ABIGAIL WEIDEL VS. RICHARD A. WEIDEL, JR. (FM-11-0161-13, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3559-18
A-3240-19
ABIGAIL WEIDEL,
Plaintiff-Respondent/
Cross-Appellant,
v.
RICHARD A. WEIDEL, JR.,
Defendant-Appellant/
Cross-Respondent.
Argued (A-3559-18) and Submitted (A-3240-19)
October 28, 2021 – Decided November 18, 2021
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FM-11-0161-13.
Derek M. Freed argued the cause for appellant/cross-
respondent (Ulrichsen Rosen & Freed LLC, attorneys;
Derek M. Freed, of counsel and on the briefs; Lauren
Koster Beaver, Amanda E. Nini, and Neethi
Vasudevan, on the briefs).
Brian G. Paul argued the cause for respondent/cross-
appellant (Szaferman, Lakind, Blumstein & Blader, PC,
attorneys; Brian G. Paul, of counsel and on the briefs).
PER CURIAM
These are back-to-back appeals, consolidated for purposes of this opinion.
In A-3559-18, defendant Richard A. Weidel, Jr., appeals from: a May 4, 2016
order granting plaintiff Abigail Weidel summary judgment declaring a purported
pre-nuptial agreement (PNA) and a subsequent amendment unenforceable; a
September 12, 2016 order denying reconsideration; equitable distribution
provisions of a December 26, 2018 dual final judgment of divorce; an April 12,
2019 order denying reconsideration of the judgment; and equitable distribution
provisions of an April 12, 2019 amended judgment. Plaintiff cross-appeals from
portions of the equitable distribution provisions and the court's retroactive
calculation of pendente lite support contained in the April order and amended
judgment. In A-3240-19, defendant challenges a March 3, 2020 post-judgment
order granting plaintiff's motion to enforce litigant's rights and counsel fees.
When the parties began dating in 1983, defendant worked for his father's
real estate business. Soon, the parties moved in together. Plaintiff also started
working for defendant's father's business as well. The parties were engaged in
February 1985. Shortly before the parties' wedding in July 1985, defendant
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hired an attorney to prepare the PNA. There is no signed PNA in the record.
According to an unsigned version of the document, all property acquired before
and during the marriage in one party's name would remain separate, including
defendant's businesses "The Richard A. Weidel Corp. [(RAWC)], Princeton
Mortgage Corp. [(PMC)] and all of their affiliates or any entities into which such
companies may evolve." The PNA also contained an alimony provision.
The PNA contained a schedule of assets, but plaintiff did not recall seeing
it and defendant could not recall if it was attached to the agreement plaintiff
signed. Moreover, the schedule did not identify defendant's interest in Weidel
Corp., a premarital business, and did not state the value of RAWC, PMC, their
affiliates, or defendant's income or debts. The document also lacked a schedule
of plaintiff's assets. Although the PNA stated each party had counsel, plaintiff
testified she did not have an attorney.
In 1991, plaintiff was pregnant with the parties' third child and financially
dependent on defendant when he presented her with an "Amendment to Ante-
Nuptial Agreement." An attorney who previously represented plaintiff in
drafting a will and separately represented the parties' business drafted the
amendment. Plaintiff was not represented, and signed the document without
reading. She testified that she felt she could not refuse to sign.
A-3559-18
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Like the original PNA, the amendment lacked a schedule of plaintiff's
assets and contained an incomplete schedule of defendant's assets. It did not
identify the value of Weidel Corp., RAWC, PMC, the Princeton School of Real
Estate, Richard A. Weidel Referral Corp., or the life insurance policy defendant
owned on his father. The amendment also stated the marital residence belonged
to defendant despite the property's transfer into both parties' names in 1990. It
also addressed the contemplated purchase of a new marital residence and altered
the formula for support payments to plaintiff in the event of separation or
divorce.
Before the marriage, defendant purchased the first marital residence and
an investment property located at 166 North Union Street in Lambertville. The
investment property was encumbered by a $105,000 mortgage as of the date of
marriage. During the marriage, defendant purchased two more properties in
Lambertville: 41 North Union, whose mortgage was paid from the rental income,
and 46 York Street, which defendant claimed was paid for with a down payment
from an account used to maintain the properties and premarital assets. The
parties formed Coryell Properties, LLC to operate all three investment
properties. In addition to raising the children and homemaking, plaintiff
A-3559-18
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managed the LLC, advertised, secured tenants, collected rent, and paid property
expenses with funds from a marital bank account.
