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Where two tugs and two scows in tow of one of the tugs are all in fault for a collision, each of the four vessels is liable for an equal share of the damages, and the liability is to be so apportioned even if more than one of the vessels are owned by the same person.
Sturgis v. Boyer, 24 How. 110, followed to the effect that a tug having control of a vessel in tow is solely responsible for damages to the other vessel caused by the tug alone.
Fiction, not being a satisfactory ground for taking one man's property to satisfy another man's wrong, should not be extended.
The fact that vessels are tied together in a flotilla does not make the flotilla a unit in proceedings in rem.
In a proceeding in rem where several vessels are found in fault, each bears its share, regardless of ownership, and notwithstanding this rule results in charging one who owns more than one of the vessels with a larger proportion than he would be charged in a personal suit against himself and the owners of the other vessels.
When a duty is imposed for the purpose of preventing a certain consequence, its breach's not leading to that consequence does not make a defendant liable for the tort of a third person merely because the observance of the duty might have prevented that tort.
Questions certified in 154 F. 54 answered.
up the Hudson River in tow of the tug Matthews, the navigation of the two being conducted solely by the master of the tug. They met the tug Moran, which was towing two mud scows down the river, scow 15 D, immediately behind the Moran, on a hawser, and, behind 15 D, scow 18 D on another hawser. A collision took place between the car float and 15 D. Neither 15 D nor 18 D had the required lights. There was an employee of the owner in charge of each scow, and it was their duty as well as the duty of the master of the Moran to have the lights put up. The Moran was guilty of other faults also, so that the tug and the scows all three wrongfully contributed to the damage done to the float. The tug Matthews also was to blame, but the car float was not, unless, contrary to Sturgis v. Boyer, 24 How. 110, answerable for the faults of the Matthews, which her owner had hired to move her from place to place in the harbor. The cases in the district court are reported in 143 F. 187; in the circuit court of appeals, in 154 F. 41.
The question certified in the first case is, "in what proportion shall the damages sustained by the car float be assessed upon the offending vessels?" In the second, the same question is put concerning the damages sustained by the libellant, the owner of the two scows. In the latter case, neither the car float nor the scow 18 D are made parties or brought in. The district judge divided the liability for damages to the float equally among the four vessels in fault, and on the same principle charged one quarter of the damage suffered by scow 15 D to that scow and one quarter to each of the other three, thus leaving the libellant to bear one-half and dividing the other half between the two tugs. Counsel for the two tugs agree that this result was right, although it is argued for the Moran that the true ground for it in the second case is the rule, that, when a vessel has contributed to a collision by her own fault, her owner cannot recover more than one-half of the damages.
to the float, it is contended that the court should look to the owners after they have appeared, and should divide the damages on the ordinary principles of personal liability into thirds, or else regard the Moran and the two scows as one vessel, jointly liable for one-half, each owner to bear a quarter as between themselves. There is a faint suggestion that, in the last apportionment, regard might be had to the degree of fault.
The New York Central Railroad gets all its damages in any view, unless Sturgis v. Boyer, supra, should be overruled. In that case, it was held that a tug having control of a vessel in tow was solely responsible to a lighter upset by the vessel through the fault of the tug alone. (For the opinion of Judge Betts below, see note to The Express, 46 F. 864.) We see no reason why the decision should not stand. No doubt the fiction that a vessel may be a wrongdoer and may be held, although the owners are not personally responsible, on principles of agency or otherwise, is carried further here than in England. The China, 7 Wall. 53; The Barnstable, 181 U. S. 464, 181 U. S. 467, 181 U. S. 468; Homer-Ramsdell Transportation Co. v. La Compagnie Generale Transatlantique, 182 U. S. 406, 182 U. S. 413-414. See The Blackheath, 195 U. S. 361, 195 U. S. 366. Possibly the survival of the fiction has been helped by the convenient security that it furnishes, just as no doubt the responsibility of a master for a servant's torts that he has done his best to prevent has been helped by the feeling that it was desirable to have someone who was able to pay. See Williamson v. Price, 4 Martin, N.S. 399, 401; Williams v. Jones, 3 H. & C. 256, 263. But, after all, a fiction is not a satisfactory ground for taking one man's property to satisfy another man's wrong, and it should not be extended. There is a practical line and a difference in degree between the case where the harm is done by the mismanagement of the offending vessel and that where it is done by the mismanagement of another vessel to which the immediate but innocent instrument of harm is attached. See The Clarita and The Clara, 23 Wall. 1; The Alabama, 92 U. S. 695, 92 U. S. 697; The Atlas, 93 U. S. 302, 93 U. S. 318.
The fact that the vessels composing each flotilla were bound together is not sufficient ground for treating each flotilla as a unit. This follows pretty closely from the considerations that we have urged. If the attachment of the car float to the Matthews did not make the car float responsible to 15 D, or affect the extent or principles of its recovery for damage to itself, there seems to be no reason why a similar attachment should affect the distribution of liability among the vessels that were in fault. Their faults were several. The failure of one scow to show a light was distinct in fact and as a cause from the failure of the others to do the same thing, and from the faults of navigation of the Moran. In this case, at least, the attachment ought to have no more effect in diminishing liability for the guilty than in creating it for those free from blame. See The Express, 44 F. 392, 46 F. 860; The Lyndhurst, 92 F. 681; The Maling, 110 F. 227, s.c., 116 F. 107; The Nettie L. Tice, 110 F. 461.
in the first suit. There is nothing stated sufficient to reopen the question, if there is one, as to changing the apportionment when there are different degrees of blame. The Atlas, 93 U. S. 302; The Max Morris, 137 U. S. 1. The fact that 18 D is not a party to the second suit does not matter so far as the question of partially exonerating those before the court is concerned.
We have discussed the question on the assumptions upon which it is presented; but there is one point that seems to us to deserve further consideration from the circuit court of appeals. The only fault on the part of 18 D that is set out in the statement is the absence of a light, and it is said that "therefore" it was party to a common fault. We doubt whether the conclusion follows from the premises. When a duty is imposed for the purpose of preventing a certain consequence, a breach of it that does not lead to that consequence does not make a defendant liable for the tort of a third person merely because the observance of the duty might have prevented that tort. See Gorris v. Scott, L.R. 9 Exch. 125; Ward v. Hobbs, L.R., 4 App.Cas. 13, 33. The question arises, therefore, whether the duty to give warning by a light was imposed upon 18 D for any other purpose than to prevent collision with itself. If not, then, as the boats are dealt with as individuals, and not as parts of a single whole, we do not see how the absence of a light on 18 D can be said to have contributed to the loss. Pilot Rule 11, under the Act of June 7, 1897, c. 4, § 2, 30 Stat. 96, 102, requiring the light, is quoted in The Komuk, 120 F. 841, 842. A duty of wider scope has been thought to exist in a somewhat different case. The Lyndhurst, 92 F. 681, 682.
On the second question also, subject to the doubt just suggested, it appears to us that the course of the district judge was right in principle as well as in result. As observed in The Maling, 110 F. 227, the quantum of liability ought not to be affected by the position of the party concerned as codefendant or plaintiff, and the rule of equal division among the guilty vessels has prevailed, in some cases at least, as well when one of them was the libellant as when they were all on the same side.
