MARIE SIX VS. FREDERICK SIXÂ (FM-03-1355-14, BURLINGTON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2292-15T4
MARIE SIX,
Plaintiff-Respondent,
v.
FREDERICK SIX,
Defendant-Appellant.
_________________________
Submitted May 23, 2017 — Decided August 1, 2017
Before Judges Koblitz and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, FM-03-1355-14.
Law Offices of Robbins and Robbins LLP,
attorneys for appellant (Aileen Gardner, on
the brief).
Michael S. Rothmel, LLC, attorney for
respondent.
PER CURIAM
Defendant appeals from the partial denial of his post-
judgment matrimonial motion seeking to recalculate equitable
distribution. The motion court sent the parties to mediate some
of the issues raised in the motion, rendering the January 22, 2016
order interlocutory.1
Under Rule 2:2-3(a)(1), an appeal as of right
may be taken to the Appellate Division only
from a "final judgment." To be a final
judgment, an order generally must "dispose of
all claims against all parties." S.N. Golden
Estates, Inc. v. Cont'l Cas. Co., 317 N.J.
Super. 82, 87 (App. Div. 1998). "This rule,
commonly referred to as the final judgment
rule, reflects the view that 'piecemeal
[appellate] reviews, ordinarily, are [an]
anathema to our practice.'" Ibid. (quoting
Frantzen v. Howard, 132 N.J. Super. 226, 227-
28 (App. Div. 1975)).
[Janicky v. Point Bay Fuel, Inc., 396 N.J.
Super. 545, 549-50 (App. Div. 2007).]
In the interest of justice, however, we grant leave to appeal sua
sponte, Rule 2:4-4, and affirm the motion court's decision to
reform the Marital Settlement Agreement (MSA) with regard to two
issues only, substantially for the reasons expressed by the court.
The parties divorced in 2015 after 28 years of marriage. The
final judgment of divorce incorporated an MSA negotiated with the
assistance of counsel. The MSA stated that defendant, Frederick
Six, had a "T. Rowe Price account with an agreed upon value of
$1,417,035.98, [a]pproximately $400,000 is pre-marital." The
1
After our request for a status of the proceeding, we were informed
that mediation was unsuccessful and neither party has sought a
further resolution from the motion court.
2 A-2292-15T4
agreement states that plaintiff, Marie Six, "shall receive a total
sum of $627,673 from this account and [defendant] shall retain
$789,362.98." The agreement also states that defendant would
retain his Roth IRA account valued at $248,220. The agreement
required the parties to divide their personal property and
household items and that plaintiff would return certain jewelry
to defendant in court. The MSA also stated that defendant would
retain his pre-marital AT&T retirement accounts without
contribution to plaintiff. The equitable distribution breakdown
of the MSA stated that the total value of the parties' assets is
$2,181,192.40, with $1,050,207.50 retained by plaintiff and
$1,130,984.90 retained by defendant.
Defendant filed a motion to vacate certain portions of the
MSA, asserting that the MSA contained mistakes. Defendant asserted
that the equitable distribution chart in the MSA erroneously
included $400,000 of exempt premarital funds in the T. Rowe Price
account valued at $1,417,035.98. Defendant asserted that the
correct value of the T. Rowe Price account subject to equitable
distribution should have been $1,017,035.98. Defendant also
asserted that his Roth IRA account valued at $248,220 was
mistakenly double-counted because it was listed as a separate
asset from his T. Rowe Price account when in fact it was a part
of the T. Rowe Price account and was already included in its
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$1,417,035.98 valuation. Defendant also asserted that his pre-
marital AT&T stock valued at $50,306 was erroneously included in
the equitable distribution chart. Defendant asserted that the
total value of the couples' assets subject to equitable
distribution was $1,482,610.572 and each party was to receive
$741,305.28. Defendant also asserted that plaintiff retained
$120,000 in jewelry and collectibles that were not addressed in
the MSA, thus defendant was entitled to half the value, $60,000.
