Avirett v. Avirett

• Decision Date: 05 March 1982
• Citation: 454 A.2d 917,187 N.J.Super. 380
• Parties: Alice A. AVIRETT, Plaintiff, v. Richard M. AVIRETT, Jr., Defendant.
• Court: New Jersey Superior Court

Page 380

187 N.J.Super. 380

454 A.2d 917

Alice A. AVIRETT, Plaintiff, v. Richard M. AVIRETT, Jr., Defendant.

Superior Court of New Jersey, Chancery Division Bergen County.

Decided March 5, 1982.

Ellen J. Effron, Paramus, for plaintiff (Effron & Finnerty, Paramus, attorneys).

Stephen H. Roth, Hackensack, for defendant.

KRAFTE, J.J.D.R.C., (temporarily assigned).

A unique question regarding rehabilitative alimony has surfaced during an otherwise ordinary enforcement motion. Succinctly stated, the question is this: Do the modification parameters set forth in Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), apply to a voluntarily executed property settlement agreement which contains specific provisions for rehabilitative alimony as well as complete equitable distribution allocation, both factors being dependent upon the other? There does not appear to be an answer to this question by a court in this State.

An extensive property settlement agreement (hereafter the agreement) was entered into between the parties, at arm's length, with the advice of counsel, and executed on November 8, 1979. A final judgment was entered on April 2, 1980, incorporating the agreement with the usual testimony regarding voluntariness, understanding, fairness and equitableness.

Section 19.1 of the agreement specifically provided for alimony to plaintiff totaling $36,000, payable $1,000 a month for three years. ¹ This provision was particularly interrelated with equitable distribution and, at least impliedly, conditioned upon plaintiff's continued attendance at college and the obtaining of a Bachelor of Science degree in psychology. She earned this degree in December 1980, as anticipated. Based upon the documentation submitted, all aspects of rehabilitative alimony were considered by the parties and their attorneys.

This opinion is directed to that part of defendant's cross-motion to terminate alimony based upon a change of circumstances.

The concept of rehabilitative alimony was first substantially treated by Judge Imbriani in Turner v. Turner, 158 N.J.Super. 313, 385 A.2d 1280 (Ch.Div.1978). In spite of an Appellate Division decision specifically disapproving of rehabilitative alimony, Arnold v. Arnold, 167 N.J.Super. 478, 401 A.2d 261 (App.Div.1979), the concepts of Turner were implicitly approved in Lepis v. Lepis, 83 N.J. at 155, 416 A.2d 45. ²

Let it be noted that the agreement before this court was drawn after both the Turner (April 1978) and the Arnold (April 1979) decisions were published. Therefore, this court must conclude that, in spite of the then existing state of law, as put forth in Arnold, 167 N.J.Super. at 391, 401 A.2d 261, i.e., "We do not agree with the general rationale ... which would permit 'rehabilitative alimony' as an available viable technique for the avowed purpose of encouraging a spouse to seek employment," the parties adjusted all equities in the financial aspect of their marriage and did conclude that this technique was indeed viable for the proper dissolution of their marriage.

The report of the Supreme Court Committee on Matrimonial Litigation, Phase Two, released in July 1981, specifically and unequivocally approved the concept of rehabilitative alimony by the court, and quoted with approval, 3 Western N. E. L.Rev., 127, 132-133 (1980), as follows:

The primary goals of rehabilitative alimony ... are to reduce post-divorce recourse to the courts, to provide the supporting spouse with some degree of certainty as to the nature and extent of the support obligation owed to the former spouse, and to encourage a supported spouse to develop employment skills within a precise period of time so as to become self-supporting. [Supplement to N.J.L.J., July 16, 1981, 14].

This court would include an additional clause in the above in order to fully approach and realistically deal with a concept which, on its face, would appear to be a male-oriented, sexist approach, contrary to our Supreme Court's pronouncement in Lepis v. Lepis, supra, 83 N.J. at 155-156, 416 A.2d 45. That additional clause would be "... and to provide the supported spouse with some degree of certainty as to the nature and extent of the support obligation owed by the former spouse ...."

Therefore, as to the facts herein, this court finds that the supported spouse (plaintiff), after full disclosure and with the advice of counsel, entered into a full, detailed and comprehensive agreement locking all the gates, so to speak. The supporting spouse (defendant) could rely upon the fact that his support obligation was terminal. He also could depend upon the most favorable tax advantages which he received ($1,000 a month direct alimony deduction while only paying $125 a month support for each of two children, and taking both children as exemptions on his individual 1980 tax return). Conversely, this supported spouse should be allowed to depend on an agreement which provides payment to her of $1,000 a month while she is in the process of finishing a college degree and attempting to embark on a new career. The alimony this plaintiff receives is not merely money in fulfillment of a statutory duty of support owed to a spouse. Its ultimate purpose is to help produce a self-sufficient individual, benefitting not only the recipient of the alimony but the person paying the alimony. There is absolutely no reason why the supported spouse should not be entitled to the same reliance the supporting spouse enjoys. This court finds that she is so entitled.

Thus, to summarize, the following facts have been developed by the affidavits submitted herein:

1. Agreement, November 8, 1979.

2. Final judgment--April 2, 1980.

3. Rehabilitative...