Preview
11-2017-CA-002217-0001-XX
Filing # 65803743 E-Filed 12/26/2017 03:55:58 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY, FLORIDA
KAREN C. D’ORSI, individually and as court-
appointed guardian of the person of James C.
D’Orsi,
Plaintiff,
vs. CASE NO. 17-CA-
THERESE SCHULTZ, as court-appointed
guardian of the property of James C. D’Orsi,
Defendant.
/
COMPLAINT
Plaintiff Karen C. D’Orsi (“Mrs. D’Orsi”), individually and as court-appointed guardian
of the person of James F. D’Orsi (“Mr. D’Orsi”), sues Defendant Therese Schultz (“Ms.
Schultz”), as court-appointed guardian of the property of Mr. D’Orsi, and alleges:
GENERAL ALLEGATIONS
1. Mrs. D’Orsi is the wife of James C. D’Orsi. Mr. and Mrs. D’Orsi have been
married since November 30, 1996, just over 21 years.
2. Mr. and Mrs. D’Orsi are residents of Collier County, Florida, residing at their
homestead, 538 Avelino Isles Circle, Unit 9102, Naples, Florida (“the Residence”). Mr. and
Mrs. D’Orsi own the Residence jointly, as tenants by the entirety.
3. On May 17, 2017, Mr. D’Orsi was adjudicated incapacitated by the Collier
County Circuit Court, In re: Guardianship of James F. D’Orsi, case no. 2017-GA-42.
FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 12/27/2017 11:03:33 AM4, On June 21, 2107, the Collier County Circuit Court appointed Mrs. D’Orsi the
guardian of Mr. D’Orsi’s person, Jn re: Guardianship of James F. D’Orsi, case no. 2017-GA-43.
Copies of the order of her appointment and letters are attached hereto as Exhibit “A.”
5. On June 21, 2017, the Collier County Circuit Court appointed Ms. Schultz, a
professional, the guardian of Mr. D’Orsi’s property, In re: Guardianship of James F. D’Orsi,
case no. 2017-GA-43. Copies of the order of her appointment and letters are attached hereto as
Exhibit “B.”
6. Mrs. D’Orsi serves as guardian of her husband’s person without fee. Although
Mrs. D’Orsi works full-time as an executive for a large insurance company, she takes care of all
of Mr. D’Orsi’s personal, social, and health needs. This includes but is not limited to spending
time with him almost every day, arranging for and taking him to all of his medical, vision,
hearing and dental appointments, getting his prescriptions filled, taking him out for regular meals
and other social outings, buying all of his clothing and other related personal items, arranging for
and attending visits with his extended family, traveling with him to and from New Jersey so that
he can spend time with his children and grandchildren, and the like.
7. By early 2017, Mr. D’Orsi’s health had declined. In addition to having cognitive
issues, he suffered severe pancreatitis, was not able to walk, was a serious fall risk, and had
elevated blood sugars. It was growing increasingly difficult to manage his care at home without
24-hour nursing assistance, at significant expense.
8. Based on recommendations of Mr. D’Orsi’s medical professionals and others, and
consideration of the most cost-effective way to provide the best care possible to Mr. D’Orsi, hewas placed temporarily at the Moorings so that he could receive the medical and social services
he needed. However, during the time-period while Mr. D’Orsi was at the Moorings, Mrs.
D’Orsi, as noted above, visited him almost daily, attended to his medical and personal needs,
took him out for meals and regularly brought him back to the Residence during the daytime and
overnight.
9. During the summer of 2017, Mr. and Mrs. D’Orsi came to New Jersey, as they
consistently have done for years. Mrs. D’Orsi found an appropriate facility where Mr. D’Orsi
could continue to receive the medical and social services he was receiving in Florida, but more
importantly, where he his children and grandchildren could have unfettered access to him for
visits and outings. While at the facility in New Jersey, Mrs. D’Orsi continued with her regular
visits, outings, and bringing Mr. D’ Orsi to her New Jersey home in the daytime and overnight.
10. ‘In the fall of 2017, Mr. and Mrs. D’Orsi returned to their Florida residence. Mrs.
D’Orsi determined, with the advice of his medical professionals, that it was in Mr. D’Orsi’s best
interests to continue to stay in a facility where his medical and social needs could be met in the
most cost-effective way possible. He returned to the Moorings, although at a different location
within that facility. Since Mr. D’Orsi’s return to Florida and through the present, Mrs. D’Orsi
has continued with her regular visits and outings with Mr. D’Orsi, attends to his medical and
other personal needs, and brings him to the Residence during the daytime and overnight.
11. The Residence continues to be Mr. D’Orsi’s domicile. Mr. D’Orsi is
incapacitated with regards to changing his domicile. Mr. D’Orsi also continues to jointly own
the Residence with Mrs. D’Orsi.12. Although Mrs. D’Orsi is her husband’s guardian of his person, she considers her
primary role and relationship to be as his wife.
13. On November 26, 1996, Mr. and Mrs. D’Orsi entered into a Prenuptial Agreement
(“the Agreement”), a copy of which is attached hereto as Exhibit “C.”
14. The Agreement provides at Section III, paragraph 11, as follows: “The Husband
shall pay all the food, medical and entertainment expenses for the Wife until the termination
event.”
15. | The Agreement, at Section I, paragraph 3, defines a “terminating event” to be: a)
the filing of a pleading of divorce, or similar; b) the execution of a separation agreement; or c)
“the parties residing in separate dwellings for a period of one hundred twenty (120) days or
longer.”
16. | The Agreement does not define “dwelling,” or address in any way or discuss the
parties’ rights and obligations in the event one spouse becomes incapacitated or needs medical,
rehabilitative or other services for more than 120 days that are typically provided outside the
marital home in a medical or long-term care facility.
17. Finally, the Agreement provides at Section III, paragraph 17 and 19, that in the
event of a “terminating event,” Mr. D’Orsi shall pay to Mrs. D’Orsi $1,500 for every month of
the marriage preceding a terminating event, $5,000 towards Mrs. D’Orsi’s legal fees for a
divorce filing (which has not occurred and is not contemplated by Mrs. D’Orsi) and $30,000 to
purchase a car.18. On December 15, 2017, and without obtaining the required approval of the
guardianship court, Ms. Schultz provided written notice to Mrs. D’Orsi that because Mr. D’Orsi
was residing in an assisted living facility, Ms. Schultz was declaring that a “terminating event”
had occurred under the Agreement. A copy of the notice is attached hereto as Exhibit “D.”
Counsel for Ms. Schultz had several weeks earlier communicated to Mrs. D’Orsi’s counsel that
this notice would be forthcoming.
19. Ms. Schultz further stated in the notice that after December 15, 2017, she would
not pay the food, medical and entertainment expenses of Mrs. D’Orsi.
20. Ms. Schultz did not tender payment to Mrs. D’Orsi of the sums due to her on a
terminating event, which given the length of the marriage exceeds $400,000, or even address this
payment in the attached notice letter. Efforts to ascertain from Ms. Schultz whether she intended
to promptly tender the required payment have been unanswered by her counsel.
21. — Finally, Ms. Schultz requested in the letter that Mrs. D’Orsi continue to provide
health insurance benefits to Mr. D’Orsi, as Mrs. D’Orsi’s spouse, through Mrs. D’Orsi’s
employer because Ms. Schultz “prefers” those benefits “as opposed to some other plan.” Ms.
Schultz amazingly made this request for spousal benefits notwithstanding that she had just
declared that the marriage between Mr. and Mrs. D’Orsi was terminated under their Agreement.
22. Mrs. D’Orsi has retained the services of the undersigned counsel and is obligated
to pay them a fee for their services in connection with this litigation.
23. Mrs. D’Orsi has complied with all conditions precedent to this action.COUNTI
24. This is a cause of action for declaratory relief and is within the jurisdiction of this
Court because it involves a contractual claim valued at in excess of $15,000.
25. Mrs. D’Orsi incorporates paragraphs 1 through 23 as if fully set forth herein.
26. Ms. D’Orsi contends that under the Agreement there has been no “terminating
event” for various reasons.
27. First, Mr. D’Orsi’s residence or domicile continues to be at the Residence.
28. Second, Mr. D’Orsi has in fact resided in the same dwelling as Mrs. D’Orsi in
both Florida and New Jersey during the subject time period. That time includes daytime and
overnight visits at regular intervals less than 120 days.
29. Third, the Agreement does not address at all the obligations of the parties in the
event one becomes incapacitated and needs long-term services away from the marital home. It is
clear, however, that the provision relied upon by Ms. Schultz was not intended to cover this
situation because the marriage itself between Mrs. D’Orsi and Mr. D’Orsi remains fully intact
and their staying in “separate dwellings,” to the extent that the Court determines that they have
done so, is a matter of medical necessity rather than an end or approaching end to their marriage.
30. | Under Ms. Schultz’s interpretation of the Agreement, Mrs. D’Orsi simply could
have avoided the declaration of a “terminating event” by keeping Mr. D’Orsi at home with 24-
hour nursing care even though it would have been at substantially greater expense to Mr.
D’Orsi’s estate and would have provided less quality medical care and social services than he is
receiving in the Moorings.31. Ms. Schultz herself has told Mrs. D’Orsi that Mr. D’Orsi is best placed at the
Moorings rather than being at the Residence with 24-hour care.
32. There is a bona fide actual dispute between Mrs. D’Orsi and Ms. Schultz as to the
applicability of the “terminating event” language of the Agreement to the current situation.
33. Mrs. D’Orsi is entitled to a declaration that the “terminating event” language does
not apply to the current situation.
WHEREFORE, Mrs. D’Orsi requests that this Court grant declaratory relief as to the
Agreement, enter judgement determining that a “terminating event” has not occurred under the
Agreement, award Mrs. D’Orsi her attorneys’ fees and costs to the extent permitted by law and
the Agreement, and award such further relief as is just and appropriate.
COUNT II
34. This is an alternative cause of action to Count I for breach of contract for damages
in excess of $15,000.
35. Mrs. D’Orsi incorporates paragraphs 1 to 23 as if fully set forth herein.
36. Ms. Schultz has breached the Agreement by failing to tender the full sum due to
Mrs. D’Orsi thereunder on the occurrence of a “terminating event.”
37. | Mrs. D’Orsi has been damaged as a result of Ms. Schultz’s breach of the
Agreement.
WHEREFORE, Mrs. D’Orsi demands judgment against Ms. Schultz for damages,
interest, attorneys’ fees and costs to the extent permitted by law and the Agreement, and for such
further relief as is just and appropriate.COUNT I
38. This is a cause of action for damages for unjust enrichment in excess of $15,000.
39. Mrs. D’Orsi incorporates paragraphs 1 to 23 as if fully set forth herein.
40. | Mrs. D’Orsi has paid various and numerous expenses for the benefit of Mr.
D’ Orsi, for which payment has been expected and is presently due.
41. — In October 2017, Ms. Schultz reimbursed Mrs. D’Orsi for some expenses she
incurred for Mr. D’Orsi’s benefit for clothing, phone, meals out and for costs of his medical
insurance for 2016.
