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Superior Court of New Jersey, Appellate Division.

JULIANNE DEGILIO, Plaintiff–Appellant, v. JAMES DEGILIO, Defendant–Respondent.


    Decided: March 25, 2014

Before Judges Yannotti, Ashrafi and St. John.Brian D. Winters argued the cause for appellant (Keith, Winters & Wenning, attorneys;  Mr. Winters, on the briefs). Joel N. Kreizman argued the cause for respondent (Scarinci & Hollenbeck, attorneys;  Mr. Kreizman and Annmarie Harrison, on the brief).

In these consolidated appeals, plaintiff Julianne DeGilio (Julianne) appeals from three orders of the Family Part entered March 2, April 27 and May 29, 2012.1  In substance, Julianne asserts that the trial judge erred by not enforcing a provision of an agreement between plaintiff and her former husband, defendant James DeGilio (James).   We disagree and affirm for the reasons that follow.


The record discloses the following facts and procedural history.   Julianne and James were married on September 8, 1990.   On January 24, 2005, they were divorced pursuant to a final judgment of divorce (JOD), which incorporated a property settlement agreement (PSA).   Among the provisions in the PSA were an agreement for equitable distribution of the marital assets and, under Article II, a mutual and irrevocable waiver of alimony.   The latter provision stated:

Both parties now and forever waive any and all claims for alimony and support, past, present and future, that they have or may have against the other party.

Both parties accept this waiver of alimony as non-modifiable, meaning that they shall be unable to petition a Court for an award of alimony or support under any and all circumstances.

The PSA specifically recited that “but for this waiver of the right to request alimony, the Husband would not have agreed to the equitable distribution arrangement set forth herein.”

Subsequent to the divorce, James failed to make payments to Julianne in accordance with the equitable distribution terms of the PSA, and Julianne moved to enforce the agreement.   The parties again negotiated and reached agreement, modifying the PSA by consent order dated October 21, 2005.   Among other changes, the consent order required James to pay Julianne “$300,000 in tax-free equitable distribution,” under the following payment terms:

Defendant shall pay the $300,000 obligation to plaintiff in a combination of monthly installment payments and an annual lump-sum payment.   Effective January 1, 2006, defendant shall make tax-free monthly installment payments to plaintiff of $1,800 per month for 24 months, or through December 1, 2007.   Effective January 1, 2008 and continuing until defendant's obligation is satisfied, defendant shall make tax-free monthly installment payments to plaintiff of $2,000 per month.

In addition to the monthly payments of either $1,800 or $2,000, effective March 15, 2006 and continuing on March 15th of each year until defendant's obligation is satisfied, defendant shall make a tax-free lump-sum payment of $15,000 to plaintiff.

Pursuant to Paragraph 2(g) of the consent order:

All monthly installment payments are due on the 1st of the month and shall be considered timely if received by the 10th of each month.   All yearly lump-sum payments shall be due by March 15th of every year and shall be considered timely if received by March 20th of that year.   Should defendant default on any of these payments, plaintiff shall have the right to re-open the divorce matter and seek alimony from defendant.

[Emphasis added.]

Additionally, Paragraph 3 stated that “[t]he parties specifically preserve all provisions set forth in Article II of the [PSA] and, except as provided for in paragraph 2(g) above, both parties now and forever waive their right to alimony from one another irrespective of any change in circumstances.”  (Emphasis added).   James was also required under the consent order to obtain a $297,000 life insurance policy naming Julianne as the beneficiary.

In the ensuing years, Julianne filed a series of motions seeking to enforce the consent order in response to repeated defaults by James on his payment obligations.   The first such application occurred in early 2011, after James had moved to decrease the equitable-distribution payments because of a purported reduction in his income.   Julianne cross-moved to enforce the existing obligation, furnishing the court with evidence that James owned two restaurants to counter his claimed financial difficulties.   On February 18, 2011, the Family Part ruled for Julianne and denied James's motion, ordering him to continue payments under the consent order and to provide proof of a life insurance policy naming Julianne as the sole beneficiary.