RAWC was founded by defendant's grandfather and was later expanded
by defendant's father into a brokerage. Defendant's father diversified RAWC by
creating PMC, the real estate school, the referral business, and a Pennsylvania
brokerage called R.A. Weidel Corporation. In 1989, defendant acquired an
ownership interest in RAWC through a Stock Cross Purchase Agreement
(SCPA) with his father. The SCPA established RAWC's purchase price and
defendant's exclusive right to purchase the business from his father, including
at his father's death. The SCPA also required each of them to maintain life
insurance, the proceeds of which would fund the purchase of the deceased
partner's interest. Defendant's father also executed a will bequeathing three
RAWC properties to defendant. Between 1989 and 2003, defendant purchased
the rest of RAWC's shares.
The parties acquired several more properties during the marriage,
including Pennington Road Properties, 2482/2490, LLC which owned two
commercial buildings relevant to these appeals. The parties also owned various
notes receivable, stocks, bank accounts and retirement accounts.
A-3559-18
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Plaintiff filed for divorce in 2012. In 2015, she moved for pendente lite
support. The parties entered a March 26, 2015 consent order granting plaintiff
$6,000 per month of unallocated non-taxable support, up to $1,000 per month in
vehicle expenses paid through the businesses, and health insurance paid by
defendant. The parties agreed defendant would pay "[a]n additional unallocated
non-taxable monthly payment that will be quantified at final resolution of the
case that is not less than $3,000 per month or more than $10,000 per month ,
retroactive to February 1, 2015 . . . ." The order also stated:
The parties have reserved their rights regarding a
judicial finding as to [p]laintiff's reasonable and
appropriate pendente lite budget. The parties agree that
[p]laintiff's pendente lite budget shall not be less than
$10,000 per month or more than $17,000 per month,
and will attempt to agree upon an amount at final
resolution of the case. If the [c]ourt is required to
adjudicate the issue at the time of the final hearing,
[p]laintiff's total pendente lite budget shall not be found
to be less than $10,000 per month or more than $17,000
per month, inclusive of Schedule "A," "B," and "C"
expenses. This budgetary determination by the parties
or court shall be made effective as of February 1, 2015,
with [d]efendant receiving credit for all payments that
he made . . . .
In March 2016, plaintiff moved for summary judgment dismissal of
defendant's claim to enforce the PNA and its amendment. The judge granted the
motion. She found the Statute of Frauds barred enforcement because defendant
A-3559-18
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failed to produce a signed copy of the document. She also found the PNA
unenforceable because it waived plaintiff's interests in RAWC and PMC before
defendant even owned the entities. The judge concluded the lack of financial
disclosures rendered plaintiff's "waiver of her future marital rights"
unenforceable. The judge also found the amendment unenforceable because the
attorney who prepared it had a conflict of interest. On September 12, 2016, the
judge denied defendant's motion for reconsideration.
During the ensuing twenty-day divorce trial, the court heard testimony
from the parties and twelve other fact and expert witnesses. The trial judge
made extensive findings in her October 1, 2018 written opinion, an amended
October 9 opinion, the December 26, 2018 judgment, and a January 9, 2019
supplemental opinion.
The judge granted plaintiff thirty-three percent interest of the value of
RAWC, PMC, the real estate school, R.A. Weidel Corp., and the referral
company. She rejected defendant's argument that fifty-seven of the 100 shares
acquired in the businesses were gifts from his father because the SCPA and the
father's will stated shares could only be acquired by purchase.
The trial judge also awarded plaintiff thirty-three percent of the life
insurance proceeds, again rejecting defendant's argument they were a gift. She
A-3559-18
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found defendant's testimony incredible because the life insurance application
designated defendant as the policy owner and defendant paid the premiums.
The judge awarded plaintiff a thirty-five percent interest in the value of
Princeton Assurance Corp., Weidel Corp., and a note receivable held by Weidel
Corp. She awarded plaintiff thirty-three percent of the equity in the real estate
branch offices, forty-five percent of a farm property, and fifty percent of the
equity in the marital residence. The judge found 166 North Union Street had a
value of $180,000 at the start of the marriage and was encumbered by $135,000
in debt, resulting in $45,000 of pre-marital equity. The parties stipulated the
property's value at the time of trial was $560,000. The judge concluded only
$140,000 of the property's value was subject to equitable distribution. The judge
found the 46 York Street property subject to equitable distribution and rejected
defendant's argument the $75,000 down payment on the property was exempt
from equitable distribution because it was paid from pre-marital assets.