42. Mrs. D’Orsi has submitted these expenses to Ms. Schultz, together with
supporting documentation.
43. Ms. Schultz has repeatedly told Mrs. D’Orsi that she would reimburse Mrs.
D’ Orsi for other expenses she has incurred for Mr. D’Orsi’s benefit.
44. Notwithstanding these promises, Ms. Schultz has since October 2017 refused to
reimburse Mrs. D’Orsi for other expenses she has incurred for Mr. D’Orsi. These expenses
include but are not limited to:
a. medical and dental insurance for all of 2017;
b. out of pocket medical expenses not covered by insurance;
c insurance on Mr. D’Orsi’s car;
d. repairs to Mr. D’Orsi’s car;
e. Mr. D’Orsi’s half share of the costs of the Residence, including taxes,
condo assessments, and repairs;f. meals out with Mr. D’ Orsi;
g. Mr. D’Orsi’s cell phone;
h. travel expenses; and
i. furniture purchased for Mr. D’Orsi’s use at the Moorings;
45. Ms. Schultz has been unjustly enriched as a result of these various payments by
Mrs. D’Orsi and it would be inequitable and unjust for Ms. Schultz not to pay Mrs. D’Orsi for
these expenditures.
WHEREFORE, Mrs. D’Orsi demands judgment against Ms. Schultz for damages,
interest, attorneys’ fees and costs to the extent permitted by law, and for such further relief as is
just and appropriate.
COUNT IV
46. This is a cause of action for breach of contract for damages in excess of $15,000.
47. Mrs. D’Orsi incorporates paragraphs 1 to 23 as if fully set forth herein.
48. Pursuant to the Agreement, Mr. D’Orsi is obligated to pay Mrs. D’Orsi’s food,
entertainment and medical expenses.
49. Mrs. D’Orsi has submitted various such expenses to Ms. Schultz for payment.
50. In October 2017, Ms. Schultz paid some of these expenses submitted by Mrs.
D’ Orsi, including but not limited to Mrs. D’Orsi’s health insurance for 2016.
51. Subsequently, Ms. Schultz has refused to pay any further such expenses submitted
by Mrs. D’Orsi, notwithstanding the fact that she acknowledges that this obligation exists, as set
forth in Exhibit “D” hereto.52. Ms. Schultz has breached the Agreement by failing to pay Mrs. D’Orsi’s food,
entertainment and medical expenses.
53. Mrs. D’Orsi has been damaged as a result of Ms. Schultz’s breach of the
Agreement.
WHEREFORE, Mrs. D’Orsi demands judgment against Ms. Schultz for damages,
interest, attorneys’ fees and costs to the extent permitted by law and the Agreement, and for such
further relief as is just and appropriate.
ROETZEL & ANDRESS, LPA
Attorneys for Mrs. D’Orsi
s/Cathy S. Reiman
CATHY S. REIMAN
Florida Bar No. 0501530
850 Park Shore Drive
Trianon Centre - Third Floor
Naples, FL 34103
Telephone: (239) 649-2729
Facsimile: (239) 261-3659
Email: creiman@ralaw.com
12123757 _1 136361.0002
10IN THE CIRCUIT COURT FOR COLLIER COUNTY,
FLORIDA PROBATE DIVISION
IN RE: GUARDIANSHIP OF
File No. 17-GA-43
JAMES F. D’ORSI
ORDER APPOINTING GUARDIAN OF PERSON
On the petition of Karen Coons D’Orsi for the appointment of guardian of the person of
James F. D’Orsi, the Court finding that the Ward is totally incapacitated as adjudicated by order
of this Court entered May 17, 2017, and that it is necessary for a guardian to be appointed for the
person of the Ward, it is
ADJUDGED as follows:
1. Karen Coons D’Orsi is qualified to serve and is hereby appointed as suardian of
the person of James F. D’Orsi.
2. Upon taking the prescribed oath and designation of resident agent and acceptance,
letters of guardianship of the person shall be issued.
3. The court is aware that the Ward may have executed an advance directive
pursuant to Chapter 765, Florida Statutes. The guardian shall exercise authority over a health
care surrogate until further order of this court.
~ ORDERED 20
Lauren L. Brodie
Circuit Court Judge
Copies furnished to:
Cathy S. Reiman, Esq.
Matthew A. Linde, Esq.
John T. Costello, Esq.
11656757 _{ 136361.0002
ETLEROG 241717 Ldel6col lier Co EXHIBIT 6 A 6IN THE CIRCUIT COURT FOR COLLIER COUNTY,
FLORIDA PROBATE DIVISION
IN RE: GUARDIANSHIP OF
File No. 17-GA-43
JAMES F. D’ORSI
LETTERS OF PLENARY GUARDIANSHIP OF THE PERSON
TO ALL WHOM IT MAY CONCERN:
WHEREAS, Karen Coons D’Orsi has been appointed guardian of the person of James F.
D’Orsi (the Ward), and has taken the prescribed oath and performed all other acts prerequisite to
issuance of Letters of Guardianship of the person of the Ward,
NOW THEREFORE, I, the undersigned Circuit Judge, declare Karen Coons D’Orsi duly
qualified under the laws of the State of Florida to act as guardian of the person of James F.
D’Orsi with full power to exercise all delegable legal rights ‘and powers of the Ward pertaining to
the Ward’s person, including the right to choose residence, to consent to medical and mental
health treatment, to make decisions about her social environment or other social aspects of her
life, and to have care, custody, and control of the Ward. .
The guardian shall exercise authority over any health care surrogate appointed by any
valid advance directive executed by the Ward pursuant to Chapter 765, Florida Statutes, until
further order of this Court.
ORDERED on this WH day of
Copies furnished to:
Cathy S. Reiman, Esq.
Matthew A. Linde, Esq.
John T. Costello, Esq.
11656788 _1 136361.0002
FILERCGYCL 1? f4i6col lier coIN THE CIRCUIT COURT FOR COLLIER COUNTY,
FLORIDA PROBATE DIVISION
IN RE: GUARDIANSHIP OF
File No. 17-GA-43
JAMES F. D’ORSI]
ORDER APPOINTING GUARDIAN OF THE PROPERTY
On the petitions of Karen Coons D’Orsi and Jonathan D'Orsi for the appointment of a
guardian of the property of James F. D’Orsi, the Court finding that the Ward is totally
incapacitated as adjudicated by order of this Court entered May 17, 2017, and that it is necessary
for a guardian to be appointed for the property of the Ward, it is
ADJUDGED as follows:
1. Therese Schultz is qualified to serve and is hereby ‘appointed as guardian of the
property of James F. D’Orsi.
2. Upon taking the prescribed oath and designation of resident agent and acceptance,
and entering into a bond in the amount of $ Wawed , payable to the Governor of the
State of Florida, and all successors in office, conditioned on the faithful performance of all duties
by the guardian, letters of guardianship of the property shall be issued.
3. The guardian of the property shall exercise authority over any durable power of
attorney executed by the Ward, untjl further order of this Court.
ORDERED
uren L. Brodie
Circuit Court Judge
Copies furnished to:
Cathy S. Reiman, Esq.
Matthew A. Linde, Esq.
John T. Costello, Esq.
11656775 _1 136361.0002
EXHIBIT “ 23 “
FILEMG21 17 14ifcol lier toIN THE CIRCUIT COURT FOR COLLIER COUNTY,
FLORIDA PROBATE DIVISION
IN RE: GUARDIANSHIP OF
File No. 17-GA-43
JAMES F. D’ORSI
LETTERS OF GUARDIANSHIP OF THE PROPERTY
TO ALL WHOM IT MAY CONCERN:
WHEREAS, Therese Schultz has been appointed guardian of the property of James F.
D’Orsi (the Ward), and has taken the prescribed oath and performed all other acts prerequisite to
issuance of Letters of Guardianship of the property of the Ward,
NOW THEREFORE, I, the undersigned Circuit Judge, declare Therese Schultz duly
qualified under the laws of the State of Florida to act as guardian of the property of James F.
D’Orsi with full power to have the care, custody, and contro] of the Ward’s property, to exercise
all delegable legal rights and powers of the Ward as to his property, including but not limited to
the right to contract, to sue and defend lawsuits, to apply for government benefits, to manage his
property or to make any gift or disposition of property, to administer the property of the Ward
according to law, and to take possession of and to hold for the benefit of the Ward, all of his
property and income.
ORDERED on this od day of
Lauren L. Brodie
Circuit Court Judge
Copies furnished to:
Cathy S. Reiman, Esq.
Matthew A. Linde, Esq.
John T. Costello, Esq.
11656801 _1 136361.0002
FILENOG 2117 14:46 collier CoPRENUPTIAL AGREEMENT
THIS AGREEMENT made and executed on this 2b day of
Nvem he ( , 1996 between JAMES D’‘ORSI residing at 61 Bay
Point Harbor, Point Pleasant, New Jersey, hereinafter referred to
as "Husband" and KAREN COONS residing at 675 Raritan Road, Unit
#29, Clark, New Jersey, hereinafter referred to as "Wife",
RECITALS
WHEREAS, the parties to the within Agreement have
represented to each other that they are free to marry and,
therefore, contemplate marriage to each other; and
WHEREAS, in anticipation of the marriage the parties desire
to fix, establish and determine the rights which shall accrue to
each of them in the other’s estate in the event of death of the
parties and to fix and determine the rights of the parties in the
event of an annulment, separation or dissolution of the marriage,
including the rights of the parties to obtain alimony, equitable
distribution pursuant to N.J.S.A. 2A:34-23, community property,
rights emanating from cohabitation and all othe: claims of any
kind, legal and equitable, and any other rights which the parties
now have or may acquire through the course of their marriage, by
statute and/or decisional law in this State or in any other
surisdiction, and;
WHEREAS, the parties accept the provisions of this Agreement
in lieu of any and all other rights either may have in law or
PR:54011_2.WPS
EXHIBIT “ C“equity, in any jurisdiction, and in full discharge and
satisfaction of such rights, and;.
WHEREAS, the Husband has substantial income (earned and
unearned) and is the owner of certain assets and liabilities
“which have been disclosed and are set forth in’a-separate
document entitled Appendix "A"; the Wife has earned and unearned
-income and is the owner of certain assets and liabilities set
forth in a separate document entitled Appendix "B."