The Brothers, 2 Biss. 104. See s.c. on appeal, Fed.Cas. No. 9,322; Peshtigo, 26 F. 488.
We answer the question in the first case, No. 87: Equally.
We answer the question in the second case: Equally, the offending vessel or vessels of the libellant bearing their proportion of the loss.
* Docket titles, No. 87, The Steam Tug "Eugene F. Moran," Michael Moran, Claimant, and the Scows "15 D" and "18 D," the Henry Dubois Sons Co., Claimant v. The New York Central and Hudson River Railroad Company and the Steam Tug "Charles D. Matthews," John D. Daily et al., Claimants; No. 88, The Henry Dubois Sons Company and the Steam Tug "Eugene F. Moran," Michael Moran, Claimant v. the Steam Tug "Charles E. Matthews," John D. Daily et al., Claimants.

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20 year old from St. Helen, demanded preliminary examination within 14 days on four counts of third degree criminal sexual conduct. Bond wa set at $15,000.
35 year old from Roscommon, demanded preliminary examination within 14 days on charges of larceny in a building and resisting and obstructing police. Bond was set at $4,000.
48 year old from Gladwin, impaired driving: $1,190.37 in fines, costs or restitution and conviction was reported to the Secretary of State.
49 year old from Petoskey, domestic violence: $400. in fines, costs or restitution.
26 year old from Perry, domestic violence: $765. in fines, costs or restitution and 12 months probation.
50 year old from Roscommon, disorderly person by intoxication: $340. in fines, costs or restitution.
25 year old from Roscommon, transporting open intoxicants in a vehicle and impaired driving: 50 days in jail on each count, $1,175. in fines, costs or restitution, six months probation and the conviction was reported to the Secretary of State.
29 year old from Shepard, possession of marijuana and impaired driving: $1,650, 12 months probation and 30 days license suspension.
29 year old from Harrison, disorderly/obscene conduct: $440. in fines, costs or restitution.
28 year old from Harrison, use of marijuana: $335 in fines, costs or restitution and the conviction was reported to the Secretary of State.
21 year old from Houghton Lakes, allowing minors to consume alcohol: $540. in fines, costs or restitution.
21 year old from Houghton Lake, driving with an invalid license, improper registration and without insurance: $860. in fines, costs or restitution and the conviction was reported to the Secretary of State.
53 year old from Roscommon, attempted failure to comply with reporting: $645 in fines, costs or restitution.
46 year old from Grayling, domestic violence and attempted interfering with electronic communications: 93 days in jail (credit for one day) on each count and six months probation. He was also sentenced to 15 days in jail (credit for two days) and $483.94 in fines cost or restitution on a charge of second degree retail fraud.
46 year old from Roscommon, reckless driving: $625. in fines, costs or restitution, six months probation and the conviction was reported to the Secretary of State.

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NVLSP uses litigation to obtain changes in government practices that unfairly or illegally deny benefits to veterans. Over the years, victories in lawsuits brought by the National Veterans Legal Services Program against the Department of Veterans Affairs (VA) and the branches of the U.S. military have resulted in payment of more than four billion dollars in benefits to veterans and their families.
Sabo v. United States: In 2012, forcing the U.S. military services to pay lifetime disability retirement benefits to 1,029 veterans who were discharged from the military due to post traumatic stress disorder (PTSD) following wartime service in Iraq or Afghanistan. The class action lawsuit alleged that the military services violated the law by failing to assign a 50% disability rating to those discharged for PTSD – a disability rating that entitles the veteran to disability retirement benefits, including military healthcare for the veteran, the veteran’s spouse, and their minor children.
Nehmer v. U.S. Veterans Administration: Obtaining a class action order that allowed Vietnam veterans and their families to receive disability and death benefits for diseases that scientific studies show are associated with exposure to Agent Orange. Between 1991 and 2012, this court order forced VA to pay more than $3 billion in retroactive disability and death benefits to Vietnam veterans and their survivors for diseases connected to Agent Orange exposure (Nehmer v. U.S. Veterans Administration).
Military Order of the Purple Heart and NVLSP v. Secretary of Veterans Affairs: In 2009, obtaining a court decision invalidating a rule that required VA to (a) withhold from veterans any VA decision awarding a large amount of retroactive benefits and (b) send the decision to VA officials in Washington, D.C. to allow them to review and modify the large award without the knowledge or participation of the veteran-claimant.
McClain v. Nicholson: In 2007, establishing a court precedent prohibiting VA from denying disability benefits simply because the veteran did not continuously suffer from the disability throughout the entire course of VA’s handling of a claim. This is important because, at times, it takes VA many years to make a final decision on a claim. The court ruled that to satisfy the requirement of a “current disability,” the veteran only needs to have suffered from the claimed disability at some point between the filing of the claim and the VA’s final decision.
Gutierrez v. Principi: In 2004, establishing the binding court precedent that to be entitled to disability compensation for an undiagnosed illness, veterans of the Persian Gulf War or the wars in Iraq or Afghanistan do not need to submit objective medical evidence or prove that the illness is connected to service.
Liesegang v. Secretary of Veterans Affairs: Obtaining court orders requiring the VA to assign May 8, 2001, rather than July 9, 2001, as the effective date for an award of benefits under the VA’s Agent Orange diabetes regulation, and to pay two months of additional disability benefits (an aggregate of over $10 million) to 14,000 Vietnam veterans suffering from type 2 diabetes.
Vietnam Veterans of America v. U.S. Veterans Administration: In 1987, obtaining an injunction prohibiting the VA from closing seven of its Vet Centers, the readjustment counseling centers operated by the VA for needy veterans.
Wood v. Secretary of Defense: In 1980, obtaining a class action order requiring the Navy, Marine Corps and Air Force to upgrade the less than honorable discharges issued to hundreds of veterans because of their purely civilian conduct while they were in the inactive reserves, when they had no military duties other than to keep the military apprised of their current address.
Giles v. Secretary of the Army: In 1980, obtaining a class action order requiring the Army to upgrade to Honorable the derogatory discharges illegally issued to over 7,000 Vietnam veterans.

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Party Name: In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
Judge Panel: We Concur: CANTIL-SAKAUYE, C. J., CORRIGAN, J., LIU, J., CUÉLLAR, J., KRUGER, J., McKINSTER, J.
In re J.G., a Person Coming Under the Juvenile Court Law.
William C. Whaley, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Rachelle A. Newcomb and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
Under California's deferred entry of judgment procedure, an eligible minor, after admitting the charges in a petition alleging a violation of law and successfully completing probation, may have the charges dismissed and the juvenile court records sealed. (Welf. & Inst. Code, § 790.)1 A minor granted deferred entry of judgment “may... be required to pay restitution to the victim or victims pursuant to the provisions of” the Welfare and Institutions Code. (§ 794.) In this case, the juvenile court granted deferred entry of judgment to J.G., who was charged by petition with trespassing and vandalism, on condition that he pay restitution in the total amount of $36, 381, at the rate of $25 per month. It later found that J.G. had successfully completed all terms of his probation other than the restitution requirement, dismissed the petition, and ordered that the restitution award may be enforced as a civil judgment. On appeal, J.G. challenged the restitution order, arguing that the juvenile court erred by: (1) converting the unpaid restitution to a civil judgment; (2) considering, in determining his ability to pay restitution, the benefits he received from the federal Supplemental Security Income Program (SSI); (3) finding, based on his receipt of SSI benefits, that he had the ability to pay restitution; and (4) imposing an amount that exceeded the $20, 000 per-tort-cap set forth in section 742.16, subdivision (n). The Court of Appeal rejected these arguments and affirmed the juvenile court's judgment. For reasons explained below, we likewise reject J.G.'s first and second arguments. However, based on concessions by the People with respect to the third argument, we remand the matter for a new hearing regarding J.G.'s ability to pay restitution. In light of this disposition, we do not address J.G.'s fourth argument.
