SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T1 JEANNE A. STEIN, Plaintiff

- Respondent,

v. RICHARD W. STEIN, Defendant

- Appellant.

__________________________

Submitted November 20, 2019

– Decided Before Judges Haas and Mayer

. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM

- 16

- 0 515

- 15. Ziegler, Zemsky & Resnick, attorneys for appellant (Steven Resnick and Elizabeth D anforth Burke, on the brief). Snyder Sarno D'Aniello Maceri & Da Costa, attorneys for respondent (Stac e y A. Cozewith, of counsel and on the brief; Michelle A. Wort ma n n, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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December 6, 20192 A

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Defendant appeals from a May 30, 2018 order denying his motion for reconsideration of two prior court orders dated October 6, 2017 and November 17, 2017. We affirm. This appeal stems from the parties' divorce and mar i tal settlement agreement (MSA) dated March 1 7 , 2016

. The part ies acknowledged that the
M S A was "fair and reasonable " and resolved all issues concerning dissolution of their marriage. The re are three provisions in the MSA relevant to this appeal

. First , t he MSA required defendant to roll

- over $100,000 from his retirement
account to plaintiff's retirement account

. Second, the MSA required the parties
to attend mediation befo re filing motions

. Third , the prevailing party in an action to enforce the MSA was entitled to payment of legal expenses

. D efendant attempted to roll

- over the $100,000 in retirement funds to plaintiff by way of a qualified domestic relations order (QDRO) . However, the retirement fund company denied the request because the wording of the QDRO was deficient . Defendant cl aimed he remedied the issue but plaintiff never received the $100,000 sum. In or around October 2016, just a few months after the parties executed the MSA, defendant believed his retirement account was a pre

- marital asset and therefore not subject to equitable distribution. He declined to roll

- over the3 A

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retirement funds and retained an attorney . Through h is attorney, defendant demanded mediation of the "inequities" in the MSA, including equitable distribution of his retirement funds. The parties attempted , without success , to resolve th e retirement fund issue in an April 2017 mediation. P laintiff was left with no alternative but to file a motion to enforce her rights regarding the $100,000 retirement fund in accordance with the MSA. D efendant filed a cross

- motion to vacate the provision in the MSA directing him to roll

- over the retirement money , demand ed a plenary hearing, and request ed a reduction of his alimony and child support obligations

. In an October 6, 2017 order, t he judge found the parties expressly agreed
t he MSA was "fair and reasonable" at the time the agreement was signed

. The judge concluded there was no ev idence presented to justify setting aside the
MSA , and granted p laintiff's motion to recover $100,000 . In the November 17, 2017 order, the judge awarded interest on the $100,000 retirement sum

. The judge reserved decision on plaintiff's request for a ttorney's fees

. In denying d efendant's cross - motion, the judge noted defendant o mitted complete information regarding his new job . T herefore , she was unable to determine defendant's income. The judge also concluded the issue was not ripe4 A

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for adjudication because defendant failed to pursue mediation before filing his application as required under the MSA.
In the October 6 , 2017 order, defendant was compelled to roll

- over $100,000 , plus interest , into plain tiff's retirement account and pay plaintiff's
at torney's fees. The judge reasoned plaintiff was entitled to attorney ' s fees pursuant to the MSA, regardless of defendant's intentions, because he failed to roll

- over $100,000. The judge explained s he was required t o enforce the MSA

as signed by the parties, and the MSA clearly provided that in the event of a default by one party , "the prevailing party on a motion to enforce the agreement would be entitled to attorneys' fees . . . . " Defendant filed a motion for reconsideration , which the judge denied "for the same reasons that were . . . expressed on the record on August 15, 2017. " The judge stated defendant f a iled to show any facts she overlooked or law she misapplied. The judge found defe ndant's motion "disturbing, " noting defendant only wanted to vacate one section of the MSA and refused to comply with the October 6, 2017 order

. She also found there were no genuine issues of material fact and therefore a plenary hearing was not required
On a ppeal, defendant argues the family court judge erred in denying his motion for reconsideration because the judge overlooked evidence . He further5 A

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contends the judge failed to provide adequate reasons for awarding attorney 's fees to plaintiff . In addition, defendant claims the judge erred in finding he breached the terms of the MSA

. In the event of a remand, defendant contends the matter should be heard by a different judge. Reconsideration is a matter within th e sound discretion of the trial court, which we review for abuse of discretion