WHEREAS, each party enters into this Agreement with the
knowledge of the income of the other, the property of the other
and the approximate value of that property, and all of the rights
and privileges which they would have in that property as a result
of marriage, including but not limited to rights incidental to an
annulment, separation, divorce or death;
WHEREAS, this Agreement is entered into voluntarily,
contains no unconscionable terms as defined by N.J.S.A. 37:2-32
(c) or as may be otherwise defined, provides each party with full
and fair disclosure of the earnings, property and financial
obligations of the other party (with each party having, or
capable of having, adequate knowledge of the property or
financial obligations of the other party), and with each party
having consulted with independent legal counsel; and
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and the future marriage of the parties, the
parties agree as follows:
PR:54011_2.WPSI. DEFINITIONS
For the purpose of this Agreement, the parties agree that
the following definitions shall govern:
1. "Separate Property" shall be defined as all of the
parties’ right, title and interest, both legal and beneficial, in
and to any and all income, property or interest in property,
whether real, personal or mixed (including but not limited to
choses in action, licenses, brokerage or investment accounts,
cash, securities, retirement plans, pension rights, 401K plans,
bonuses, real estate, commercial investments, sole
proprietorship, partnerships, limited partnerships, corporations,
joint venture) or any other assets wherever Situated and whether
acquired before, during or after the marriage in his or her sole
name or in the name of any entity in which that party owns an
interest. This shall include, but not be limited to all assets
listed within Appendices "A" and "B" annexed hereto. Without
Limitation, each party specifically acknowledges that the other’s
separate property as of the date of the execution of this
Agreement includes all assets set forth in their respective
appendices. Said appendices are in no way intended to limit the
meaning of separate property set forth herein.
a. "Separate property" as defined herein shall include
but not be limited to any increments, increases, accretions or
enhancement in assets acquired before, during or after the
marriage, due to passive increases (such as inflation or market
conditions) or active increases due to the direct or indirect
PR:54011_2.WP5 -3-services, skills or efforts of either or both of the parties or
any hybrid combining passive and. active increases.
b. "Separate property" ag defined herein shall also
include, but not be limited to:
(1) any income, dividends, interest or
distributions emanating from, or usufruct of, "separate
property";
(2) any asset that was converted from separate
property and that is not explicitly retitled in the name of
another or as joint property;
(3) any additions, improvements, repairs or
enhancements to "separate property";
(4) payments made to amortize "separate
property";
(S) earned income during the marriage.
(6) any property acquired by that party during
the marriage by way of bequest, devise, gift or inheritance,
including the proceeds of any trust or life insurance policy, or
property acquired by operation of law.
(7) all payments made incident to this Agreement,
shall be deemed "Separate property";
(8) all rights which either party may have,
whether same be matured, viable or vested, in a chose in action,
law suit or claim of any kind against any third party’;
The husband has disclosed that he or a business entity in
which he has an interest may have a legal malpractice claim which
if pursued may result in a financial award to the Husband.
PR:54011_2.WPS ~4-c. In the absence of a separate written agreement to
the contrary, any tangible personal property, which is defined as
limited to furniture, furnishings, household effects or bric-a-
brac purchased during the marriage will be joint property and
held by the parties as tenants by the entirety and shall be
deemed to be smarital property" for the purposes of paragraph 2
of this Agreement .
d. Except as provided in subparagraph c. above, all
property purchased by either party with separate property
including those funds provided to the Wife in this Agreement
Shall be deemed the separate property of such purchaser.
e. Any and all gifts of any kind and whatsoever nature
given by the parties to each other prior to or during the
marriage shall remain the exclusive property of the donee and/or
recipient free and clear of any claim of the donor.
f. The commingling of any income or assets of the
parties shall not convert separate property into marital property
unless the parties execute a separate agreement or title the
property in their names as joint tenants or tenants by the
entireties or place the property in one or more joint accounts.
2. "Marital Property". All property which is acquired
Guring the marriage in joint names shall be deemed marital
property. Except as provided in subparagraph c. of paragraph 1
of this Agreement, in order to acquire marital property by joint
ownership (whether the property be real, personal or mixed) the
intent of the parties must be set forth in a writing executed by
PR:54011_2.WPS -5-them or joint ownership must be reflected in a deed or title
instrument.
3. "Termination of the Marriage" (also referred to herein
as a "terminating event") shall be defined as the occurrence of
the first of the following events:
a. The filing of a pleading for divorce, divorce from
bed and board, separate maintenance, alimony, support, domestic
violence or annulment by either party;
b. The execution of a separation agreement; or
c. The parties residing in separate dwellings for a
period of one hundred and twenty (120) days or longer.
4. "Increase or enhancement" shall be defined as any
accretion, appreciation, increase or enhancement in value of an
asset during the marriage due to passive increases (such as
inflation or market conditions) or active increases (such as the
direct or indirect services, skills, contributions of any kind,
or efforts of either of the parties) or any combination of
passive or active increases which caused the increase in value.
Il. RIGHTS OF THE PARTIES:
5. Except as otherwise provided in this Agreement, each
party shall retain free and clear from any claim of the other, as
if no marriage occurred, the following rights which may accrue
during the marriage, or upon death, divorce, separation,
annulment or other terminating event:
PR:54011_2.WPSa. sole and exclusive ownership, control, possession
aid enjoyment. of his or her. "separate property, “ and its
"increased OF enhanced value” wherever situated;
b. the absolute right to acquire "separate property"
at any time;
cC. the ansoluce and | uny restricted right to dispose of
sich "separate property," and its "increased. OF enhanced value"
wiether by imtexr-vivos transfer, by Will or by intestacyX «
fy acquided, however, bnas Rei shor BaTby es
hi di
) |
d. the exciugive and ansoluce viahc to mortgage
“XD coumber, pledge, sell, or trans:er "separate property," and its
" and enter into any financing
"increased OF enhanced value,
arangement Or investment hy &
.
nek sta or her
este So be * /
woud sb eee
PlsFSE20R ious under this Aqreement;—9ps-
e. the exclusive and absclute right tc ~ stain the
accretion, appreciation, "increased or enhanced vaiue" and the
serefrom of "separate property.
e 7a),
6. aston’ as pet Porwise Srovided in this Agreement, neither
senefits re t
party shall have or acquire any right, title or claim to the
separate property of the other.
r54011_2.WPSAnything in this paragraph to the contrary
notwithstanding, the Husband shall not transfer or further
encumber the property located at 61 Bay Point Harbor, Point
Pleasant, New Jersey in accordance with the provisions of
Paragraph 26 of this Agreement . Further, in the event that the
Husband fails or is unable to maintain the life insurance as
required under Paragraph 25 of this Agreement, he shall be
required to maintain sufficient assets in his estate, to the
extent that the amount of insurance at any time in place is less
than that required under Paragraph 25 hereof, to meet his
obligation under said paragraph of this Agreement.
[END OF PAGE 7(a)]
1€2)7. Within thirty days of the execution of this Agreement,
the Wife shall execute. quitclaim deeds, interspousal transfer
deeds and any other documents necessary to waive and relinquish
any and all rights to separate property of the Husband in
accordance with the laws of the State in which said property 1s
ocated ac-may-be-necessary _to-effectuate the terms ofthis:
The Wife’s failure to execute said documents shall
not invest the Wife with any rights to said property. The
Husband agrees that at any time or times after the marriage he
will execute any documents necessary to waive and relinquish all
of his rights to the Wife’s 401(k) account or other retirement
benefits.
Freedom to Transfer or Gift Property to Other:
8. Notwithstanding the provisions of this Agreement, either
party shall have the right to transfer or convey to the other,
any property or interest therein which may be lawfully conveyed
or transferred during his or her lifetime by Will, gift or
otherwise. Neither party intends, by this Agreement, to limit or
restrict in any way the right and power to receive any such
transfer, bequest or conveyance from the other.
9. Any and all gifts of any kind and whatsoever nature
given by the parties to each other prior to or during the
marriage shall remain the exclusive property of the donee and/or
recipient free and clear of any claim of the donor and/or giver.
PR:54011_2.WPSIII. RIGHTS AND OBLIGATIONS WHILE MARRIAGE SUBSISTS:
Gifts from Husband to Wife During Marriage:
Annual Gift:
10. The Husband agrees that he will give the Wife the sum of
$5,000.00 each year on the anniversary of their marriage. Said
gifts shall be made only during each year the parties are
married. This obligation shall cease upon the termination of the
marriage as herein defined, the entry of a Givorce decree, the
death of either party or upon the parties’ fifteenth anniversary
of marriage, whichever event first occurs.
Food, Medical and Entertainment Expenses:
11. In addition, the Husband shall pay all the food,
medical and entertainment expenses for the Wife until the
termination event.
IIL. RIGHTS IN THE EVENT OF TERMINATION OF MARRIAGE
Division of Property.
12. In the event of a divorce, annulment or other marriage
termination event as herein defined, the separate property as
herein defined shall be exempt from equitable distribution
pursuant to N.J.S.A. 2A:34-23 et seq. or other applicable statute
of the State of New Jersey or related statute or law of any other
jurisdiction, along with any other marital claims of any kind,
including claims to property of the other based on equitable
theories or express or implied contract. In such event, each
party hereby waives and relinquishes any and all rights and
claims in law or equity which he or she may have to the separate
PR:54011_ 2.WPS -9-property owned by the other party. Except as provided for herein,
each party specifically waives any and all statutory or implied
rights: of possession in a marital residence pursuant to N.J.S-A.
3B:28-3. Only marital property as here and above described shall
be subject to distribution.
Alimony and Support.
13. Both parties waive all claims for alimony or support of
any kind, both permanent and pendente lite, past, present or
future, notwithstanding any change of circumstances of either
party that may occur in the future, including but not limited to:
a. the inability to obtain or retain employment,
regardless of the reason;
b. the dramatic and substantial increase or decrease
in income and assets of whatever nature, scope, or duration;
c. inheritance of assets by either party;
a. inflation, regardless of impact;
e, the loss or reduction of income, cash flow or
combination thereof and reduction of assets regardless of the
reason;
f. any accident or illness causing, in whole or in
part, a disability, whether same is total or partial, permanent
or temporary or whether same is contemplated or not;
g. any increase in either party’s needs; and
h. any other occurrence.
PR:54011_2.WP5 -10-Claims for Property Distribution and Division
14. .The Wife waives all claims for distribution and/or
division of the Husband's separate property including but not
limited to claims for equitable distribution, community property
and all equitable claims that could be made before, during or
after the marriage in this state or any other jurisdiction.
15. The Husband waives all claims for @istribution and/or
division of the Wife’s separate property including but not
limited to claims for equitable distribution, community property
and all equitable claims that could be made before, during or
after the marriage in this state or any other jurisdiction.
16. At any time that the parties hereafter acquire joint
property, they may enter into an agreement concerning their
proportionate interests in such property, and any such agreement
Shall be controlling with respect to the distribution of the
property between the parties upon the termination of the
marriage.
Lump Sum Payments in Satisfaction of All Claims:
17. In addition to any other rights granted the Wife
herein, in the event of a terminating event, the Husband shall
pay to the Wife the following additional sums in full
satisfaction for all her claims under this Agreement, for
distribution of property, alimony, counsel fees, expert fees and
all other rights of any kind including but not limited to those
arising from equitable claims that existed before, during or
after the marriage:
PR:54011_2.WP5 -l1-a. If a terminating event occurs between the date of
marriage and one year - the Husband shall have no obligation to
pay the Wife any lump ‘sum;
b. If a terminating event occurs one year and one day
after the date of the marriage or thereafter, the Husband shall
pay to the Wife a-lump sum amount equal to $1,500.00 for every
month of the marriage preceding a terminating event.