On June 6, 2012, the Shasta County District Attorney filed a petition under section 602 alleging that J.G. was within the jurisdiction of the juvenile court because he had committed the following offenses: (1) vandalism (Pen. Code, § 594, subd. (b)(2)); (2) throwing an object at a vehicle (Veh. Code, § 23110, subd. (b)); (3) trespass and damage or removal of highway signs (Pen. Code, § 602, subd. (f)); and (4) trespass by entering and occupying property (Pen. Code, § 602, subd. (m)). In support of these charges, the petition alleged that J.G. had entered and occupied real property and a structure at Shasta State Historic Park and had defaced, damaged, and destroyed signs, brick walls, wood railings, skylights, and a roof at the park. Accompanying the petition was a filing indicating that J.G. was eligible for deferred entry of judgment. Several months later, the probation department recommended that the court grant deferred entry of judgment subject to several conditions, including J.G.'s payment of restitution in the amount of $30, 156.


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text:
Francis B. Burch, Attorney General of Maryland, argued the cause for petitioners. With him on the briefs were Henry R. Lord, Deputy Attorney General, and Clarence W. Sharp, Donald R. Stutman, and Glenn E. Bushel, Assistant Attorneys General.
[ Footnote * ] A brief of amici curiae urging reversal was filed for their respective States by Jim Guy Tucker, Attorney General of Arkansas, and Robert A. Newcomb, Assistant Attorney General; Evelle J. Younger, Attorney General of California, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, and John T. Murphy, Deputy Attorney General; Carl R. Ajello, Attorney General of Connecticut, and Stephen J. O'Neill, Assistant Attorney General; Arthur K. Bolton, Attorney General of Georgia, and G. Thomas Davis, Assistant Attorney General; [426 U.S. 471, 472] John C. Danforth, Attorney General of Missouri, and William F. Arnet, Assistant Attorney General; Paul L. Douglas, Attorney General of Nebraska, and Harold Mosher, Assistant Attorney General; William F. Hyland, Attorney General of New Jersey, and Joseph T. Maloney, Deputy Attorney General; Toney Anaya, Attorney General of New Mexico, and Michael Francke and Robert William Piatt, Jr., Assistant Attorneys General; Rufus L. Edmisten, Attorney General of North Carolina, and Andrew A. Vanore, Jr., Senior Deputy Attorney General; Larry Derryberry, Attorney General of Oklahoma, and Amy Hodgins, Assistant Attorney General; Robert P. Kane, Attorney General of Pennsylvania, and J. Andrew Smyser, Deputy Attorney General; Daniel R. McLeon, Attorney General of South Carolina, and Emmet H. Clair, Assistant Attorney General; and John L. Hill, Attorney General of Texas, and Bert W. Pluymen, Assistant Attorney General.
Briefs of amici curiae urging affirmance were filed by Alvin Bronstein, Robert Plotkin, Burt Neuborne, and Melvin L. Wulf for the American Civil Liberties Union et al.; and by Daniel L. Skoler for the Center for Correctional Justice.
Had I been a Member of the Court when the petition for certiorari was presented, I would have voted to deny because the opinion of the United States Court of Appeals [426 U.S. 471, 472] for the Fourth Circuit correctly states the applicable law. For the same reason, I voted to affirm after oral argument. Although I did not vote to dismiss the writ as improvidently granted, I do not dissent from that action for two reasons.
Second, just as the Court's broad control of its discretionary docket includes the power to dismiss the writ because circumstances disclosed by a careful study of the record were not fully apprehended at the time the writ was granted, The Monrosa v. Carbon Black, Inc., 359 U.S. 180, 183 , so also, we should retain the power to take like action when our further study of the law discloses that there is no need for an opinion of this Court on the questions presented by the petition. Even though I agree with MR. JUSTICE BRENNAN that the questions in [426 U.S. 471, 473] this case are important, I am nevertheless persuaded that the state of the law applicable to the facts disclosed by this record is sufficiently clear that the dismissal of the writ is a permissible exercise of the Court's discretionary power.
"1. Whether the United States Court of Appeals for the Fourth Circuit erred when it held that exhaustion of state administrative remedies was not required in an action brought pursuant to 42 U.S.C. 1983.
"2. Whether the United States Court of Appeals for the Fourth Circuit erred when it reversed the judgments of the District Court in McCray v. Burrell, #74-1042, and McCray v. Smith, #74-1043, based on a finding that Respondent McCray's Eighth and Fourteenth Amendment rights were violated under the circumstances of those cases and remanded for determinations on the merits." Pet. for Cert. 2-3.
We have held that such dismissals are proper only when the more intensive consideration of the issues and the record in the case that attends full briefing and oral argument reveals that conditions originally thought to [426 U.S. 471, 474] justify granting the writ of certiorari are not in fact present. "[C]ircumstances . . . `not . . . fully apprehended at the time certiorari was granted,'" The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 183 (1959), may reveal that an important issue is not in fact presented by the record, or not presented with sufficient clarity in the record, or compel the conclusion that "the standards governing the exercise of our discretionary power of review upon writ of certiorari [such as] . . . `special and important reasons' for granting the writ . . ., as required by Supreme Court Rule 19," are not met. Rice v. Sioux City Cemetery, 349 U.S. 70, 73 (1955). See R. Stern & E. Gressman, Supreme Court Practice 227-230 (4th ed., 1969). No such circumstances have been revealed upon plenary consideration of the legal claims and record in this case; certainly the parties have neither argued nor suggested any. Nor does the Court so explain its action; rather, recognizing the impossibility of any such attempt, it simply orders the writ dismissed. I can only conclude that in today's action - an action which renders our discretionary jurisdiction an essentially arbitrary jurisdiction - the Court is not pursuing our "duty to avoid decision of constitutional issues" only where reason and principle justify doing so; rather, this is plainly an instance where "avoidance becomes evasion." Rice v. Sioux City Cemetery, supra, at 74.
"A Justice who has voted to deny the writ of certiorari is in no position after argument to vote to dismiss the writ as improvidently granted. Only those who have voted to grant the writ have that privilege. The reason strikes deep. If after the writ is granted or after argument, those who voted to deny certiorari vote to dismiss the writ as improvidently granted, the integrity of our certiorari jurisdiction is impaired. By long practice - announced to the Congress and well-known to this Bar - it takes four votes out of a Court of nine to grant a petition for certiorari. If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits. The integrity of the four-vote rule on certiorari would then be impaired."

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Whether bar associations that appoint the attorney members of a recipient’s governing body under 45 C.F.R. § 1607.3(b)(1) are limited to associations that are open to all licensed attorneys in the recipient’s service area.