Plaintiff's equitable distribution was more than ten million dollars, which
the judge ordered paid through in-kind transfers, lump sum payments, and
periodic payments. 1 Among the properties awarded in-kind, the judge awarded
plaintiff the 2482/2490 Pennington Road commercial buildings, reasoning the
1
Defendant's equitable distribution was nearly double plaintiff's.
A-3559-18
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rental income would sustain her at the marital standard of living. The property
housed the RAWC corporate headquarters, PMC, and the real estate school,
which the judge noted were in the process of vacating the premises.
The judge attached post-judgment interest to the payment portion of the
equitable distribution and ordered the payments be secured by a mortgage to
plaintiff. The judge did not specify which properties would secure the
mortgages. The judge denied plaintiff's request for pre-judgment interest
because she received over $1.3 million as an advanced equitable distribution,
defendant paid the pendente lite carrying costs on the parties' properties, and
defendant had substantial equitable distribution payments to make post-
judgment. Because defendant would have to pay plaintiff her share of the
business values through a taxable dividend, the judge reduced plaintiff's share
of the amount she would receive by an amount equivalent to the tax.
The trial judge concluded plaintiff required $18,007 per month to live
reasonably comparable to the marital lifestyle. The judge awarded plaintiff a
pendente lite credit of $163,184, representing $3,472 per month for the forty-
seven-month pendente lite period of additional support owed to plaintiff. The
figure was calculated by setting a pendente lite budget for plaintiff of $13,372
per month, subtracting the $7,000 defendant agreed to pay pendente lite, and
A-3559-18
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$2,900 in income imputed to plaintiff. The judge denied plaintiff's request for
alimony and each party's request for counsel fees.
Each party filed motions for reconsideration related to the court's award
of the Pennington Road property to plaintiff. Relevant to the issues raised on
appeal, defendant certified, "we have continued the process of moving [the
businesses] out of 2482 [Pennington Road]. The process is irreversible." The
parties ultimately agreed plaintiff should retain the Pennington Road property.
The trial judge entered the April 12, 2019 amended judgment, incorporating
their agreement to transfer the property to plaintiff "subject to existing leases"
by July 1, 2019.
After the transfer, plaintiff learned defendant entered multi-year leases
with PMC and Princeton Assurance Corporation to continue occupying the
property. Plaintiff rejected the leases and filed a post-judgment enforcement
motion in July 2019, which was heard by the post-judgment motion judge. She
alleged defendant failed to execute the mortgages to secure his equitable
distribution obligations and failed to vacate the Pennington Road property. She
requested defendant pay her rent of thirteen dollars per square foot under a triple
net lease, commencing July 2019 until the businesses vacated the property.
Plaintiff did not quantify the triple net expenses.
A-3559-18
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On October 29, 2019, the motion judge found defendant in violation of
litigant's rights for failing to execute the mortgages. She ordered the parties to
negotiate the terms of the mortgages granting plaintiff "all rights and remedies"
of a mortgage, as stated in the amended judgment. The judge also ruled
defendant violated the judgment by failing to vacate the property. She ordered
the businesses to vacate within thirty days and granted plaintiff's request for
rent.
In January 2020, plaintiff filed a second enforcement motion. She alleged
defendant failed to execute the mortgages. She also sought $103,073.83 in past
due rent, which she calculated at the thirteen-dollars-per-square-foot-rate for the
entire building plus triple net expenses less defendant's payments. Plaintiff
alleged defendant's businesses occupied the entire property as sole tenants,
frustrating her ability to market and sell the buildings. She also sought counsel
fees.
Defendant filed a cross-motion and opposition to plaintiff's motion. He
admitted the businesses formerly occupied the entire property, but claimed he
owed back rent only for the portion the businesses currently occupied. He
disputed the rental rate, asserting thirteen-dollars-per-square-foot-rate already
A-3559-18
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included triple net expenses. In the cross-motion, he argued plaintiff should be
compelled to cooperate with the October 2019 order.