The motion court issued an order granting in part and denying
in part defendant's motion. The court wrote:
The Court finds that a reformation of the
Marital Settlement Agreement is appropriate as
equity dictates. Accordingly, the Court
further finds that the AT&T stock is a
premarital asset not subject to equitable
distribution pursuant to paragraph 5 of
article III. A. of the Marital Settlement
Agreement. The Court does find that $400,000
of the T. Rowe Price account is a premarital
asset; however, this premarital asset has
already been addressed by the Marital
Settlement Agreement and is included in the
proceeds Defendant is to receive from the T.
Rowe Price Account. Accordingly, the Court
does not find this amount to be at issue. The
Court also finds that the Defendant's Roth IRA
was double counted as it is included in the
Defendant's T. Rowe Price Account. The entry
entitled Husband's Roth IRA Account is hereby
removed from the Six v. Six Equitable
Distribution breakdown as said account is
already included in Husband's T. Rowe Price
Account. With respect to the AT&T stock and
2
This excludes defendant's pre-marital T. Rowe Price funds, the
AT&T stock and the double-counted Roth IRA.
4 A-2292-15T4
the Husband's Roth IRA, these matters are
hereby sent to Mediation . . . . The purpose
of the Mediation is to determine what, if any,
adjustments need to be made to the overall
distribution of assets.
The court denied defendant's request for an order requiring
plaintiff to pay him $60,000 for half of the value of the jewelry,
finding that the MSA "specifically and clearly addressed the
distribution of personal property."
After defendant appealed, the motion court issued a
supplemental opinion to its January 22 order on February 23, 2016.
In its supplemental opinion, the motion court stated:
[T]he Court finds that the personal property
was distributed in accordance with the intent
of the parties and in accordance with the
parties['] MSA.
The second issue raised by Defendant relates
to $400,000 of premarital funds. With respect
to this issue, the MSA, in relevant part,
states, "[h]usband has a T. Rowe [P]rice
account with an agreed value of $1,417,035.98.
Approximately $400,000 is premarital. As
such, Wife shall receive a total of $627,673
from this amount and Husband shall retain
$789,362.98." Defendant claims that the
$400,000 premarital asset should have been
subtracted from the account and then the
remaining amount, $1,017,035.98, would be
subject to equitable distribution. The Court
finds that other than Defendant's self-serving
statement, there is no other evidence in
support of his position and the Court will not
modify the parties' MSA relative to this
issue. Marital settlements are generally
upheld absent clear and convincing evidence
of fraud or other compelling circumstances,
such as mutual mistake, undue haste, pressure
5 A-2292-15T4
or unseemly conduct in settlement
negotiations.
. . . .
Furthermore, because the word "approximately"
was used in describing the premarital amount
rather than an exact amount that had to be
subtracted from the T. Rowe Price account
prior to equitable distribution, the Court
concludes that Plaintiff was to receive the
sum of $627,673 from the account regardless.
Defendant argues that the motion court erred by denying his
request, pursuant to Rule 4:50-1(a) and (f), to vacate and reform
the MSA because the MSA contained mutual mistakes that result in
plaintiff receiving a substantially higher proportion of the
parties' assets than she was entitled to.
The motion court accepted two of defendant's claims. First,
the court accepted defendant's argument that the Roth IRA was
double-counted on the equitable distribution chart, thereby
overstating the value of the parties' assets by $248,220.
Secondly, the court accepted defendant's argument that despite the
parties' agreement that defendant's AT&T stock valued at $50,362
was a pre-marital asset, the equitable distribution chart
erroneously added the value of the AT&T stock to the total value
of the parties' assets subject to equitable distribution.
Defendant argues that the motion court erred, however, in not
accepting that the equitable distribution chart in the MSA
improperly included the full $1,417,035.98 value of the T. Rowe
6 A-2292-15T4
Price account, incorrectly increasing the total value of the
parties' assets subject to equitable distribution by defendant's
immune $400,000. Defendant contends that in reaching its decision
to deny defendant's application to vacate and reform portions of
the MSA relating to the T. Rowe Price account, the motion court
improperly considered documents from the parties' pre-divorce
mediation, contrary to N.J.R.E. 408.