Whether a recipient operating in a service area where a majority of the attorneys do not belong to a “State, county or municipal bar association” can comply with 45 C.F.R. § 1607.3(b)(1).
II. Yes. A recipient operating in a service area where a majority of the attorneys do not belong to a “State, county or municipal bar association” can comply with 45 C.F.R. § 1607.3(b)(1).
The LSC Act defines LSC’s core purpose as follows: “providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” 42 U.S.C. § 2996b(a); Pub L. No. 104-134, § 501(a)(1), 110 Stat. 1321 (1996). Where strict adherence to the McCollum Amendment and 45 C.F.R. § 1607.3(b)(1) is impossible, the Amendment and regulation should not be read to thwart the core purpose of the LSC. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982). Accordingly, where a recipient operates in a service area where a majority of lawyers do not belong to a “State, county or municipal bar association,” the recipient must make best efforts to seek appointments for attorney board members from multiple bar associations in an attempt to satisfy the regulatory standard.
The question presented here arises out of the efforts of Puerto Rico Legal Services (“PRLS”) to comply with the LSC regulation addressing the composition of recipient governing bodies, 45 C.F.R. § 1607.3(b)(1).1 Prior to 2018, under Article V(2)(A) of the PRLS Board Regulations, 60 percent of the PRLS Board members (15 of 25 members, including the Board’s President) were required to be appointed by Puerto Rico’s mandatory bar, the Colegio de Abogado y Abogadas Puerto Rico (the Puerto Rico Bar Association, “CAAPR”). In 2014, however, membership in the CAAPR became voluntary as a result of a Puerto Rico Supreme Court decision. Rivera Schatz v. ELA y C. Abo. PR II, 191 P.R. Dec. 791 (2014). Subsequently, membership in the CAAPR dwindled to around 15 percent of the practicing attorneys in Puerto Rico. This resulted in CAAPR members no longer constituting “a majority of attorneys in the recipient’s service area” and meant that CAAPR could not remain the sole appointing body without violating 45 C.F.R. § 1607.3(b)(1). Consequently, in August 2017, LSC’s Office of Legal Affairs advised PRLS to update its attorney board member appointment procedure to comply with the requirement that board appointments be made by bar associations collectively representing a majority of the practicing attorneys in Puerto Rico. OLA Advisory Opinion 2017-006.
In its efforts to comply, PRLS identified three Puerto Rican “bar associations of open enrollment” and two agreed to participate in the attorney board member appointment process – CAAPR and the Federal Bar Association (“FBA”). Memorandum from Chairperson Jaime Ruberte Santiago to PRLS Board Members 2 (April 12, 2018). Together, CAAPR and FBA represent almost 25 percent of practicing attorneys in Puerto Rico, well below the majority of the attorneys practicing in PRLS’s service area that 45 C.F.R. § 1607.3(b)(1) requires.
On July 15, 2018, an individual sent a complaint to LSC’s Office of the Inspector General Hotline and LSC’s General Counsel alleging that PRLS had erroneously failed to include the Colegio de Notarios de Puerto Rico (“Puerto Rico Notary Bar Association”) as one of the bar associations that appoints PRLS attorney board members. All notaries in Puerto Rico are required to be practicing attorneys. Puerto Rico Board of Bar Examiners, Rules for the Admission of Applicants to the Practice of Law and the Notarial Profession 10 (2013) (Rule 4.3). To become a notary, one must earn a law degree from an American Bar Association (“ABA”) approved law school, pass the general bar exam, take a Notary Law course in any Puerto Rican law school accredited by the ABA or by the Supreme Court of Puerto Rico and earn at least a “C,” and pass the Notarial Law Exam. Id. at 9-10, 16 (Rules 4.1, 4.3, and 7.1). To join the Puerto Rico Notary Bar Association, one must be an attorney and a notary. The College of Notaries of Puerto Rico has about 1,000 members. See Puerto Rico Notary Bar Association, Members Directory (last visited Sept. 19, 2018).
In making grants or entering into contracts for legal assistance, the Corporation shall insure that any recipient organized solely for the purpose of providing legal assistance to eligible clients is governed by a body at least 60 percent of which consists of attorneys who are members of the bar of a State in which the legal assistance is to be provided . . . and at least one-third of which consists of persons who are, when selected, eligible clients who may also be representatives of associations or organizations of eligible clients.
42 U.S.C. § 2996f(c) (emphasis added). Thus, under the LSC Act, recipient governing bodies must be composed of at least 60 percent attorneys. Id.
Pub L. No. 104-134, § 502(2)(B), 110 Stat. 1321 (April 26, 1996) (emphasis added). Thus, the McCollum Amendment requires that a bar association that represents a majority of the attorneys practicing law in the area served by the recipient appoint attorneys constituting a majority of the board members. Id. at § 502(2)(B)(2)(ii).
(c) Appointment of the attorney members of the governing body shall be conducted so that a majority of the governing body are appointed by the governing bodies of State, county or municipal bar associations, the membership of which represents a majority of attorneys practicing law in the localities in which the recipient is to provide legal assistance. Appointments shall be made to insure that the attorney board members include women and minorities and reasonably reflect the population of the areas served. Appointments may be either by the bar association which represents a majority of attorneys in the recipient’s service areas or by the bar associations which collectively represent a majority of the attorneys practicing law in the recipient’s service area.
To qualify as a state, county or municipal bar association, a bar association must be open to all licensed attorneys within a designated jurisdiction and not be designed to appeal to a segment of the bar on the basis of racial or ethnic characteristics, gender, religion or specialized interest. Parish, borough, judicial circuit or multicounty bars qualify under this section.
48 FR 36820 (1983) (emphasis added).
The McCollum Amendment requires a majority of the board members to be appointed by appropriate state, county and municipal bar associations. The revision clarifies that the appointments can be made by one or more such bar associations, as long as those bar associations collectively represent a majority of attorneys practicing law in the recipient's service area. If there are minority or gender-based bar associations that represent attorneys practicing in a particular locality, those bar associations may be included in the mix of bar associations that make appointments of attorneys to a recipient's board, especially if their inclusion would help to insure that there is appropriate diversity among the attorney members of the board.
59 FR 65249 (1994) (emphasis added).
I. Whether bar associations that appoint the attorney members of a recipient’s governing body under 45 C.F.R. § 1607.3(b)(1) are limited to associations that are open to all licensed attorneys in the recipient’s service area.
45 C.F.R. § 1607.3(b)(1)(i) provides that, where no single bar association “represents a majority of attorneys in the recipient’s service area,” the recipient must identify “bar associations which collectively represent a majority of the attorneys practicing law in the recipient's service area” to appoint its attorney board members. Because no single bar association represents a majority of attorneys practicing in Puerto Rico, PRLS identified three Puerto Rican “bar associations of open enrollment” and invited them to participate in making attorney board member appointments. Memorandum from Chairperson Jaime Ruberte Santiago to PRLS Board Members 2 (April 12, 2018). CAAPR and FBA agreed to participate. Jointly, CAAPR and FBA represent about 25 percent of practicing attorneys in Puerto Rico, and thus fall far short of the majority required by 45 C.F.R. § 1607.3(b)(1).
The question presented here arises from PRLS’s decision to limit the bar associations appointing members to it governing board to “bar associations of open enrollment.” The idea of “open enrollment” likely arises from guidance LSC published in 1983 quoted above. PRLS may have considered the Puerto Rico Notary Bar Association a bar association of specialized interest and, as such, not eligible to appoint PRLS attorney board members.
