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Hiemstra v. Hiemstra


March 31, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1599-07.

Per curiam.


Argued February 24, 2010

Before Judges Graves, Sabatino and Newman.

This case involves the enforceability of a second-marriage antenuptial agreement entered into between the parties twenty-three years before their divorce. After hearing five days of testimony, the Family Part found the agreement enforceable, under the applicable common-law standards of Marschall v. Marschall, 195 N.J. Super. 16, 29-31 (Ch. Div. 1984). Because the finding of enforceability is supported by substantial credible evidence and comports with the law, we affirm the Family Part's decision. We likewise affirm the trial court's denial of counsel fees, as well as the other rulings that have been challenged on appeal.


The following procedural history and relevant facts, as they were presented to and determined by the trial judge, guide our analysis of the issues raised on appeal.


The parties were married on February 8, 1986 in Wayne. At the time of their marriage, plaintiff Susan B. Hiemstra (formerly Susan Rogers) was forty-two years old and employed in the typesetting equipment business. Defendant Robert J. Hiemstra, Sr., was fifty-seven years old and retired from the construction business. Both parties had been previously married, and had children from those prior relationships.*fn1 The children are now long emancipated.

According to defendant, three days prior to the wedding, the parties executed an antenuptial agreement ("the agreement") witnessed by two other individuals. Defendant testified that the agreement had attached to it two schedules that set forth the parties' comparative financial positions at the time. Plaintiff acknowledges that she presented the drafted agreement to her attorney for review. However, she claims that she never saw the financial schedules when she signed the agreement, and that she did not sign the agreement until the day of the wedding.

The agreement treats separately-owned property differently from joint property acquired by the spouses during their marriage. As to property owned by the parties prior to the marriage "or which may be acquired separately by them" afterward, paragraph three of the agreement recited that the parties "waive[d] and release[d] any and all rights with respect to such property of the other insofar as the same might otherwise be included or considered property subject to equitable distribution under [N.J.S.A. 2A:34-23.]"

Paragraph five of the agreement, which further addresses the subject of joint property, states that:

It is the intention and purpose of the parties that the provisions of this [a]greement shall not apply to property that they may acquire in joint ownership during their marriage even though any of their respective separate property shall have been used in connection with the acquisition of any such jointly owned property so acquired or to any other acquisitions of property during their marriage and which the parties mutually and expressly confirm in writing as intended to be excluded from the effect and provisions of this [a]greement.

The addendum to the agreement, which the trial court found was also executed prior to the wedding ceremony, further distinguishes the treatment of joint property versus separately-owned property. Specifically, in paragraph two of the addendum, the parties agreed "that all assets acquired subsequent to the marriage shall be considered joint assets, unless the source of the asset is derived from assets acquired prior to the marriage."

Paragraph nine of the agreement, which is the provision most centrally implicated in this case, provides for two alternative treatments of the issue of alimony, hinging upon which party instituted a divorce action. Specifically, paragraph nine requires defendant to pay "$50,000 per year for a period of three years" to plaintiff as "rehabilitative support," in the event that defendant successfully "institutes an action for divorce" against plaintiff. The provision further provides that such rehabilitative support "shall be considered in full payment of any claim for any alimony, and shall be reduced by the value of [plaintiff's] interest in any property held jointly by the parties."

By contrast, paragraph nine further states that, "[i]n the event [that plaintiff] institutes a divorce action against [defendant], and obtains such divorce, [plaintiff] shall be entitled to no interest in the separate property and estate of [defendant], whether for support or otherwise." The provision specifically exempts "property jointly held by [plaintiff] and [defendant]" from its reach.

Apart from these pertinent substantive provisions, the addendum to the agreement provided that "[t]he provisions of this agreement shall be subject for review two years from the date of this agreement. However, this agreement shall continue in full force and effect unless changed in writing by mutual agreement of the parties."

The agreement was signed by both parties, and by two witnesses, Barbara Stein and Gregory Wright, neither of whom is related to the parties. Stein notarized defendant's signature on the agreement on February 5, 1986. The documentation reflects that Wright notarized plaintiff's signature on the same date, although Wright's trial testimony supports plaintiff's contention that she did not sign the agreement until the wedding day, February 8.

The addendum indicates on its face that both parties signed and dated it on February 7, 1986. However, plaintiff disputed at trial that her signature on the addendum was genuine.

Defendant testified that two financial schedules were contemporaneously attached to the agreement, detailing the assets and liabilities of both parties. Plaintiff, on the other hand, disputed that either schedule was attached at the time that the agreement was signed. Defendant's schedule listed more than $7 million in assets*fn2 and more than $1 million in liabilities.*fn3 Plaintiff's schedule, meanwhile, listed nearly $220,000 in assets*fn4 and more than $60,000 in liabilities.*fn5


Plaintiff filed a complaint for divorce from defendant in the Family Part in Passaic County on May 17, 2007, on the grounds of irreconcilable differences. In her complaint, plaintiff requested dissolution of the marriage, equitable distribution of marital property, spousal support, counsel fees, and a declaration that the agreement "signed by [plaintiff] on February 8, 1986 is null and void and of no effect[.]"

