Ehrenworth v. Ehrenworth

• Citation: 454 A.2d 895,187 N.J.Super. 342
• Parties: Marcia EHRENWORTH, Plaintiff-Respondent, v. Lionel EHRENWORTH, Defendant-Appellant.
• Decision Date: 07 October 1982
• Court: New Jersey Superior Court — Appellate Division

Page 342

187 N.J.Super. 342

454 A.2d 895

Marcia EHRENWORTH, Plaintiff-Respondent, v. Lionel EHRENWORTH, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 20, 1982.

Decided Oct. 7, 1982.

Irving Tobin, Elizabeth, for defendant-appellant (Gluck & Tobin, Elizabeth, attorneys).

Charles M. DeFuccio, Hackensack, for plaintiff-respondent (Rose, Poley & DeFuccio, Hackensack, attorneys).

Before Judges MILMED, MORTON I. GREENBERG and FURMAN.

The opinion of the court was delivered by

MORTON I. GREENBERG, J.A.D.

This matter comes before the court on an appeal from an order entered June 8, 1981 denying defendant's application to terminate alimony and vacate arrears.

The unusual circumstances giving rise to defendant's application must be set forth at length. Plaintiff and defendant were married on June 12, 1955. Four children were born of the marriage. In 1980 plaintiff's complaint and defendant's counterclaim for divorce were pending in the Superior Court, Chancery Division, Essex County. On March 13, 1980 the matter came on before the court for a conference on the issues of equitable distribution and alimony. Both parties were present with their respective attorneys. The record indicates that there had been extensive negotiations in court on that day and on other days. The record further shows that the parties had received advice from a certified public accountant. There had also been advice, apparently with respect to tax considerations, obtained from another attorney who was not an attorney of record. Ultimately the case was settled on March 13, 1980. The record makes it clear that the trial judge participated in the settlement negotiations. Indeed, both attorneys indicated that without the judge's assistance settlement would have been impossible.

After the matter was settled the terms of the settlement were placed on the record. The procedure followed was that plaintiff was sworn as a witness. Her attorney, in the presence of defendant, questioned her at length concerning the terms of the agreement. The following germane questions were asked of plaintiff and she gave the answers indicated:

Q Now, you understand that from the time the agreement is signed; and I think everything in the agreement takes place at the time of signing; formally executing this agreement; until then I guess you have the right to change it, but from the time this agreement is signed, for a period of 12 years you will receive each and every week the sum of $800.00 per week. That sum will be as enforced, alimony. You understand that you will receive that sum of $800.00 per week, whether you remarry or don't remarry, no matter what your situation, no matter what your circumstances. However, at the end of that 12-year period your husband's obligation as to support to you, will end. Under no circumstances will you be entitled to any money after that 12-year period. That $800.00 will be paid to you each and every week regardless of your circumstances; health, income, earnings, or anything else, do you understand that?

A I understand that.

Q Do you understand that should you die you have the right to leave whatever remainder there might be of that $800.00 per week to your estate or designate any beneficiary you want, or should you die without a will, or die intestate, that it would go according to the law as contested [sic ]. In other words, that's your money for those 12 years, payable as we stated. That is the extent of Doctor's obligation, do you understand that? ¹

A I understand.

Q Now, isn't it also a fact that you've agreed that you will not come back into court for an increase or a decrease? This is the deal; this is what you're to receive as far as alimony is concerned. We, on the other hand, also expect that Doctor is going to pay this money. His deal is that he will pay this $800.00. He will pay it this year, and he will pay it for 12 years. He's not coming back into court. You two have made a deal, no matter what your income, no matter what your assets, you're going to get this money, and he's going to pay that, isn't that right?

A I understand. Yes, that's right.

There were, of course, other terms to the settlement. Significantly, plaintiff agreed to turn over to defendant whatever interest she had in a certain medical building. The parties also divided personal property.

After plaintiff's testimony was completed defendant testified. Rather than examining him at length, his attorney asked him if he understood the agreement as it had been stated and whether he agreed to be bound by it. He said he did understand it and would be bound. He also testified that he entered into the agreement freely, without coercion or duress, and that he had been represented by counsel. The proceedings on March 13, 1980 were terminated with the understanding that a written agreement would be prepared.