The 1994 amendment and guidance issued by LSC (quoted above) rendered obsolete the 1983 version of the regulation and the associated guidance. As such, the 1983 guidance against using bar associations “designed to appeal to a segment of the bar on the basis of racial or ethnic characteristics, gender, religion or specialized interest” does not control what constitutes a “State, county or municipal bar association” for the purpose of 45 C.F.R. Part 1607.3.
Nothing in the LSC Act, the McCollum Amendment, or 45 C.F.R. § 1607.3 requires that a “State, county, or municipal bar association” be open to all licensed attorneys for the association to qualify to make attorney appointments to a recipient’s board. To the contrary, as the 1994 guidance points out, such a requirement can undermine compliance with the requirement of 45 C.F.R. § 1607.3(b)(1) that recipients designate a bar association or bar associations that collectively represent a “majority of attorneys practicing law in the recipient's service” area to fill attorney board member vacancies.
To comply with 45 C.F.R. § 1607.3(b)(1), PRLS must look beyond “bar associations of open enrollment” and recruit a “mix of bar associations” that represent the majority of practicing attorneys in Puerto Rico to appoint PRLS attorney board members. See 59 FR 65249, 65249 (1994). To accomplish this, PRLS should identify additional bar associations – such as the Puerto Rico Notary Bar Association – to appoint PRLS attorney board members.
Neither the LSC Act, the McCollum Amendment, nor the implementing regulations define the term “bar association” for purposes of 45 C.F.R. § 1607.3. The Puerto Rico Notary Bar Association is made up exclusively of attorneys practicing throughout the Commonwealth of Puerto Rico. As such, the Puerto Rico Notary Bar Association falls within the definition of a “State, county or municipal bar association” for purposes of 45 C.F.R. § 1607.3(b)(1). Applying a more restrictive definition to the phrase “State, county or municipal bar association” would undermine compliance with the statutory command that attorney board members be appointed by “a majority of the attorneys practicing law in the locality in which the organization is to provide legal assistance.” Pub L. No. 104-134, § 502(2)(B), 110 Stat. 1321 (1996). The phrase should not be interpreted in a way that precludes statutory compliance.
II. Whether a recipient operating in a service area where a majority of the attorneys do not belong to a “State, county or municipal bar association” can comply with 45 C.F.R. § 1607.3(b)(1).
The LSC Act defines LSC’s core purpose: “providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” 42 U.S.C. § 2996b(a). LSC’s appropriation acts authorize LSC to make basic field program funds “available for each geographic area on a per capita basis relative to the number of individuals in poverty,” and Puerto Rico is one of LSC’s geographic areas. Pub L. No. 104-134, §501(a)(1), 110 Stat. 1321 (1996).
It appears possible, if not likely, that a majority of attorneys in PRLS’s service area are not members of a “State, county or municipal bar association.” Under these circumstances, strict adherence to the terms of the McCollum Amendment and 45 C.F.R. § 1607.3(b)(1) would defeat the core purpose of the LSC Act and LSC appropriation – providing financial support for legal assistance in each of LSC’s geographic areas to those unable to afford it. Where strict adherence to a statutory or regulatory provision is impossible, the provision should not be interpreted to thwart the core purpose of a statute. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (quoting Commissioner v. Brown, 380 U.S. 563, 571 (1965) (“[I]n rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. . . . We have reserved some ‘scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning . . . would thwart the obvious purpose of the statute.’”). Therefore, where a recipient operates in a service area where a majority of lawyers do not belong to a “state, county or municipal bar association” the recipient must make best efforts to seek appointments for attorney board members from multiple bar associations in an attempt to satisfy the regulatory standard. In this instance, PRLS should make best efforts to identify additional bar associations – such as the Puerto Rico Notary Bar Association – to appoint PRLS attorney board members.
1. Our understanding of the facts regarding PRLS’s efforts to comply with 45 C.F.R. § 1607.3(b)(1) are based on a Complaint sent July 15, 2018, to LSC’s Office of Inspector General Hotline and LSC’s General Counsel. The representations in the Complaint are supported by attachments to the letter, including the Final Report of the PRLS Special Committee formed to evaluate the procedure to fill vacancies on the governing board and a letter from the PRLS board chairman to board members relaying proposed amendments to PRLS regulations governing attorney board member appointments.


When a name, portrait, or signature in a mark identifies a particular living individual, or a deceased president of the United States during the life of his widow, the mark can be registered only with the written consent of the individual, or of the president's widow, respectively. The requirement for consent also applies to the registration of a pseudonym, stage name, or nickname, if there is evidence that the name identifies a specific living individual who is publicly connected with the goods or services, is generally known, or is well known in the field relating to the relevant goods or services. See TMEP §§1206 et seq. concerning refusal of registration under §2(c) of the Trademark Act, 15 U.S.C. §1052(c), when a mark in an application comprises the name, portrait, or signature of a living individual whose consent to register such name or likeness is not of record.
See TMEP §1206.03 for information about when the examining attorney should issue an inquiry as to whether a name or likeness identifies a particular living individual.
If a mark comprises the name or likeness of a living individual and consent to register is of record or is presumed from signature of the application (TMEP §1206.04(b)), a statement that the mark identifies a living individual whose consent is of record must be printed in the Official Gazette and on the registration certificate. See TMEP §813.01(a). If a name or likeness that could reasonably be perceived as that of a living individual is not that of a specific living individual, a statement to that effect is printed in the Official Gazette and on the registration certificate. See TMEP §813.01(b).
A particular image, as opposed to a general image, of a human may serve as a valid mark.
In re Elvis Presley Enterprises, Inc., Serial No. 74/454,035, (TTAB 1999).
This sweeping contention resembles that rejected in Estate of Elvis Presley v. Russen, 513 F.Supp. 1339 (D.N.J. 1981). The estate of the entertainer Elvis Presley argued that his "image and likeness" was a valid mark. The District of New Jersey rejected the claim as too broad. … However, the [district] court went on to note that a particular image of Presley could be a valid mark. …"
The photograph of a human, unlike a portrait of a fanciful cartoon character, is not inherently "distinctive" in the trademark sense.
The holding of Estate of Elvis Presley v. Russen was endorsed by the United States Court of Appeals for the Second Circuit in Pirone v. MacMillan, 894 F.2d 579, 13 USPQ2d 1799 (2d Cir. 1990). The Court had the following to say with regard to an attempt to claim trademark rights in all likenesses and images of a particular individual (13 USPQ2d at 1801, emphasis added): "Different photographs of the same person may be markedly dissimilar. Thus a photograph of a human being, unlike a portrait of a fanciful cartoon character, is not inherently "distinctive" in the trademark sense of tending to indicate origin. … Under some circumstances, a photograph of a person may be a valid trademark – if, for example, a particular photograph was consistently used on specific goods. [Plaintiff], however, asserts rights in every photograph of [Babe] Ruth.
Case Finding: The likeness and image of Elvis Presley, in general, does not serve as a mark.