Defendant answered the complaint on July 31, 2007, counter-claiming and alleging extreme cruelty by plaintiff as grounds of divorce. He sought enforcement of the agreement, and opposed plaintiff's assertion that it is null and void.

After almost a two-year period of discovery and pretrial proceedings in the divorce action, the Family Part began hearings in July 2008 addressing the enforceability of the agreement. The parties mutually recognized that the enforceability of the agreement was a pivotal threshold issue in their divorce case, given the agreement's alimony waiver triggered by plaintiff's filing of the first complaint for divorce, and also because of the agreement's limitations on marital property that could be subject to equitable distribution.

Defendant, who bore the burden of proving the agreement's validity, presented as his first witness Leonard Witman, Esq., his tax attorney and the custodian of what defendant asserted was the original copy of the agreement.

According to Witman, he and defendant met concerning the agreement on September 9, 1999, more than thirteen years after the parties married. Witman testified that, in anticipation of that meeting, defendant forwarded him the original of the agreement with the attached financial schedules and the addendum. Witman stated that he then maintained the document in his office file from the date that he received it from defendant in September 1999 through November 2007, when defendant requested the document back from him to use in this litigation.

On cross-examination, Witman acknowledged that he had no first-hand knowledge of when the agreement and addendum were signed. He further acknowledged that he had no first-hand knowledge of whether the agreement that he possessed in his office files was the original or not. Witman also stated that he had no memory of whether the schedules were attached to the agreement when he received it from defendant in 1999. The documents from Witman's file, the note that defendant included with the documents, and a photocopy of the documents were all introduced as evidence by defense counsel, with no objection from plaintiff's counsel.*fn6

Defendant next called his son, Robert Hiemstra, Jr. ("Bob, Jr.").*fn7 Bob, Jr., testified on direct examination that, prior to the wedding, he drove with his father to the reception hall to "pick up the [agreement] from [plaintiff]." He testified that when he entered the reception hall, he "walked over to [plaintiff] and [Wright]. They were there together with the agreement on the table in front of them . . . . [Plaintiff] proceeded to sign the agreement with [Wright] in turn signing the agreement." Bob, Jr., acknowledged that he did not see either plaintiff or Wright review the document in his presence before signing it.

On cross-examination, Bob, Jr., admitted that he never saw defendant sign the agreement or the addendum. He could not remember the date that he picked up the signed agreement from plaintiff. He also could not remember if plaintiff signed the document in one or two places. Bob, Jr., did, however, recall that defendant had told him that his attorney did not prepare the addendum, and that, in fact, plaintiff's attorney had prepared it.

Defendant then testified on his own behalf on two consecutive trial days. During the course of his testimony, defendant identified the document previously introduced during Witman's testimony as the agreement that he had signed before his marriage to plaintiff. Defendant identified as authentic his signature and that of plaintiff appearing on both the agreement and the addendum.

Concerning the financial schedules attached to the agreement, defendant noted that Waterfall Village, a 154-unit housing complex, was one of his main assets at the time of the marriage. He stated that he had constructed the Waterfall Village complex with his business partner, Richard Van Harken, in the early 1970s, with the building being completely finished in 1973. Defendant stated that, although he personally maintained an office at the complex, he hired a superintendent to manage it for him throughout his marriage to plaintiff. Additionally, defendant explained that, in 1995, he sold an office building that he partially owned in Wayne, which he and Van Harken had built in 1974. Defendant deposited his portion of the proceeds from that sale into a bank account.

Defendant further testified that he sold a condominium in Atlantis, Florida during the marriage, and used those proceeds to purchase a residence in Greenport, New York. He also stated that he bought a condominium in Jupiter, Florida at plaintiff's behest, but then sold it when "she decided it wasn't big enough for her children to come there." Defendant claimed that he deposited most of the proceeds from this sale into his bank account, but that he "gave [plaintiff] some of . . . the excess money over what [he] had paid [for the condominium originally]."

Defendant further indicated that he purchased a lot in Estero, Florida in 1990, and had a house built on it. In addition, defendant testified that he maintained a residence in Charleston, South Carolina, which he purchased entirely with his own money. Both of these properties and the New York property were titled jointly in the names of both parties.

Defendant admitted that plaintiff occasionally paid utility or monthly maintenance bills for these three properties, but he asserted that she did so with money that he gave her during the marriage. He also indicated that he had sold the other properties listed on his financial schedule and likewise, placed the proceeds in his bank accounts.

As to his racehorse business, defendant admitted that he continued to race horses during the marriage and that he "made money some years and . . . lost money a lot of years" in the business.

During defendant's direct testimony, his 1983 and 1984 individual federal tax returns were moved into evidence. The returns reflected his income for the respective tax years from three years and two years prior to the marriage. The returns reflected no wage income to defendant during those tax years. Instead, both returns showed only combined income to defendant from rents and investment income from Waterfall Village, and the office building in Wayne, totaling more than $300,000 each year.