On March 3, 2020, the motion judge found defendant violated the October
2019 order by failing to execute the mortgages. The judge denied defendant's
cross-motion, noting the October order identified the properties securing the
mortgages based on the parties' agreement. She also found defendant violated
the October order by failing to pay the rent. She concluded the October order
procedurally barred him from contesting the amount of the rent. The judge
further ordered defendant to pay the sum of rent sought in plaintiff's motion.
She granted plaintiff $7,315 in counsel fees, reasoning defendant had the greater
ability to pay, plaintiff acted reasonably and in good faith, and plaintiff
succeeded on her enforcement motion.
I.
In A-3559-18, defendant raises the following points on appeal:
I. THE TRIAL COURT ERRED WHEN IT
GRANTED PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT AND DECLARED THE
PNA AND THE AMENDMENT TO BE
UNENFORCEABLE.
....
A-3559-18
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B. Plaintiff's Motion for a Partial Summary
Judgment Should Have Been Denied as There Were
Disputed Genuine Facts.
C. Enforcement of the 1985 PNA Is Not
Barred by The Statute of Frauds as a Matter of Law.
D. The PNA Was Ratified by the Amendment
and Any Disputed Material Facts Concerning the
Agreement's Ratification Should Have Been Construed
in Defendant's Favor.
E. The Trial Court Erred by Entering
Summary Judgment Given the Caselaw.
F. Plaintiff's Claim that the 1991 Amendment
Was Unenforceable Due to An Alleged Conflict of
Interest Was Based on Questions of Fact Involving
Subjective Elements and Credibility, Which Should
Not Have Been Resolved by Summary Judgment.
G. Plaintiff's Claim Regarding the
Enforceability of the 1991 Amendment Due to Alleged
Lack of Full Financial Disclosure Was Based on
Questions of Fact Involving Subjective Elements and
Credibility, Which Should Not Have Been Resolved by
Summary Judgment.
II. THE TRIAL COURT ERRED IN ITS
EQUITABLE DISTRIBUTION ANALYSIS AS IT
PROVIDED PLAINITFF WITH EQUITABLE
DISTRIBUTION OF ASSETS THAT WERE EXEMPT
EITHER IN WHOLE OR PART.
....
B. The Trial Court Erred When It Denied
Defendant's Request to Exclude the Life Insurance
A-3559-18
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Proceeds Derived from the Life Insurance Policy
Covering Defendant's Father's Life and [Fifty-Seven
Percent] of the RAWC Entities from the Marital Estate.
C. The Trial Court Erred by Failing to Rule
that [Fifty-Seven Percent] of the RAWC-Related
Entities Defendant Received by way of Gift were
Exempt from Equitable Distribution.
D. The Trial Court Erred when it Declined to
Find that any Portion of the Down Payment Defendant
made on 46 York St. was Exempt from Equitable
Distribution.
III. THE TRIAL COURT ERRED IN THE
MANNER IN WHICH IT TREATED THE DIVIDEND
TAX INCURRED BY DEFENDANT WHEN
EFFECTUATING PAYMENT OF EQUITABLE
DISTRIBUTION.
IV. THE TRIAL COURT ERRED IN THE
PERCENTAGES OF EQUITABLE DISTRIBUTION
IT AWARDED TO PLAINTIFF.
A. Plaintiff Should Have Received a Lesser
Percentage of the Business Entities.
B. The Plaintiff's Percentage Share of the
Coryell Properties Should Have Been Reduced.
V. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S REQUESTS FOR
RECONSIDERATION.
Plaintiff raises the following points in her cross-appeal:
[I.] THE TRIAL COURT ERRED WHEN
DETERMINING THE AMOUNT OF THE
A-3559-18
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RETROACTIVE PENDENTE LITE CREDIT
REQUIRED UNDER THE PARTIES' MARCH 26,
2015 CONSENT ORDER.
[II.] [THE TRIAL JUDGE'S] DETERMINATION
ONLY $140,000 OF THE $515,000 OF
APPRECIATION IN THE VALUE OF 166 NORTH
UNION ST. THAT TOOK PLACE DURING THE
MARRIAGE IS SUBJECT TO EQUITABLE
DISTRIBUTION IS NOT BASED UPON
SUBSTANTIAL CREDIBLE EVIDENCE IN THE
RECORD AND FAILS TO COMPORT WITH
CONTROLLING LEGAL PRINCIPLES.
