                                NOT FOR PUBLICATION WITHOUT THE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-2130-16T3


SHAI AVRAMOVICH,

         Plaintiff-Respondent,

v.

LISA GARSON,

     Defendant-Appellant.
_______________________

                   Argued November 8, 2018 – Decided December 11, 2018

                   Before Judges Koblitz, Ostrer and Mayer.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FM-09-2293-11.

                   Lisa Garson, appellant, argued the cause pro se.

                   William Rodriguez argued the cause for respondent
                   (Rodriguez Kim Law Group, LLC, attorneys; Jaclyn
                   Saltzman, on the brief).

PER CURIAM
      Defendant Lisa Garson appeals from the November 16, 2016 denial,

without a plenary hearing, of her application to enforce and amend her

matrimonial settlement agreement (MSA). Neither party was represented by

counsel when they signed the MSA or later when they were divorced. Plaintiff

Shai Avramovich and defendant were married in 1999, separated in 2009 and

had no children. Plaintiff filed a divorce complaint in 2011. The parties

executed their MSA on May 2, 2011, ten months prior to the entry of the final

judgment of divorce (JOD) on March 2, 2012. We affirm most of the decisions

of the trial judge, reversing only the provision regarding the division of the

proceeds of a marital property, 50 North Walnut Street, that may have been sold

by plaintiff without defendant's knowledge between the date of the MSA and the

entry of the JOD. We remand for a plenary hearing.

                                  I. The MSA

      With regard to the marital home, the MSA states:

            [Plaintiff] owns the following real property as their
            family residence, located at [] Erie Street, Jersey City,
            NJ -07302.

            [Plaintiff] and [defendant] agree that [defendant] shall
            continue to reside at the above mentioned family
            residence for a period of seven (7) months following
            the award of Final Judgment for Divorce.



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                                       2
           [Plaintiff] shall assist [defendant] in procuring a new
           residence after the 7 month period. If [defendant] does
           not procure a suitable place to live within seven (7)
           months, then [defendant] shall remain living at [] Erie
           Street, Jersey City, NJ 07302 until [defendant] finds a
           new residence. [Defendant] shall provide proof of
           search for new place to live to [plaintiff] on a monthly
           basis.

           [Plaintiff] has the right to charge [defendant] rent in an
           amount less than one thousand five hundred one
           ($1,501.00) dollars usd.

The MSA also states:

           [Plaintiff] shall have the following rights of title and
           ownership in the family residence: 100% Ownership
           and Title to property.

           [Defendant] shall have the following rights of title and
           ownership in the family residence:            A financial
           settlement which shall be secured by equity ownership
           and title to property in the event of default by [plaintiff]
           of financial obligations per this settlement agreement.

           [Defendant] shall file a UCC-1 lien against the property
           located at [] Erie Street, Jersey City, NJ 07302 USA in
           an amount equal to sixty seven thousand ($67,000.00)
           dollars usd. This amount will be amended (reduced)
           per [plaintiff's] payments according to and versus the
           settlement instructions.

     Plaintiff was responsible for the mortgage, maintenance and related

expenses associated with the Erie Street residence.        For the seven months

defendant resided at the residence, she was not responsible for any expenses


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                                        3
related to the home. As for other real estate, the MSA states the following:

"[Plaintiff] and [defendant] jointly own the following other real estate to be

divided as follows: 50 North Walnut Street Waterbury, Connecticut 06704."

There is no explanation of how this property should be divided.

      The MSA, as amended in court upon defendant's request, awards

defendant the following equitable distribution:

            [Plaintiff] shall pay [defendant equitable distribution]
            in the sum of Ninety-Two Thousand Dollar USD
            ($92,000.00), to be disbursed Twenty-Five Thousand
            ($25,000.00) in 2011, Twenty-Five Thousand
            ($25,000.00) in 2012, Twenty-One Thousand
            ($21,000.00) in 2013, and Twenty-One Thousand
            ($21,000.00) in 2014. Each disbursement will be a
            onetime full disbursement to [defendant] paid by
            [plaintiff] directly to [defendant]'s designated account.
            . . . The disbursements shall begin on the day of FINAL
            JUDGMENT AWARD for DIVORCE. [Plaintiff]
            agrees to place first disbursement (2011) in ESCROW
            to be delivered to [defendant] when DIVORCE is final.
            However, [plaintiff] and [defendant] agree that
            [defendant] may withdraw or drawdown against the
            Escrow in an event that coincides with instructions
            memorialized with the ESCROW ATTORNEY. . . . On
            the day of Final DIVORCE AWARD, will signal the
            day of each subsequent disbursement to [defendant]
            (example:       Final Divorce award June 1, 2011,
            disbursement shall be made to [defendant] no later than
            June 5, 2011 and each subsequent disbursement shall
            occur the following year on June 5 until the settlement
            has exhausted. In the event of default by [plaintiff],
            [defendant] is entitled to a lien on [plaintiff's] property
            now listed or any property available at the time of

                                                                          A-2130-16T3
                                        4
           default in an amount equal to the balance owed against
           the settlement agreement or five (5%) ownership and
           equity in any existing property whichever is higher at
           the time of default. [Plaintiff] understands he may be
           ordered by the Court to sell property in order to meet
           settlement agreement obligations to [defendant].