Defendant also moved into evidence the parties' joint federal tax returns from 1988 and 1989, for the periods two and three years after the wedding, respectively. These two tax returns showed nearly-identical amounts as the individual returns from 1983 and 1984. Specifically, the returns all reflected no wage income, but showed rental and investment income of more than $300,000 for each year.

Defendant also moved into evidence the parties' joint 2005 and 2006 federal tax returns. Again, these returns had no wage income recorded. On the 2005 return, the parties again listed more than $300,000 in income from the Waterfall Village property, but none from the Wayne office building, as it had been sold prior to this date. The 2006 return listed more than $450,000 as income from Waterfall Village. Defendant explained that the Waterfall Village revenue had increased due to the rectification of prior mismanagement of the property by defendant's business partner in a previous year, thereby allowing defendant to draw a larger share of the profits in 2006. Defendant again introduced his individual federal tax return from 2007. This return similarly reflected no wage income, but did include more than $400,000 in rental and investment income from the Waterfall Village property.


Addressing the preparation of the agreement, defendant stated that Saul Cohen, Esq.,*fn8 represented him at the time the agreement was prepared. According to defendant, Cohen told him that he should have an antenuptial agreement signed in order to protect his estate.

Defendant testified that consequently, in or about December 1985 or January 1986, Cohen advised him to provide full disclosure of his assets to plaintiff, and to obtain a similar asset disclosure from her. Cohen then reportedly drafted the agreement for defendant to deliver to plaintiff. Sometime thereafter, according to defendant, he took to Cohen a schedule of his assets that he had prepared and had shown to plaintiff, along with a similar schedule prepared by plaintiff, for inclusion in or with the agreement.

Defendant recalled that Cohen advised him to tell plaintiff to have the agreement reviewed by her own attorney prior to her signing it. Following Cohen's advice, defendant recalled that he signed the agreement in January 1986 and delivered it to plaintiff for her review and signature. He testified that plaintiff took the agreement to review. Thereafter, plaintiff's attorney called Cohen on February 7, 1986. According to defendant, plaintiff's attorney insisted that the addendum be added. Cohen reportedly advised defendant to sign the addendum the same day, and defendant thereafter signed it.

On cross-examination, defendant admitted that he and Van Harken "made the day-to-day decisions" regarding Waterfall Village and that they did not have a superintendent on staff until 1990 at the earliest. Defendant also acknowledged that he and his business partner were in charge of maintenance of the complex, as well as "review[ing] the rent rolls and the records, books[,] and records of the business" from 1986 through 1990.

Apart from the schedules that accompanied the agreement, defendant acknowledged that he did not share any financial documentation with plaintiff before or immediately after the wedding. He also acknowledged that two different copies of the agreement existed with his notarized signature, one copy referencing "attached amendments" and one not. Defendant testified that he may have contemporaneously given plaintiff both copies. He also admitted that the copy of the agreement that omitted reference to the attached amendments and also omitted the addendum or schedules, was only signed by him, and was not signed by plaintiff.

Defendant further admitted that, although he may have signed the agreement on February 5, 1986, plaintiff signed it a "couple" of days later, in spite of the February 5 date reflected in Wright's notarized statement. Defendant further admitted in his cross-examination that, although the addendum was dated February 7, 1986, he believed that he actually signed the addendum on February 8, the date of the wedding.


Because plaintiff had challenged the authenticity of the agreement and the addendum, and particularly challenged her corresponding signature on the addendum, defendant presented opinion testimony from William Ries, a handwriting expert. Ries was stipulated by both parties as an expert in the field of handwriting identification.*fn9

Ries identified the signature of plaintiff on the addendum as identical to her signatures on documents that plaintiff had filed in a previous divorce action from the 1970s. On cross-examination, plaintiff's counsel attempted to elicit testimony from Ries that the "tissue-thin" nature of the paper upon which the addendum was written made plaintiff's signature more likely to be a traced forgery, but Ries denied that possibility.


After Ries testified, defendant rested his case-in-chief. Plaintiff then moved to have defendant's application to enforce the agreement dismissed, on the grounds that he had not met his burden of proving that there had been full financial disclosure prior to the agreement's execution. Defendant, meanwhile moved to have the court grant his application to enforce the agreement, on the grounds that he had met all required elements of proof. The judge reserved decision on the competing motions, pending the presentation of plaintiff's own proofs.

Plaintiff first called Gregory Wright, the individual who notarized plaintiff's signature on the agreement. Wright stated that he had been a friend of the parties for twenty years. On direct examination, although Wright acknowledged that his notarizing signature was dated February 5, 1986, he recalled that the agreement was signed on "the day of the wedding, whatever day that was." He stated that, on the day of the wedding, "[defendant's son] brought the document to the lodge where [they] met. [Plaintiff] signed it. [Wright] witnessed it. That was it."

Plaintiff next called Gloria Grieco, Esq., who served as defendant's trusts and estates attorney from 1994 through the time of the instant hearing.*fn10

On direct examination, Grieco stated that she had a copy of the agreement in her office files, and recalled that she had sent a copy of that agreement to plaintiff prior to the litigation. When presented with defendant's claimed original of the agreement, Grieco stated that she had never seen the attached schedules before. Grieco further testified that she could not recall any conversations with defendant as to the contents of the agreement or the addendum.

