                                NOT FOR PUBLICATION WITHOUT THE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-1766-17T3

PAMELA DUMCHUS,

          Plaintiff-Respondent,

v.

WILLIAM DUMCHUS,

     Defendant-Appellant.
_________________________

                    Submitted October 30, 2018 – Decided February 8, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Middlesex County,
                    Docket No. FM-12-0410-11.

                    Lum, Drasco & Positan, LLC, attorneys for appellant
                    (Gina M. Sorge, of counsel and on the briefs).

                    LaRocca, Hornik, Rosen, Greenberg & Patti, LLC,
                    attorneys for respondent (Albertina Webb and Gregory
                    L. Grossman, on the brief).

PER CURIAM
      In this post-judgment dissolution matter, defendant William Dumchus

appeals from the Family Part's November 17, 2017 order enforcing a settlement

agreement he and plaintiff Pamela Dumchus reached through voluntary

mediation. On appeal, defendant contends that the order was unsupported by

the facts in the record and was based upon legal errors, including the motion

judge's failure to consider whether the agreement was "fair and just," and the

judge reaching the conclusion that "full disclosure of financial information was

unnecessary or irrelevant."   Defendant also argues that the judge erred by

denying his request for a modification of his alimony obligation and failing to

direct that the garnishment upon defendant's wages be terminated upon his

payment of the agreed upon "lump sum amount" necessary to satisfy his alimony

obligation. For the reasons that follow, we affirm in part and remand in part for

the limited purpose of terminating the garnishment upon defendant's payment of

the agreed upon amount to satisfy his alimony obligation.

      The facts derived from the motion record are summarized as follows. The

parties were married in 1985. Their marriage ended with the September 9, 2011

entry of a final judgment of divorce (JOD) that incorporated the terms of their

"Divorce Settlement Agreement" (DSA). The DSA required defendant to pay

$7500 per month in permanent alimony through wage garnishment. It provided


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                                       2
for termination of alimony upon "the death of either party" or plaintiff's

"remarriage or cohabitation . . . ." Defendant was also required to maintain life

insurance in the amount of $1,000,000 for plaintiff's benefit to secure his

alimony obligation. Finally, the DSA required the parties to attempt to resolve

any disputes "by negotiation and agreement before using the court for any

determination."

      A dispute arose between the parties regarding defendant's failure to pay

alimony. In an effort to resolve that dispute, and at defendant's request, the

parties and their attorneys participated in a mediation with an agreed upon

mediator. The mediation was successful and on August 10, 2017, the parties

entered into a written agreement (mediation agreement) that by its express terms

was a "full and final settlement" of their dispute. The mediation agreement

provided that except as addressed in the agreement, the terms of the DSA

remained in "full force and effect."

      The mediation agreement required defendant to pay to plaintiff within ten

days a lump sum of $500,000 "tax free" in full satisfaction of his prospective

alimony obligation under the DSA. Plaintiff agreed to accept that amount in

satisfaction of defendant's $90,000 per year obligation going forward and to

waive any claim she had to the "approximately $16,000 in alimony arrearages"


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                                       3
that existed at that time. The mediation agreement also required defendant to

maintain $250,000 in life insurance for plaintiff's benefit even though his

alimony terminated upon payment of the lump sum.

      When defendant did not make the lump sum payment, in October 2017,

plaintiff filed a motion to enforce the mediation agreement and defendant cross-

moved to vacate the agreement and modify or terminate his alimony obligation

under the DSA, or for the judge to schedule a plenary hearing. In her supporting

certification, plaintiff explained that shortly after the parties entered the

mediation agreement, defendant obtained new counsel and sought to modify the

agreement. Plaintiff rejected defendant's proposal to enter into negotiations

about the mediation agreement that they had just entered into in August. She

noted that defendant benefited under the mediation agreement by her giving up

the right to $90,000 per year in permanent alimony in exchange for the $500,000

one-time payment.

