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Brian J. Welch v. Donna L. Welch


January 12, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1292-08.

Per curiam.


Submitted December 14, 2011

Before Judges Lihotz and Waugh.

Defendant Donna L. Welch appeals from the order of the Family Part denying her motion to be relieved from a consent order in which she agreed to a reduction in alimony payable by plaintiff Brian J. Welch.*fn1 We reverse and remand for further proceedings consistent with this opinion.


We discern the following facts and procedural history from the record on appeal.

The parties were married in 1983 and divorced in 2008. They had two children. At the time of the divorce, Brian was employed and Donna was receiving Social Security Disability (SSD). Their property settlement agreement (PSA) required Brian to pay permanent alimony in the amount of $10,000 per year, payable $833 each month. Following the divorce, Donna moved to Florida. She continued to visit New Jersey to see her children. She and Brian generally had a cordial relationship, the parameters of which are disputed.

Brian became disabled in August 2009. He received disability from a private plan, and eventually qualified for SSD. In early 2010, Brian asked Donna to sign a consent order reducing her alimony to $3000 per year, payable $250 monthly, based upon his reduced financial circumstances. Donna consulted her prior attorney, who advised Donna against agreeing to the consent order. Donna nevertheless signed the consent order, which was entered on March 8, 2010.

In January 2011, Donna moved to reinstate the alimony provisions of the PSA and for other relief not raised on appeal. In her supporting certification, Donna asserted that she signed the consent order because she had been led to believe there would be a reconciliation with Brian. Noting that her disability was psychiatric and that she was suffering from post-traumatic stress disorder (PTSD) and severe depression, she also asserted that she did "not feel that [she] was of sound mind when [her] ex-husband forced [her] to sign the [c]onsent


In opposition to the motion, Brian denied that he led Donna

to believe that there would be a reconciliation. He also denied that he threatened or coerced her in any way. Brian further asserted that he made full financial disclosure at the time he asked Donna to agree to the reduction, and that they had comparable incomes at the time because of his disability. In reply, Donna asserted that Brian had made generalized threats to her if she refused to agree to the reduction. She also denied that Brian made any financial disclosure at the time he asked her to sign the consent order, pointing out that he had not filed a case information statement in connection with her motion.*fn2 Finally, she claimed that Brian went on disability to enhance the value of his claim against his former employer.

Although Donna asked for oral argument, the motion judge decided the motion without it.*fn3 With respect to the issue of the consent order, the judge made the following determination:

Plaintiff does not deny that he wrote romantic cards to defendant and affirms that the parties maintained an amicable relationship. This, without more, does not amount to the type of fraud that would justify vacating the consent order. Defendant does not deny plaintiff's claim that she consulted with counsel before entering into the consent agreement. Further, based upon the parties' respective incomes, the reduced support contained in the consent order is not unreasonable.

This appeal followed.


On appeal, Donna argues that the motion judge should have granted oral argument on the motion and then held a plenary hearing because the parties' certifications contained conflicting assertions of material facts. She also argues that the judge abused his discretion in denying her relief from the consent order. Brian argues that Donna failed to make a prima facie case for relief, as a result of which the judge properly denied relief without a hearing.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). A judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

In a long line of decisions, our Supreme Court has "emphasized repeatedly that matrimonial agreements between spouses relating to [equitable distribution], alimony and support, which are fair and just, fall within the category of contracts enforceable in equity." Petersen v. Petersen, 85 N.J. 638, 642 (1981) (citing Carlsen v. Carlsen, 72 N.J. 363, 370-71 (1977); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)). "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen, supra, 85 N.J. at 642; Dworkin v. Dworkin, 217 N.J. Super. 518, 524 (App. Div. 1987)).

