JOHN PARISI VS. PATRICIA PARISI (FM-18-0546-18, SOMERSET COUNTY AND STATEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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-2059-19T1
JOHN PARISI,
Plaintiff-Appellant,
v.
PATRICIA PARISI,
Defendant-Respondent.
___________________________
Argued December 16, 2020 – Decided February 4, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0546-18.
Stephen P. Haller argued the cause for appellant
(Einhorn, Barbarito, Frost & Botwinick, PC, attorneys;
Stephen P. Haller, of counsel and on the briefs; Jennie
L. Osborne, on the briefs).
Richard J. Williams, Jr., argued the cause for
respondent (McElroy, Deutsch, Mulvaney & Carpenter,
LLP, attorneys; Richard J. Williams, Jr., of counsel and
on the brief).
PER CURIAM
In this post-judgment divorce matter, plaintiff appeals a January 8, 2020
Family Part order denying his requests to reform a provision relating to the
equitable distribution of a FCG 1 account in a settlement term sheet (settlement
agreement or agreement) that was incorporated into a final dual final judgment
of divorce (FJOD). He also appeals the order's denial of counsel fees and partial
grant of defendant's request for counsel fees. We affirm.
I
The parties are successful financial planners, who mutually sought to end
their twenty-five-year marriage. On the morning of the divorce trial, defendant's
counsel2 sent plaintiff's counsel a single-spaced two-page proposed settlement
agreement, stating in relevant part: "[Defendant] to receive 20% of all FCG
account components. [Defendant] will be responsible for 20% of any taxes
associated with the FCG account for 2019." After negotiations, they executed a
1
The record does not clearly specify what FCG stands for, but does refer to an
FCG Advisors, LLC, which appears to be a company previously owned by the
parties.
2
Defendant was represented by different counsel during the trial court
proceedings.
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nine-page double-spaced settlement agreement; the parties initialed each page
and signed it, as did their respective counsel.
The agreement was presented to Judge Bradford M. Bury as a joint exhibit
and admitted into evidence. Both parties testified that the agreement was
equitable and acceptable, and that they had enough time to discuss the terms
with their counsel or anyone else they chose to. The judge entered a dual FJOD
incorporating the parties' settlement agreement as well as a partial equitable
distribution settlement and trial stipulations.
Almost a month later, defendant's counsel emailed plaintiff's counsel
about preparing a marital settlement agreement. The settlement agreement
provided "a formal marital settlement agreement shall hereafter be prepared
incorporating all of the terms set forth in [the settlement agreement], with no
new substantive terms being added thereto." Plaintiff's counsel responded that
a formal marital settlement agreement was unnecessary because "the parties are
divorced, the agreements are attached to the judgment, and they are bound by
their respective undertakings, the details of which we shall enforce without
exception."
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Thereafter, disputes arose concerning fulfillment of the obligations under
the agreement, including the distribution of the FCG account. The agreement
provided the FCG account was to be distributed as follows:
6. FCG Account: This account is titled in the name of
the [d]efendant. Plaintiff shall receive twenty (20%)
percent of all stock investments in this account, in kind,
equalizing the cost basis across the board, which shall
be transferred to an account designated by [p]laintiff
and the transfer shall take place within 30 days of the
date of this document. Plaintiff will be responsible for
20% of any taxes associated with the FCG up to and
including the date of the actual division of the account.
After the date of distribution, each party will be
responsible for the taxes on their account.
[(Emphasis added).]
Plaintiff contended the "of all FCG account components" language
contained in his proposed agreement was inadvertently not included in the
executed settlement agreement, which instead stated "of all stock investments in
this account." The final language resulted in a cash benefit to defendant in the
amount of $226,756.20.
Defendant moved to enforce litigant's rights regarding her equitable
interest in the parties' company, proof that plaintiff purchased a $2 million life
insurance policy to secure his alimony obligations, and counsel fees. Plaintiff
crossed-moved seeking, among other things, an order "[d]eclaring that
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reformation [of the settlement agreement] is warranted to include a provision
that [p]laintiff is entitled to twenty (20%) percent of all FCG account
components including the cash component or in the alternative ordering a
hearing on [such] issue[.]" He also proposed deposing defendant's former
counsel to ascertain the parties' actual agreement regarding the FCG account.
