ELIZA CZMIELEWSKI v. WALTER CZMIELEWSKI a/k/a WALDEMAR CZMIELEWSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3503-04T13503-04T1

ELIZA CZMIELEWSKI,

Plaintiff-Appellant,

v.

WALTER CZMIELEWSKI a/k/a

WALDEMAR CZMIELEWSKI,

Defendant-Respondent.

______________________________________________________________

 

Submitted January 31, 2006 - Decided February 14, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Family Part,

FM-07-1599-99.

Emolo & Collini, attorneys for appellant

(Joseph E. Collini and John C. Emolo, on the brief).

Miller, Meyerson, Schwartz & Corbo, attorneys for

respondent (Nirmalan Nagulendran, of counsel and

on the brief).

PER CURIAM

Plaintiff, Eliza Czmielewski, appeals from a post-judgment order denying her application for modification of an alimony award based on changed circumstances.

In his oral decision of March 4, 2005, the judge denied the motion because he believed that defendant had never agreed to pay any alimony, and therefore there was nothing to modify. In the order confirming that decision, the judge wrote that he had denied alimony because "there never was an alimony obligation[. T]herefore alimony cannot be modified or extended. There is no change in income level of plaintiff from the time of the divorce." In his written opinion of May 17, 2005, submitted pursuant to R. 2:5-1(b), the judge said that plaintiff "waived her alimony claim," and that her waiver was placed on the record at the time the divorce was granted "with multiple questions making sure that [she] understood the agreement." Although we are satisfied that the judge erred in finding that there never was an award of alimony, we are obliged to affirm because plaintiff failed to prove a change in her income.

After a fifteen-year marriage, the parties were divorced on February 8, 2001. On that date, the proceedings began with a discussion of plaintiff's attorney's request to withdraw as her counsel. She concurred in that request, but before he was allowed to withdraw, he began discussing the parties' settlement agreement. The judge interrupted, saying: "I gather it's a term alimony proposal?" And the defendant's attorney said: "It is a term alimony, Your Honor."

That same day, after plaintiff negotiated with defendant's attorney and defendant, they returned to court to place the agreement they had reached before the judge. Defendant's attorney described the agreement on the record. Provisions were made for the support and education of their child, which we need not detail here. By way of equitable distribution, plaintiff received the marital home, which had an equity of $225,000, and defendant received two rental properties, which had an equity of about $190,000. After noting that the mortgage on the marital home required monthly principal and interest payments of $1,400 and would be paid off in about seven years, defendant's attorney said:

The parties have agreed that in lieu of permanent alimony, Mr. Czmielewski will pay for the next approximately four-and-a-half years -- and I say 'approximately,' Your Honor because it is until Peter graduates high school, which is anticipated in June, 2005. So for the next four-and-a-half years, until Peter graduates high school or until June 30th, 2005, whichever occurs first, Mr. Czmielewski will pay the mortgage on the marital home.

He will pay the real estate taxes on the marital home. He will pay the home insurance. He will continue to pay -- he will pay off the remaining car payments on Mrs. Czmielewski's present vehicle, which have about two-and-a-half years left to run, and he will pay Mrs. Czmielewski's health insurance for the balance of 2001 and, in addition, he will pay child support to Mrs. Czmielewski in the amount of $250 per week. . . .

At the end of -- come June 30th, 2005, upon Peter's graduation, thereafter, in lieu of alimony and child support, Mr. Czmielewski will continue to pay the principal balance on the present mortgage -- principal and interest . . . [b]ut not the real estate taxes. . . .

. . . .

He will pay that until the mortgage is paid in full. The mortgage has approximately seven years . . . from now left.

. . . .

Mrs. Czmielewski is waiving any and all other claims or conditions. I have explained to Mrs. Czmielewski the basis of both COX and CREWS as best I could in our conference and advised her that she was giving up any claims that she may have to a diminution in her lifestyle based on this settlement, and I believe she understood it, Your Honor.

[Emphasis added.]

Defendant's attorney then questioned defendant, asking in conclusory terms whether he understood and agreed with the settlement. Thereafter, the judge briefly questioned plaintiff. Although he asked her if she understood and was satisfied with the agreement, his questions did not incorporate any of the details of the agreement. Throughout the proceeding, plaintiff was assisted by an interpreter. Thereafter, defendant's attorney submitted a judgment pursuant to the five-day rule. Although the judgment was generally accurate, it differed from the oral agreement in two respects: First, it described the payments defendant was to make to plaintiff as "in lieu of alimony," instead of in lieu of "permanent alimony." Second, it was more explicit with respect to changed circumstances, providing in the last numbered paragraph that "[t]he parties agree not to revisit this agreement due to any change in life style as a result of their financial positions hereafter."

On January 25, 2005, plaintiff filed a motion for additional alimony and child support, alleging changed circumstances. In her supporting certification, plaintiff said that at the time of the divorce she earned income by "cleaning houses for various homeowners" and as "a care giver to an elderly person." But she did not certify how much she earned from those endeavors. Plaintiff stated that on July 23, 2002, she fell and suffered a comminuted fracture of her left ankle that was repaired by the placement of "rods in [her] ankle." Ibid. During a second surgery, the rods were removed and plaintiff's ankle was fused. She was told that a third operation was required and indicated that her physician advised that she was "permanently disabled due to the condition of [her] ankle, depression and hypertension." She said she was unable to work and that her only income was "SSI disability . . . of $595.25 a month." She also indicated that she had many bills and that her monthly expenses were "$3,340.00 per month, yet [her] monthly income [was] only $539.25." She added that the only reason she [was] able "to survive [was] because of the $900.00 per month child support that [her] husband [paid]," which she claimed barely allow[ed her] to eat and pay [her] utility bills."

It appears that the judge's primary reason for denying plaintiff's application was that under the agreement she received no alimony, so there was nothing to modify. But that determination is contrary to the agreement, which clearly called for term alimony, albeit described as payments in lieu of permanent alimony during the hearing, or as payments in lieu of alimony in the judgment. Were that the sole basis for the denial, we would be obliged to reverse since the injury suffered by plaintiff in 2002 substantially impaired her ability to obtain income. Lepis v. Lepis, 83 N.J. 139, 151 (1980). But the judge also gave as a reason for the denial of plaintiff's application, her failure to establish a "change in income level . . . from the time of divorce." Since the record reveals nothing with respect to plaintiff's income at the time of the divorce, the judge was clearly correct in rejecting plaintiff's motion on that basis.

Defendant also argues that the anti-Lepis clause provides an independent basis justifying the result reached below. Since the trial judge did not consider this point, neither will we. However, we will note that the alleged agreement on this issue was treated quite superficially during the divorce proceeding. All that defendant's attorney said was that he had "advised [plaintiff] that she was giving up any claims that she may have to a diminution in her lifestyle based on this settlement." Although the language in the judgment is somewhat clearer, we are far from convinced that plaintiff clearly waived her right to seek additional support based on changed circumstances and based on her failure to object to the form of the judgment, particularly in light of her language barrier.

Although we affirm the order because of plaintiff's failure to provide evidence of a decrease in her income, we do so without prejudice to plaintiff making a properly supported application. If that occurs, the judge may then consider, if necessary, whether the parties' agreement should be a bar to the application because of its somewhat engimatic reference to changed circumstances. Any such analysis should be guided by our decision in Morris v. Morris, 263 N.J. Super. 237, 241-46 (App. Div. 1993).

 
Affirmed.

 

(continued)

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A-3503-04T

February 14, 2006