NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 3, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-15-03.
Jani Wase Vinick argued the cause for appellant (Haber, Silver & Simpson, attorneys; Karin Duchin Haber, of counsel; Ms. Vinick, on the brief).
Tara Schillari Rich argued the cause for respondent (Shapiro, Croland, Reiser, Apfel & DiIorio, attorneys; Ms. Rich, of counsel and on the brief; Jay Rubenstein, on the brief).
Before Judges Fasciale and Maven.
Plaintiff appeals from orders denying her motion to vacate the parties' Property Settlement Agreement (PSA) or, in the alternative, finding defendant in violation of litigant's rights. We conclude that the PSA is not unconscionable on its face, remand for further proceedings to address plaintiff's contention that defendant concealed his income, thereby depriving her of proper support payments, and reverse without prejudice the award of counsel fees.
Plaintiff and defendant married in 1983 and had two children, born in 1987 and 1988. In April 2003, plaintiff filed her complaint for divorce. The parties retained independent matrimonial counsel, who negotiated the terms of the PSA. During the negotiations, defendant provided plaintiff's attorney with a substantial amount of financial information.
During and since the marriage, defendant worked as a financial advisor for Merrill Lynch (now Bank of America), while plaintiff worked in the home and cared for the children. In 2002 and 2003, defendant earned approximately $700, 000 per year. The PSA stated that based on defendant's Total Cash Earnings (TCE) of $711, 320, plaintiff was to receive alimony of $240, 000 and $28, 000 in child support. The PSA contains a formula to allow for support adjustment calculations depending on changes in defendant's income. Plaintiff maintains that defendant repeatedly concealed information pertaining to his income for several years.
In July 2004, the court conducted an uncontested divorce hearing, at which both parties testified that they were represented by independent counsel, had an opportunity to engage in complete discovery, received independent advice during the negotiations, voluntarily entered into the PSA, and understood its terms. On the same day, the judge found that both parties understood the PSA's terms and entered the JOD, which incorporated the PSA.
According to defendant, he provided to the accountant designated in the PSA all of defendant's required financial information. The accountant prepared the yearly calculations regarding any overpayment or underpayment of support for the prior year and the new support amounts for the current year. In so doing, the accountant provided both parties with his support calculations.
According to plaintiff, she never received the amount of support to which she was entitled pursuant to the PSA. She notes that defendant's total cash earnings increased "substantially" from $711, 320 in 2003 to $961, 937 in 2010. Moreover, plaintiff learned that defendant "may have" earned an additional $1 million in 2008.
Plaintiff concedes that as her "support decreased each year, she admittedly did not seek to challenge the support calculations [pursuant to the PSA] in arbitration." She explains that was the case because she "was not provided with" the financial documentation from defendant or the accountant to "assess the correctness of the calculation[, ] even if she had understood the [purported] complicated [PSA] formula." Plaintiff indicated that she never challenged the decreases because she believed defendant when he told her that his income was declining due to market forces. When ...