The written agreement was in fact prepared and signed by the parties. It was dated July 3, 1980. The agreement in pertinent part provides as follows 1. The parties both agree that under no circumstances will either of them at any time petition any Court to reopen the Property Settlement and Support Agreement orally entered on March 13, 1980 and memorialized herein alleging that either of them did not have total formal discovery in the within matter.

2. The parties have further agreed that from the date of the execution of the within memorialization of the parties' oral Property Settlement and Support Agreement as evidenced on this page of the within Agreement, the Husband shall pay to the Wife the sum of Eight Hundred Dollars ($800.00) per week, each and every week, as alimony, for a period of twelve (12) consecutive years. Said $800.00 per week alimony payment by the Husband to the Wife shall be paid to her by the Husband regardless of whether or not the Wife remarries, and regardless of her financial circumstances, health, income, or earnings.

However, in the event the Wife dies prior to the expiration of said twelve-year period, the Husband's obligation to pay said alimony to the Wife ceases and shall not be an asset of her estate.

The Wife agrees that she will maintain a certain life insurance policy owned by her and insuring the life of the Husband, which has a face amount of Three Hundred Thousand Dollars ($300,000). (A copy of said insurance policy is attached to the within memorialization of the parties' oral Agreement). The Wife agrees that she will continue to pay said life insurance premium payments and keep said premium payments current for as long as she receives alimony in the amount as stated herein and to the extent as is necessary to maintain said life insurance policy in existence as it now exists.

Should the Husband die prior to the expiration of the 12-year alimony period as mentioned herein, then and in that event, using the proceeds of said policy, which policy will be maintained on the minimum deposit basis by the Wife (or should said policy lapse, giving the Husband's estate full credit as if the proceeds had been received by the Wife pursuant to said policy's payment schedule on a minimum deposit payment schedule), the Husband's estate shall be liable for the balance, if any, still due the Wife on her 12-year payout after deducting full credit for any and all proceeds received by her, or any and all proceeds that should have been received by her from said insurance policy.

It is understood and agreed by both parties that neither of them shall petition any Court in regard to an increase or decrease in the amount of alimony paid or received by them. This waiver is made by both parties despite any future increase or any future change in either of their circumstances, ordinary, circumstantial, anticipated, unanticipated, keeping in mind the possibility of inflation and depression. Both parties agree to pay or accept payments respectively as mentioned herein, under any circumstances.

The matter came on for trial on July 7, 1980. The parties were granted mutual divorces. The final judgment, to which defendant's attorney consented as to form and entry, also provided that

IT IS FURTHER ORDERED AND ADJUDGED that a certain written Property Settlement and Support Agreement dated July 3, 1980, a copy of which is attached hereto, which Property Settlement and Support Agreement was voluntarily entered into by the parties and reduced to writing to memorialize the parties' prior oral Property Settlement and Support Agreement dated March 13, 1980, be and the same is incorporated but not merged in the within Judgment;

The next proceedings in the matter were generated by plaintiff on April 10, 1981. At that time plaintiff moved for relief to litigant. In her supporting affidavit she stated that defendant had discontinued payment of alimony. Defendant filed a cross-motion. He sought to terminate alimony and to vacate arrears. Defendant's appendix does not include the certification submitted with the motion but it is evident from the transcript on the motion that his basis for relief was that plaintiff had remarried and thereby, by reason of N.J.S.A. 2A:34-25, was precluded from recovering further alimony from defendant. Plaintiff filed an answering certification in which she pointed out that there had been many settlement conferences with the judge and that there had been numerous conferences among the lawyers and accountants in the case.

The motions were heard on May 22, 1981 by the same judge who had conducted the settlement conferences. The same attorneys who had represented the parties when the settlement had been reached were present in court. Defendant's attorney argued that under N.J.S.A. 2A:34-25 defendant was entitled to have alimony stopped and arrears canceled. N.J.S.A. 2A:34-25 provides:

If after the judgment of divorce the wife shall remarry, the court shall not make any order as to the alimony of such wife except that upon application of the former husband, on notice and on proof of the...