Possession of Marital Home:
18. In the event of a terminating event as defined herein,
the Wife shall vacate the marital home within thirty five (35)
days of said event if the parties’ marital domicile at that time
is owned solely by the Husband, notwithstanding any complaints of
domestic violence. If the parties’ marital domicile at the time
of a termination event is owned solely by the Wife then the
Husband shall vacate the marital home within thirty five (35)
days of said event, notwithstanding any complaints of domestic
violence. In the event that the parties’ marital domicile is
owned by the parties jointly at the time of a terminating event,
then the parties now agree that at the time of the acquisition of |
any jointly owned real property they shall enter into an
agreement which addresses which party must vacate same at the
occurrence of a terminating event pursuant to this Agreement.
Wife’s Moving Costs, Legal Fees and Lump Sum Distribution:
19. Tn addition to the above, the Husband shall:
a. within thirty days of a terminating event,
provide the Wife with the sum of $5,000.00 in order to aid and
PR:54011_2.WPS -12-facilitate the Wife in meeting the costs attendant to moving and
setting up a new residence, unless the Husband is the party
obligated to move pursuant to paragraph 18 of this Agreement;
b. pay the Wife the sum of $5,000.00 to be used
toward her legal fees in a divorce proceeding, unless the Wife
seeks to repudiate, modify or.vacate this Agreement; and
c. pay the Wife a lump sum of $30,000.00, part or
all of which should be used for the purchase of a car.
Children:
20. In the event there 18 issue born of this union of Karen
and James, it is understood and agreed that this Agreement shall
have no effect upon the rights and obligations of each of the
parties to said issue.
IV. IN THE EVENT OF DEATH OF THE PARTIES:
Rights of Parties If Still Married:
21. Notwithstanding anything contained herein, each party
shall retain and have all of his/her rights under any Will or
Testamentary direction of the other party, provided that no
terminating event has occurred. Further, each party shall retain
or have all of his or her rights by virtue of the marriage under
N.J0.S.A. 3B:8-1 et seq or any other applicable "elective share"
Statute, provided that the parties were married at least five (5)
years and no termination event has occurred at the time of the
demise of one of the parties.
Waiver of All Rights in other’s Estate in Event of Divorce or
Termination Event, or Marriage of Less than Five Years:
PR:54011_2.WPS -13-f\¥
22. Except as otherwise provided in paragraph 21 and
aragraph 25 of this Agreement, in the event of the death of one
: { . ’
of the parties when,they are not married at least five years)
(yi) they are int) when has occurved,
(ii
WTAVOFCED, OF 4 soo a terminating event, the Surviving party
hereby waives all rights in the estate of the other under any law
of the State of New Jersey or such other state or jurisdiction
whose law may apply in the future as.well as the law of any
future residences or domiciles of either party. Such waiver
shall pertain to all rights in the estate of the other including,
but not be limited to the right of election of a surviving
spquse, the rights of the surviving spouse as intestate successor
Or aS a pretermitted spouse, and the rights of the surviving
spouse to homestead, exempt property, and family allowance, or
any other rights in the property or estate of the other. This
waiver shall be considered a full waiver and renunciation by
each, in the event of a terminating event or marriage of less
than five years, of all benefits that would otherwise pass to
either from the other by intestate succession or by the
provisions of any will executed before this Agreement and of any
rights to an elective share pursuant to N.J.S.A. 3B: 8- 1 et. seq.
(specifically N.J.S.A. 3B:8-10). In the event of the death of
|
one of the parties when: they are not married ir least five years,
\theyav® Gil) When A . — has eceuvve
divorced) O T tbgost—te a terminating event, any "separate
property" of either party, as herein defined, shall be excluded
from the "augmented estate" of the decedent as if it had been
transferred by the decedent to a third party during the
/
PR:54011_2.WPS , -14-decedent’s lifetime with the consent of the non-recipient spouse.
Each party acknowledges that the other has made full and fair
disclosure as may be required by said statutory provisions.
Nothing in this provision shall prevent either party from making
.a voluntary bequest in his or her Last, Will hereafter executed
which may include property designated hereunder as "separate
property."
23. Except as provided in paragraph 21, each of the parties
shall refrain from any action or proceeding to challenge, avoid,
modify or nullify the Last Will or any of the term(s) of any such
Will of the other unless the terms of such Will are inconsistent
with the provisions of this Agreement.
24. Each party waives the right to act as Executor or
Executrix under the Will of the other unless nominated by a Will
or Codicil.
25. Notwithstanding the provisions of paragraph 22 of this
Agreement, the Husband shall be required to maintain until his
Geath or an earlier terminating event a Term Life Insurance
policy on his life in an amount not less than $400,000.00 naming
the Wife as beneficiary. If for any reason he is unable or
neglects to obtain or maintain such a policy, he shall be
obligated to give said sum to the Wife by Will or other
testamentary transfer.
26. The Husband shall execute a Last Will on or before the
fifth anniversary of the marriage of the parties in which he
conveys his home which he presently owns at 61 Bay Point Harbour,
PR:54011_2.WPS -15-Point Pleasant, New Jersey, subject to the mortgage which exists
at the time of the execution of this Agreement held by CoreStates
Bank or any other liens or encumbrances which exist at the time
of the execution of this Agreement.
V. GENERAL PROVISIONS:
Disclosure of Assets and Income:
27. Each party warrants and represents that he or she has
made a full disclosure of all assets acquired by either of them
up until the date of the execution of this Agreement and that
those assets and the approximate value of those assets are
contained in Appendices "A" and "B" which are incorporated herein
by reference. Further, each party represents that they furnished
to the other party complete personal and business tax returns for
the last three (3) years (to the extent available) which are also
contained in Appendixes "A" and "B". Specifically, the Husband’s
Appendix "A" consists of the following:
INDEX TO APPENDIX "A"
1. James D’orsi’s Statement of Financial Condition dated
September 30, 1996 prepared by Victor Goldblat and Company,
Certified Public Accountants and Schedule of Assets Not
Listed in Financial Statement.
2. 1994 and 1995 U.S. Partnership Returns (Form 1065) for
Fairway Plaza Associates.’
3. U.S. Corporation Income Tax Returns (Form 1120) for
Consolidated Supermarkets, Inc. for years ending October 30,
1993, October 31, 1994 and October 31, 1995.
? Referred to as Fairway Plaza, Inc. in the Statement of
Financial Condition.
PR:54011_2.WPS -16-4.°- U.S. Income Tax Returns for an S Corporation (Form 1120S)
for Shop-Rite Liquors of Franklin Inc. for years ending June
30, -1994, June 30, 1995 and June .30, 1996.
5. U.S. Corporation Income Tax Returns (Form 1120) for Fairway
Plaza Liquors & Bar for the years ending March 31, 1995 and
March 31, 1996.°
6. U.S. Corporation Income Tax Returns (Form 1120) for 1400 No.
Charlotte St. Corp. for the years ending August 31, 1993,
August 31, 1994 and August 31, 1995. ,
7. U.S. Partnership Returns (Form 1065) for Millburn 74
Associates c/o Consolidated Supermarkets dated 1994 and
1995. .
8. U.S. Individual Income Tax Returns (Form 1040) for James
D’orsi for the years 1993, 1994, and 1995.
Specifically, the Wife’s Appendix "B" consists of the following:
INDEX TO APPENDIX "B"
1. Karen A. Coons’ Statement of Financial Condition as of
October 31, 1996.
2. U.S. Individual Income Tax Returns (Form 1040) for Karen A.
Coons for the years 1993, 1994 and 1995.
28. Each party, in reliance upon the aforesaid asset and
income disclosure, waives further rights of discovery.
29. Each party knowingly waives the right to have an
independent accountant, real estate appraiser or other
appropriate expert confirm the other’s representations set forth
in Appendices "A" and "B" and other financial information
furnished pursuant to this Agreement.
30. The Wife acknowledges that she would enter into this
Agreement regardless of the extent and amount of the Husband’s
3 Trading as Shop Rite Liquors of old Bridge and go
referred to in the Statement of Financial Condition of James
D’orsil.
PR:54011_2.WPS -17-net worth or income now or in the future. The Wife further
acknowledges and represents that ghe is entering into this
Agreement with the knowledge and understanding that the Husband’s
net worth may significantly vary depending upon the method
utilized to appraise the assets. She further acknowledges and.
understands that due to cyclical changes in the economy and
~Husband’s business, the value of his assets and liabilities can
vary depending upon the methodology used and the valuation date.
31. The Husband acknowledges that he would enter into this
Agreement regardless of the extent and amount of the Wife's net
worth or income now or in the future. The Husband further
acknowledges and represents that he is entering into this
Agreement with the knowledge and understanding that the Wife’s
net worth may significantly vary.
32. The Wife further acknowledges and represents that the
Husband may have available to him perquisites, expense accounts
or other benefits of employment which could enhance his "cash
flow." The Wife has been provided the opportunity to review the
information regarding cash flow or income-related benefits which
might not be discernable on a tax return, and she enters into
this Aqreement without regard to funds that the Husband may have
available to him from any sources now. or in the future.
Independent Representation:
33. The Husband has had independent legal advice by counsel
of his own selection. The Wife has also had independent legal
advice of her own selection. The Husband being represented by
PR:54011_2.WPS -18-Charles F \Justto aA oe
Dasred Mh tietdstetes, Est
of Wilentz, Goldman & Spitzer, P.C., 930
Woodbridge Center Drive, Woodbridge, New Jersey 07095, and the
Wife being represented by Lisa Presser, Esq., of Drinker, Biddle
& Reath, located at 47 Hulfish Road, P.o.Box 627 Princeton, New
Jersey 08542. Each party acknowledges that: he/she fully
understands and is familiar with the income, assets. and the value
of assets of the other, and has been fully informed of all legal
rights and liabilities relating to this Agreement; no coercion,
force, pressure or undue influence has been used against either
party entering into this Agreement; and that after such advice
and knowledge, each party believes the Agreement to be fair, just
and reasonable and each signs the Agreement freely and
voluntarily.
In Event of No Marriage or Void or Voidable Marriage:
34. In the event that this Agreement is signed and there is
no marriage or the marriage is deemed void or is voidable, the
Wife specifically waives any and all rights and claims emanating
from any periods of cohabitation or non-cohabitation including
but not limited to contractual or equitable claims such as quasi-
contract, quantum meruit claims for services rendered, promises,
constructive trusts, etc.
35. In the event that this Agreement is signed and there is
no marriage or the marriage is deemed void or is voidable, the
Husband specifically waives any and all rights and claims
emanating from any periods of cohabitation or non-cohabitation
including but not limited to contractual or equitable claims such
PR:54011_2.WPS -19-as ‘quasicontract, quantum meruit claims for services rendered,
promises, constructive trusts, etc.
Counsel Fees:
36. Except as otherwise provided in paragraph 19 of this
Agreement, each party shall pay his or her own counsel fees and
other costs incurred in connection with the negotiation and
execution of -the aforesaid Agreement and in connection with any
subsequent litigation between the parties for divorce, annulment
or separation.
37. In the event that a party seeks to vacate, modify or
repudiate this Agreement, the party making such application shall
pay the reasonable attorney's fees and expert fees of the other
party.
Modification of Agqreement:
38. This Agreement may not be modified in any respect
except by a signed agreement of the parties.
Severability of Provisions:
39. In the event that any provision of this Agreement is
unenforceable due to public policy or otherwise, the remainder of
this Agreement shall remain in full force and effect.