This is not the first time that an attempt has been made to claim that the likeness and image of Elvis Presley in general serves as a mark. Such an attempt was rejected in the past, and we, like the Examining Attorney, reject it now. See Estate of Elvis Presley v. Russen, 513 F.Supp. 1339, 211 USPQ 415, 439 (D.N.J. 1981)("The plaintiff asserts that the likeness and image of Elvis Presley serves as a service mark; however, the evidence does not support such a broad proposition. Rather, the record only supports a conclusion that a picture or illustration of Elvis Presley dressed in one of his characteristic jumpsuits and holding a microphone in a singing pose is likely to be found to function as a service mark. This particular image (hereinafter referred to as the ‘Elvis Pose') has appeared in promotional and advertising material for concerts and on record albums.") (emphasis added).


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cross-respondent (Ms. Solomon and Kathleen Morehouse, on the brief).
and Angelo Sarno, on the brief).
At issue is the enforceability of a mid-marriage agreement resolving issues of equitable distribution and alimony in the event of a divorce. This appears to be a case of first impression in New Jersey. The trial court, after a plenary trial, determined that the agreement was enforceable. An order entered on October 25, 1996 memorialized that determination. Thereafter, on July 9, 1997, the court entered a judgment of divorce. The wife, defendant Francesca Pacelli, appeals.
The parties were married in June 1975. The husband, plaintiff Antonio Pacelli, was forty-four years of age at that time; defendant was twenty. Defendant had been born in Italy, but migrated to the United States when she was fourteen. Plaintiff was a builder and a real estate developer. He also owned a restaurant at the time of the marriage. Plaintiff testified that he was worth three million dollars when the parties married, but he presented no documents to support that statement.
Two children were born of the marriage. Tony was born in 1976 and Franco was born in 1977. The family lived in a very substantial home in Passaic County and enjoyed a high standard of living. Their income tax returns showed a gross income of $540,000 in 1984 and $476,000 in 1985. Defendant contributed no income to the family.
In mid-1985, plaintiff informed defendant that he would divorce her unless she agreed to certain terms regarding their economic relationship. To punctuate his demand, plaintiff moved out of the marital bedroom and into an apartment above their garage.
At or about the time he made this demand on defendant, plaintiff sought the advice of matrimonial counsel Barry Croland. Croland testified that he advised plaintiff of his economic exposure for equitable distribution and alimony. According to Croland, plaintiff admitted to a net worth of $4.7 million in 1985, $1.7 million more than he had when he married defendant. Croland informed plaintiff that any agreement between plaintiff and defendant, to be enforceable, had to be fair and made only after full disclosure of relevant information regarding the parties' assets. Croland also informed plaintiff that defendant should be represented by counsel.
The record establishes that defendant did not want a divorce. Upon being informed of plaintiff's demand and suggestion that she should retain counsel, defendant consulted matrimonial lawyer, Gary Skoloff, in July 1985. Skoloff advised defendant of her rights in the event of a divorce.
Defendant's next contact with Skoloff was in the fall of 1985. At that time, she informed Skoloff that plaintiff was going to pay her $500,000 in the event of a future divorce, as full satisfaction of plaintiff's equitable distribution and alimony obligations. Skoloff advised her not to sign such an agreement and that if she divorced plaintiff in 1985, a judge would award her much more than $500,000 in equitable distribution and alimony. Defendant did not take Skoloff's advice. Defendant informed Skoloff that she wanted to preserve the marriage and did not want her children to grow up in a broken family. Skoloff testified that defendant told him that she would sign anything in an effort to preserve the marriage.
Thereafter, Skoloff received a form of agreement drafted by Croland and the family's tax returns for four years, through 1984. Croland also provided Skoloff with financial statements. Skoloff testified that the agreement was not negotiable and it was presented as an agreement to be signed as is, otherwise there would be a divorce.
Defendant signed the agreement in February 1986 and plaintiff signed it in March 1986. The parties resumed their marriage until 1994, when plaintiff filed a complaint for divorce. In 1994, plaintiff's assets totaled $14,291,500. He had a net worth of $11,241,500.
The issues are: whether the agreement was the result of coercion or duress and, therefore, unenforceable; and whether the agreement was unfair and, therefore, unenforceable. Regarding the fairness issue, a subsidiary issue is whether the agreement should be measured for fairness as the facts were in 1985 or as the facts were in 1994 when plaintiff filed his divorce complaint. Defendant also contends that in 1989, she and the plaintiff agreed to nullify the agreement and that plaintiff and she signed a paper to that effect. Defendant could not produce the signed paper at the trial, contending that plaintiff had stolen it from her and destroyed it.
The trial court, in a comprehensive letter opinion, summarized the evidence, made specific findings of fact and determined that the agreement was not the result of coercion or duress, that it was fair as measured in 1985, and that defendant's contention that the parties had nullified the agreement was not credible.
The court's determination that the parties had not nullified the agreement is supported by substantial credible evidence in the record and it is affirmed. Pascale v. Pascale, 113 N.J. 20, 33 (1988); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The other issues are more difficult.
Pre-nuptial agreements made in contemplation of marriage are enforceable if they are fair and just. D'Onofrio v. D'Onofrio, 200 N.J. Super. 361, 366-67 (App. Div. 1985); DeLorean v. DeLorean, 211 N.J. Super. 432, 435 (Ch. Div. 1986); Marschall v. Marschall, 195 N.J. Super. 16, 28 (Ch. Div. 1984). Agreements made at the end of a marriage in contemplation of a divorce and to fix each party's economic rights on entry of a divorce judgment are enforceable if "fair and equitable." Lepis v. Lepis, 83 N.J. 139, 148-49 (1980); Peterson v. Peterson, 85 N.J. 638, 642 (1981); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960).
In Marschall v. Marschall, supra, Judge Lesemann, sitting in chancery, recognized a contextual difference between pre-nuptial agreements and agreements made on the demise of the marriage. "The property settlement agreement comes at a time when relations have already deteriorated. Discovery is available, parties usually deal at arms length and the proceeding -- almost by definition -- is adversarial." 195 N.J. Super. at 29. A pre-nuptial agreement, however, is reached when the parties are not adversaries, "when the relationship is at its closest, when the parties are least likely to be cautious in dealing with each other." Ibid.
We are persuaded that the mid-marriage agreement in the present case differs from pre-nuptial agreements and property settlement agreements made at a marriage's termination. It was entered into before the marriage lost all of its vitality and when at least one of the parties, without reservation, wanted the marriage to survive. Plaintiff also wanted to continue the marriage, but only on his terms.
Here, unlike the pre-nuptial bride, Francesca Pacelli had entered into the legal relationship of marriage when her husband presented her with his ultimatum. Moreover, the marriage had produced two children. Thus, defendant faced a more difficult choice than the bride who is presented with a demand for a pre-nuptial agreement. The cost to Francesca would have been the destruction of a family and the stigma of a failed marriage. She testified on several occasions that she signed the agreement to preserve the family and to make sure that her sons were raised in an intact family.
The mid-marriage agreement in this case also differs from a property settlement agreement made when the marriage has died. In that case, as Judge Lesemann perceptively observed in Marschall, each party, recognizing that the marriage is over, can look to his or her economic rights; the relationship is adversarial.
Our point is that the context in which plaintiff made his demand was inherently coercive. Defendant's access to eminent counsel is of little relevance because her decision was dictated not by a consideration of her legal rights, but by her desire to preserve the family.