Plaintiff next called Barbara Stein, the individual who notarized defendant's signature on the agreement. Stein was a notary who worked in Cohen's office in 1986. On direct examination, she could not remember witnessing defendant's signature on the agreement, but she acknowledged that the document contained her signature and notary stamp. Stein could not remember seeing the addendum or attached schedules. Stein did state that it was not the usual practice of her firm to use the kind of paper on which the addendum was typed on.

Plaintiff then called Arnold Miniman, Esq., the attorney who had personally advised plaintiff in 1986 about the agreement prior to its execution. In his testimony, Miniman recalled that the agreement presented to him by plaintiff did not include the addendum. He vividly recalled that he had objected to plaintiff signing the agreement. Specifically, he asserted that:

I was concerned about the one-sidedness of the agreement. I did not like the alimony provision that's at [p]aragraph [nine] of the agreement and I did not like the catastrophic illness provision of the agreement and I did not like the language to the effect that property acquired during the marriage would remain in the individual name of the person who purchased that property.

I told -- I believe I told [plaintiff] that that was contrary to New Jersey law and equitable distribution.

When asked about what plaintiff's response was to his advice, Miniman replied that she told him: "I have to sign it. I'm getting married." Miniman further recalled that he had tried to negotiate changes to the agreement, but that those changes never were adopted.

Miniman emphatically denied preparing the addendum. He stated that the language of the addendum, and the type of paper on which it was printed, were not like something that he would have prepared.

Miniman acknowledged that it was possible that he had included parenthetical language on a second copy of the agreement that had been previously identified during defendant's testimony. Miniman stated that he likely included this language after reading the agreement, so that plaintiff would be able to attach later amendments to it. However, Miniman noted that his office in 2000 had purged any closed files then older than eight years. Because his meeting with plaintiff was part of a closed file that was fourteen years old at the time, that file was accordingly purged.

On cross-examination, Miniman admitted that he did not express concern about a lack of full financial disclosure with plaintiff when reviewing the agreement with her. However, he explained that "it's possible that [he] found the agreement to be so one-sided that [he] didn't get to the point of disclosure because [he] didn't like the agreement as it stood."

Plaintiff next called David Rogers, her son, to testify. Rogers stated that defendant hired him to do painting and maintenance on Waterfall Village during the summer of 1985, when Rogers was sixteen years old. Rogers stated that defendant told him at the time that he was "in charge of" the complex. Rogers further stated that defendant frequently had to go to Waterfall Village to rent out apartments, because Van Harken did not have the authority or the ability to do so.


Plaintiff then took the stand in her own behalf, testifying intermittently on three days in September and October 2008.

Plaintiff recounted that defendant, prior to the wedding and without disclosing to her the worth of his assets, told her that he was a majority partner in Waterfall Village. Defendant also allegedly told her, again without disclosing the monetary value of the assets, that he was then an "equal partner" in an office building in Wayne, as well as the owner of three residences and several racehorses.

Plaintiff testified that defendant had first asked her to execute an antenuptial agreement in November or December of 1985. However, she stated that she was not provided with a written agreement from defendant until February 5, 1986. She insisted that the copy of the agreement that defendant had provided to her on that day did not include the financial schedules or the addendum. She acknowledged, however, that defendant urged her to get the advice of an attorney before signing it.

Plaintiff testified that she took the drafted agreement to Miniman. She confirmed that Miniman advised her not to sign it, and told her that he wanted a meeting with both parties and Cohen to renegotiate the agreement. According to plaintiff, that meeting was scheduled for Friday, February 7, 1986, but that defendant had called her at noon on that day and told her that because of snow conditions they had to cancel it.

Plaintiff testified that she next saw the agreement on her wedding day, after receiving a call from her mother alerting her to the fact that defendant was looking for her to sign it. As plaintiff recalled it, defendant's son (Bob, Jr.) came into the reception hall and delivered a copy of the agreement for her to sign. The copy, as plaintiff recalled it, did not contain the schedules or the addendum. Plaintiff testified that despite Miniman's cautionary advice, she signed the agreement at that time because she "had to make a decision, either call off the wedding [or sign]."

Plaintiff contended that she did not sign the addendum on the day that she signed the agreement. She identified the copy of the addendum bearing the parenthetical information as a copy that had been sent to her by Miniman after the wedding. Plaintiff claimed that Grieco finally sent her a completed copy of the agreement in 2004. She maintained that this was the very first time that she had ever seen the addendum. She also claimed that she had never seen the "tissue paper" version of the addendum until Miniman's deposition in 2008. In addition, she contended, the first time that she saw the financial schedules was allegedly in November 2007, when they were provided to her by defense counsel in this litigation.

Plaintiff testified that defendant had promised her before the marriage that the family would live at her home in High Crest, but that after the wedding he instead urged that they move to his home in Wayne and sell the High Crest home. She also claimed that she stopped working immediately after the wedding, at defendant's insistence. Plaintiff complained that the home in Jupiter, Florida, which she contended defendant had purchased for her as a gift, was sold at defendant's insistence, not plaintiff's.