Judge Bury denied plaintiff's request to reform the settlement agreement,
finding the FCG account provision enforceable as written. This appeal
followed.
II
Our review of a judge's determination is limited. We "defer to the [family
judge's] determinations 'when supported by adequate, substantial, credible
evidence.'" N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541,
546 (App. Div. 2014) (citing N.J. Div. of Youth & Family Servs. v. I.Y.A., 400
N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394,
412 (1998))). To determine whether the parties reached an agreement, this court
must consider "whether there was sufficient credible evidence to support the
trial [judge's] findings." N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 342 (2010). "[A] party must clearly demonstrate the existence of a
genuine issue as to a material fact before a [plenary] hearing is necessary."
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Lepis v Lepis, 83 N.J. 139, 159 (1980). We owe no special deference to the
judge's legal determinations. Slawinski v. Nicholas, 448 N.J. Super. 25, 32
(App. Div. 2016).
This court has recognized that "[i]nterpretation and construction of a
contract is a matter of law for the court subject to de novo review." Fastenberg
v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998) (citing
Bradford v. Kupper Assocs., 283 N.J. Super. 556, 583 (App. Div. 1995)). That
said, "[t]he law grants particular leniency to agreements made in the domestic
arena," thus allowing "judges greater discretion when interpreting such
agreements." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div.
1992) (citing N.J.S.A. 2A:34-23).
"Settlement of disputes, including matrimonial disputes, is encouraged
and highly valued in our system." Quinn v. Quinn, 225 N.J. 34, 44 (2016) (citing
Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "Marital agreements . . .
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 v. Petersen, 85 N.J. 638, 642 (1981)). Our Supreme Court "has
observed that it is 'shortsighted and unwise for courts to reject out of hand
consensual solutions to vexatious personal matrimonial problems that have been
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advanced by the parties themselves.'" Quinn, 225 N.J. at 44 (quoting
Konzelman, 158 N.J. at 193). Consequently, "fair and definitive arrangements
arrived at by mutual consent should not be unnecessarily or lightly disturbed."
Ibid. (quoting Konzelman, 158 N.J. at 193-94).
"The basic contractual nature of matrimonial agreements has long been
recognized." Pacifico v. Pacifico, 190 N.J. 258, 265-66 (2007) (citing
Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995)). "The
polestar of [contract] construction is the intention of the parties . . . ." Atl. N.
Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301 (1953). "The starting point in
ascertaining that intent is the language of the contract." Commc'ns Workers of
Am., Local 1087 v. Monmouth Cnty. Bd. of Soc. Servs., 96 N.J. 442, 452 (1984)
(citation omitted). Importantly, "[i]t is not the real intent[,] but the intent
expressed or apparent in the writing that controls." Friedman v. Tappan Dev.
Corp., 22 N.J. 523, 531 (1956) (citation omitted).
Guided by these principles and having reviewed the record, we discern no
reason to disturb Judge Bury's order denying plaintiff's motion to reform the
settlement agreement incorporated in the FJOD. There is no merit to plaintiff's
contention that there was an inadvertent omission in not incorpo rating the "of
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all FCG account components" language set forth in the proposed settlement
agreement.
The parties negotiated the terms of the agreement and changes were made
to plaintiff's initial proposal. The final settlement agreement was drafted by
plaintiff's counsel and both parties agreed upon it – verbally and in writing. The
fact that plaintiff's counsel indicated, almost a month after the settlement
agreement was reached, that there was no need to prepare a formal matrimonial
agreement because the parties were bound to what was incorporated into the
FJOD strongly indicates the agreement was consistent with the parties'
intentions.
Considering that the parties, as the judge noted, were successful and
sophisticated professionals in financial planning services, it is hard to fathom
that the provision in question––a swing of almost a quarter of a million dollars
to defendant's benefit––was inadvertently omitted. Significantly, in reviewing
the FCG account provision, the judge noted, "[t]his is not a situation where
language in the relevant [provision] is ambiguous, that it's unclear[,] [n]o, it's
the opposite[,] [i]t's very clear[,] [i]t is unambiguous." Thus, the judge properly
refused to consider extrinsic evidence including certifications from plaintiff and
plaintiff's counsel because no exception to the parole evidence rule applied. See
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Wellington v. Estate of Wellington, 359 N.J. Super. 484, 495 (2003) (holding
extrinsic and parole evidence would not be admissible to alter the terms of the
complete and unambiguous written agreement).