           [Plaintiff] has agreed to provide support to [defendant]
           with reasonable expenses until divorce is final and
           [defendant] agrees to accept spousal support as
           described above specifically leaving first escrow
           disbursement intact and untouched ($25,000) until
           Divorce is final unless [defendant] demonstrates an
           immediate need which shall be determined by the
           escrow Attorney outlined above.

           [Defendant] shall file UCC-1 lien against property at
           time the Court awards a final JUDGMENT OF
           DIVORCE.

The MSA also contains a default provision:

           In the event of default, [plaintiff] agrees to pay
           [defendant] three (3%) percent default fee which shall
           accrue monthly and compound until default if [sic]
           cured. If default is not cured in a timely manner which
           shall be observed as sixty (60) days, then accrued
           interest shall automatically attach as equity interest and
           liens on [plaintiff's] any existing property.

     Both parties acknowledged in the MSA that they "entered into this

agreement in good faith, without any duress or undue influence." In addition,

they both acknowledged that they understood their "right to seek independent




                                                                        A-2130-16T3
                                       5
counsel regarding [the MSA], and each . . . had the opportunity to seek

independent counsel prior to signing [the MSA]."

      At the divorce hearing, the parties confirmed they were both waiving

alimony, and defendant said she would "be able to maintain a lifestyle that is

reasonably comparable to that which [she] enjoyed during the course of [her]

marriage." Both parties stated they read and understood the contents of the

MSA, did not have any questions regarding any of the its provisions, believed it

was fair and reasonable, and were not "forced, pressured or coerced" into signing

it.

      Defendant asked if the MSA could be revised to say "equitable

distribution" instead of "spousal support," for tax purposes. She stated that the

$92,000 payment was "considered against the investment in the property. I

mean, like he's buying me out of my share of the property. That's kind of pretty

much how we drafted this. . . . That's the only thing we were considering."

Plaintiff agreed that the $92,000 payment was considered equitable distribution.

Defendant acknowledged that plaintiff had "already given some payments to

[her]."   The MSA was revised so that the $92,000 was deemed equitable

distribution. Though she acknowledged that the MSA should be more thorough,

defendant stated that she "thought . . . it was fair enough." Both parties stated


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                                       6
on the record that they did not wish to consult an attorney after the judge warned

them that an attorney could review the agreement and give advice concerning

its enforceability.

                            II. Order to Show Cause

      Defendant filed an order to show cause in July 2015, approximately three-

and-one-half years after the JOD was entered. Defendant alleged that plaintiff

had breached the MSA because he was "in arrears of an excess of $50,000 plus

accrued interest, and [had her] home under a sales contract estimated at 1.5 to

2.2 million dollars with the intent to eject her without fulfillment of the

settlement."    Defendant calculated plaintiff owed her $86,823.96 on a

spreadsheet. The spreadsheet indicated that of the $92,000 settlement amount,

plaintiff paid defendant $41,910, but owed her $50,090 plus $36,733.96 in

accrued interest. The $50,090 represented "[r]ents [w]ithheld in [a]dvance."

Defendant also submitted a 2009 Schedule K-1 indicating that she owned a 50%

partnership share in [] Erie Street, LLC.       Therefore, defendant sought an

"immediate lien" of $86,900 against [] Erie Street.

      Defendant stated that she still lived at the Erie Street residence because of

plaintiff's non-payment under the MSA. Defendant further stated that she did

not have a lease agreement with plaintiff, so she was not protected under tenancy


                                                                          A-2130-16T3
                                        7
laws. In addition, defendant was "not employed and [had no] income or assets

other than food stamps and general assistance." Defendant claimed she could

not move out of the Erie Street residence for financial reasons.

      Defendant also stated that "per email" on June 24, 2015, she was informed

that "an inspection would occur over the course of (2) days and that her locks

would be changed." Defendant alleged that the following morning plaintiff's

handyman entered defendant's apartment "without a key prior to her arrival and

removed her property for trash disposal." Defendant also claimed that though

she "was the property manager and business bookkeeper/administrator during

the marriage," plaintiff hid money offshore. In addition, plaintiff sold "the

Connecticut property listed as a shared asset . . . in 2011 . . . ." Defendant "did

not receive any proceeds from the sold asset." Defendant concluded: "The

settlement was by no means equitable and signed under extreme duress.