We have found no decision in New Jersey or other jurisdictions addressing the enforceability of this type of agreement. Courts have addressed "reconciliation" agreements, however.
Nicholson v. Nicholson, 199 N.J. Super. 525 (App. Div. 1985), involved a reconciliation agreement made after the couple had separated due to the husband's second episode of infidelity. As consideration for resumption of the marriage, the wife demanded and received a conveyance of the marital home from the husband. Previously, the couple had held title as tenants by the entirety. Twelve years later, the couple divorced and the trial court determined that the home was not subject to equitable distribution, thereby enforcing the reconciliation agreement.
Before a reconciliation agreement will be enforced, the court must determine that the promise to resume marital relations was made when the marital rift was substantial. If the agreement was oral and enforcement is sought of a promise to convey real estate, there must also be compliance with the statute of frauds. Carlsen, 49 N.J. Super. at 134-138. The court may have to resolve disputes over the terms of the agreement. Carlsen, 49 N.J. Super. at 138-139; Schichtel v. Schichtel, 3 Ark. App. 36, 621 S.W.2d 504, 507-508 (1981). The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged. D'Arc v. D'Arc, 164 N.J. Super. 226, 238-239 (Ch. Div. 1978), rev'd in part, aff'd in part, 175 N.J. Super. 598 (App. Div. 1980), certif. den., 85 N.J. 487 (1981), cert. den., 451 U.S. 971, 101 S. Ct., 2049, 68 L.Ed.2d 350 (1981). The terms of the agreement must have been conscionable when the agreement was made. See Wertlake v. Wertlake, 137 N.J. Super. 476, 482 (App. Div. 1975). The party seeking enforcement must have acted in good faith. See Marshall v. Marshall, 273 S.E.2d 360 (W. Va. Ct. App. 1981). Cf. Sullivan v. Sullivan, 79 Ill. App.2d 194, 223 N.E.2d 461 (1967) (court will not enforce conveyance made in exchange for wife's fraudulent promise to return home). Changed circumstances must not have rendered literal enforcement inequitable.
We remanded to the trial court for further consideration.
Two of our observations in Nicholson are particularly relevant in the present case. In Nicholson, we required a showing that the marital relationship had genuinely deteriorated "to the brink of an indefinite separation or a suit for divorce."
I felt uncomfortable if I didn't have -- I had to have an agreement, because I was involved in so many of these deals, and I just wanted to operate with a clear head. And I didn't want to have to worry about any day this thing could blow up, and I could be in a real bind.
Well, I just wasn't comfortable, you know, knowing that the marriage is always on a -- sort of on the rocks. And I wanted to put everything in its [perspective]. I wanted to know that if I was going to go into a deal, I could not worry about, you know, getting involved in all kinds of legal stuff.
Plaintiff stated that the DeLorean case, involving a pre-nuptial agreement "gave me an idea to use some kind of an agreement to . . . keep the marriage intact, and still operate and being able to do business."
Plaintiff's lawyer, Croland, testified that plaintiff's purpose "was to stay married, that's what he wanted." But he wanted to understand his financial exposure in the event of a divorce. Croland also testified that during their initial conference Pacelli stated that he had "new deals coming his way," and he was concerned that his wife "not share beyond a certain point."
The evidence, therefore, supports an inference that the marital "crisis" was artificial, created by plaintiff to take advantage of his wife's dedication to the marriage and her family.
The second relevant standard in Nicholson is that the agreement must be fair and equitable when made and when it is sought to be enforced. We will allude to this standard later in this opinion.
In most jurisdictions, an agreement of that character is held not only to be unobject- ionable in this respect, but to promote the stability of the relation, as it purports to do. On the other hand, several courts have considered such an agreement as mischievous, because it offers an inducement for domestic discord to persons who are willing to occupy this vantage ground for the purpose of obtaining pecuniary or other concessions.
Flansburg v. Flansburg, 581 N.E.2d 430 (Ind. App. 1991), is an example of the majority view regarding reconciliation agreements. There, the court affirmed enforcement of a reconciliation agreement made after the wife had filed a petition for dissolution of the marriage. The court concluded that "it was entirely appropriate for the trial court to apply the law of antenuptial contracts" to the reconciliation agreement. 581 N.E.2d at 433. The court cited a number of opinions from other jurisdictions recognizing the validity of reconciliation agreements and treating them "in much the same way as antenuptial agreements." Id. at 434.
Judge Garrard dissented, in part because in his opinion the policy reasons supporting the validity of antenuptial agreements did not apply. Id. at 437.
In Hoyt v. Hoyt, 372 S.W.2d 300 (Tenn. 1963), the Supreme Court of Tennessee held that a reconciliation agreement made after the wife had filed a divorce action was not void or contrary to public policy. In a comprehensive opinion the court reviewed authorities representing the minority and majority views. It analogized the reconciliation agreement to antenuptial agreements and property settlements made in conjunction with a pending or contemplated divorce proceeding. 372 S.W.2d 303-04.
Some cases which contain language to the effect that agreements of that kind are valid state that they should be favored because they tend to encourage reconciliation and preservation of the family. But it is obvious that this is a two-edged sword. Other well-considered cases disavow such contracts, reasoning that the rights and duties in the marriage relationship are fixed by law and that the parties should not be encouraged to abrogate or avoid them by using family strife to bargain themselves into positions of advantage; that doing so bears the seeds of further strife; whereas there should be a forgetting and forgiveness of past difficulties and a fresh re-establishment of the obligations and duties of the marriage as originally intended.
In Stahl v. Stahl, 221 N.Y.S.2d 931 (Sup. Ct. 1961), modified on other grounds, 228 N.Y.S.2d 724 (App. Div. 1962), the court denied enforcement of an agreement between husband and wife made before separation, but when the wife was contemplating a separation. The court distinguished the agreement from reconciliation agreements made while the parties were separated and involved in divorce proceedings. The court held that an agreement "to separate in the future, or which has for its object the future separation of the parties or provides for a possible separation in the future . . . is void as against public policy." 221 N.Y.S.2d at 938. The court noted, however, that reconciliation agreements that reunite separated parties to resume their marriages were enforceable.
We are persuaded that placing a mid-marriage agreement in the same category as a pre-nuptial agreement is inappropriate. As previously indicated, the dynamics and pressures involved in a mid-marriage context are qualitatively different. Similarly, there are significant differences between a mid-marriage agreement and a property settlement agreement made in the context of termination of the marriage. In the latter circumstances, knowing that the marriage is over, though one party may wish to continue it, each party can pursue his or her economic self interest.
Mid-marriage agreements closely resemble so-called reconciliation agreements. We must be aware, however, that such circumstances are pregnant with the opportunity for one party to use the threat of dissolution "to bargain themselves into positions of advantage." Mathie, supra, 363 P.2d at 783.
We need not decide whether such agreements are so inherently and unduly coercive that they should not be enforced, though we conclude that, at the very least, they must be closely scrutinized and carefully evaluated. In the present case, we conclude that the terms were not fair and just.
Defendant contends that the fairness of the agreement must be measured as of 1994 when plaintiff sought to enforce it. At that time, plaintiff's net worth was approximately $11,000,000. Defendant's argument relies in part on the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 to -41. It provides that an agreement is not enforceable if it was "unconscionable at the time enforcement was sought." N.J.S.A. 37:2-38b. The Act, however, only applies to premarital agreements and, consequently, it does not control the present case.