After James failed to comply with the February 18 order, Julianne filed a series of applications for bench warrants for his arrest, which were granted.   In each case, James responded by making certain payments to Julianne.   Nevertheless, Julianne asserts serious financial hardship as a result of these persistent untimely payments, which allegedly date back to early 2008.   On December 21, 2011, Julianne filed an unopposed motion to reopen the JOD, seeking an award of alimony based on James's defaulted-upon payments.   In connection with her alimony request, she detailed the parties' lavish lifestyle during the marriage.   The Family Part denied the motion on January 9, 2012.

On January 26, 2012, Julianne moved to enforce litigant's rights to reopen the JOD for a consideration of alimony.   She also filed separate motions for summary judgment, an order vacating the January 9 denial of her prior motion and suppression of a letter brief filed by James's attorney.   Of significant importance, by the March 2 hearing date, James was up-to-date with all of his payments.   The Family Part judge denied each motion, and Julianne appealed from that order.

Two weeks after the judge denied Julianne's enforcement motion, James failed to make his March 15 payment on time.   The mailed payment was postmarked March 21, one day after the grace period for receipt of payment had expired.   Julianne once again moved to enforce litigant's rights to collect that $15,000 payment from James and to reopen the JOD. On April 27, the Family Part judge adjudicated James in violation of litigant's rights for the late payment.   However, because of Julianne's pending appeal of the March 2 order denying her earlier motion to reopen the JOD, the judge denied her request based on lack of jurisdiction.   Julianne filed a second appeal from that order.

Julianne thereafter filed a motion for reconsideration, which was denied on May 29, 2012.   Once more, she appealed the decision.   We have consolidated her appeals from all three orders.


We ordinarily accord substantial deference to the discretionary decisions of Family Part judges.  Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App.Div.2009)(citing Larbig v. Larbig, 384 N.J.Super. 17, 21 (App.Div.2006)).   Similar deference is accorded to the factual findings of those judges.  Cesare v. Cesare, 154 N.J. 394, 411–12 (1998).   However, a judge's 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).

We turn first to Julianne's argument that the Family Part judge erred by denying, without prejudice, her initial motion to reopen the JOD. In his decision, the judge recognized that James had repeatedly failed to comply with the payment terms under the consent order, but nevertheless decided that reopening the JOD was not equitable under the circumstances:

[T]his is a court of equity.   The Court tries to be fair and just.   Courts also uphold settlement agreements.   And uphold contracts.   And this is a very difficult balancing that the Court has because the defendant has substantially complied with the terms of this contract and has in fact

․ made payments for a number of years before he got into the default, major default situation in 2011.

But he has been inconsistent according to the plaintiff in following the terms on a timely basis and that has caused her much pain.   So he has substantially complied and as both parties admit today, he is current in his obligation.

The judge also acknowledged that Paragraph 2(g) of the consent order gave Julianne the right to reopen the divorce matter and seek alimony in the event of a default.   However, the judge rejected the notion that this provision granted her an “ ‘automatic’ right to reopen the JOD.” As he explained to Julianne, “you have the right to seek to have it reopened.   It doesn't say you shall reopen the divorce matter.”

Moreover, the fact that James was remarried presented additional concerns to the judge, who acknowledged, “I wouldn't be vacating the divorce, I would only be vacating anything dealing with alimony.”   In balancing the equities, the judge acknowledged that “[f]inality is very important” and “[b]oth parties had competent counsel at the time this agreement was entered into.   Both parties knew or should have known what the benefits were.   And what the detriments were of this agreement.”

As we stated in Massar v. Massar, 279 N.J.Super.   89 (App.Div.1995):

This State has a strong public policy favoring enforcement of agreements.   Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability.   Marital agreements, however, are enforceable only if they are fair and equitable.   Any marital agreement which is unconscionable or is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship may be set aside.   In fact, the law affords particular leniency to agreements made in the domestic arena and similarly allows judges greater discretion when interpreting these agreements.   Such discretion is based on the premise that, although marital agreements are contractual in nature, contract principles have little place in the law of domestic relations.   Nevertheless, the contractual nature of such agreements has long been recognized and principles of contract interpretation have been invoked particularly to define the terms of the agreement and divine the intent of the parties.   In interpreting the agreement, the court will not draft a new agreement for the parties.