According to plaintiff, defendant caused her to use the proceeds from the sale of her High Crest home to pay for her son's tuition, as well as the mortgage on the Long Branch home. These were obligations that she had expected, prior to the marriage, to pay for out of her salary if she had kept working. According to plaintiff, defendant instructed her to stop working and promised her that he would pay for these obligations. Instead, she said, once she received the money from the sale of the High Crest home, defendant refused to pay for these expenses and instructed her to pay for them herself.

By plaintiff's account, she was deeply involved in her husband's horse racing business throughout the marriage. Among other things, plaintiff testified that she set up the travel required for the horse business, researched the nutrition for the horses, performed therapy and motivational work with the horses, and arranged dinners with the other horse owners.

Plaintiff indicated in her testimony that she was presently in fragile health, and that she had remained unemployed since 1986. Plaintiff testified that she unsuccessfully tried on two occasions during the marriage to resume her college studies. She stated that she did not now plan to re-enter the workforce, as she was not trained and also because of her health problems, which included such maladies as diabetes, a 2004 cardiac incident that resulted in a staph infection from the hospital stay, shingles, and Epstein-Barr Syndrome.

With respect to her own personal financial condition, plaintiff testified that she received an inheritance in 2004 from her mother. According to plaintiff, she has used funds from that inheritance occasionally since then, essentially to pay additional expenses not covered by the $7,000 monthly living allowance provided to her by her husband.

In addition to the inheritance from her mother in 2004, plaintiff testified that she was bequeathed an Individual Retirement Account ("IRA") from her mother, and another IRA from her uncle. Both of those IRAs were in the process of being sold during the divorce litigation. Plaintiff indicated that she also expected to be receiving money from a trust set up by her uncle, George F. Dunning.

According to plaintiff, in September 2008, she was forced to liquidate an IRA that she had created prior to the marriage. Plaintiff moved into evidence various account statements that showed an additional $722,000 to which plaintiff had access, including: an IRA that she inherited from her aunt in 1992; and investment account that she opened before the marriage; the yet-unresolved Dunning Trust*fn11 ; and another investment account which derived from plaintiff's mother's 2004 bequest. However, she then testified that her investments only generated approximately $700 per month.

On cross-examination, plaintiff admitted that, prior to the wedding, Miniman had expressed his concerns with the alimony provisions. She also admitted that Miniman had described to her the two alternate alimony outcomes, which depended upon who might file for divorce first. Even though she understood these concerns and recalled Miniman advised her not to sign the agreement, plaintiff acknowledged that she signed it anyway.

In response to a question on cross-examination as to why she had claimed in a pretrial certification that she had "relied" on the addendum when signing the agreement, if she was claiming at that time that she never saw it until 2004, plaintiff asserted:

The agreement that I was working with was fraudulent. It was presented as the agreement that had been signed at the -- on [February 8, 1986]. And the addendum was in the back and I -- when I received it I asked [defendant], what is this? And he said that was in the agreement. I didn't put it all -- it was very confusing. And I dealt with this for years with him asking what that addendum was. What is it? And he would become irate. [He stated, "]You signed it.

You signed it the day before the wedding.["] I said[, "] I don't remember it.[" ]He replied, ["]You signed it.["]

Plaintiff acknowledged, as she testified at her deposition, that she had asked defendant to review the agreement at the two-year mark provided by the addendum, and that he had refused to do so. However, at a later point in her deposition, plaintiff clarified that she had asked for a review of the agreement not in 1988, but later in 1993 (beyond the two-year mark), after co-signing with defendant a $3.5 million mortgage loan on Waterfall Village.

Plaintiff acknowledged on cross-examination that her share of her uncle's trust could be worth nearly $1 million, almost twice the amount that she testified to on direct examination. She further testified that she had already taken a $320,000 disbursement from the trust in 2007 to purchase "raw land to be a campground for [plaintiff's] family in South Carolina." Plaintiff also admitted to having loaned her son $117,000 from one of her inheritances in November 2007.

Plaintiff further admitted on cross-examination that she had provided the information to defendant that eventually was included in the schedule of her financial assets accompanying the agreement.

On redirect examination, plaintiff clarified that while she may have seen a full copy of the agreement in 2004, she did not have it at the commencement of the litigation and did not remember retaining it in her possession.


The trial judge initially delivered his opinion on the record in open court on January 12, 2009. He began by detailing the provisions of the agreement and recounting much of the chronology presented in the testimony from both sides.

With respect to the conflicting testimony as to the date that the agreement was signed, the judge rejected plaintiff's concern, stating that he "d[id] not believe that it makes a difference because in fact [both documents] were signed properly by each party and there is no question in this [c]court's mind that the parties' signatures are genuine."

Addressing the unrefuted expert handwriting testimony presented by Ries, the judge stated that he was "quite satisfied that the signatures on the addendum were authentic and that [plaintiff] did sign both documents despite some allegations to the contrary."

In assessing the credibility of plaintiff's testimony, the judge felt compelled to: point out that at different times during the course of [p]laintiff's testimony it appeared to the [c]court that [p]laintiff was changing her position as to why she was challenging the validity of this agreement in hopes of coming up with some theory that might convince the [c]court [that] she was right.