40. The failure of either party to insist upon specific
performance of any of the provisions of this Agreement or to
exercise any rights herein conferred, shall not be construed as a
waiver or relinquishment for the future of any such provisional
rights but the same shall be, and remain, in full force and
effect.
PR:54011_2.WP5 -20-Topic Headings:
41.. Topic headings appearing in this Agreement shall be
used for descriptive purposes only and shall have no substantive
effect, however, all recital clauses shall be deemed substantive
and part and parcel of this Agreement.
Entire Understanding of Parties:
42. This Agreement contains ‘the entire understanding and
agreement of the parties; there have been no collateral or side
agreements. Further, there have been no promises,
representations, agreements, warranties or undertakings by either
party to the other, either oral or written, expressed or implied,
of any character or nature, except as set forth in this Agreement
and Appendices. Specifically, each party waives the future right
to claim, contend, or assert that this Agreement was modified,
canceled, superseded or changed by an oral agreem
Preview
11-2017-CA-002217-0001-XX Filing # 65803743 E-Filed 12/26/2017 03:55:58 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA KAREN C. D’ORSI, individually and as court- appointed guardian of the person of James C. D’Orsi, Plaintiff, vs. CASE NO. 17-CA- THERESE SCHULTZ, as court-appointed guardian of the property of James C. D’Orsi, Defendant. / COMPLAINT Plaintiff Karen C. D’Orsi (“Mrs. D’Orsi”), individually and as court-appointed guardian of the person of James F. D’Orsi (“Mr. D’Orsi”), sues Defendant Therese Schultz (“Ms. Schultz”), as court-appointed guardian of the property of Mr. D’Orsi, and alleges: GENERAL ALLEGATIONS 1. Mrs. D’Orsi is the wife of James C. D’Orsi. Mr. and Mrs. D’Orsi have been married since November 30, 1996, just over 21 years. 2. Mr. and Mrs. D’Orsi are residents of Collier County, Florida, residing at their homestead, 538 Avelino Isles Circle, Unit 9102, Naples, Florida (“the Residence”). Mr. and Mrs. D’Orsi own the Residence jointly, as tenants by the entirety. 3. On May 17, 2017, Mr. D’Orsi was adjudicated incapacitated by the Collier County Circuit Court, In re: Guardianship of James F. D’Orsi, case no. 2017-GA-42. FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 12/27/2017 11:03:33 AM4, On June 21, 2107, the Collier County Circuit Court appointed Mrs. D’Orsi the guardian of Mr. D’Orsi’s person, Jn re: Guardianship of James F. D’Orsi, case no. 2017-GA-43. Copies of the order of her appointment and letters are attached hereto as Exhibit “A.” 5. On June 21, 2017, the Collier County Circuit Court appointed Ms. Schultz, a professional, the guardian of Mr. D’Orsi’s property, In re: Guardianship of James F. D’Orsi, case no. 2017-GA-43. Copies of the order of her appointment and letters are attached hereto as Exhibit “B.” 6. Mrs. D’Orsi serves as guardian of her husband’s person without fee. Although Mrs. D’Orsi works full-time as an executive for a large insurance company, she takes care of all of Mr. D’Orsi’s personal, social, and health needs. This includes but is not limited to spending time with him almost every day, arranging for and taking him to all of his medical, vision, hearing and dental appointments, getting his prescriptions filled, taking him out for regular meals and other social outings, buying all of his clothing and other related personal items, arranging for and attending visits with his extended family, traveling with him to and from New Jersey so that he can spend time with his children and grandchildren, and the like. 7. By early 2017, Mr. D’Orsi’s health had declined. In addition to having cognitive issues, he suffered severe pancreatitis, was not able to walk, was a serious fall risk, and had elevated blood sugars. It was growing increasingly difficult to manage his care at home without 24-hour nursing assistance, at significant expense. 8. Based on recommendations of Mr. D’Orsi’s medical professionals and others, and consideration of the most cost-effective way to provide the best care possible to Mr. D’Orsi, hewas placed temporarily at the Moorings so that he could receive the medical and social services he needed. However, during the time-period while Mr. D’Orsi was at the Moorings, Mrs. D’Orsi, as noted above, visited him almost daily, attended to his medical and personal needs, took him out for meals and regularly brought him back to the Residence during the daytime and overnight. 9. During the summer of 2017, Mr. and Mrs. D’Orsi came to New Jersey, as they consistently have done for years. Mrs. D’Orsi found an appropriate facility where Mr. D’Orsi could continue to receive the medical and social services he was receiving in Florida, but more importantly, where he his children and grandchildren could have unfettered access to him for visits and outings. While at the facility in New Jersey, Mrs. D’Orsi continued with her regular visits, outings, and bringing Mr. D’ Orsi to her New Jersey home in the daytime and overnight. 10. ‘In the fall of 2017, Mr. and Mrs. D’Orsi returned to their Florida residence. Mrs. D’Orsi determined, with the advice of his medical professionals, that it was in Mr. D’Orsi’s best interests to continue to stay in a facility where his medical and social needs could be met in the most cost-effective way possible. He returned to the Moorings, although at a different location within that facility. Since Mr. D’Orsi’s return to Florida and through the present, Mrs. D’Orsi has continued with her regular visits and outings with Mr. D’Orsi, attends to his medical and other personal needs, and brings him to the Residence during the daytime and overnight. 11. The Residence continues to be Mr. D’Orsi’s domicile. Mr. D’Orsi is incapacitated with regards to changing his domicile. Mr. D’Orsi also continues to jointly own the Residence with Mrs. D’Orsi.12. Although Mrs. D’Orsi is her husband’s guardian of his person, she considers her primary role and relationship to be as his wife. 13. On November 26, 1996, Mr. and Mrs. D’Orsi entered into a Prenuptial Agreement (“the Agreement”), a copy of which is attached hereto as Exhibit “C.” 14. The Agreement provides at Section III, paragraph 11, as follows: “The Husband shall pay all the food, medical and entertainment expenses for the Wife until the termination event.” 15. | The Agreement, at Section I, paragraph 3, defines a “terminating event” to be: a) the filing of a pleading of divorce, or similar; b) the execution of a separation agreement; or c) “the parties residing in separate dwellings for a period of one hundred twenty (120) days or longer.” 16. | The Agreement does not define “dwelling,” or address in any way or discuss the parties’ rights and obligations in the event one spouse becomes incapacitated or needs medical, rehabilitative or other services for more than 120 days that are typically provided outside the marital home in a medical or long-term care facility. 17. Finally, the Agreement provides at Section III, paragraph 17 and 19, that in the event of a “terminating event,” Mr. D’Orsi shall pay to Mrs. D’Orsi $1,500 for every month of the marriage preceding a terminating event, $5,000 towards Mrs. D’Orsi’s legal fees for a divorce filing (which has not occurred and is not contemplated by Mrs. D’Orsi) and $30,000 to purchase a car.18. On December 15, 2017, and without obtaining the required approval of the guardianship court, Ms. Schultz provided written notice to Mrs. D’Orsi that because Mr. D’Orsi was residing in an assisted living facility, Ms. Schultz was declaring that a “terminating event” had occurred under the Agreement. A copy of the notice is attached hereto as Exhibit “D.” Counsel for Ms. Schultz had several weeks earlier communicated to Mrs. D’Orsi’s counsel that this notice would be forthcoming. 19. Ms. Schultz further stated in the notice that after December 15, 2017, she would not pay the food, medical and entertainment expenses of Mrs. D’Orsi. 20. Ms. Schultz did not tender payment to Mrs. D’Orsi of the sums due to her on a terminating event, which given the length of the marriage exceeds $400,000, or even address this payment in the attached notice letter. Efforts to ascertain from Ms. Schultz whether she intended to promptly tender the required payment have been unanswered by her counsel. 21. — Finally, Ms. Schultz requested in the letter that Mrs. D’Orsi continue to provide health insurance benefits to Mr. D’Orsi, as Mrs. D’Orsi’s spouse, through Mrs. D’Orsi’s employer because Ms. Schultz “prefers” those benefits “as opposed to some other plan.” Ms. Schultz amazingly made this request for spousal benefits notwithstanding that she had just declared that the marriage between Mr. and Mrs. D’Orsi was terminated under their Agreement. 22. Mrs. D’Orsi has retained the services of the undersigned counsel and is obligated to pay them a fee for their services in connection with this litigation. 23. Mrs. D’Orsi has complied with all conditions precedent to this action.COUNTI 24. This is a cause of action for declaratory relief and is within the jurisdiction of this Court because it involves a contractual claim valued at in excess of $15,000. 25. Mrs. D’Orsi incorporates paragraphs 1 through 23 as if fully set forth herein. 26. Ms. D’Orsi contends that under the Agreement there has been no “terminating event” for various reasons. 27. First, Mr. D’Orsi’s residence or domicile continues to be at the Residence. 28. Second, Mr. D’Orsi has in fact resided in the same dwelling as Mrs. D’Orsi in both Florida and New Jersey during the subject time period. That time includes daytime and overnight visits at regular intervals less than 120 days. 29. Third, the Agreement does not address at all the obligations of the parties in the event one becomes incapacitated and needs long-term services away from the marital home. It is clear, however, that the provision relied upon by Ms. Schultz was not intended to cover this situation because the marriage itself between Mrs. D’Orsi and Mr. D’Orsi remains fully intact and their staying in “separate dwellings,” to the extent that the Court determines that they have done so, is a matter of medical necessity rather than an end or approaching end to their marriage. 30. | Under Ms. Schultz’s interpretation of the Agreement, Mrs. D’Orsi simply could have avoided the declaration of a “terminating event” by keeping Mr. D’Orsi at home with 24- hour nursing care even though it would have been at substantially greater expense to Mr. D’Orsi’s estate and would have provided less quality medical care and social services than he is receiving in the Moorings.31. Ms. Schultz herself has told Mrs. D’Orsi that Mr. D’Orsi is best placed at the Moorings rather than being at the Residence with 24-hour care. 32. There is a bona fide actual dispute between Mrs. D’Orsi and Ms. Schultz as to the applicability of the “terminating event” language of the Agreement to the current situation. 33. Mrs. D’Orsi is entitled to a declaration that the “terminating event” language does not apply to the current situation. WHEREFORE, Mrs. D’Orsi requests that this Court grant declaratory relief as to the Agreement, enter judgement determining that a “terminating event” has not occurred under the Agreement, award Mrs. D’Orsi her attorneys’ fees and costs to the extent permitted by law and the Agreement, and award such further relief as is just and appropriate. COUNT II 34. This is an alternative cause of action to Count I for breach of contract for damages in excess of $15,000. 35. Mrs. D’Orsi incorporates paragraphs 1 to 23 as if fully set forth herein. 36. Ms. Schultz has breached the Agreement by failing to tender the full sum due to Mrs. D’Orsi thereunder on the occurrence of a “terminating event.” 37. | Mrs. D’Orsi has been damaged as a result of Ms. Schultz’s breach of the Agreement. WHEREFORE, Mrs. D’Orsi demands judgment against Ms. Schultz for damages, interest, attorneys’ fees and costs to the extent permitted by law and the Agreement, and for such further relief as is just and appropriate.COUNT I 38. This is a cause of action for damages for unjust enrichment in excess of $15,000. 39. Mrs. D’Orsi incorporates paragraphs 1 to 23 as if fully set forth herein. 40. | Mrs. D’Orsi has paid various and numerous expenses for the benefit of Mr. D’ Orsi, for which payment has been expected and is presently due. 41. — In October 2017, Ms. Schultz reimbursed Mrs. D’Orsi for some expenses she incurred for Mr. D’Orsi’s benefit for clothing, phone, meals out and for costs of his medical insurance for 2016. 