D'Onofrio v. D'Onofrio

• Decision Date: 03 April 1985
• Citation: 200 N.J.Super. 361,491 A.2d 752
• Parties: Carlotta D'ONOFRIO, Plaintiff-Appellant, v. Stephen G. D'ONOFRIO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 361

200 N.J.Super. 361

491 A.2d 752

Carlotta D'ONOFRIO, Plaintiff-Appellant, v. Stephen G. D'ONOFRIO, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 11, 1985.

Decided April 3, 1985.

Ronald L. Bennardo, Forked River, for plaintiff-appellant (Curry & Stein, Forked River, attorneys; James J. Curry, Jr., Forked River, on brief).

Alan J. Cornblatt, Brick, for defendant-respondent (Alan J. Cornblatt, Brick, on brief).

Before Judges McELROY, DREIER and SHEBELL.

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiff has appealed from a divorce judgment incorporating the terms of an antenuptial agreement. The issue was severed and specially referred to a judge who rendered a decision finding the agreement legal and binding. A court order to that effect was entered over a year prior to the divorce hearing.

In this appeal plaintiff contends that the antenuptial agreement was void in that it was inequitable, grossly unfair and unconscionable. She also argues that even if the agreement is not void, it is subject to modification based upon changed circumstances. Plaintiff's remaining claims assert that the denial of an alimony award was error, as was the requirement that defendant need pay only $3,500 of her counsel fees.

Plaintiff and defendant lived together for several years prior to their marriage and their only child, Stephanie, was born to them in 1967. They were married on June 22, 1971 shortly after they signed a "Prenuptial Agreement" prepared by defendant's attorney who advised plaintiff that she should have independent legal representation; however, such representation was waived. The agreement by its terms barred plaintiff from claiming any right, including a dower right, to all real estate owned by defendant and any right to his personal property "in the event the marriage for any cause or in any manner during the lifetimes of the parties terminates or is annulled." Plaintiff also appointed defendant as her attorney-in-fact. The consideration for the agreement was both the marriage and the payment of $1,000 to plaintiff evidenced by defendant's note against which payments were to be made into a savings account to be opened in her name at a local bank. These payments were made. The agreement further represented that defendant "has a substantial estate consisting principally of realty, and [plaintiff] is without a substantial estate of either reality or personality." The parties further acknowledged "that the monetary value to be received by [plaintiff] hereunder is or may be out of all proportion to that to which as a wife she would be entitled."

The proofs further showed that plaintiff fully understood the effect of this agreement, and about the time it was signed even explained to one of her friends that she had to give up all rights to defendant's property if she wanted to marry him. Significantly, the agreement did not deal with an award of alimony.

On October 27, 1982 the specially-assigned judge entered an order finding that plaintiff received the $1,000 consideration, entered into the agreement with "full understanding of all relevant facts" and had been dealt with fairly after full disclosure of such facts prior to the execution of the agreement. Thus he found the agreement "to be a legal and valid agreement, binding upon the parties."

I

This appears to be the first New Jersey appellate case presenting for adjudication the enforceability of an antenuptial agreement in a divorce action under New Jersey law ¹. Cf. Kelso v. Kelso, 96 N.J.Eq. 354, 124 A. 763 (E. & A. 1924) (enforcing such agreement against a husband's claim that transfers made pursuant thereto constituted an improvident gift); Smith v. Executors of Moore, 4 N.J.Eq. 485 (Ch.1845), aff'd sub nom. Moore v. Smith, 5 N.J.Eq. 649 (E. & A. 1847) (enforcing antenuptial agreement in estate proceedings); Chaudry v. Chaudry, 159 N.J.Super. 566, 388 A.2d 1000 (App.Div.1978) (involving interpretation of an agreement executed in accordance with the customs and usage of Pakistan and, thus, found effective in New Jersey); Fern v. Fern, 140 N.J.Super. 121, 355 A.2d 672 (App.Div.1976) (prenuptial agreement found to terminate on death and not to be intended by the parties to apply in the event of a divorce). See also 1 Skoloff, New Jersey Family Law Practice (5 ed. 1984), § 7.4B at 7-10 to 7-15.