By way of illustration, the judge noted that plaintiff's counsel at one point had taken a position that "[d]efendant's son signed her signature [to the addendum] despite the fact that the handwriting expert's qualifications were accepted by the [c]court. It was very clear that the signature was that of [plaintiff]. This [c]court finds that [particular] position of [plaintiff] to be ludicrous."

The judge then addressed the factors under the three-prong test established in Marschall, supra, 195 N.J. Super. at 29-31, and as clarified by Delorean v. Delorean, 211 N.J. Super. 432, 436-38 (Ch. Div. 1986). This test requires that the proponent of the agreement prove that there was: (1) no fraud or duress, (2) a lack of unconscionability, and (3) full and complete disclosure of financial wealth by the party looking to enforce the agreement. See Delorean, 211 N.J. Super. at 436-38. Quoting Delorean, the judge noted that, under the common law in New Jersey, an antenuptial agreement is generally valid "[s]o long as a spouse had sufficient opportunity to reflect on her actions, was competent, informed and had access to legal advice, and that of any relevant experts[.]"

Addressing the question of disclosure first, the judge found that:

The parties were able to enjoy a nice lifestyle and clearly [p]laintiff was aware of the fact that [d]efendant was not working. The fact that he may have gone to the site of either the office building or the garden apartment complex on a somewhat daily routine did not mean that he was working at these sites, but clearly from the testimony presented, he was there to make sure that those who were in charge were doing their duties properly.

This [c]court does not accept the fact that [p]laintiff was unaware of the income and/or assets of [defendant] at the time of marriage.

The circumstances of the parties' lifestyle and information that [plaintiff] admitted she knew about [d]efendant's assets satisfies this [c]court that [defendant] provided income and asset information to [plaintiff] in advance of marriage.

As to the issue of fraud or duress, the judge stated that he "[did] not find any issue of fraud or duress on either party at the time of the execution of the agreement." In fact, he noted that "[p]laintiff had sufficient time to consider the agreement and the consequences of signing it, including the addendum."

Finally, turning to unconscionability, the judge noted that "the [c]court must look at the current financial circumstances of [plaintiff] . . . rather than relying solely on the circumstances at the time of signing the agreement." Citing this court's opinion in Rogers v. Gordon, 404 N.J. Super. 213 (App. Div. 2008), the judge noted that an agreement would be held unconscionable if "it would result in [the spouse] maintaining a standard of living far below that which [she] was enjoying during their marriage." However, the judge distinguished Rogers, in that it factually involved a spouse, unlike the plaintiff here, whose standard of living would fall below the "level of subsistence" if the antenuptial agreement was enforced as written. The judge did not find that plaintiff's present circumstances fell below a subsistence level, but instead noted that "she's better off financially today than she was before and during the marriage." Based upon the proofs, the judge concluded that "the terms of the [antenuptial] agreement with the addendum will remain in full force and effect." The judge entered a corresponding written order on the same day.


Following the trial court's ruling sustaining the agreement's enforceability, the remaining issues in the divorce action needed to be addressed. Prior to adjudicating those remaining issues, the trial court received an application from newly-added counsel for plaintiff, seeking reconsideration of its decision on enforceability. Plaintiff's new counsel also moved to: (1) compel defendant to continue to provide pendente lite support; (2) permit plaintiff to reside at the parties' South Carolina home; (3) order defendant to reimburse plaintiff's legal fees; (4) stay enforcement of the agreement pending appeal; and (5) enter a case management order allowing further discovery.*fn12 Defense counsel did not file substantive opposition to the reconsideration motion, but advised the trial court that it was untimely under Rule 4:49-2.

After an initial emergent application by plaintiff to this court was declined as premature, the trial court denied plaintiff's application to extend discovery, and entered a dual final judgment of divorce on March 16, 2009, with terms consistent with the provisions of the agreement.*fn13 The reconsideration motion was denied as untimely. The court also denied plaintiff's application for a stay of enforcement.

Plaintiff then filed a renewed application for emergent relief with this court. On April 2, 2009, we granted plaintiff a partial stay of enforcement of the final judgment pending appeal, limited to staying her removal from the South Carolina residence. We also remanded the case to the Family Part for consideration of counsel fees, as each party had requested such fees to be shifted to his or her adversary.


On April 16, 2009, the trial judge issued a written decision, denying the parties' competing applications for counsel fees, analyzing the fee claims under the applicable standards of Rule 4:42-9(a), Rule 5:3-5(c), and pertinent case law. Based on that analysis, the trial judge declined to award counsel fees to either party and, consequently, required each of them to bear their own respective costs of the litigation.

In specifically denying counsel fees to defendant, the judge noted that, although he earlier ruled against plaintiff's position that the agreement was unenforceable, that ruling did not mean that plaintiff's motions and positions were taken "with any frivolous intentions or in bad faith." The judge observed that, "[o]rdinarily this [c]court would consider having [plaintiff] . . . pay something for causing this questionable discovery and perhaps unnecessarily incurred counsel fees, however, the financial circumstances here are such that it would be inequitable to require [plaintiff] to pay anything towards [defendant's] fees for those actions."

