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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2386-07T12386-07T1
JUAN MORALES,
Plaintiff-Appellant,
v.
GABINA MORALES, n/k/a
GABINA NIETO,
Defendant-Respondent.
Submitted April 21, 2009 - Decided
Before Judges Wefing, Yannotti and LeWinn.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, No. FM 13-1739-01B.
Patrick M. Durning, attorney for appellant
(Mr. Durning, of counsel; Marybeth Hershkowitz,
on the briefs).
Cori L. Socher, attorney for respondent.
PER CURIAM
Plaintiff appeals from a post-judgment order entered by the trial court on December 7, 2007. After reviewing the
record in light of the contentions advanced on appeal, we affirm.
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The parties were married on October 24, 1992. They had two sons, the older now nineteen, the younger, seventeen.
Plaintiff filed a complaint for divorce, and a judgment of divorce was entered on July 25, 2001. Attached to that
judgment was a property settlement agreement dated April 20, 2001. The judgment of divorce noted that the trial
court had not taken any testimony with respect to the merits of that property settlement agreement but merely
found that the parties had entered it freely and voluntarily. Under Article III of that agreement, the parties "forever
waive[d] and relinquish[ed] any and all claims for alimony." Under Article IV, defendant agreed that she would
convey to plaintiff all of her right, title and interest in the marital premises, located in Freehold. The agreement
provided that defendant could remain in the premises until the earlier of the children's emancipation, her
remarriage, or her permitting any third party to occupy the premises without plaintiff's express written permission.
Plaintiff was responsible for the payment of the expenses attendant to the premises, with the exception of utilities,
which were defendant's obligation. The agreement also provided that defendant's payment of these expenses was
in lieu of child support. Plaintiff maintained and operated a restaurant, Mexico Lindo. The agreement was silent with
respect to that business. The agreement contained the following language:
The parties represent and acknowledge that they have fully reviewed and understand
the legal and practical effect of this Agreement, and with an understanding of the force
and effect of this Agreement, each party signs same voluntarily, of their own free will,
and without any undue influence, fraud, coercion or duress of any kind whatsoever
exercised upon either of them by any person.
The parties acknowledge and represent that this Agreement is fair and reasonable
under the circumstances and is based on the representations of the parties that they
have provided full disclosure of marital assets.
Finally, it provided that plaintiff could take both boys as exemptions on his income tax return.
The agreement was drafted by plaintiff's attorney. Defendant was not represented by counsel in connection with
the divorce proceedings and did not appear on the date set for hearing the merits of the divorce complaint.
In March 2005, defendant filed a motion in which she sought to enforce that portion of the agreement under which
plaintiff was to provide medical insurance for the two boys. She said he cancelled their coverage soon after the
divorce became effective. She also sought child support for them and a share of the earnings from Mexico Lindo. In
addition, she sought to modify the agreement so that each could claim one boy as an exemption for tax purposes.
The trial court entered an order directing plaintiff to provide proof of medical insurance for the boys within twenty-
one days, directing the exchange of case information statements, and setting the matter down for a plenary
hearing.
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The order on appeal was entered following that plenary hearing, which spanned six days. The order vacated
portions of the property settlement agreement and directed plaintiff to pay permanent alimony of $200 per week
and child support of $156 per week, retroactive to the date of the divorce. It directed that plaintiff owed defendant
$76,396 for unpaid alimony, child support and equitable distribution. Further, it provided that defendant could
remain in the marital premises until the youngest child turned eighteen, at which point the property could be sold
and plaintiff at that point could pay defendant what he owed for past due alimony, child support and equitable
distribution from the proceeds of sale. Any remaining balance was to be divided equally between them. This appeal
followed.
Plaintiff makes the following arguments on appeal:
POINT I THE TRIAL COURT ERRED IN CONCLUDING THAT THE PARTIES' PROPERTY
SETTLEMENT AGREEMENT WAS UNCONSCIONABLE AS DRAFTED AND BY VACATING
THE SAME AND SHOULD BE REVERSED.
POINT II THE TRIAL COURT ERRED IN AWARDING DEFENDANT ALIMONY AND FURTHER
ERRED BY AWARDING DEFENDANT PERMANENT ALIMONY AND SHOULD BE REVERSED.
