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Nisbett v. Nisbett

June 23, 2010

TIBISAY NISBETT, PLAINTIFF-APPELLANT,
v.
ROBERT NISBETT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1614-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 13, 2010

Before Judges Sapp-Peterson and Espinosa.

Tibisay Nisbett (Tibisay) appeals from an order that granted the motion of her former husband, Robert Nisbett (Robert), enforcing litigant's rights and denied her motion to modify the property settlement agreement (PSA) in this matrimonial action. We affirm.

We summarize the facts relevant to this appeal.

Tibisay and Robert were married for approximately eighteen years and had three children. A dual judgment of divorce was granted in March 2008 that incorporated the terms of a written PSA. The portion of the PSA relevant to the appeal is the alimony provision contained in Article III:

The wife shall pay directly to the husband the amount of $45,000, representing alimony and marital distribution of personal assets obtained and acquired during the course of the marriage. The wife shall make payments to the husband during a period of twelve (12) months beginning June 1, 2008, the amount of $10,000, September 1, 2008, $10,000, December 1, 2008, $10,000, and March 1, 2009, $15,000 which should be the last payment due and owe[d] by the wife to the husband. At the end of such payment the wife's obligation to the husband should terminate in accordance with the terms and conditions of this agreement.

Tibisay failed to pay the first installment, due June 1, 2008. In September 2008, Robert filed a motion in aid of litigant's rights, asking the court to compel Tibisay to comply with this provision.

Tibisay filed a cross-motion for "equitable reformation" of the property settlement agreement she had entered into just six months earlier. In her supporting certification, she acknowledged that she had agreed to the terms in the alimony provision. She stated, however, that she had received poor advice from her attorney regarding her potential liability to pay alimony; that he pressured her to settle the case despite her resistance to do so; and that she had warned her attorney that she did not have $45,000 to pay her husband in alimony.

She asked the court to vacate the alimony portion of the PSA because it was unfair for her to pay alimony based upon the following factors: his earning capacity; the equitable distribution he had received; his excellent health; the inadequate child support she received; and her loss of employment. She also asked the court to revisit other issues: to award her sole custody of the children; to increase child support; and to award her fifty per cent of Robert's pension.

By order dated November 14, 2008, the trial court denied Tibisay's motion and granted Robert's motion. The order required Tibisay to pay Robert $20,000, the amounts due in June and September 2008 pursuant to the PSA, within ten days. The court set forth the reasons for its ruling on the record:

The courts have made it clear that the fact that [Tibisay] could have done better is an insufficient basis to justify looking behind the property settlement agreement itself. New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversy. It's Konzelman v. Konzelman, 158 N.J. 185 [(1999)]. New Jersey law further finds that settlement agreements, if found to be fair and just, are specifically enforceable in equity, Schlemm v. Schlemm, 31 N.J. 557 [(1960)].

Here, Ms. Nisbett claims that because her attorney misinformed her about the law she did not knowingly enter into the settlement agreement. Generally, a settlement agreement may be reformed if found to be unconscionable or overreaching by one of the parties. See Addesa v. Addesa, 392 N.J. Super. 58 [(App. Div. 2007)]. However, Ms. Nisbett is not ...


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