Plaintiff's reliance on Capanear v. Salzano, 222 N.J. Super. 403, 407-08
(App. Div. 1998), where we explained that a matrimonial agreement may be
reformed, is misplaced. There, we held that
. . . where reformation is premised upon mistake in the
preparation of the agreement, there must be clear and
convincing proof that the contract in its reformed, and
not original, form is the one that the contracting parties
understood and meant it to be; and as, in fact, it was but
for the alleged mistake in its drafting. Clear and
convincing evidence should produce in the mind of the
trier of the fact a firm belief or conviction as to the truth
of the allegations sought to be established.
[Ibid. (internal citations and quotation marks omitted).]
In the current situation, plaintiff falls short of demonstrating by clear and
convincing proof that the "inadvertently" omitted language reflects the parties'
actual agreement. The parties are sophisticated financial professionals who,
represented by counsel, unequivocally agreed to the terms of the settlement
agreement. There was no basis to overturn the judge's ruling that the parties
agreed upon the plaintiff's initially proposed settlement agreement terms
regarding the FCG account.
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In addition, plaintiff cites Quinn, where the Court held that
"unconscionability, fraud, or overreaching in the negotiations of the settlement,"
would warrant reformation of a settlement agreement. 225 N.J. at 47 (quoting
Miller v. Miller, 160 N.J. 408, 419 (1999)). However, there was no evidence
that fraud or overreaching occurred that resulted in an inaccurate FCG provision
in the settlement agreement.
The judge did not abuse his discretion in declining plaintiff's request to
conduct a plenary hearing or to depose defendant's former counsel as to the
parties' actual agreement relating to the FCG account. There was no genuine
factual dispute regarding what the parties agreed to. As mentioned, the evidence
clearly supports the judge's determination that the parties did not agree to the
initially proposed language relating to the FCG account. We agree with the
judge that granting plaintiff's application would open the floodgates for
dissatisfied litigants to make unsupported claims of mistakes in a settlement
agreement to seek favorable terms that were not agreed upon.
III
We next consider plaintiff's contention regarding counsel fees. There is
no merit to plaintiff's claim that the judge abused his discretion by failing to
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make a determination on his counsel fee application and to consider all the
applicable factors when awarding defendant counsel fees. (Pb43.)
The judge declined to award plaintiff counsel fees because he "did not
prevail substantially on the reliefs that he sought, and, in fact, was in violation
of litigant's rights himself" for failing to secure the life insurance policy in
accordance with the settlement agreement. The record supports the judge's
reasoning that plaintiff was well over two months late in securing such policy,
which is "totally unacceptable for a man of his knowledge and for a man of his
means."3
As for the award of defendant's counsel fees, the judge sufficiently
addressed the relevant factors under Rule 5:3-5(c),4 and his determination is
3
Plaintiff obtained a policy the day of the motion hearing.
4
Rule 5:3-5(c) provides:
In determining the amount of the fees award, the court
should consider . . . the following factors: (1) the
financial circumstances of the parties; (2) the ability of
the parties to pay their own fees or to contribute to the
fees of the other party; (3) the reasonableness and good
faith of the positions advanced by the parties both
during and prior to trial; (4) the extent of the fees
incurred by both parties; (5) any fees previously
awarded; (6) the amount of fees previously paid to
counsel by each party; (7) the results obtained; (8) the
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fully supported by the record. The judge correctly recognized that: both parties
are successful professionals; plaintiff's business income is approximately $1.4
million; and the fee request was reasonable. The judge noted defendant was the
prevailing party, having properly moved to enforce litigant's rights after plaintiff
failed to comply with certain terms of their FJOD. (1T:23-11 to 24).
Affirmed.
degree to which fees were incurred to enforce existing
orders or to compel discovery; and (9) any other factor
bearing on the fairness of the award.
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