POINT III THE TRIAL COURT ERRED IN AWARDING DEFENDANT EQUITABLE
DISTRI[B]UTION OF THE MARITAL HOME AND THE APPELLANT'S RESTAURANT AND
CHILD SUPPORT AND SHOULD BE REVERSED.
(a) The trial court erred in awarding Respondent an $8,000.00 interest in Appellant's
restaurant and should be reversed.
(b) The trial court erred in awarding Respondent an interest in the former marital home
and should be reversed.
(c) The trial court erred in ordering Appellant to pay Respondent child support and
should be reversed.
POINT IV THE TRIAL COURT ERRED IN ASSESSING COUNSEL FEES AGAINST THE
APPELLANT.
Having carefully reviewed the record, we reject these contentions and affirm the order on appeal.
The attorney who represented plaintiff in connection with the divorce proceedings and the property settlement
agreement testified at the plenary hearing. He confirmed that defendant had not been represented by counsel. He
had prepared the property settlement agreement in accordance with the instructions plaintiff had given him, and
he assumed it was the product of negotiations between the parties. It was executed in his office. He testified that
defendant did not speak English and that all the instructions and information he gave her about the agreement
were through plaintiff. The attorney did not speak Spanish and he assumed that plaintiff was properly interpreting
to defendant in Spanish what he was saying in English. He admitted that he did not advise defendant of the court
date for the divorce.
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Defendant testified that she was born and raised in Mexico. She did not go to school beyond grammar school. She
did not know how to read. She was originally in the United States illegally but became a legal resident when she
married plaintiff in 1992. They had lived together for a significant period of time before they married; both boys
were born before the marriage. She said that she had worked all the years that the two were together and that
plaintiff would keep all the money she earned. She testified that after they bought the marital home they lived
there with their two children; she said that plaintiff's uncle also lived there and paid rent to plaintiff. She said that
the uncle remained there even after the divorce, eventually being joined by his wife and their two children. He and
his family eventually moved out in January 2006.
Defendant testified that she and plaintiff purchased Mexico Lindo and that she and plaintiff's family worked in the
restaurant. She said that plaintiff never mentioned anything about members of his family having any ownership
share in the business.
Defendant also testified that she had suffered from depression for a period of time and had been under the care of
a doctor. She took several medications for her depression, including Paxil and stated that she had taken Paxil the
day she signed the agreement. She said that plaintiff
was always humiliating [her] and telling [her] that [she] was ugly and [that] he was looking for a
woman to be like a model and that he had another woman.
He said that . . . he never loved [her], he wouldn't ever love [her] and that he was looking for the
woman he want[ed]. And he said that [she] ruined . . . the best years of his life, giving
him children that he didn't want to have.
She said she could not remember how she got to the attorney's office but did remember signing a document she
understood to be a "review [of] the divorce." She said that she believed she had to sign the papers to obtain a
divorce and that no one told her to obtain her own lawyer.
According to defendant's testimony, plaintiff told her the house would be in both their names until the boys could
own it. He said he would provide for the boys. She said there was never any discussion of equitable distribution of
their assets.
She testified that defendant did not provide support for the boys after the divorce and that when she asked him for
help, he threatened to take the boys from her because they spoke English and she did not. She said her fear of
losing her sons prevented her from going to court earlier.
She also testified that she did not receive a copy of the agreement after its execution. She said she did not receive a
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copy until 2005, when she went to the court house to get a copy. She was assisted by Ana Rivera, an employee at
the court house who got a copy of the agreement and translated it for her. She said Ms. Rivera told her the
agreement was not fair and assisted her in drafting her motion. By the time of the plenary hearing, she had
obtained an attorney.
Plaintiff testified to a different version. He also had been born and raised in Mexico. He finished high school and
came to the United States in 1986. He had no difficulty communicating in English. He said that Mexico Lindo is a
small restaurant with only a few tables; it primarily does business in take out. He said that he, his mother and
brother opened the restaurant in 1998, and he only had a one-third interest in the business, his mother and brother
owning the other two-thirds. He said that they had each contributed $8,000 to the purchase and opening of the
business and that his $8,000 share came from a joint account he owned with defendant. He said he filed tax returns
for the business as a sole proprietorship because his mother and brother were not legally in the United States. He
admitted he was completely in charge of the business.