[III.] PURSUANT TO [RULE] 4:42-11(a)(iii), THE
COURT ERRED IN FAILING TO AWARD
PLAINTIFF POST-JUDGMENT INTEREST ON THE
$3,345,000 OF REAL ESTATE (2482/2490
PENNINGTON RD. AND 46 YORK STREET) SHE
WAS AWARDED IN EQUITABLE DISTRIBUTION
IN THE DECEMBER 26, 2018 FINAL JUDGMENT
OF DIVORCE, BUT WAS NOT RECEIVING UNTIL
JULY 1, 2019; OR, IN THE ALTERNATIVE,
AWARDING TEMPORARY ALIMONY UNTIL THE
JULY 1, 2019 TRANSFER TOOK PLACE.
A.
We defer to a trial judge's factfinding "when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)
(citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). "We
do not weigh the evidence, assess the credibility of witnesses, or make
conclusions about the evidence." M.G. v. S.M., 457 N.J. Super. 286, 293 (App.
A-3559-18
15
Div. 2018) (quoting Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super.
486, 498 (App. Div. 2008)). "Deference is especially appropriate 'when the
evidence is largely testimonial and involves questions of credibility.'" Cesare,
154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997)). However, "legal conclusions, and the application of those conclusions
to the facts, are subject to our plenary review." Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
The Family Part has "special jurisdiction and expertise in family matters,"
which often requires the exercise of reasoned discretion. Cesare, 154 N.J. at
413. Judges have broad discretion to allocate assets in equitable distribution.
Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012) (citing Steneken v.
Steneken, 367 N.J. Super. 427, 435 (App. Div. 2004)). If we conclude there is
satisfactory evidentiary support for the trial judge's findings, our "task is
complete and [we] should not disturb the result." Beck v. Beck, 86 N.J. 480,
496 (1981) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).
Similarly, "the decision to grant or deny a motion for reconsideration rests
within the sound discretion of the trial court . . . [and] will be left undisturbed
A-3559-18
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unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v.
ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).
We review summary judgment rulings de novo, applying the same legal
standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment must be
granted "if the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law." Ibid. (quoting R. 4:46-2(c)).
B.
Having thoroughly considered the record and the parties' arguments, we
affirm substantially for the reasons expressed by the pendente lite motion judge
and the trial judge. We add the following comments.
Summary judgment for plaintiff was proper because there is no credible
dispute that: the PNA was unsigned; there was no full financial disclosure; and
plaintiff was unrepresented. Under these circumstances, a hearing was not
required to adjudicate the enforceability of the PNA because it was
unenforceable as a matter of law under the Statute of Frauds. See N.J.S.A. 25:1-
5(c).
A-3559-18
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Notwithstanding the Statute of Frauds, defendant notes we have reversed
summary judgment where the parties admitted the existence of an agreement but
lacked a copy of the fully executed agreement. Gabesons Realty Co. v.
Natelson, 208 N.J. Super. 684, 686-87 (App. Div. 1986). However, Gabesons
is inapposite because it did not concern a pre-nuptial agreement, which requires
full financial disclosure and must be "fair and not unconscionable." See Rogers
v. Gordon, 404 N.J. Super. 213, 219 (App. Div. 2008). Moreover, unlike
Gabesons, here there was no mutual understanding that the parties had signed
an agreement.
Defendant's argument the amendment ratified the PNA is misplaced. We
recently stated
mid-marriage agreements are generally unenforceable
as they are "inherently coercive." [Pacelli v. Pacelli,
319 N.J. Super. 185, 191 (App. Div. 1999).] A mid-
marriage agreement is "entered into before the marriage
[has] lost all of its vitality and when at least one of the
parties, without reservation, want[s] the marriage to
survive." Id. at 190-91. Such agreements are carefully
reviewed because they are "pregnant with the
opportunity for one party to use the threat of dissolution
'to bargain themselves into positions of advantage.'" Id.
at 195 (citation omitted).
[Steele v. Steele, 467 N.J. Super. 414, 436 (App. Div.
2021) (second and third alterations in original).]
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In Steele, we reversed the entry of a declaratory judgment, which
determined the parties' mid-marriage agreement was a pre-nuptial agreement.
Id. at 443. On remand, we directed the trial court to apply "heightened scrutiny,"
review the document for "fundamental fairness," consider the adequacy of the
financial disclosure, and consider the circumstances of the negotiation and
execution of the document. Ibid.
