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Sharon M. Marchese, N/K/A Sharon M. Laverty v. Debra A. Marchese


February 17, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-286-09.

Per curiam.


Submitted January 11, 2011

Before Judges Graves and Waugh.

On July 28, 2007, plaintiff Sharon Marchese and defendant Debra Marchese entered in to a civil union that was subsequently dissolved. Defendant appeals from an order entered on January 22, 2010, denying her request to set aside the parties' property settlement agreement (PSA), which was incorporated into their final judgment of dissolution. For the reasons that follow, we affirm.

On November 26, 2008, plaintiff's attorney sent defendant a proposed PSA. In the cover letter, counsel indicated that the agreement was consistent with the parties' discussions. In addition, the letter stated:

I recommend that you review this agreement with a matrimonial attorney of your choice, as your rights are affected by the provisions therein. Please have your attorney contact us as soon as possible to discuss these matters further.

If, however, you choose not to be represented by counsel in this matter, kindly advise us of that in writing. Additionally, please carefully review the enclosed agreement. If same is acceptable to you, kindly sign it in the presence of a notary public. I look forward to hearing from you. Please be advised that if we do not hear from you within fourteen (14) days, we will proceed with filing a complaint with the court.

On December 12, 2008, defendant signed the PSA in the presence of a notary, and the agreement was signed by plaintiff on December 17, 2008. About a month later, on January 15, 2009, defendant acknowledged service of the complaint and signed a "waiver of time to answer and consent to entry of default." Defendant also confirmed that she had "entered into a Property Settlement Agreement, dated December 17, 2008, which resolves all of the issues."

In a subsequent letter dated February 3, 2009, defendant informed plaintiff's counsel that she received a letter from plaintiff indicating she no longer wanted "the remainder of her personal belongings." Defendant stated she was concerned that plaintiff was "allowing her continued anger . . . to adversely affect her judgment regarding [her] belongings." Defendant indicated "she was more than willing to work out a way" for plaintiff to recover her property. Defendant also stated:

Contrary to [plaintiff's] characterization of me being anguished and frustrated, I am neither and would like to have closure for both of us. I wish her nothing but happiness and peace which is why I am concerned about her decision and would not want her to have any regrets regarding these items which I know mean a lot to her, and someday [her son].

On March 20, 2009, the court entered a "Final Judgment of Dissolution of Civil Union," which incorporated the parties' PSA dated December 17, 2008. Pursuant to the PSA, defendant became the sole owner of the former civil union residence, which was jointly owned, and defendant agreed to refinance the mortgage. Paragraph VI.A of the PSA provided as follows:

REAL PROPERTY. The parties jointly own real property located at . . . Road, Columbia, New Jersey. There is little or no equity in the former marital home. [Defendant] shall solely retain the premises, free and clear of any claims from [plaintiff]. [Defendant] shall refinance the existing mortgage to remove [plaintiff's] name therefrom within six (6) months from the execution of this Agreement. [Defendant] shall have exclusive possession of the marital home and be solely responsible for paying all of the carrying costs, including but not limited to the mortgage, taxes, insurance and utility payments, from November 1, 2008 forward. [Defendant] shall indemnify and hold [plaintiff] harmless from any liability associated with the marital home.

If [defendant] is unable to refinance said premises within six (6) months, she shall immediately list the home for sale.

In that event, [defendant] will be solely responsible for any costs of sale and any deficiency if the sale proceeds are not sufficient to satisfy and pay off the existing mortgage.

In November 2009, plaintiff filed a motion to "enforce the sale of the property." Plaintiff advised the court that defendant was still residing in their former residence, and it was unlikely that defendant could refinance the mortgage "given the current state of the housing market and her bankruptcy."

Prior to the return date of plaintiff's motion, defendant filed a cross-motion in which she asked the court to either set aside the PSA or hold a hearing to determine if the agreement should be set aside. Defendant also requested "additional time to refinance the former Civil Union home." In a certification in support of the cross-motion, defendant stated: "It is not my desire to hurt the Plaintiff's interests, however, the agreement that was entered into is clearly unconscionable and perhaps, now that I am represented by competent counsel . . . a more equitable arrangement can be made." Defendant also claimed that she was "distraught" when she signed the agreement, and that she had been unable to secure refinancing due to the debt she assumed and her subsequent bankruptcy. According to defendant, she would have never signed the PSA if she had "been represented by counsel" and "in a proper state of mind."

In an oral decision on January 22, 2010, the trial court noted there was no evidence to support defendant's claim that she "was in a bad emotional state" when she signed the agreement. Rather, there was "proof . . . to the contrary" because defendant consented "to the entry of the judgment." The court also found that the PSA was not "unconscionable or overreaching," and there was "no showing of fraud." Accordingly, defendant's request to vacate the PSA was denied, and defendant was ordered to either refinance the existing mortgage within sixty days, or list the house for sale.

On appeal to this court, defendant contends the PSA "should be set aside or, in the alternative, a hearing should be held" to determine whether the agreement is enforceable. We do not agree.

The standard for vacating a PSA is not easily met. Because they are "essentially consensual and voluntary in character," such agreements are "entitled to considerable weight with respect to their validity and enforceability." Peterson v. Peterson, 85 N.J. 638, 642 (1981). However, "[i]f a settlement agreement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto, the settlement agreement must be set aside." Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.), certif. denied, 137 N.J. 165 (1994); see also Miller v. Miller, 160 N.J. 408, 419 (1999) ("Given the absence of unconscionability, fraud, or overreaching in the negotiations of the settlement, we agree with the trial court that no legal or equitable basis exists to reform the parties' property settlement agreement.").

In this case, it is clear that defendant was not rushed or coerced into signing the PSA, and Paragraph X of the agreement provides as follows:

The parties acknowledge that the provisions of this Agreement are fair, adequate and satisfactory to each of them in all respects. The parties have been advised of their right to obtain counsel to represent them in reviewing this document and to advise them of their rights in their divorce. Both parties have been afforded adequate time to retain an attorney. [Plaintiff] has been represented by Bernard T. Neuner, Esq. of Margolin and Neuner. [Defendant] has voluntarily chosen not to be represented by counsel in this matter. Both parties acknowledge that the Agreement is fair and equitable and that it is being entered into voluntarily and with full knowledge of its contents and that it is not the result of any duress or undue influence.

Based on the clear language of the PSA, and the circumstances surrounding its execution, the motion judge found that the parties had voluntarily entered into the agreement and there was no need for an evidentiary hearing because there were no facts to support defendant's claim for relief. Our review of the record confirms there was no legal or equitable basis to vacate the PSA, and there was no genuine issue of marital fact that required a plenary hearing.



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