Plaintiff testified that the marriage collapsed under the weight of the long hours he had to put into running the
restaurant. That, he said, led to defendant becoming involved with another man. He said that they eventually
decided to divorce, but defendant wanted to remain in the house rent-free. He took the position that in that case,
his payment of the mortgage would constitute his child support. He testified that defendant agreed to forego any
interest in Mexico Lindo so that she could keep the proceeds of a joint bank account they had opened in Mexico. He
later admitted the account was in the name of defendant's parents and that he did not know how much was in the
account at the time of the divorce. He also admitted that he never discussed the restaurant with the attorney who
represented him in the divorce and that because the two had reached their agreement, he saw no need to mention
it in the property settlement agreement. At the hearing on the divorce, he had been asked whether there were any
open issues and had responded there were none. When asked how he had not mentioned the restaurant and the
bank account in Mexico in response to such a question, he answered that he had "missed" them. He also said that he
may have "missed" that portion of the agreement which obligated him to maintain health insurance for the
children. He said he had translated the terms of the property settlement agreement into Spanish for defendant and
that she asked no questions about its provisions and never indicated that she thought any part of it was unfair.
Plaintiff testified that approximately one year after the divorce he transferred title to the house into his name alone;
since he was paying for it, he considered it his.
Some time after the conclusion of the plenary hearing, the trial court issued an extensive written opinion, setting
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forth its reasons for concluding that plaintiff had dealt in bad faith with defendant, that the property settlement
agreement was unconscionable and that portions of it had to be set aside. The trial court determined that
defendant was entitled to permanent alimony and child support, retroactive to April 20, 2001, the date of the
property settlement agreement. It computed those amounts to be $68,200 in alimony and $56,196 in child support.
It further found that the fair market value of defendant's use of the marital home was $2,500 per month, leaving a
net sum of $76,396 due to defendant.
We note at the outset the limited nature of our review in a matter such as this. "The general rule is that findings by
the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding." Id. at 413.
New Jersey "has a strong public policy favoring enforcement of agreements," particularly marital agreements, which
"are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super.
89, 93 (App. Div. 1995). Property settlement agreements are enforceable, however, "only if they are fair and
equitable." Ibid.
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.
[Ibid. (citations omitted).]
A property settlement agreement may be set aside as unconscionable when, as here, "a wife has not been
represented by an attorney . . . unless the husband can affirmatively demonstrate that he has dealt 'fairly and justly
with his wife.'" D'Arc v. D'Arc, 164 N.J. Super. 226, 238 (Ch. Div. 1978), aff'd in part, rev'd in part, 175 N.J. Super. 598
(App. Div.), certif. denied, 85 N.J. 487 (1980), cert. denied, 451 U.S. 971, 101 S. Ct. 2049, 68 L. Ed.2d 350 (1981)
(quoting Ferrante v. Philpott, 1 N.J. Super. 393, 396 (Ch. Div. 1948)).
Here, the trial court concluded that a presumption of unfair dealing arose from the fact that plaintiff was
represented by counsel while defendant was not. It considered that defendant needed to have the terms of the
property settlement agreement translated for her and that defendant was not provided with a copy of it. It found
that plaintiff did not disclose to defendant financial information about the restaurant business. It also noted that
plaintiff translated the terms of the agreement to defendant in the presence of an attorney who did not speak
Spanish and was not able to verify that plaintiff was providing an accurate statement of its contents. It concluded
that plaintiff had not met his burden of demonstrating that he dealt fairly and equitably with defendant.
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The trial court's findings and conclusions are clearly supported by the record developed during the plenary hearing.
We have no basis to overturn them. Cesare, supra, 154 N.J. at 411-12.
Plaintiff argues that defendant's waiver of alimony was irrevocable and that the trial court had no basis to award
alimony to defendant, particularly permanent alimony. We disagree. In our judgment, the award of alimony flows
directly from the trial court's conclusion that plaintiff did not deal fairly with defendant.