Here, regardless of how the amendment is styled, it bears the hallmarks of
an unenforceable mid-marriage agreement. Plaintiff was not represented by
independent counsel and there was no credible dispute that there was no full
financial disclosure. Therefore, the hearing required in Steele was unwarranted
and plaintiff was entitled to summary judgment as a matter of law.
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
C.
Plaintiff appeals from the trial judge's adjudication of the pendente lite
support credit. She also challenges the equitable distribution of the appreciation
on the marital portion of the value of 166 North Union Street, and the lack of
post-judgment interest or a temporary alimony award for the approximately
seven month period she awaited her equitable distribution.
A-3559-18
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As we noted, plaintiff sought pendente lite spousal support. In the March
2015 consent order, the parties agreed to a pendente lite payment subject to a
final adjudication by the court, which could be no less than $10,000 and no
greater than $17,000 per month.
Initially, in adjudicating the pendente lite credit, the trial judge found
plaintiff required $18,007 per month to maintain the marital standard of living .
Because the figure exceeded $17,000, the judge reduced the figure by the $7,000
per month defendant had paid and concluded plaintiff should receive an
additional $9,000 retroactive to February 1, 2015.
However, in the trial judge's January 9, 2019 supplemental opinion, she
concluded, sua sponte, her initial ruling was wrong and reasoned:
In resolving this issue in the October opinion, the court
did not consider the standard dictated by the consent
order – a "reasonable and appropriate" budget pending
resolution of the case. The court utilized the marital
standard of living as the measure, which is not what the
consent order requires. The consent order focuses on a
budget that is "reasonable and appropriate" pending
resolution of the case, not post-judgment.
Ignoring her findings regarding the marital lifestyle, the judge prepared
her own Case Information Statement budget for plaintiff, adjusted plaintiff's
budget, and set a pendente lite budget of $13,372 per month. The judge reduced
A-3559-18
20
this figure by $2,900 in imputed income and the $7,000 support plaintiff
received, leaving a $3,472 per month credit.
The judge denied plaintiff's reconsideration motion. She found the
consent order did not require her "to simply use the $18,007 per month
(representing a standard of living reasonably comparable to the marital
standard). That is what was done in the October opinion inadvertently, and that
is why it was re-adjusted sua sponte." Plaintiff urges us to reverse.
Pendente lite support awards are subject to amendment after trial because
they are typically established by the submission of certifications and without the
benefit of a plenary hearing. N.J.S.A. 2A:34-23; Mallamo v. Mallamo, 280 N.J.
Super. 8, 11-12 (App. Div. 1995).
In many instances the motion judge is presented reams
of conflicting and, at times, incomplete information
concerning the income, assets and lifestyles of the
litigants. . . . Absent agreement between the parties,
however, a judge will not receive a reasonably
complete picture of the financial status of the parties
until a full trial is conducted.
[Id. at 16.]
The Supreme Court has emphasized the goal of spousal support "is to
assist the supported spouse in achieving a lifestyle that is reasonably comparable
to the one enjoyed while living with the supporting spouse during the marriage."
A-3559-18
21
Crews v. Crews, 164 N.J. 11, 16 (2000), see also N.J.S.A. 2A:34-23(b)(4).
Because spousal support is so closely identified with the marital lifestyle, even
where parties have settled their divorce, they must address the marital lifestyle
in the settlement. See R. 5:5-2(e) (providing a range of options, including
preserving the means to calculate the marital standard of living and agreeing the
marital lifestyle is satisfied by the settlement). The marital lifestyle is the
yardstick to measure and establish appropriate spousal support, whether
pendente lite or post-judgment. See S.W. v. G.M., 462 N.J. Super. 522, 532-33
(App. Div. 2020) (holding that fashioning spousal support from the pendente
lite lifestyle is an error because it ignores the statutory mandate to consider
marital lifestyle and does not capture how the parties actually lived).
A court must enforce written agreements absent unconscionability, fraud,
or overreaching. Quinn v. Quinn, 225 N.J. 34, 47 (2016). Waivers must be done
"clearly, unequivocally, and decisively." Cole v. Jersey City Med. Ctr., 215 N.J.
265, 277 (2013) (quoting Knorr v. Smeal, 178 N.J. 169, 177 (2003)). There
must also be valuable consideration to enforce a waiver. Fattore v. Fattore, 458
N.J. Super. 75, 88 (App. Div. 2019) (quoting W. Jersey Title & Guar. Co. v.