      In his certification, defendant explained that in 2014 he changed positions

and was currently employed as a "branch investment manager at Morgan

Stanley," and since 2015, his compensation that was primarily paid through

bonuses had declined. He also described health issues he began to encounter in

2015, which he stated "impacted [his] ability to work." As a result, he could not


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                                       4
satisfy his alimony obligation, so the parties decided to mediate "the issues of

alimony and consideration of modification and reduction, if not termination, of

[his D]SA alimony obligations."       However, the parties never exchanged

financial information prior to the mediation, but "[i]t was clear [his] total

earnings were insufficient to meet the $7500 monthly garnishment."

      Defendant stated that despite plaintiff's arguments to the contrary, he paid

almost all of his alimony obligation for each year since the divorce and that in

any event, the mediation agreement did not provide him with any benefit going

forward and was entered into without knowledge of important information . He

stated the following:

            The [mediation agreement] was not subject to
            consideration of the total alimony payments that I had
            made to date or consideration of my remaining
            obligations in accordance with the [D]SA. Paragraph
            4(A) of the [D]SA states my obligation to "secure [my]
            alimony obligation" by maintaining a life insurance
            policy in the face amount of $1,000,000 naming
            [plaintiff] as a sole beneficiary. On August 10, 2017,
            my alimony payments exceeded $516,000. As of
            September 15, 2017, I paid some $532,000,
            approximately $8100 short of fulfilling my six (6) year
            total alimony payment obligation of $540,000. My
            execution of the [D]SA was without consideration of a
            remaining [D]SA alimony payment obligation of
            approximately $460,000. When I signed the [mediation
            agreement], I was also unaware of the advice I
            subsequently received from my counsel with regard to
            changes to the law governing alimony in September of

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                                        5
            2014, including consideration of "retirement" and the
            termination of alimony upon reaching the age of 67.
            Notably, my [D]SA alimony obligations through age
            67, total $1,000,000.

      Based on those reasons, defendant asked that the court not enforce the

mediation agreement. He also asked that his alimony be reduced because of his

reduction in earnings, which he described as having been approximately

$500,000 in 2015, $432,000 in 2016 and, including disability payments,

$418,000 in 2017. He claimed that these amounts did not take into account the

payments he made to "Morgan Stanley in accordance with the promissory notes

above and beyond the substantial sums withheld from [his] earnings for Federal

and State taxes." According to defendant, after deducting these payments, his

net income for 2017 was $34,650.26. He also revealed that he had $27,000 in

unearned income and his monthly expenses including alimony were

approximately $15,000.

      Plaintiff filed a reply certification in which she argued that defendant was

ultimately seeking "a second bite [at] the apple" with regard to the matters the

parties resolved through the DSA and mediation agreement. She noted that

neither party asked for any documentation and entered into the agreement with

the advice of counsel without any exchange of information.             Moreover,

disclosure would not have made a difference since it was only defendant's

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                                        6
income that was at issue and he was fully aware of his situation when he entered

into the mediation agreement.

      Plaintiff also challenged defendant's claims about the decline in his

income. She stated that during the marriage he earned approximately $350,000

annually, which supported both of their lifestyles. Further, as to claims about

his medical condition, plaintiff observed that defendant did not attach any

confirming medical records or reports.

      In accordance with Rule 5:5-4(e), the motion judge issued a tentative

decision and order on November 14, 2017, granting plaintiff's motion and

denying defendant's cross-motion. The parties reviewed the order and withdrew

their request for oral argument, and the judge entered the order on November

17, 2017.

      The motion judge set forth his findings of fact and conclusions of law

within the body of the order. The judge found that the parties voluntarily

participated in mediation at defendant's request with independent counsel.

Relying upon the Supreme Court's holdings in Nolan v. Lee Ho, 120 N.J. 465,

473 (1990) and Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J.