42. Mrs. D’Orsi has submitted these expenses to Ms. Schultz, together with supporting documentation. 43. Ms. Schultz has repeatedly told Mrs. D’Orsi that she would reimburse Mrs. D’ Orsi for other expenses she has incurred for Mr. D’Orsi’s benefit. 44. Notwithstanding these promises, Ms. Schultz has since October 2017 refused to reimburse Mrs. D’Orsi for other expenses she has incurred for Mr. D’Orsi. These expenses include but are not limited to: a. medical and dental insurance for all of 2017; b. out of pocket medical expenses not covered by insurance; c insurance on Mr. D’Orsi’s car; d. repairs to Mr. D’Orsi’s car; e. Mr. D’Orsi’s half share of the costs of the Residence, including taxes, condo assessments, and repairs;f. meals out with Mr. D’ Orsi; g. Mr. D’Orsi’s cell phone; h. travel expenses; and i. furniture purchased for Mr. D’Orsi’s use at the Moorings; 45. Ms. Schultz has been unjustly enriched as a result of these various payments by Mrs. D’Orsi and it would be inequitable and unjust for Ms. Schultz not to pay Mrs. D’Orsi for these expenditures. WHEREFORE, Mrs. D’Orsi demands judgment against Ms. Schultz for damages, interest, attorneys’ fees and costs to the extent permitted by law, and for such further relief as is just and appropriate. COUNT IV 46. This is a cause of action for breach of contract for damages in excess of $15,000. 47. Mrs. D’Orsi incorporates paragraphs 1 to 23 as if fully set forth herein. 48. Pursuant to the Agreement, Mr. D’Orsi is obligated to pay Mrs. D’Orsi’s food, entertainment and medical expenses. 49. Mrs. D’Orsi has submitted various such expenses to Ms. Schultz for payment. 50. In October 2017, Ms. Schultz paid some of these expenses submitted by Mrs. D’ Orsi, including but not limited to Mrs. D’Orsi’s health insurance for 2016. 51. Subsequently, Ms. Schultz has refused to pay any further such expenses submitted by Mrs. D’Orsi, notwithstanding the fact that she acknowledges that this obligation exists, as set forth in Exhibit “D” hereto.52. Ms. Schultz has breached the Agreement by failing to pay Mrs. D’Orsi’s food, entertainment and medical expenses. 53. Mrs. D’Orsi has been damaged as a result of Ms. Schultz’s breach of the Agreement. WHEREFORE, Mrs. D’Orsi demands judgment against Ms. Schultz for damages, interest, attorneys’ fees and costs to the extent permitted by law and the Agreement, and for such further relief as is just and appropriate. ROETZEL & ANDRESS, LPA Attorneys for Mrs. D’Orsi s/Cathy S. Reiman CATHY S. REIMAN Florida Bar No. 0501530 850 Park Shore Drive Trianon Centre - Third Floor Naples, FL 34103 Telephone: (239) 649-2729 Facsimile: (239) 261-3659 Email: creiman@ralaw.com 12123757 _1 136361.0002 10IN THE CIRCUIT COURT FOR COLLIER COUNTY, FLORIDA PROBATE DIVISION IN RE: GUARDIANSHIP OF File No. 17-GA-43 JAMES F. D’ORSI ORDER APPOINTING GUARDIAN OF PERSON On the petition of Karen Coons D’Orsi for the appointment of guardian of the person of James F. D’Orsi, the Court finding that the Ward is totally incapacitated as adjudicated by order of this Court entered May 17, 2017, and that it is necessary for a guardian to be appointed for the person of the Ward, it is ADJUDGED as follows: 1. Karen Coons D’Orsi is qualified to serve and is hereby appointed as suardian of the person of James F. D’Orsi. 2. Upon taking the prescribed oath and designation of resident agent and acceptance, letters of guardianship of the person shall be issued. 3. The court is aware that the Ward may have executed an advance directive pursuant to Chapter 765, Florida Statutes. The guardian shall exercise authority over a health care surrogate until further order of this court. ~ ORDERED 20 Lauren L. Brodie Circuit Court Judge Copies furnished to: Cathy S. Reiman, Esq. Matthew A. Linde, Esq. John T. Costello, Esq. 11656757 _{ 136361.0002 ETLEROG 241717 Ldel6col lier Co EXHIBIT 6 A 6IN THE CIRCUIT COURT FOR COLLIER COUNTY, FLORIDA PROBATE DIVISION IN RE: GUARDIANSHIP OF File No. 17-GA-43 JAMES F. D’ORSI LETTERS OF PLENARY GUARDIANSHIP OF THE PERSON TO ALL WHOM IT MAY CONCERN: WHEREAS, Karen Coons D’Orsi has been appointed guardian of the person of James F. D’Orsi (the Ward), and has taken the prescribed oath and performed all other acts prerequisite to issuance of Letters of Guardianship of the person of the Ward, NOW THEREFORE, I, the undersigned Circuit Judge, declare Karen Coons D’Orsi duly qualified under the laws of the State of Florida to act as guardian of the person of James F. D’Orsi with full power to exercise all delegable legal rights ‘and powers of the Ward pertaining to the Ward’s person, including the right to choose residence, to consent to medical and mental health treatment, to make decisions about her social environment or other social aspects of her life, and to have care, custody, and control of the Ward. . The guardian shall exercise authority over any health care surrogate appointed by any valid advance directive executed by the Ward pursuant to Chapter 765, Florida Statutes, until further order of this Court. ORDERED on this WH day of Copies furnished to: Cathy S. Reiman, Esq. Matthew A. Linde, Esq. John T. Costello, Esq. 11656788 _1 136361.0002 FILERCGYCL 1? f4i6col lier coIN THE CIRCUIT COURT FOR COLLIER COUNTY, FLORIDA PROBATE DIVISION IN RE: GUARDIANSHIP OF File No. 17-GA-43 JAMES F. D’ORSI] ORDER APPOINTING GUARDIAN OF THE PROPERTY On the petitions of Karen Coons D’Orsi and Jonathan D'Orsi for the appointment of a guardian of the property of James F. D’Orsi, the Court finding that the Ward is totally incapacitated as adjudicated by order of this Court entered May 17, 2017, and that it is necessary for a guardian to be appointed for the property of the Ward, it is ADJUDGED as follows: 1. Therese Schultz is qualified to serve and is hereby ‘appointed as guardian of the property of James F. D’Orsi. 2. Upon taking the prescribed oath and designation of resident agent and acceptance, and entering into a bond in the amount of $ Wawed , payable to the Governor of the State of Florida, and all successors in office, conditioned on the faithful performance of all duties by the guardian, letters of guardianship of the property shall be issued. 3. The guardian of the property shall exercise authority over any durable power of attorney executed by the Ward, untjl further order of this Court. ORDERED uren L. Brodie Circuit Court Judge Copies furnished to: Cathy S. Reiman, Esq. Matthew A. Linde, Esq. John T. Costello, Esq. 11656775 _1 136361.0002 EXHIBIT “ 23 “ FILEMG21 17 14ifcol lier toIN THE CIRCUIT COURT FOR COLLIER COUNTY, FLORIDA PROBATE DIVISION IN RE: GUARDIANSHIP OF File No. 17-GA-43 JAMES F. D’ORSI LETTERS OF GUARDIANSHIP OF THE PROPERTY TO ALL WHOM IT MAY CONCERN: WHEREAS, Therese Schultz has been appointed guardian of the property of James F. D’Orsi (the Ward), and has taken the prescribed oath and performed all other acts prerequisite to issuance of Letters of Guardianship of the property of the Ward, NOW THEREFORE, I, the undersigned Circuit Judge, declare Therese Schultz duly qualified under the laws of the State of Florida to act as guardian of the property of James F. D’Orsi with full power to have the care, custody, and contro] of the Ward’s property, to exercise all delegable legal rights and powers of the Ward as to his property, including but not limited to the right to contract, to sue and defend lawsuits, to apply for government benefits, to manage his property or to make any gift or disposition of property, to administer the property of the Ward according to law, and to take possession of and to hold for the benefit of the Ward, all of his property and income. ORDERED on this od day of Lauren L. Brodie Circuit Court Judge Copies furnished to: Cathy S. Reiman, Esq. Matthew A. Linde, Esq. John T. Costello, Esq. 11656801 _1 136361.0002 FILENOG 2117 14:46 collier CoPRENUPTIAL AGREEMENT THIS AGREEMENT made and executed on this 2b day of Nvem he ( , 1996 between JAMES D’‘ORSI residing at 61 Bay Point Harbor, Point Pleasant, New Jersey, hereinafter referred to as "Husband" and KAREN COONS residing at 675 Raritan Road, Unit #29, Clark, New Jersey, hereinafter referred to as "Wife", RECITALS WHEREAS, the parties to the within Agreement have represented to each other that they are free to marry and, therefore, contemplate marriage to each other; and WHEREAS, in anticipation of the marriage the parties desire to fix, establish and determine the rights which shall accrue to each of them in the other’s estate in the event of death of the parties and to fix and determine the rights of the parties in the event of an annulment, separation or dissolution of the marriage, including the rights of the parties to obtain alimony, equitable distribution pursuant to N.J.S.A. 2A:34-23, community property, rights emanating from cohabitation and all othe: claims of any kind, legal and equitable, and any other rights which the parties now have or may acquire through the course of their marriage, by statute and/or decisional law in this State or in any other surisdiction, and; WHEREAS, the parties accept the provisions of this Agreement in lieu of any and all other rights either may have in law or PR:54011_2.WPS EXHIBIT “ C“equity, in any jurisdiction, and in full discharge and satisfaction of such rights, and;. WHEREAS, the Husband has substantial income (earned and unearned) and is the owner of certain assets and liabilities “which have been disclosed and are set forth in’a-separate document entitled Appendix "A"; the Wife has earned and unearned -income and is the owner of certain assets and liabilities set forth in a separate document entitled Appendix "B." WHEREAS, each party enters into this Agreement with the knowledge of the income of the other, the property of the other and the approximate value of that property, and all of the rights and privileges which they would have in that property as a result of marriage, including but not limited to rights incidental to an annulment, separation, divorce or death; WHEREAS, this Agreement is entered into voluntarily, contains no unconscionable terms as defined by N.J.S.A. 37:2-32 (c) or as may be otherwise defined, provides each party with full and fair disclosure of the earnings, property and financial obligations of the other party (with each party having, or capable of having, adequate knowledge of the property or financial obligations of the other party), and with each party having consulted with independent legal counsel; and NOW, THEREFORE, in consideration of the mutual covenants contained herein and the future marriage of the parties, the parties agree as follows: PR:54011_2.WPSI. DEFINITIONS For the purpose of this Agreement, the parties agree that the following definitions shall govern: 1. "Separate Property" shall be defined as all of the parties’ right, title and interest, both legal and beneficial, in and to any and all income, property or interest in property, whether real, personal or mixed (including but not limited to choses in action, licenses, brokerage or investment accounts, cash, securities, retirement plans, pension rights, 401K plans, bonuses, real estate, commercial investments, sole proprietorship, partnerships, limited partnerships, corporations, joint venture) or any other assets wherever Situated and whether acquired before, during or after the marriage in his or her sole name or in the name of any entity in which that party owns an interest. This shall include, but not be limited to all assets listed within Appendices "A" and "B" annexed hereto. Without Limitation, each party specifically acknowledges that the other’s separate property as of the date of the execution of this Agreement includes all assets set forth in their respective appendices. Said appendices are in no way intended to limit the meaning of separate property set forth herein. a. "Separate property" as defined herein shall include but not be limited to any increments, increases, accretions or enhancement in assets acquired before, during or after the marriage, due to passive increases (such as inflation or market conditions) or active increases due to the direct or indirect PR:54011_2.WP5 -3-services, skills or efforts of either or both of the parties or any hybrid combining passive and. active increases. b. "Separate property" ag defined herein shall also include, but not be limited to: (1) any income, dividends, interest or distributions emanating from, or usufruct of, "separate property"; (2) any asset that was converted from separate property and that is not