Nevertheless, strong public policy considerations mandate that marital settlement agreements be closely scrutinized. Any marital agreement that is unconscionable or is the product of fraud or overreaching may be set aside. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992); Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988). "[T]he law affords particular leniency to agreements made in the domestic arena . . . ." Massar, supra, 279 N.J. Super. at 93. "Marital property settlement agreements 'involve far more than economic factors' and must serve the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages." Conforti v. Guliadis, 128 N.J. 318, 323 (1992) (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)). "Even when a divorce order incorporates agreements reached privately between the parties, such orders can be modified 'in light of all the facts' bearing on what is 'equitable and fair.'" Ibid. (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

If there has been moral compulsion sufficient to overcome the will of a person otherwise competent to contract, any agreement made under such circumstances is considered to be lacking in voluntariness and therefore invalid. Rubenstein v. Rubenstein, 20 N.J. 359, 365 (1956). The legal concept of duress is based upon the "unreality of the apparent consent" of a party. Id. at 366. "In determining whether a contracting party is entitled to be absolved from his [or her] contractual obligations due to duress, the court must . . . look to the condition of the mind of the person subjected to coercive measures." Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212 (App. Div. 1987). "'The question is whether consent was coerced; that is, was the person complaining induced by the duress or undue influence to give his consent, and would not have done so otherwise.'" Ibid. (emphasis and internal quotation marks omitted) (quoting Rubenstein, supra, 20 N.J. at 366).

"[T]he test for duress is subjective, rather than objective, and does not turn on whether the duress is of 'such severity as to overcome the will of a person of ordinary firmness.'" Id. at 212-13 (quoting S. P. Dunham & Co. v. Kudra, 44 N.J. Super. 565, 570 (App. Div. 1957)). All the attendant circumstances must be considered. Id. at 212. In addition to considering the subjective mindset of the complaining party, the pressure imposed must be wrongful. Rubenstein, supra, 20 N.J. at 367. "The act or conduct complained of . . . [must be] 'so oppressive under given circumstances as to constrain one to do what his free will would refuse.'" Ibid. (quoting First State Bank v. Fed. Reserve Bank, 219 N.W. 908, 909 (Minn. 1928)); see also Segal v. Segal, 278 N.J. Super. 218, 223-24 (App. Div. 1994).

With those legal principles in mind, we turn to the facts asserted by Donna. In her certifications, Donna asserted that

(1) she was disabled due to a mental disability, (2) she has been treated for PTSD and severe depression, (3) she was led to believe there would be a reconciliation with Brian, with whom she continued to have an occasional sexual relationship, (4) Brian did not make financial disclosure when he sought the reduction in alimony, (5) Brian made generalized threats to induce her to sign the consent, and (6) she is having difficulty living on her SSD and reduced alimony. Brian disputed most of Donna allegations, although he certified that Donna has a long history of alcoholism that he believed affected her memory.

As we held in Dworkin, supra, 279 N.J. Super. at 523, "any [matrimonial] agreement may be set aside when it is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship or is unconscionable." The facts asserted by Donna, as well as Brian's assertion that she has a long history of alcoholism, provide prima facie support for her assertion that her consent was not voluntarily given. If true, Donna's assertions show that she was potentially vulnerable to duress or undue influence because of her mental disability and, if Brian is correct, a history of alcoholism. In addition, if she was led to believe there might be a reconciliation with Brian or there was a continuing romantic relationship as she alleges, there could have been a "confidential relationship" of which Brian took advantage on the basis of either promises of reconciliation or threats that her refusal to cooperate would result in the withdrawal of his ongoing help and affection. The fact that Donna received and ignored the advice of an attorney is not inconsistent with her consent having been the product of duress or undue influence.

As a result, we are unable to say that the material facts alleged by Donna, if true, cannot as a matter of law warrant relief from the consent order, or at least a re-evaluation of alimony to determine whether the parties' current financial circumstances warrant the continuation of the reduced alimony.

We are aware that "not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.) (citing Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988)), certif. denied, 142 N.J. 455 (1995). Here, however, there are factual disputes that must be resolved through a plenary hearing before the legal issue can be determined.*fn4 Whether Donna can sustain her burden of proof through competent evidence at a plenary hearing remains to be determined at that time. We hold only that she must be given an opportunity to present her case and that her motion should not have been decided on the papers.

Consequently, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and remanded.

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