acknowledged that they wished to waive a valuation of plaintiff's business to save the large expense. They acknowledged their right to full financial disclosure, but agreed to base their agreement on the discovery already exchanged. They determined that defendant's share of plaintiff's business would be $43,750.

Defendant remained in the marital home in Voorhees after the divorce, and plaintiff executed a quit-claim deed to the property. The parties agreed that the value of the house was $190,000, and the balance of the mortgage was $60,812.19. Defendant was to continue paying the mortgage. Plaintiff was given a credit of $64,593, which was one-half of the equity in the house minus an adjustment of 41/2 percent "of commission." Defendant was to pay this credit to plaintiff without interest by December 20, 2006. Plaintiff held a mortgage of $43,552 on the marital home to secure the debt.*fn3

The parties agreed to obtain an inspection report on the house to determine what repairs needed to be made. They would use a home equity line of credit from Commerce Bank to pay for the repairs, but the cost would be borne equally. However, plaintiff would advance the monies and defendant would reimburse him at the "anniversary date" of the agreement, when plaintiff's support obligations ended and defendant's reimbursement responsibility came due.

The PSA recited that both parties had been advised of "their right to exchange information and to demand full financial disclosure and discovery of the other party," and that they had "fully disclosed and exchanged any and all information as to their financial assets and their indebtedness to each other." The PSA also stated that "the discovery and evaluation of assets and liabilities of Husband and Wife as agreed within this Settlement Agreement are set forth in full, complete and final detail, based upon the full disclosure of all financial and economic matters." In a later paragraph, the PSA stated that the parties were "aware of their right to exchange information and to demand full and complete financial disclosure of the other. However, each waives his or her right to any further financial discovery from the other party."

According to defendant, plaintiff had controlled the finances during the marriage and held all of the information. During the marriage, she had no idea how much her husband earned. She claimed that the parties did not exchange any financial information during the mediation and she had no idea what "discovery" meant. She was not advised that she had the right to demand full financial disclosure regarding plaintiff's business. She asked for information regarding plaintiff's accounting practice, but she received nothing. She contended that she did not know how they arrived at the figure representing her share of the business. However, in a contradiction to her earlier testimony, defendant admitted that she did see some information, but she told De Mesquita that the figures were "a lie" and she asked to take plaintiff's deposition. According to defendant, De Mesquita told her that she could not afford to take plaintiff's deposition. Defendant also admitted that she had written notes on an "internal draft" of plaintiff's business profit and loss statement and had forwarded it to De Mesquita.

Defendant testified that she did not "deal with numbers," she "dealt with children" and did not know how they arrived at the support figures. She did not understand what rehabilitative alimony meant, how it differed from permanent alimony, or what the funds were supposed to cover. In her deposition prior to trial, she was asked, "Did you understand when you signed the agreement that it was anticipated that payments would stop on July 15, 2006," and she replied, "I understood." But at trial, she stated that that was no longer her understanding, and that her understanding had changed from the time of the deposition until the time of trial. Defendant did concede at one point during trial that although there was no rehabilitation plan in the PSA, she understood that she was supposed to find employment. However, during cross-examination, she stated that the issue of her returning to work was not addressed during the mediation.

Defendant described her typical day as arising "when her body wakes up," usually between 6:00 a.m. and 8:00 a.m., then showering. She talks to her older daughter on the phone between 8:30 a.m. and 9:00 a.m. She talks to her other daughter later in the morning. Sometimes she goes to the gym. She does laundry. Her mother is not well so she speaks to her on the phone a lot. She has not looked for a job because she has not felt well and she has "been busy" going to court.

Defendant was not aware of the Child Support Guidelines and testified that they just "pulled the number" for child support; it was not based on anything. No one explained the concept of emancipation. She did not know what equitable distribution meant or that she had a right to it.

Defendant claimed that she never saw any statements regarding the parties' IRAs. However, she later admitted that at her deposition she had stated the IRA numbers were accurate. She alleged that no one explained to her the concept of the home equity line of credit being used for home repairs. She claimed she never saw any information regarding the value of their vehicles. When presented with a printout of values from the Kelly Blue Book for a 1994 Acura Legend LS Sedan showing the trade-in value of the car to be $11,925 at the time of the PSA, she stated that it was "not accurate" because her car was not in the same condition as the one valued. Her car was valued in the PSA at $12,000.

Defendant testified that she believed that De Mesquita was her attorney, and he did not explain more than "generally" the role of a mediator. Defendant admitted that De Mesquita told her that she could have her own attorney review the PSA prior to signing it, but she did not do so because she "didn't have the money." She was "overwhelmed" by the mediation process and did not understand many provisions of the PSA, but when she asked questions, she was not given answers. Despite her signature on the PSA acknowledging that the agreement was not the result of fraud, duress, or undue influence, and that the provisions were fair, she testified that she signed the PSA despite not understanding it because she was subjected to "undue influence" and "duress," and because her "nerves were shattered." She did not believe that the agreement was fair, but signed it because plaintiff and De Mesquita made her feel like she did not have a choice.

In August 2004, two years before this hearing, in response to a motion filed by plaintiff, defendant cross-moved to enforce litigant's rights with respect to several provisions of the PSA. In support of her motion, she submitted a certification citing to the PSA and stated, "The Agreement is the Agreement. The term of payments to me was known at the time the Agreement was entered into. This should have been dealt with then - it is not as if the term end is a surprise to Plaintiff." She also stated in her certification:

Plaintiff is asking for all kinds of relief to which he is not entitled. It is my understanding that these provisions, which deal with equitable distribution, cannot be changed. If Plaintiff wants to reopen the entire Agreement, I would be happy to oblige. There are a lot of things which I cannot believe I agreed to at the time.

When confronted at trial with this earlier certification, defendant claimed that they were the words of her attorney (Nancy Gold), not her own. "[W]hat she wrote is not true. That's why I terminated her." Defendant explained that she was not a lawyer, she did not know "the system," and opined that she was a "victim of a system that I didn't know." Gold, said defendant, did not "explain anything to me" and therefore, defendant did not understand what she was signing. Regarding her certified statements in the 2004 motion, defendant ...

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