explicitly retitled in the name of another or as joint property; (3) any additions, improvements, repairs or enhancements to "separate property"; (4) payments made to amortize "separate property"; (S) earned income during the marriage. (6) any property acquired by that party during the marriage by way of bequest, devise, gift or inheritance, including the proceeds of any trust or life insurance policy, or property acquired by operation of law. (7) all payments made incident to this Agreement, shall be deemed "Separate property"; (8) all rights which either party may have, whether same be matured, viable or vested, in a chose in action, law suit or claim of any kind against any third party’; The husband has disclosed that he or a business entity in which he has an interest may have a legal malpractice claim which if pursued may result in a financial award to the Husband. PR:54011_2.WPS ~4-c. In the absence of a separate written agreement to the contrary, any tangible personal property, which is defined as limited to furniture, furnishings, household effects or bric-a- brac purchased during the marriage will be joint property and held by the parties as tenants by the entirety and shall be deemed to be smarital property" for the purposes of paragraph 2 of this Agreement . d. Except as provided in subparagraph c. above, all property purchased by either party with separate property including those funds provided to the Wife in this Agreement Shall be deemed the separate property of such purchaser. e. Any and all gifts of any kind and whatsoever nature given by the parties to each other prior to or during the marriage shall remain the exclusive property of the donee and/or recipient free and clear of any claim of the donor. f. The commingling of any income or assets of the parties shall not convert separate property into marital property unless the parties execute a separate agreement or title the property in their names as joint tenants or tenants by the entireties or place the property in one or more joint accounts. 2. "Marital Property". All property which is acquired Guring the marriage in joint names shall be deemed marital property. Except as provided in subparagraph c. of paragraph 1 of this Agreement, in order to acquire marital property by joint ownership (whether the property be real, personal or mixed) the intent of the parties must be set forth in a writing executed by PR:54011_2.WPS -5-them or joint ownership must be reflected in a deed or title instrument. 3. "Termination of the Marriage" (also referred to herein as a "terminating event") shall be defined as the occurrence of the first of the following events: a. The filing of a pleading for divorce, divorce from bed and board, separate maintenance, alimony, support, domestic violence or annulment by either party; b. The execution of a separation agreement; or c. The parties residing in separate dwellings for a period of one hundred and twenty (120) days or longer. 4. "Increase or enhancement" shall be defined as any accretion, appreciation, increase or enhancement in value of an asset during the marriage due to passive increases (such as inflation or market conditions) or active increases (such as the direct or indirect services, skills, contributions of any kind, or efforts of either of the parties) or any combination of passive or active increases which caused the increase in value. Il. RIGHTS OF THE PARTIES: 5. Except as otherwise provided in this Agreement, each party shall retain free and clear from any claim of the other, as if no marriage occurred, the following rights which may accrue during the marriage, or upon death, divorce, separation, annulment or other terminating event: PR:54011_2.WPSa. sole and exclusive ownership, control, possession aid enjoyment. of his or her. "separate property, “ and its "increased OF enhanced value” wherever situated; b. the absolute right to acquire "separate property" at any time; cC. the ansoluce and | uny restricted right to dispose of sich "separate property," and its "increased. OF enhanced value" wiether by imtexr-vivos transfer, by Will or by intestacyX « fy acquided, however, bnas Rei shor BaTby es hi di ) | d. the exciugive and ansoluce viahc to mortgage “XD coumber, pledge, sell, or trans:er "separate property," and its " and enter into any financing "increased OF enhanced value, arangement Or investment hy & . nek sta or her este So be * / woud sb eee PlsFSE20R ious under this Aqreement;—9ps- e. the exclusive and absclute right tc ~ stain the accretion, appreciation, "increased or enhanced vaiue" and the serefrom of "separate property. e 7a), 6. aston’ as pet Porwise Srovided in this Agreement, neither senefits re t party shall have or acquire any right, title or claim to the separate property of the other. r54011_2.WPSAnything in this paragraph to the contrary notwithstanding, the Husband shall not transfer or further encumber the property located at 61 Bay Point Harbor, Point Pleasant, New Jersey in accordance with the provisions of Paragraph 26 of this Agreement . Further, in the event that the Husband fails or is unable to maintain the life insurance as required under Paragraph 25 of this Agreement, he shall be required to maintain sufficient assets in his estate, to the extent that the amount of insurance at any time in place is less than that required under Paragraph 25 hereof, to meet his obligation under said paragraph of this Agreement. [END OF PAGE 7(a)] 1€2)7. Within thirty days of the execution of this Agreement, the Wife shall execute. quitclaim deeds, interspousal transfer deeds and any other documents necessary to waive and relinquish any and all rights to separate property of the Husband in accordance with the laws of the State in which said property 1s ocated ac-may-be-necessary _to-effectuate the terms ofthis: The Wife’s failure to execute said documents shall not invest the Wife with any rights to said property. The Husband agrees that at any time or times after the marriage he will execute any documents necessary to waive and relinquish all of his rights to the Wife’s 401(k) account or other retirement benefits. Freedom to Transfer or Gift Property to Other: 8. Notwithstanding the provisions of this Agreement, either party shall have the right to transfer or convey to the other, any property or interest therein which may be lawfully conveyed or transferred during his or her lifetime by Will, gift or otherwise. Neither party intends, by this Agreement, to limit or restrict in any way the right and power to receive any such transfer, bequest or conveyance from the other. 9. Any and all gifts of any kind and whatsoever nature given by the parties to each other prior to or during the marriage shall remain the exclusive property of the donee and/or recipient free and clear of any claim of the donor and/or giver. PR:54011_2.WPSIII. RIGHTS AND OBLIGATIONS WHILE MARRIAGE SUBSISTS: Gifts from Husband to Wife During Marriage: Annual Gift: 10. The Husband agrees that he will give the Wife the sum of $5,000.00 each year on the anniversary of their marriage. Said gifts shall be made only during each year the parties are married. This obligation shall cease upon the termination of the marriage as herein defined, the entry of a Givorce decree, the death of either party or upon the parties’ fifteenth anniversary of marriage, whichever event first occurs. Food, Medical and Entertainment Expenses: 11. In addition, the Husband shall pay all the food, medical and entertainment expenses for the Wife until the termination event. IIL. RIGHTS IN THE EVENT OF TERMINATION OF MARRIAGE Division of Property. 12. In the event of a divorce, annulment or other marriage termination event as herein defined, the separate property as herein defined shall be exempt from equitable distribution pursuant to N.J.S.A. 2A:34-23 et seq. or other applicable statute of the State of New Jersey or related statute or law of any other jurisdiction, along with any other marital claims of any kind, including claims to property of the other based on equitable theories or express or implied contract. In such event, each party hereby waives and relinquishes any and all rights and claims in law or equity which he or she may have to the separate PR:54011_ 2.WPS -9-property owned by the other party. Except as provided for herein, each party specifically waives any and all statutory or implied rights: of possession in a marital residence pursuant to N.J.S-A. 3B:28-3. Only marital property as here and above described shall be subject to distribution. Alimony and Support. 13. Both parties waive all claims for alimony or support of any kind, both permanent and pendente lite, past, present or future, notwithstanding any change of circumstances of either party that may occur in the future, including but not limited to: a. the inability to obtain or retain employment, regardless of the reason; b. the dramatic and substantial increase or decrease in income and assets of whatever nature, scope, or duration; c. inheritance of assets by either party; a. inflation, regardless of impact; e, the loss or reduction of income, cash flow or combination thereof and reduction of assets regardless of the reason; f. any accident or illness causing, in whole or in part, a disability, whether same is total or partial, permanent or temporary or whether same is contemplated or not; g. any increase in either party’s needs; and h. any other occurrence. PR:54011_2.WP5 -10-Claims for Property Distribution and Division 14. .The Wife waives all claims for distribution and/or division of the Husband's separate property including but not limited to claims for equitable distribution, community property and all equitable claims that could be made before, during or after the marriage in this state or any other jurisdiction. 15. The Husband waives all claims for @istribution and/or division of the Wife’s separate property including but not limited to claims for equitable distribution, community property and all equitable claims that could be made before, during or after the marriage in this state or any other jurisdiction. 16. At any time that the parties hereafter acquire joint property, they may enter into an agreement concerning their proportionate interests in such property, and any such agreement Shall be controlling with respect to the distribution of the property between the parties upon the termination of the marriage. Lump Sum Payments in Satisfaction of All Claims: 17. In addition to any other rights granted the Wife herein, in the event of a terminating event, the Husband shall pay to the Wife the following additional sums in full satisfaction for all her claims under this Agreement, for distribution of property, alimony, counsel fees, expert fees and all other rights of any kind including but not limited to those arising from equitable claims that existed before, during or after the marriage: PR:54011_2.WP5 -l1-a. If a terminating event occurs between the date of marriage and one year - the Husband shall have no obligation to pay the Wife any lump ‘sum; b. If a terminating event occurs one year and one day after the date of the marriage or thereafter, the Husband shall pay to the Wife a-lump sum amount equal to $1,500.00 for every month of the marriage preceding a terminating event. Possession of Marital Home: 18. In the event of a terminating event as defined herein, the Wife shall vacate the marital home within thirty five (35) days of said event if the parties’ marital domicile at that time is owned solely by the Husband, notwithstanding any complaints of domestic violence. If the parties’ marital domicile at the time of a termination event is owned solely by the Wife then the Husband shall vacate the marital home within thirty five (35) days of said event, notwithstanding any complaints of domestic violence. In the event that the parties’ marital domicile is owned by the parties jointly at the time of a terminating event, then the parties now agree that at the time of the acquisition of | any jointly owned real property they shall enter into an agreement which addresses which party must vacate same at the occurrence of a terminating event pursuant to this Agreement. Wife’s Moving Costs, Legal Fees and Lump Sum Distribution: 19. Tn addition to the above, the Husband shall: a. within thirty days of a terminating event, provide the Wife with the sum of $5,000.00 in order to aid and PR:54011_2.WPS -12-facilitate the Wife in meeting the costs attendant to moving and setting up a new residence, unless the Husband is the party obligated to move pursuant to paragraph 