Defendant limits her attack on the agreement's fairness to the circumstances existing in 1994. We conclude, however, that the agreement was unfair in 1986, when it was signed. The trial court determined that the agreement was fair and equitable when it was made because the agreement gave the wife "approximately 32% of the husband's net worth subject to equitable distribution in 1985." The agreement promised defendant $500,000 in the event of a divorce. Additionally, it called for immediate payment on execution in the amount of $40,000. Thus, $540,000 of the presumed marital estate of $1,700,000 is 32%.
But, the court's numbers are wrong, the court and counsel having been misled by plaintiff's creative accounting. Plaintiff introduced into evidence a financial statement showing a "net worth" of $4,786,800 in 1985, or $1,786,000 more than he claimed to be worth in 1975 when he married defendant.
The financial statement listed assets worth $7,696,200. Liabilities totaled $1,643,300. Plaintiff's net worth, therefore, was $6,053,100. Plaintiff and his accountant reached the net worth figure of $4,786,800 by deducting $1,266,100 in potential income taxes due upon a hypothetical sale of those of plaintiff's assets whose value exceeded their basis. We know of no authority to justify that deduction in determining net worth in a matrimonial context or in the circumstances in this case. Indeed, in Orgler v. Orgler, 237 N.J. Super. 342 (App. Div. 1989) we held that "hypothetical tax consequences upon the future sale or transfer of marital assets should not be deducted from present value for equitable distribution purposes." Id. at 355. We recognized, however, that tax consequences may be considered in the distribution of a marital estate. Id. at 356. See Stern v. Stern, 66 N.J. 340, 348 (1975).
There is nothing in the record to suggest that assets would have to have been sold in 1985 to satisfy an equitable distribution order. Plaintiff's assets included cash in the amount of $622,600, Treasury bills in the amount of $503,500, "marketable securities in the amount of $102,500, and mortgage receivables in the amount of $238,400. Real property does not necessarily have to be sold to satisfy a spouse. It can be distributed in kind, or it can be refinanced to provide cash equivalency. Moreover, as a result of the Tax Reform Act of 1984, effective July 18, 1984, a transfer between spouses or former spouses, "incident to the divorce" does not result in the recognition of "gain or loss." 26 U.S.C.A. � 1041.
We conclude that in 1985 the marital estate was $3,000,000, not $1,700,000. Thus, the $540,000 provided in the agreement was 18% of the marital estate. Plaintiff's lawyer, Croland, testified that he had advised plaintiff that he could expect "the probable range of equitable distribution could be somewhere around . . . one-third. Could be less, it could be more." Skoloff testified that an equitable distribution range would be between thirty and forty percent of post-marital assets. Thus, the $500,000 buy out was approximately half of a potential equitable distribution award, using the low end of the range.
The $500,000 also purchased defendant's waiver of alimony. An alimony award in 1985 would have been substantial, perhaps approaching six figures. Plaintiff's annual income in 1984 and 1985 averaged $500,000. The parties lived well. They lived in an expensive home, drove luxury automobiles and vacationed at some of the most desirable destinations. Plaintiff estimated that defendant spent $20,000 to $30,000 per year on clothing from stores such as Bergdorf Goodman. Their son, Tony, went to Deerfield Academy, and Franco went to Choate.
Plaintiff was fifty-four years of age when the parties signed the agreement. According to the table of life expectancy in the Rules Governing the Courts of the State of New Jersey for 1986, plaintiff had a life expectancy of approximately twenty years. Thus, unless defendant remarried, plaintiff would have been paying a substantial annual alimony for a long time.
As an additional example of the oppressiveness of the agreement, though not central to our decision, we note that in Article XIII, the wife "accepts the provisions" in the agreement "in full settlement and satisfaction of any and all claims" against the husband's estate "including . . . all rights of dower, all homestead rights, all rights to widow's allowance and support, and all rights under the laws of testacy and intestacy . . . to which the wife is or may be entitled to . . . by reason of widowhood in the event of the husband's demise or otherwise." Thus, in the event of plaintiff's death during marriage to defendant, she waived even her right to a surviving spouse's elective share of the augmented estate under N.J.S.A. 3B:8-1. We note that under the agreement, only the entry of "a Final Judgment of Divorce" triggers the obligation to pay the $500,000 to defendant.
Defendant argues that the agreement should be measured for fairness in 1994, when plaintiff sought to enforce it. In Nicholson, supra, we observed that in evaluating a reconciliation agreement "[c]hanged circumstances must not have rendered literal enforcement inequitable." 199 N.J. Super. at 532. We are persuaded that the close scrutiny and careful evaluation of mid-marriage agreements also requires consideration of the agreement's impact when enforced. This is so for at least two reasons. A marriage may survive for many years after such an agreement, as in this case. During that time, the family may continue to prosper, due in part to the contribution of a spouse, such as defendant, in her capacity as mother, homemaker and helpmate. It may be inequitable to preclude her participation in post-agreement wealth.
Moreover, post-agreement prosperity may elude the parties. A family's assets may be worth less at the time of enforcement than when the agreement was executed. In that case, enforcement of the agreement may be inequitable to the obligor.
It is apparent that the agreement is also unfair when measured in 1994. At that time, plaintiff's net worth exceeded $11,000,000, and post-martial assets were $8,000,000. Thus, $540,000 is approximately seven percent of the 1994 assets. The parties built a home at the Saint Andrews Club in Florida after executing the agreement. It is in joint names and defendant is entitled to one-half of the $1,200,000 equity, or $600,000. Even considering this asset, defendant's distribution is less than fifteen per cent of the marital estate. In light of the inherently coercive circumstances leading to the agreement, the result is unfair, inequitable and unenforceable. The trial court, on remand, must make determinations regarding equitable distribution and alimony, and other ancillary economic issues, if any.
Defendant also contended below that she had invested the initial $40,000 payment in one of plaintiff's real estate projects called Della Presta. The trial court ruled that defendant "has failed to sustain her burden of proof with respect to any alleged ownership interest in said property." This determination is supported by evidence in the record and it is affirmed.
Defendant's trial counsel sought counsel fees in the amount of $137,188.99. The court awarded defendant $35,000. Defendant contends that the counsel fee award was inadequate. The trial court did not adequately explain why it limited the award to $35,000, other than noting that defendant "has present assets totaling $385,000 and will receive a substantial sum from the sale of the house at St. Andrews." Perhaps the court was influenced by the fact that defendant's attempt to invalidate the agreement had failed. In any event, we vacate the counsel fee award because of the outstanding issues regarding equitable distribution and alimony. On remand, counsel fees shall be considered anew when all other issues are resolved.
Plaintiff cross-appealed. He contends that the court erred in not crediting $166,000 in court-ordered pendente lite support payments against the $500,000 obligation contained in the agreement. Plaintiff also contends that the court erred in admitting tape recordings of telephone conversations which defendant offered in support of her contention that they had agreed to nullify the agreement. Both contentions are moot, and the cross-appeal is dismissed.
July 9, 1997 divorce judgment, awarding counsel fees in the amount of $35,000, is vacated. In all other respects the judgment of divorce is affirmed. The case is remanded for further proceedings consistent with this opinion.

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