[Id. at 93 (citations and internal quotation marks omitted).]

In this case, the Family Part judge determined that the provision of the consent order affording Julianne the right to reopen the divorce proceedings and seek alimony from James upon default on any payment, was not automatic but subject to equitable considerations.   The balance of equities here, concluded the judge, did not justify reopening the divorce proceedings.

Our State “has long espoused a policy favoring the use of consensual agreements to resolve marital controversies” and strongly approves the enforcement of marital agreements.  Konzelman v. Konzelman, 158 N.J. 185, 193 (1999);  Massar v. Massar, 279 N.J.Super. 89, 93 (App.Div.1995).   Generally speaking, where voluntary and consensual, such agreements are “ ‘entitled to considerable weight with respect to their validity and enforceability’ in equity, provided they are fair and just.”  Dolce v. Dolce, 383 N.J.Super. 11, 20 (App.Div.2006)(quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)).

At the same time, the law accords judges “greater discretion when interpreting [domestic] agreements,” in recognition of the principle “that although marital agreements are contractual in nature, ‘contract principles have little place in the law of domestic relations.’ ”  Guglielmo v. Guglielmo, 253 N.J.Super. 531, 542 (App.Div.1992)(quoting Lepis v. Lepis, 189 N.J. 139, 148 (1980)).   Furthermore, incorporation of a marital settlement agreement into a divorce decree “does not render it immutable, nor its terms solely governed by contract law.”  Eaton v. Grau, 368 N.J.Super. 215, 224 (App.Div.2004) (citations omitted).   Such agreement will be enforceable in equity only if determined to be “fair and just.”  Ibid.;  see also Massar, supra, 279 N.J.Super. at 93 (noting that marital agreements “are enforceable only if they are fair and equitable”).

We conclude that the judge did not abuse his discretion in addressing Julianne's enforcement motion on March 2, 2012.   The judge's decision was fair and equitable since James had cured his payment arrears.2  In reaching our conclusion that the denial of Julianne's subsequent motions also does not require our intervention, we find significant the fact that substantially all of the payments that James was required to make to Julianne have been made.

We also find Julianne's challenge to the decision and order on Rule 1:7–4 grounds to be without merit.   The judge's decision adequately sets forth the findings and legal grounds for denying Julianne's application, and thus was sufficient to afford meaningful appellate review.   See Raspantini v. Arocho, 364 N.J.Super. 528, 532–33 (App.Div.2003).

Julianne further argues that the judge's failure to entertain oral argument under Rules 1:6–2(d) and 5:5–4 necessitates reversal of the order.   While we agree that the judge should have permitted argument on the motion's January 6, 2012 return date, we observe that Julianne was, on two subsequent hearing dates, given an extensive opportunity to argue the issues raised in the January 9 order.   Therefore, considering the record that was later developed, we find no prejudice to Julianne under the circumstances.   See Spina Asphalt Paving Contractors, Inc. v. Borough of Fairview, 304 N.J.Super. 425, 427 (App.Div.1997).

Julianne's remaining contentions are without sufficient merit to warrant discussion in this opinion.   R. 2:11–3(e)(1)(E).



FN1. We use the parties' first names, intending no disrespect, sacrificing formality for easier reference by the reader..  FN1. We use the parties' first names, intending no disrespect, sacrificing formality for easier reference by the reader.

FN2. We note that under Rule 5:3–5(c), a court in its discretion may make an award of attorney fees to any party if “deemed to be just.”  Ibid.;  Pressler & Verniero, Current N.J. Court Rules, comment 4.1 to R. 5:3–5 (2013).   Here, because Julianne prosecuted this action pro se, the judge did not consider the award of counsel fees..  FN2. We note that under Rule 5:3–5(c), a court in its discretion may make an award of attorney fees to any party if “deemed to be just.”  Ibid.;  Pressler & Verniero, Current N.J. Court Rules, comment 4.1 to R. 5:3–5 (2013).   Here, because Julianne prosecuted this action pro se, the judge did not consider the award of counsel fees.


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