[Defendant] had no legal representation at any time. For those reasons, it is

imperative the Court attach a lien in the amount above in the defendant's name."

      The judge denied defendant's order to show cause, converted the matter to

a motion, and scheduled a hearing. The order stated:

            Plaintiff's certification in opposition to defendant's
            order to show cause claims that he has satisfied any and
            all monetary obligations owed to the defendant.


                                                                          A-2130-16T3
                                        8
            Plaintiff also certifies that the subject property is not
            under a sales contract.

            Defendant fails to prove that immediate and irreparable
            damage will probably result before a full hearing as the
            property at issue is not under an impending sales
            contract nor is defendant subject to an ejectment action.

      At the hearing on September 22, 2015, defendant, who appeared pro se,

argued that because plaintiff withheld "a year's worth of rent in advance," he

was "holding [her] hostage in the house." Defendant then stated:

            Also in this agreement it cites that we owned a property,
            [50] North Walnut, and that there was nothing
            stipulated as to the disposal thereof. And he disposed
            of it prior to the finalization. And I saw no funds from
            that at all. And I was not aware that he was selling it.

Plaintiff, who was represented by counsel, confirmed that defendant had been

living at the Erie Street residence rent-free since 2011, and under the MSA,

plaintiff would actually be entitled to rent money from defendant. Plaintiff's

counsel stated further:

            To assert that he has held her hostage there by not
            allowing her to move is ludicrous. . . .

            If he was going to give her the money that would be
            tantamount to the rent credits that she was getting he
            wanted a lease because you can't have your cake and
            eat it too. You can't live rent free and collect the money
            that the rent is being credited to you for. He asked for
            that on several occasions. There was no responses.


                                                                         A-2130-16T3
                                        9
                  ....

            So we assert that her figures as a whole are wrong
            because her initial amounts are wrong. And so she can't
            meet her proofs. Mr. Avramovich has allowed her to
            live there rent free since 2011. He credited her more
            months than he technically should have given her
            because he was trying to be amicable about it.

            They signed an agreement that on its face -- I'm still
            trying to figure out how to enforce because they were
            two parties who didn't have an attorney. They had a
            friend who graduated from law school drew up this
            agreement. They hoped that it would be . . . an amicable
            resolution.

Defendant also confirmed she never paid plaintiff rent after the seven -month

period despite the provision in the MSA.

      Plaintiff's counsel also pointed out that defendant did not file a UCC-1

lien against the property as required by the MSA. Plaintiff's counsel also argued

defendant's claim that plaintiff sold a jointly-owned property at 50 North Walnut

Street in Connecticut was not "relevant to the motion today."

      The judge found that under the MSA, defendant was only allowed to

reside at the Erie Street residence for seven months after the judgment of divorce

on March 2, 2012, yet defendant continued to live at that address rent free.

Under the MSA, plaintiff could charge her $1500 in rent per month from

November 2012 to October 2015 for a total of $54,000. Therefore, even if


                                                                         A-2130-16T3
                                       10
plaintiff owed $51,000, as defendant alleged, after "[c]rediting the rent amounts

to [p]laintiff," plaintiff overpaid defendant by $3000. In addition, the judge

found that under the MSA, defendant "had the opportunity to file a UCC-1 lien

against the property," but has not shown "whether or not this lien has been filed."

The judge found that defendant "failed to show by a preponderance of the

evidence" that plaintiff still owed her money; therefore, her motion was deni ed

in its entirety. The judge did not address the alleged sale of the 50 North Walnut

Street property.

                III. The Motion to Enforce and Amend the MSA

      A year later, in September 2016, defendant, through counsel, moved to

enforce and amend the MSA, primarily arguing that "numerous joint properties

were not identified in the MSA." Defendant's apparent impetus for filing the

motion stemmed from learning, in August of 2013, that defendant sold 50 North

Walnut Street in December 2011, 1 after the MSA was signed and before the

divorce was finalized. Defendant presented four arguments. Defendant claimed

that plaintiff was required, under the MSA, to give defendant $28,250, half of

the $58,500 proceeds from the sale of 50 North Walnut Street. Defendant



1
  Defendant offers the result of a Waterbury, Connecticut online search engine
that includes a December 21, 2011 sale of "50-52 NORTH WALNUT ST."
                                                                          A-2130-16T3
                                       11
acknowledged that the MSA is silent as to how, if at all, 50 North Walnut Street

would be divided. Defendant also argued plaintiff committed a fraud upon the

court by not reporting the sale; as a result, the divorce proceedings should be

reopened.

      In addition, defendant argued that contract law governed the MSA, so the

court should rely on extrinsic evidence to supply any missing terms , or to

interpret ambiguous terms, regarding the parties' intent to divide 50 North

Walnut Street.