242, 256 (2013), he stated that in the absence of "fraud or compelling

circumstances," where the parties have complied with Rule 1:40-4(i) regarding


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                                         7
settlement agreements, the mediation agreement must be "honored." Citing to

Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) and Weishaus v. Weishaus,

180 N.J. 131, 143 (2004), the judge observed that settlement agreements in

divorce matters are "particularly favored," and quoting from Puder v. Buechel,

183 N.J. 428, 427 (2005), he explained that "the settlement of litigation ranks

high in the public policy of this state."

      The motion judge found that the language employed by the parties in the

mediation agreement established that it was their intention to be bound by the

mediation agreement "as an addendum/modification to their DSA." He therefore

incorporated its terms into the JOD, making it "enforceable as an Order of the

Court."

      The judge characterized defendant's cross-motion as an attempt to "renege

on a signed agreement entered into in mediation, which took place at

[defendant's] request[, even though t]he intent of the parties could not be any

clearer." The judge determined that defendant failed to establish that there was

anything unconscionable about the agreement or that anything happened since

they entered into it that would make the agreement unconscionable or establish

an inability to perform its terms. The judge noted that defendant's disclosures

of his assets revealed an account with the funds necessary to make the agreed


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                                            8
upon lump sum payment to plaintiff. To the extent defendant claimed he was

deprived of any information necessary to his entry into the mediation agreement,

the judge observed that defendant was solely in possession of the information

he needed about his income and assets and whether it was a wise decision to

agree to those terms.

      Notably, the judge observed that the parties did not formulate through

mediation a modification of the DSA's alimony amount, but rather a buyout of

the DSA's alimony that would be acceptable to all parties.           Addressing

defendant's arguments about his remaining alimony obligation under the DSA

being limited to the date he turned sixty-seven, the judge found them to be "pure

speculation" as the DSA provided for permanent alimony and any termination

would be "fact sensitive under the alimony statute[,] N.J.S.A. 2A:34-23(c)."

      Because the judge was satisfied that the mediation agreement should be

enforced, he did not address whether defendant established a prima facie

showing of changed circumstances under Lepis v. Lepis, 83 N.J. 139, 157

(1980). Also, the motion judge concluded there was no need for a plenary

hearing as there were no "genuine issues as to a material fact" that required a

resolution through a hearing as contemplated by Harrington v. Harrington, 281




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                                       9
N.J. Super. 39 (App. Div. 1995), and there was no reason to refer the parties for

additional mediation. This appeal followed.

      We begin by acknowledging that "we accord great deference to

discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J.

Super. 184, 197 (App. Div. 2012). Because of the Family Part's expertise in

family matters, our review of a Family Part judge's fact-findings is limited. See

N.J. Div. of Youth & Family Servs. v. T.S., 429 N.J. Super. 202, 216 (App. Div.

2013) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)); N.J. Div. of Youth &

Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010).

      We generally defer to factual findings made by a trial court when such

findings are supported by adequate, substantial, and credible evidence. Gnall v.

Gnall, 222 N.J. 414, 428 (2015). Accordingly, we will only reverse a trial court's

factual findings when they are "so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as to offend the

interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J.

474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154,

155 (App. Div. 1963)). In contrast, "trial judge[s'] legal conclusions, and the

application of those conclusions to the facts, are subject to our plenary review."




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                                       10
Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013) (citing Manalapan

Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

      Applying our deferential standard of review, we conclude that defendant's

arguments on appeal challenging the enforcement of the mediation agreement

are without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). We affirm substantially for the reasons expressed by the motion

judge in his thorough statement of reasons incorporated into the order under

appeal.

      We are constrained, however, to remand the matter for the limited purpose

of having the judge enter an order that provides, upon the date defendant pays

the agreed to lump sum amount in full, the garnishment terminates, and the

$16,000 in arrears is vacated. Defendant is also to receive an appropriate credit

for payments, if any, made through the garnishment after he has made the lump

sum payment.

      Affirmed in part; remanded in part. We do not retain jurisdiction.




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