Although ordinarily we would render a more detailed analysis of the pros and cons of enforcing an antenuptial agreement in a divorce proceeding and would analyze out-of-state authority, such a comprehensive exposition and analysis has been published within the past year by Judge Lesemann in the Chancery Division, Family Part; our reexpression of the principles there stated is unwarranted. See Marschall v. Marschall, 195 N.J.Super. 16, 477 A.2d 833 (Ch.Div.1984). We agree with the conclusion reached by Judge Lesemann, and for the reasons he stated, find that "antenuptial agreements fixing post-divorce rights and obligations should be held valid and enforceable." 195 N.J.Super. at 27, 477 A.2d 833. We further agree that rather than granting such agreements "only grudging acceptance," the courts should welcome and encourage such agreements at least "to the extent that the parties have developed comprehensive and particularized agreements responsive to their peculiar circumstances." Id. at 28-29, 477 A.2d 833 (quoting Petersen v. Petersen, 85 N.J. 638, 645-646, 428 A.2d 1301 (1981)).

Citing Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), Judge Lesemann also noted that an antenuptial agreement should "be regarded as subject to modification by reason of 'changed circumstances' in the same manner as property settlement agreements." 195 N.J.Super. at 28, n. 3, 447 A.2d 833. We need not decide this issue for three reasons. First, the subject is better analysed in the context of a claim for alimony, a subject not treated in the agreement before us. Second, since it appears that virtually all of the parties' assets were owned by defendant prior to the marriage, N.J.S.A. 2A:34-23 (last paragraph) excludes the equitable distribution of such property. Although during the parties' 11 years of marriage there were sales and purchases of various parcels of real estate, assets "for which the original property may be exchanged or into which it, or the proceeds of its sale, may be traceable shall similarly be considered the separate property of the particular spouse." Painter v. Painter, 65 N.J. 196, 214, 320 A.2d 484 (1974). Thus, solely the personal property acquired by defendant during the marriage would be the subject of the agreement. Lastly, plaintiff has not demonstrated sufficient changed circumstances to warrant consideration of this issue as to personal property.

Plaintiff has also asserted the unfairness of the agreement as a basis for our refusing to enforce it. In a court of equity the judge should inquire into such allegations, since claims of fraud, overreaching duress or the like on the part of defendant might well bar the enforcement of the agreement. These matters, however, were inquired into by a separate judge who found against plaintiff on the facts. Our review of the record convinces us that his factual conclusions have a substantial foundation. Plaintiff knew of defendant's assets in detail prior to the marriage, since both prior to and during the marriage she acted as bookkeeper for her husband, noting the payment of rents and mortgages. Substantially the only asset of the parties was the real estate owned by defendant prior to the marriage. The value of the various properties owned by defendant was not significantly enhanced by plaintiff's efforts. Thus, there is no justification for a claim by her to participation in the increased value of the real estate. Painter, 65 N.J. at 214, n. 4, 320 A.2d 484; cf. Scherzer v. Scherzer, 136 N.J.Super. 397, 400-401, 346 A.2d 434 (App.Div.1978), certif. den. 69 N.J. 391, 354 A.2d 319 (1976). We perceive no reason to upset the trial judge's finding that there was no factual basis to overturn the agreement.

II

Although the trial judge justifiably started his financial analysis with the effectiveness of the antenuptial agreement (bolstered by the non-inclusion of the vast majority of the parties' property for equitable division purposes), this background should have had a profound effect upon the need to grant alimony and child support so that plaintiff could "share in the economic rewards occasioned by her husband's income level (as opposed merely to the assets accumulated), reached as a result of their combined labors inside and outside the home." Gugliotta v. Gugliotta, 160 N.J.Super. 160, 164, 388 A.2d 1338 (Ch.Div.), aff'd, 164 N.J.Super. 139, 395 A.2d 901 (App.Div.1978).

This issue was complicated by the underemployment of the parties. Defendant was content principally to manage his properties, and plaintiff was content to work for the Girl Scouts at a lower salary than she could have obtained in other employment, but which freed her for her duties as a wife and mother. The parties' combined income of approximately $30,000 was found by the trial judge to be less than they could have earned with full employment. The court found that plaintiff could have earned $12,000 and defendant $30,000, had they sought full-time employment. Plaintiff and their daughter were, however, entitled to be maintained at the level appropriate to a family income level of $30,000 as established during the marriage, and not merely to the "bare-bone" budget used by the court as its standard. Lepis v. Lepis, 83 N.J. at 153-161, 416 A.2d 833.

In the January 10, 1984 divorce judgment plaintiff's application for alimony was denied. However, plaintiff was permitted to occupy the marital home until the earlier of (1)...