Defendant further contends that over $120,000 worth of
jewelry and collectibles that he and plaintiff owned were
mistakenly excluded from the MSA and retained by plaintiff.
Defendant argues that he is entitled to $60,000, a one-half share
of the value of the jewelry and collectibles.
Plaintiff contends that during pre-divorce mediation, she
sought and defendant agreed to give her an extra $100,000 from his
T. Rowe Price account because defendant received the marital
residence, in which plaintiff had invested $150,000 of her pre-
marital inheritance. Plaintiff asserts that this change was not
a mistake, "but an agreed upon change during the course of
negotiations." Plaintiff contends that the equitable distribution
chart was then executed by both parties, signifying their agreement
with the distribution of the T. Rowe Price account.
Plaintiff further argues that no mistake was made with regard
to the jewelry and collectibles because the personal property
7 A-2292-15T4
provision of the MSA distributed the jewelry and all other items
in the marital residence.
Rule 4:50-1(a) and (f) allow the court to relieve a party
from a final judgment or order for mistake and for "any reason
justifying relief from the operation of the judgment or order."
"The motion to vacate a judgment under either R. 4:50-1(a) or (f)
'should be granted sparingly, and is addressed to the sound
discretion of the trial court, whose determinations will be left
undisturbed unless it results from a clear abuse of discretion.'"
Fineberg v. Fineberg, 309 N.J. Super. 205, 215 (App. Div. 1998)
(quoting Hous. Auth. of Town of Morristown v. Little, 135 N.J.
274, 293-84 (1994)).
A spousal agreement is viewed with "a predisposition in favor
of its validity and enforceability." Petersen v. Petersen, 85
N.J. 638, 642 (1981). There is no legal or equitable basis to
reform a parties' MSA absent unconscionability, fraud, or
overreaching in the negotiations of the MSA. N.H. v. H.H., 418
N.J. Super. 262, 282 (App. Div. 2011).
"Designed to balance the interests of finality of judgments
and judiciary efficiency against the interest of equity and
fairness, relief from judgments pursuant to R. 4:50-1(f) requires
proof of exceptional and compelling circumstances." Harrington
v. Harrington, 281 N.J. Super. 39, 48 (App. Div.) (internal
8 A-2292-15T4
citations omitted), certif. denied, 142 N.J. 455 (1995).
"Ordinarily, to establish the right to such relief, it must be
shown that enforcement of the order or judgment would be unjust,
oppressive or inequitable." Ibid.
N.J.R.E. 408 states:
When a claim is disputed as to validity or
amount, evidence of statements or conduct by
parties or their attorneys in settlement
negotiations, with or without a mediator
present, including offers of compromise or any
payment in settlement of a related claim,
shall not be admissible to prove liability
for, or invalidity of, or amount of the
disputed claim. Such evidence shall not be
excluded when offered for another purpose
. . . .
The court did not use the evidence of prior proposed
settlements to prove liability or amount of a disputed claim, but
rather to rebut the allegation of a mutual mistake. The record
did not support a mutual mistake with regard to the jewelry and
collectibles or the T. Rowe Price account. Defendant was
represented by counsel during mediation and when the MSA and
equitable distribution charts were executed by both parties. Both
defendant and plaintiff endorsed each page of the MSA. At the
divorce hearing, defendant gave sworn testify that he agreed to
and understood the terms of the MSA and that he intended to be
bound by the MSA. Defendant also testified that the MSA embodied
the entire agreement between the parties.
9 A-2292-15T4
The motion court did not abuse its discretion in its ruling,
nor did it violate N.J.R.E. 408 when it reviewed documents from
the settlement.
Affirmed.
10 A-2292-15T4