The judge then discussed, point-by-point, the various criteria for considering an award of counsel fees, finding that, "[n]either party has demonstrated to this [c]court that[,] under the criteria that must be considered, there will be a justification to award counsel fees under the facts and circumstances of this case." The judge entered an accompanying written order the next day.


Thereafter, defendant applied to the Supreme Court to have the emergent stay instituted by this court lifted. The Court denied defendant's motion on June 1, 2009. In the interim, plaintiff filed the instant appeal, challenging the Family Part's rulings on the enforcement of the agreement as well as its denial of counsel fees. Defendant did not cross-appeal.

While the appeal was pending, the trial judge issued a seventeen-page written opinion more formally memorializing the opinion that he had read into the record in open court on January 12, 2009. The court issued a letter on September 9, 2009 correcting an error on one page of the written opinion, which had been called to the court's attention by counsel, amending the opinion to clarify that the burden of proof on the enforceability of the agreement rested with defendant, and not with plaintiff. The judge expressly noted in his September 9 letter, in pertinent part, that defendant "has met his burden of proof in convincing the [c]court to uphold the terms of the [antenuptial] agreement . . [.]" (emphasis added).*fn14

In her appeal, plaintiff essentially argues that: (1) the Family Part erred in its application of the law, especially as to the enforceability of antenuptial agreements, the applicable burden of proof, and the attorney-client privilege; (2) the court should have granted plaintiff additional discovery and reconsideration; and (3) the court should have awarded her counsel fees. Plaintiff further requests that this court exercise original jurisdiction over the case pursuant to Rule 2:10-5, or, in the alternative, remand this matter to a different Family Part judge to resolve any open issues, because plaintiff perceives that the trial judge treated her unfairly.


The applicable legal standards regarding the enforceability of an antenuptial agreement are undisputed. Prior to the Legislature's adoption of the Uniform Premarital Agreement Act ("UPAA") in 1988, N.J.S.A. 37:2-31 to -41, the common law in New Jersey required that the proponent of such an agreement establish:

(1) that there be "full disclosure by each party as to his or her financial conditions;" (2) that the party sought to be bound by the agreement understood and accepted the terms and conditions of the agreement; and (3) that the agreement be fair and not unconscionable, that is, that the agreement will not "leave a spouse a public charge or close to it, or . . . provide a standard of living far below that which was enjoyed both before and during the marriage." [Rogers, supra, 404 N.J. Super. at 219 (quoting Marschall, supra, 195 N.J. Super. at 29-31).]

Our courts have embraced, for pre-Act cases, this three-part standard of Marschall, supra, as a "comprehensive exposition and analysis" of the law governing pre-Act agreements. D'Onofrio v. D'Onofrio, 200 N.J. Super. 361, 366 (App. Div.), certif. denied, 102 N.J. 366 (1985).

The parties agree that the somewhat different standards of enforceability now codified in the UPAA do not apply to this case, involving an antenuptial agreement executed in 1986, because the UPAA specifically applies only to agreements "executed on and after [November 3, 1988]." N.J.S.A. 37:2-41. Therefore, any agreement executed prior to November 3, 1988 is governed by the common law of New Jersey. Rogers, supra, 404 N.J. Super. at 219. Because the instant agreement was executed in 1986, the common law controls, rather than the statute.

The trial judge made detailed factual findings relating to these three factors, after hearing several days of extensive testimony from the principals, several of their former attorneys, a handwriting expert, and other lay witnesses. We will not disturb a trial court's findings after a non-jury trial unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13.

Having independently canvassed the record, we are satisfied that there is substantial credible evidence in the record to support the trial judge's finding that all three common-law elements of enforceability of the antenuptial agreement are present here, and that the trial judge's analysis is legally sound. We affirm that determination, essentially for the reasons set forth in the trial judge's oral and amended written opinions. We only add some limited observations.

As to the first prong of the standard--the parties' mutual and full disclosure of financial information--the court recognized in Marschall that "[t]he easiest device [to ensure full disclosure] would probably be a schedule annexed to the agreement setting out, at least in general terms and with approximate values, the assets of the parties[,] as well as their income over the past few years." Marschall, supra, 195 N.J. Super. at 33 (emphasis added); see also Delorean, supra, 211 N.J. Super. at 438. Here, the record sufficiently supports the trial judge's observation that "[t]he circumstances of the parties' lifestyle and information that [plaintiff] admitted she knew about [d]efendant's assets satisfies this [c]court that [defendant] provided income and asset information to [plaintiff] in advance of marriage." Moreover, the judge found defendant credible in testifying that the two schedules of assets were, in fact, attached to the agreement at the time of the agreement's signing. Furthermore, as corroborated by substantial testimony adduced at the hearing, plaintiff was or should have been aware of defendant's major assets, and she had an awareness from visits to his properties and conversations with him before the wedding as to the extensive nature of his holdings. Neither plaintiff nor her attorney complained about inadequate disclosure at the time of the agreement.