Indus. Tr. Co., 27 N.J. 144, 152-53 (1958)).
A-3559-18
22
We are unconvinced plaintiff waived the applicability of the marital
lifestyle to the calculation of pendente lite support. The consent order contained
no such language. Plaintiff sought alimony, and convinced the trial judge she
needed $18,007 per month to sustain herself in accordance with the marital
lifestyle. Therefore, the judge was required to start with the marital lifestyle in
calculating the reasonable and appropriate amount of the Mallamo credit. For
these reasons, we reverse the calculation of the pendente lite credit and direct
the court to utilize the marital lifestyle figure of $18,007 per month to determine
the reasonable and appropriate pendente lite budget for plaintiff, not exceed ing
$17,000 per month.
The remaining arguments raised on the cross-appeal relating to the 166
North Union Street property and the post-judgment interest lack sufficient merit
to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
II.
In A-3240-19 defendant asserts the following points:
I. PARAGRAPH FIVE OF THE TRIAL COURT'S
MARCH 3, 2020 ORDER SHOULD BE REVERSED,
AS DEFENDANT WAS NOT PROCEDURALLY
BARRED FROM ASSERTING THAT HIS
BUSINESSES OCCUPIED ONLY [FIFTY
PERCENT] OF THE OFFICE BUILDING LOCATED
AT 2482 PENNINGTON ROAD.
A-3559-18
23
....
II. THE TRIAL COURT'S CALCULATION OF
THE ALLEGED RENT ARREARS
MISCALCULATED THE TRIPLE NET EXPENSES.
III. PARAGRAPH THREE OF THE TRIAL
COURT'S MARCH 3, 2020 ORDER SHOULD BE
REVERSED, AS THE COURT FAILED TO MAKE
SUFFICIENT FINDINGS OF FACT AND
CONCLUSIONS OF LAW REGARDING THE
TERMS OF THE MORTGAGES THAT WOULD ACT
AS SECURITY FOR DEFENDANT'S
OBLIGATIONS.
....
IV. [PARAGRAPH] 6 OF THE TRIAL COURT'S
MARCH 3, [2020] ORDER REQUIRING
DEFENDANT TO PAY $7,315 IN COUNSEL FEES
TO PLAINTIFF’S ATTORNEY SHOULD BE
REVERSED [BECAUSE THE] DECISION IS NOT
BASED ON SUBSTANTIAL EVIDENCE IN THE
RECORD AND LACKS A RATIONAL
EXPLANATION.
A trial court's enforcement of litigant's rights is subject to an abuse of
discretion standard. Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011).
Likewise, "[t]he assessment of counsel fees is discretionary." Slutsky v.
Slutsky, 451 N.J. Super. 332, 365 (App. Div. 2017) (citations omitted).
In Points I and II, defendant challenges the post-judgment motion judge's
rent calculation for the Pennington Road property under a triple net lease. "A
A-3559-18
24
'triple net' or 'net-net-net' lease is a lease in which a commercial tenant is
responsible for 'maintaining the premises and for paying all utilities, taxes and
other charges associated with the property.'" Geringer v. Hartz Mountain Dev.
Corp., 388 N.J. Super. 392, 400 n.2 (App. Div. 2006) (quoting N.J. Indus. Props.
v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985)).
Notwithstanding this definition, we conclude the motion judge erred in
ruling defendant was barred from disputing the rent calculation because the
expenses included in the rent were not adjudicated in the October 2020 order.
The judge did not explain her decision to impose the base rent plus the additional
expenses. See R. 1:7-4(a). The only trial evidence in the record on the matter
was an appraisal prepared by plaintiff's real estate expert in which he opined the
rental rate for the Pennington Road property was "15,104 square feet at [thirteen
dollars] per square foot = (Triple Net) $196,352." For these reasons, we remand
this issue for further findings.
Our decision to remand the rent issue does not affect the counsel fee award
because those fees were clearly warranted considering defendant's failure to
vacate the Pennington Road property or comply with the October 2020. The
remaining arguments raised on this appeal lack merit. See R. 2:11-3(e)(1)(E).
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III.
Affirmed in part and reversed and remanded in part in A-3559-18.
Affirmed in part and remanded in part for further findings in A-3240-19. We
do not retain jurisdiction.
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