. See Palombi v. Palombi , 414 N.J. Super. 274, 288

- 89 (App. Div. 2010). Reconsideration " is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion ." In re Estate of Brown , 448 N.J. Super. 252, 268 (App. Div. 2017) (quoting Palombi , 4 14 N.J. Super. at 288)

. Reconsideration is applicable only when "the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or

. . . it is obvious that the [c]ourt either did not consider, or failed to appreciate the sign ificance of probative, competent evidence. " Ibid. ( first and third alterations in original) (quoting Palombi , 414 N.J. Super. at 288)

. Rule 4:49

- 2 requires a motion for reconsideration to include "a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred

. . . . " The object of such a motion is to correct a court's error or oversight, not to "re

argue [a] motion that has already been heard for the purpose of taking the6 A

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proverbial second bite of the apple." State v. Fitzsimmons , 2 86 N.J. Super. 141 , 147 (App. Div. 199 5 )

. We will uphold a settlement agreement between spouses in a matrimonial action that is " voluntary, fair and equitable ." Brawer v. Brawer , 329 N.J. Super. 273, 284 (App. Div. 2000 )

. "[T] he enforceability of [a marital] settlement agreement is subject to the same standards as that in any other case ." I bi d.
"A settlement agreement between parti es to a la wsuit is a contract." Nolan
v. Lee Ho , 120 N.J. 465, 472 (1990). "Interpretation and construction of a contract is a matter of law for the court subject to de novo review." Fastenberg v. Prudential Ins. Co. of Am. , 309 N.J. Super. 415, 420 (App. Div. 1998). "Accordingly, we pay no special deference to the trial court's interpretation and look at the contract with fresh eyes ." Kieffer v. Best Buy , 205 N.J. 213, 223 (2011). However, "[b] ecause of the family courts ' special jurisdi ction and expertise in family matters, appellate courts should accord deference " to the factual findings of the family court judge. Cesare v. Cesare , 154 N.J. 394, 413 (1998)

. An MSA may be set aside "when it is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship." Guglielmo v. Guglielmo , 253 N.J. Super. 531, 541 (App. Div. 1992) (quoting7 A

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Dworkin v. Dworkin , 217 N.J. Super. 518, 523 (App. Div. 1987)). New Jersey has a " ' strong public policy favori ng stability of arrangements ' in matrimonial
matters." Quinn v. Quinn , 225 N.J. 34, 44 (2016) (quoting Konzelman v. Konzelman , 158 N.J. 185, 193 (1999)). Absent compelling reasons to depart from clear, unambiguous, and mutually understood terms of a mari tal settlement agreement, a court is generally bound to enforce them. Id. at 45. We review an award of attorney's fees for a "clear abuse of discretion," and disturb an award "only on the rarest of occasions." Heyert v. Taddese , 431 N.J. Super. 388, 444 (App. Div. 2013) . While Rule 5:3

- 5 (c) and Rule 4:42

- 9 govern attorney fee awards in family matters, the parties here expressly included an attorney fee provision in their MSA. Therefore, the judge was not required to apply the factors embodied in the court rules in awarding attorney's fees. As the judge stated, "Irrespective of [d]ef endant's motives or reasons for non

compliance, the MSA contemplates an award of fees based on an omission or failure to 'fulfill' a duty that caused [p]laintiff to file the application." Nevertheless, the judge considered "the parties' unequal financial positions and the [p]laintiff's financial need to obtain the sum of $100,000, as well as interest income, by way of equitable distribution, to which she was entitled under the MSA" in finding that the "award of counsel fees to [p]laintiff8 A

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is proper and eq uitable." Based on a review of the certification of services supplied by plaintiff's counsel, the judge found the fees and costs incurred by plaintiff "were reasonable" and awarded counsel fees in the amount of $8,808. We affirm substantially for the r easons expressed by Judge Yolanda Adrianzen. We agree that the language in the MSA was clear and unambiguous. Defendant was required to mediate prior to filing a motion to reduce his alimony and child support obligations and failed to do so. In addition , under the MSA , p laintiff was entitled to $100,000 from defendant's retirement account

. Defendant failed to make that payment, triggering his default under the MSA. We further agree there was no genuine issue as to material facts requiring a plenary hea ring. See Shaw v. Shaw , 138 N.J. Super. 436 , 440 ( App. Div. 19 76 ). ("It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding suc h factual issues, that a plenary hearing is required.") Defendant 's professed understanding of the MSA does not negate the plain and unequivocal language of the MSA. Affirmed.