      Finally, defendant claimed the MSA was invalid because "plaintiff

induced sufficient moral compulsion to overcome the will of defendant ," thus

rendering the MSA "unconscionable" and in need of reform. "[B]ased on the

duress exerted by [p]laintiff," and as a result of plaintiff not providing defendant

"her share of the equity from the sale" of 50 North Walnut Street, defendant

argued that the MSA was invalid, and the judge "must reopen the matter" to at

least determine "the enforceability of the [MSA] and the financial balance

between the parties . . . ." Finally, defendant argued that a plenary hearing must

be held to determine the ambiguous terms of the MSA and the parties' intent

regarding any distribution of proceeds from the sale of 50 North Walnut Street.




                                                                           A-2130-16T3
                                        12
      On November 16, 2016, the motion judge denied defendant's motion in its

entirety. Although the denial order was designated "without prejudice," both

parties accept this as a final order. The motion judge first addressed the issue

of the Connecticut property sale. The motion judge stated:

            Defendant holds the position that by not disclosing the
            sale prior to the final judgment of divorce, the MSA
            was procured by fraud and therefore the MSA should
            be reformed due to its unconscionability. . . .

            New Jersey Court Rule 4:50-2 requires that the motion
            to relieve a party from a final judgment due to fraud be
            filed not more than one year after the judgment, order
            or proceeding was entered or taken. In this case,
            [defendant] waited almost three years to bring the
            matter of fraud to the court. [Defendant] had prior
            opportunities to dispute the allocation of the 50 North
            Walnut Street Property but failed to do so.

      The motion judge next addressed defendant's claim that, "because she did

not have independent counsel," the MSA was "one-sided" and unjust, and "she

was under great duress" as a result of plaintiff's coercion. Neither party had

counsel at the divorce proceeding. The motion judge noted that "defendant was

able to competently ask the court to modify the MSA . . . to categorize the funds

she would be receiving as equitable distribution as opposed to alimony for tax

purposes." In addition, when defendant was asked about the content of the

MSA, she replied, "I thought it was fair enough."


                                                                        A-2130-16T3
                                      13
      The motion judge concluded:

            [D]efendant had the opportunity to question the MSA
            regarding distribution of the 50 North Walnut Property
            but failed to do so either at the final hearing or in
            previous motions. Instead the defendant conceded
            there were no properties in dispute and that the terms of
            the agreement were fair and equitable. The defendant
            has failed to prove that she was under duress when
            entering the agreement, that the agreement was
            procured as a result of fraud, or that the MSA was
            unconscionable.

                               IV. Legal Analysis

      We afford deference to the factual findings of the family court. Thieme

v. Aucoin-Thieme, 227 N.J. 269, 282 (2016). This is due to "the family courts'

special jurisdiction and expertise in family matters . . . ." Cesare v. Cesare, 154

N.J. 394, 413 (1998). We are bound by the findings of the family court when

such findings are supported by "adequate, substantial, [and] credible evidence."

Id. at 411-12.

      A court will not uphold a settlement agreement if the moving party

demonstrates “fraud or other compelling circumstances.” Nolan v. Lee Ho, 120

N.J. 465, 472 (1990) (quoting Pascarella v. Bruck, 190 N.J. Super. 118, 125

(App Div. 1983)); see also Quinn v. Quinn, 225 N.J. 34, 47 (2016) (quoting

Miller v. Miller, 160 N.J. 408, 419 (1999)) (noting that "[a] narrow exception to

the general rule of enforcing settlement agreements as the parties intended is the

                                                                          A-2130-16T3
                                       14
need to reform a settlement agreement due to 'unconscionability, fraud, or

overreaching in the negotiations of the settlement'"). Without any evidence of

fraud or coercion, a court is obligated to enforce the terms of the settlement

agreement when entered into by "fully informed" parties. Avelino-Catabran v.

Catabran, 445 N.J. Super. 574, 590 (App. Div. 2016) (quoting Quinn, 225 N.J.

at 55).

      The motion judge applied settled law to reject defendant's claims of fraud.

However, defendant's claim that plaintiff did not share the proceeds after

surreptitiously selling 50 North Walnut Street, after the MSA was signed but

before the divorce was finalized, is a contract claim, with a six-year statute of

limitations. N.J.S.A. 2A:14-1. We therefore remand for the motion judge to

hold a plenary hearing to interpret the intent of the parties, and determine

whether the fifty percent split of the proceeds sought by defendant is

appropriate.

      Her remaining arguments, which were somewhat difficult to follow, are

without sufficient merit to require further discussion. R. 2:11-3(e)(1)(E). The

remand judge may, however, expand the nature of the plenary hearing as the

judge sees fit, depending on the evidence that is developed. We see no reason

to remand to a different judge, as urged by defendant.


                                                                        A-2130-16T3
                                      15
      Affirmed in part and reversed and remanded in part for further

proceedings. We do not retain jurisdiction.




                                                             A-2130-16T3
                                     16