"The basic purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their
separation. The supporting spouse's obligation is set at a level that will maintain that standard." Innes v. Innes, 117
N.J. 496, 503 (1990) (citing Mahoney v. Mahoney, 91 N.J. 488, 501-02 (1982)).
On the issue of permanent versus limited duration alimony, this court has determined that
[l]imited duration alimony is not intended to facilitate the earning capacity of a dependant spouse or
to make a sacrificing spouse whole, but rather to address those circumstances where an
economic need for alimony is established, but the marriage was of short-term duration
such that permanent alimony is not appropriate. Those circumstances stand in sharp
contrast to marriages of long duration where economic need is also demonstrated. In
the former instance, limited duration alimony provides an equitable and proper
remedy. In the latter circumstances, permanent alimony is appropriate and an award of
limited duration alimony is clearly circumscribed, both by equitable considerations and
by statute.
[Cox v. Cox, 335 N.J. Super. 465, 476 (App. Div. 2000).]
Additionally, "[l]imited duration alimony is to be awarded in recognition of a dependent spouse's contributions to a
relatively short-term marriage that nevertheless demonstrated the attributes of a 'marital partnership' . . .             ." Id. at
483.
When determining an appropriate alimony award, be it limited or permanent, a trial judge "shall consider" a number
of factors when reaching a conclusion on the matter of alimony, including, but not limited to:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union and the likelihood that each party
can maintain a reasonably comparable standard of living;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
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(8) The time and expense necessary to acquire sufficient education or training to enable the party
seeking maintenance to find appropriate employment, the availability of the training
and employment, and the opportunity for future acquisitions of capital assets and
income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each
party including contributions to the care and education of the children and
interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly
or indirectly, out of current income, to the extent this consideration is reasonable, just
and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the
designation of all or a portion of the payment as a non-taxable payment; and
(13) Any other factors which the court may deem relevant.
[N.J.S.A. 2A:34-23(b).]
In the present case, when reaching its conclusion that defendant was entitled to permanent alimony, the trial court
considered the factors outlined in the statute and applied them "in light of [defendant]'s present needs and the
limited financial information available from the time of the 2001 divorce."
Defendant's 2001 gross wages were $12,320, and her 2005 gross wages were $15,080. Plaintiff's 2005 gross wages,
in contrast, were calculated at $41,585. The trial court then "[took] into account [defendant]'s education," which
ended at age fourteen in Mexico, her "job history," which consisted of various factory and unskilled labor positions,
and "her limited use of the English language." Comparing that with plaintiff's business, good credit and property
acquisitions, the trial court determined that limited alimony would not provide defendant with adequate support
for her "needs and obligations," and based upon the nine-year marriage, awarded defendant permanent alimony
retroactive to April 20, 2001. The total sum of alimony was then calculated at $68,200.
Although the trial court did not explicitly mention every factor noted in the statute, we note the depression from
which defendant suffered, that she was the sole caretaker of the children, that she had little or no control over
financial matters while the parties were married, her limited education and her resultant limited employment
options. We consider the trial court's determination with respect to alimony fully supported by this record.
Plaintiff also complains of the $8,000 awarded to defendant for her interest in Mexico Lindo. He maintains that it
overlooks that he only held a one-third interest in the business. Although the trial court did not explicitly state it in
its opinion, we consider it fairly inferable that the trial court rejected plaintiff's testimony on this issue and
concluded that plaintiff owned the business by himself.
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We also reject plaintiff's argument with respect to the manner in which the trial court divided the proceeds of sale
of the marital home, to be effective upon sale. We see no basis to conclude that the trial court abused its discretion
in this regard.
Finally, we deem without merit plaintiff's assertion that the trial court erred in finding him responsible to pay child
support for the benefit of his two sons. R. 2:11-3(e)(1)(E). We reach the same conclusion with respect to defendant's
subsequent appeal of the trial court's later order awarding defendant counsel fees in the sum of $24,665.12.
Affirmed.
(continued)
                                                                                                                          (continued)
17
                                                                                                                          A-2386-07T1
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