18 of this Agreement; b. pay the Wife the sum of $5,000.00 to be used toward her legal fees in a divorce proceeding, unless the Wife seeks to repudiate, modify or.vacate this Agreement; and c. pay the Wife a lump sum of $30,000.00, part or all of which should be used for the purchase of a car. Children: 20. In the event there 18 issue born of this union of Karen and James, it is understood and agreed that this Agreement shall have no effect upon the rights and obligations of each of the parties to said issue. IV. IN THE EVENT OF DEATH OF THE PARTIES: Rights of Parties If Still Married: 21. Notwithstanding anything contained herein, each party shall retain and have all of his/her rights under any Will or Testamentary direction of the other party, provided that no terminating event has occurred. Further, each party shall retain or have all of his or her rights by virtue of the marriage under N.J0.S.A. 3B:8-1 et seq or any other applicable "elective share" Statute, provided that the parties were married at least five (5) years and no termination event has occurred at the time of the demise of one of the parties. Waiver of All Rights in other’s Estate in Event of Divorce or Termination Event, or Marriage of Less than Five Years: PR:54011_2.WPS -13-f\¥ 22. Except as otherwise provided in paragraph 21 and aragraph 25 of this Agreement, in the event of the death of one : { . ’ of the parties when,they are not married at least five years) (yi) they are int) when has occurved, (ii WTAVOFCED, OF 4 soo a terminating event, the Surviving party hereby waives all rights in the estate of the other under any law of the State of New Jersey or such other state or jurisdiction whose law may apply in the future as.well as the law of any future residences or domiciles of either party. Such waiver shall pertain to all rights in the estate of the other including, but not be limited to the right of election of a surviving spquse, the rights of the surviving spouse as intestate successor Or aS a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any other rights in the property or estate of the other. This waiver shall be considered a full waiver and renunciation by each, in the event of a terminating event or marriage of less than five years, of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before this Agreement and of any rights to an elective share pursuant to N.J.S.A. 3B: 8- 1 et. seq. (specifically N.J.S.A. 3B:8-10). In the event of the death of | one of the parties when: they are not married ir least five years, \theyav® Gil) When A . — has eceuvve divorced) O T tbgost—te a terminating event, any "separate property" of either party, as herein defined, shall be excluded from the "augmented estate" of the decedent as if it had been transferred by the decedent to a third party during the / PR:54011_2.WPS , -14-decedent’s lifetime with the consent of the non-recipient spouse. Each party acknowledges that the other has made full and fair disclosure as may be required by said statutory provisions. Nothing in this provision shall prevent either party from making .a voluntary bequest in his or her Last, Will hereafter executed which may include property designated hereunder as "separate property." 23. Except as provided in paragraph 21, each of the parties shall refrain from any action or proceeding to challenge, avoid, modify or nullify the Last Will or any of the term(s) of any such Will of the other unless the terms of such Will are inconsistent with the provisions of this Agreement. 24. Each party waives the right to act as Executor or Executrix under the Will of the other unless nominated by a Will or Codicil. 25. Notwithstanding the provisions of paragraph 22 of this Agreement, the Husband shall be required to maintain until his Geath or an earlier terminating event a Term Life Insurance policy on his life in an amount not less than $400,000.00 naming the Wife as beneficiary. If for any reason he is unable or neglects to obtain or maintain such a policy, he shall be obligated to give said sum to the Wife by Will or other testamentary transfer. 26. The Husband shall execute a Last Will on or before the fifth anniversary of the marriage of the parties in which he conveys his home which he presently owns at 61 Bay Point Harbour, PR:54011_2.WPS -15-Point Pleasant, New Jersey, subject to the mortgage which exists at the time of the execution of this Agreement held by CoreStates Bank or any other liens or encumbrances which exist at the time of the execution of this Agreement. V. GENERAL PROVISIONS: Disclosure of Assets and Income: 27. Each party warrants and represents that he or she has made a full disclosure of all assets acquired by either of them up until the date of the execution of this Agreement and that those assets and the approximate value of those assets are contained in Appendices "A" and "B" which are incorporated herein by reference. Further, each party represents that they furnished to the other party complete personal and business tax returns for the last three (3) years (to the extent available) which are also contained in Appendixes "A" and "B". Specifically, the Husband’s Appendix "A" consists of the following: INDEX TO APPENDIX "A" 1. James D’orsi’s Statement of Financial Condition dated September 30, 1996 prepared by Victor Goldblat and Company, Certified Public Accountants and Schedule of Assets Not Listed in Financial Statement. 2. 1994 and 1995 U.S. Partnership Returns (Form 1065) for Fairway Plaza Associates.’ 3. U.S. Corporation Income Tax Returns (Form 1120) for Consolidated Supermarkets, Inc. for years ending October 30, 1993, October 31, 1994 and October 31, 1995. ? Referred to as Fairway Plaza, Inc. in the Statement of Financial Condition. PR:54011_2.WPS -16-4.°- U.S. Income Tax Returns for an S Corporation (Form 1120S) for Shop-Rite Liquors of Franklin Inc. for years ending June 30, -1994, June 30, 1995 and June .30, 1996. 5. U.S. Corporation Income Tax Returns (Form 1120) for Fairway Plaza Liquors & Bar for the years ending March 31, 1995 and March 31, 1996.° 6. U.S. Corporation Income Tax Returns (Form 1120) for 1400 No. Charlotte St. Corp. for the years ending August 31, 1993, August 31, 1994 and August 31, 1995. , 7. U.S. Partnership Returns (Form 1065) for Millburn 74 Associates c/o Consolidated Supermarkets dated 1994 and 1995. . 8. U.S. Individual Income Tax Returns (Form 1040) for James D’orsi for the years 1993, 1994, and 1995. Specifically, the Wife’s Appendix "B" consists of the following: INDEX TO APPENDIX "B" 1. Karen A. Coons’ Statement of Financial Condition as of October 31, 1996. 2. U.S. Individual Income Tax Returns (Form 1040) for Karen A. Coons for the years 1993, 1994 and 1995. 28. Each party, in reliance upon the aforesaid asset and income disclosure, waives further rights of discovery. 29. Each party knowingly waives the right to have an independent accountant, real estate appraiser or other appropriate expert confirm the other’s representations set forth in Appendices "A" and "B" and other financial information furnished pursuant to this Agreement. 30. The Wife acknowledges that she would enter into this Agreement regardless of the extent and amount of the Husband’s 3 Trading as Shop Rite Liquors of old Bridge and go referred to in the Statement of Financial Condition of James D’orsil. PR:54011_2.WPS -17-net worth or income now or in the future. The Wife further acknowledges and represents that ghe is entering into this Agreement with the knowledge and understanding that the Husband’s net worth may significantly vary depending upon the method utilized to appraise the assets. She further acknowledges and. understands that due to cyclical changes in the economy and ~Husband’s business, the value of his assets and liabilities can vary depending upon the methodology used and the valuation date. 31. The Husband acknowledges that he would enter into this Agreement regardless of the extent and amount of the Wife's net worth or income now or in the future. The Husband further acknowledges and represents that he is entering into this Agreement with the knowledge and understanding that the Wife’s net worth may significantly vary. 32. The Wife further acknowledges and represents that the Husband may have available to him perquisites, expense accounts or other benefits of employment which could enhance his "cash flow." The Wife has been provided the opportunity to review the information regarding cash flow or income-related benefits which might not be discernable on a tax return, and she enters into this Aqreement without regard to funds that the Husband may have available to him from any sources now. or in the future. Independent Representation: 33. The Husband has had independent legal advice by counsel of his own selection. The Wife has also had independent legal advice of her own selection. The Husband being represented by PR:54011_2.WPS -18-Charles F \Justto aA oe Dasred Mh tietdstetes, Est of Wilentz, Goldman & Spitzer, P.C., 930 Woodbridge Center Drive, Woodbridge, New Jersey 07095, and the Wife being represented by Lisa Presser, Esq., of Drinker, Biddle & Reath, located at 47 Hulfish Road, P.o.Box 627 Princeton, New Jersey 08542. Each party acknowledges that: he/she fully understands and is familiar with the income, assets. and the value of assets of the other, and has been fully informed of all legal rights and liabilities relating to this Agreement; no coercion, force, pressure or undue influence has been used against either party entering into this Agreement; and that after such advice and knowledge, each party believes the Agreement to be fair, just and reasonable and each signs the Agreement freely and voluntarily. In Event of No Marriage or Void or Voidable Marriage: 34. In the event that this Agreement is signed and there is no marriage or the marriage is deemed void or is voidable, the Wife specifically waives any and all rights and claims emanating from any periods of cohabitation or non-cohabitation including but not limited to contractual or equitable claims such as quasi- contract, quantum meruit claims for services rendered, promises, constructive trusts, etc. 35. In the event that this Agreement is signed and there is no marriage or the marriage is deemed void or is voidable, the Husband specifically waives any and all rights and claims emanating from any periods of cohabitation or non-cohabitation including but not limited to contractual or equitable claims such PR:54011_2.WPS -19-as ‘quasicontract, quantum meruit claims for services rendered, promises, constructive trusts, etc. Counsel Fees: 36. Except as otherwise provided in paragraph 19 of this Agreement, each party shall pay his or her own counsel fees and other costs incurred in connection with the negotiation and execution of -the aforesaid Agreement and in connection with any subsequent litigation between the parties for divorce, annulment or separation. 37. In the event that a party seeks to vacate, modify or repudiate this Agreement, the party making such application shall pay the reasonable attorney's fees and expert fees of the other party. Modification of Agqreement: 38. This Agreement may not be modified in any respect except by a signed agreement of the parties. Severability of Provisions: 39. In the event that any provision of this Agreement is unenforceable due to public policy or otherwise, the remainder of this Agreement shall remain in full force and effect. 40. The failure of either party to insist upon specific performance of any of the provisions of this Agreement or to exercise any rights herein conferred, shall not be construed as a waiver or relinquishment for the future of any such provisional rights but the same shall be, and remain, in full force and effect. PR:54011_2.WP5 -20-Topic Headings: 41.. Topic headings appearing in this Agreement shall be used for descriptive purposes only and shall have no substantive effect, however, all recital clauses shall be deemed substantive and part and parcel of this Agreement. Entire Understanding of Parties: 42. This Agreement contains ‘the entire understanding and agreement of the parties; there have been no collateral or side agreements. Further, there have been no promises, representations, agreements, warranties or undertakings by either party to the other, either oral or written, expressed or implied, of any character or nature, except as set forth in this Agreement and Appendices. Specifically, each party waives the future right to claim, contend, or assert that this Agreement was modified, canceled, superseded or changed by an oral agreem