The second prong of the analysis requires a showing that the parties understood the true nature of the agreement, and did not enter into it because of fraud or duress. Rogers, supra, 404 N.J. Super. at 219. We have noted in this context "[an] attorney's advice not to sign the agreement could not be meaningful without plaintiff's knowledge of defendant's true financial worth and an understanding of the concepts of equitable distribution and alimony." Orgler v. Orgler, 237 N.J. Super. 342, 350 (App. Div. 1989).

The record reflects that plaintiff met with her personal attorney, Miniman, before signing the agreement. Miniman advised plaintiff not to sign the agreement without making changes to it. Miniman testified that he specially warned her that the alimony provisions of the agreement were adverse to her future monetary interests. Among other things, the proofs indicate that Miniman told her that he objected to the provision of the agreement that required plaintiff to pay for her own hospitalization in case of catastrophic illness, and also to the provision that exempted any property purchased during the marriage from equitable distribution. Plaintiff took Miniman's advice to heart in at least one respect as to the catastrophic illness clause, and she convinced defendant to maintain a hospitalization insurance policy for her as long as they were married.

The record sufficiently reflects that plaintiff sought and obtained legal advice concerning the merits of the antenuptial agreement. She had been previously married and divorced, and had every reason to be mindful of the consequences of signing the agreement without further modifications. Plaintiff also did not have the agreement modified during the two-year period following its execution, as permitted by the addendum. The proofs amply support the judge's finding that she adequately understood what she was doing when she disregarded much of her attorney's advice and signed the agreement before the marriage ceremony.*fn15

Third, we concur with the trial judge that the agreement was not unconscionable. See Rogers, supra, 404 N.J. Super. at 219. The trial judge recognized and fulfilled the court's responsibility to make a determination of the fairness of the agreement, even with allegedly changed financial circumstances at the time of enforcement. Id. at 225. As stated in Marschall, "[a]n agreement which would leave a spouse a public charge or close to it, or which would provide a standard of living far below that which was enjoyed both before and during the marriage would probably not be enforced by any court." Marschall, supra, 195 N.J. Super. at 30-31. (emphasis added). Marschall further noted that although "the applicable measure for judicially fixed support is the standard of living during the marriage, there does not seem anything inherently 'unfair' in an antenuptial agreement which uses a different standard--perhaps the somewhat lower standard at which one spouse lived before the marriage." Id. at 31 (citing Lepis v. Lepis, 83 N.J. 139 (1980)).

Plaintiff urges us to conclude that the trial judge erred in considering her standard of living prior to the marriage as a point of equitable consideration. However, as noted by Marschall, supra, 195 N.J. Super. at 30-31, such a factor can be appropriate for evaluating a pre-Act agreement. Moreover, the trial judge correctly noted that plaintiff has had access to substantial assets as a result of her various inheritances. The judge also appropriately recognized that plaintiff felt financially secure enough, within months of her filing for divorce, to loan her son $117,000 from those inheritances, a not insubstantial sum.

We are unpersuaded by the balance of plaintiff's other various arguments concerning the merits of the final judgment, including but not limited to her claims that: (1) the trial judge misapplied principles of attorney-client privilege; (2) placed the burden of proof on the wrong party;*fn16 (3) abused his discretion in declining to order additional discovery; (4) improperly rejected her post-hearing motion for reconsideration as time-barred; and (5) generally treated plaintiff unfairly. None of these claims has sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

Consequently, we affirm the trial court's substantive determinations in all respects, and there is no need for this court to exercise its original jurisdiction, nor to remand this matter to a different Family Part judge. The judge, on the whole, handled this hotly-contested litigation conscientiously and his rulings were equitable and fair.


We lastly turn to consideration of the trial court's denial of counsel fees, noting that defendant did not cross-appeal the denial of his own application for fees.

Here again, the pertinent legal standards are undisputed. See R. 4:42-9(a); 5:3-5(c); see also Williams v. Williams, 59 N.J. 229, 233 (1971). Our standard of reviewing such counsel fee determinations by a Family Part judge, particularly one who has tried a plenary matrimonial case, is one of deference. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We are satisfied that the trial judge did not misapply those factors, nor did the judge offend fundamental principles of fairness, in ruling that each side should bear his and her own costs of the litigation.

We appreciate that plaintiff, like defendant, has expended considerable sums in litigating this matter. We are also aware that, despite plaintiff's sizeable inherited assets, defendant evidently is in a position of greater wealth. We are also mindful that both parties have serious health issues. The trial judge sufficiently took all of that into account. In fact, the judge showed equitable restraint by rejecting defendant's own fee-shifting claim, despite plaintiff's failed efforts to avoid the consequences of the agreement that she signed before entering into the marriage. The counsel fee determination is reasonable under the totality of circumstances, and is hereby affirmed.


The judgment of divorce and the corresponding orders of the Family Part are affirmed in all respects. The stay pending appeal allowing plaintiff's continued occupancy of the South Carolina residence is continued for twenty days. If plaintiff files a timely notice of a petition for certification within that twenty-day period, the stay shall remain in effect unless and until the Supreme Court otherwise acts; otherwise it shall expire automatically.


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