ANDREW CITKOWICZ v. KRYSTYNA CITKOWICZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 4449-04T3A-4449-04T3

ANDREW CITKOWICZ,

Plaintiff-Appellant,

v.

KRYSTYNA CITKOWICZ,

Defendant-Respondent.

____________________________________________________________

 

Submitted January 24, 2006 - Decided March 17, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-12-877-90.

Bielan, Saminski & Associates, attorneys for appellant (Karen Kirchoff Saminski, on the brief).

Harry J. Katz, attorney for respondent.

PER CURIAM

Plaintiff, Andrew Citkowicz, appeals from two post-judgment orders: (1) fixing alimony arrears for the summer months of 1995 through 2003 when plaintiff, a teacher, did not make the $150 per week alimony payment required by agreement and by the judgment of divorce; and (2) denying plaintiff's motion to terminate alimony. We affirm.

Plaintiff and defendant, Krystyna Citkowicz, were married on April 12, 1975. Four children were born of the marriage: Andrew on June 7, 1977; Richard on May 11, 1981; Steven on July 9, 1982; and Mark on January 24, 1985.

On December 2, 1994, the parties entered into a property settlement agreement (PSA), which was placed on the record in open court. That agreement was incorporated into the judgment of divorce. It provided that plaintiff was granted primary physical custody of the children of the marriage. Each of the parties was to have sole ownership of real estate designated in their agreement. Defendant agreed to relinquish any and all claims against the pension fund of plaintiff as well as any claims she had against any additional earned or unearned income from any source that plaintiff might have in the foreseeable future. In exchange, plaintiff agreed to pay defendant $150 per week, fifty-two weeks per year for twenty-five years. All other previously ordered obligations to defendant were deemed integrated into that alimony amount. Alimony would automatically terminate after twenty-five years. The discussion of these terms on the record included the following:

MS. HAMMER [attorney for plaintiff]: Do you agree to the $150 a week for 52 weeks per year as alimony to your wife?

THE COURT: As all part of the condition of a whole package.

MS. HAMMER: Yes.

THE COURT: It's all part of one package. If one part doesn't fall into place the rest of it doesn't.

MS. HAMMER: Your Honor, I think what Mr. Citkowicz is waiting to hear is that such alimony shall terminate no later than 25 years.

MR. CITKOWICZ: That's all I'm asking.

MR. KATZ [attorney for defendant]: We just agreed, Your Honor, that the alimony would automatically terminate after 25 years no matter what.

MR. CITKOWICZ: If that's the case, okay.

THE COURT: Okay.

At the time of the property settlement agreement, defendant had a claim pending before the Social Security Administration for Social Security disability benefits. She agreed to pursue her claim vigorously, as it was anticipated that an award would be received on behalf of the children, directly from Social Security. The parties agreed that if defendant failed to pursue her disability claim or if she were determined not to be permanently disabled, then income would be imputed to her and plaintiff might in that event apply to the court to reduce the alimony. Defendant did pursue her claim and Social Security disability benefits were awarded in or about 1996.

At the time of the divorce, plaintiff earned approximately $36,000 per year as a teacher for the City of Passaic. Defendant was unemployed. Plaintiff was paid bi-weekly by the City of Passaic Board of Education. The alimony payments, approximately $325 per paycheck, were deducted directly from his wages and paid to defendant. In or about 1996, defendant also began receiving approximately $600 per month in Social Security disability payments.

Plaintiff did not work during the summer and his mode of payment was not spread over the full calendar year. Consequently, in the summer of 1995, the first summer of plaintiff's alimony obligation, and thereafter, plaintiff did not receive wages from the City of Passaic Board of Education and defendant did not receive alimony from plaintiff during the months of July and August. Defendant did not take any action to enforce payment of plaintiff's alimony obligation either in 1995 or in the successive summers through 2004.

In July 2004, the Board of Education offered an "Early Retirement Incentive Program," which provided a credit of three additional years of service towards the pension of individuals fifty (50) years of age and older who had more than twenty-five (25) years of service. Plaintiff was eligible and accepted the incentive package. At age fifty-two, he retired from his teaching position. The retirement occurred approximately nine and one-half years after the parties entered into the PSA, which was incorporated into the judgment of divorce. At the time of his retirement, plaintiff's salary was $80,497 per year. He receives approximately $3,244 per month from his pension.

Following his retirement, plaintiff stopped paying alimony to defendant, and he unsuccessfully moved to reduce or to eliminate his obligation. Defendant cross-moved for enforcement. The two resulting court orders were entered on April 1, 2005. One order denied plaintiff's cross-motion to modify or terminate alimony. The other granted defendant's motion to enforce litigant's rights and to require plaintiff to satisfy arrears and continue paying defendant alimony in the sum of $150 per week in accordance with the terms of the PSA. That second order entered judgment against plaintiff in the amount of $17,500 for alimony arrears from 1995 to April 1, 2005. Defendant's request for counsel fees was denied.

Plaintiff contends the motion judge entered these orders without a hearing and without stating his findings of fact and conclusions of law. Plaintiff also asserts that he can no longer afford to pay the alimony amount based on his pension income and his current expenses. As to the unpaid alimony, plaintiff contends that the doctrine of laches should have barred defendant's attempt to recover.

Rule 1:7-4(a) requires that a court "find the facts and state its conclusions of law . . . on every motion decided by written order that is appealable as of right . . . ." The court's failure to comply with this obligation "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). In such instances, this court can either remand for findings of fact and conclusions of law or this court itself can make "findings of fact pursuant to the constitutional grant of necessary original jurisdiction and R. 2:10-5." Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-4(a) (2006); Farmingdale v. Farmingdale, 55 N.J. 103, 106 (1969).

In this instance, we will exercise such original jurisdiction. Accepting as true plaintiff's assertions of fact, we conclude he is not entitled to relief from the motion judge's orders. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The law is clear on the matter. In Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div. 2004), we held that the agreement of the parties, particularly when it is incorporated into a judgment of the court, is entitled to deference and its contents should be given significant consideration. Public policy favors the enforcement of consensual arrangements for support, as occurred here. Ibid. (citations omitted). The enforcement of such arrangements provides the parties with stability in their affairs. Ibid.

The overall analysis regarding whether or not to modify a PSA is one of equity. The court must consider:

(1) the adequacy of the agreement at inception, the presumed understanding of the parties at that time,

(2) the reasonable expectation of the parties during the life of the agreement,

(3) the manner in which the parties acted and relied on the agreement [and]

(4) the previously stated principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement or even during periods when modification is at issue.

Ibid.

These parties and the court viewed the PSA and the judgment of divorce as a whole. So must we. In doing so, we recognize the explicit tradeoffs between the parties that went into the terms of the PSA and the divorce decree. The expressed expectation of both parties was that defendant would pay alimony of $150 per week for fifty-two weeks each year for twenty-five years. That expectation on plaintiff's part is reflected in the exchanges that took place on the record which we have previously quoted. As did plaintiff, defendant confirmed her expectation on the record:

MR. KATZ [attorney for defendant]: Your Honor, my client has advised me [she] would accept the termination of alimony after 25 years. Is that right Mrs. Citkowicz?

MRS. CITKOWICZ: Yes.

THE COURT: Mrs. Citkowicz, I want to make it very clear that I do not want you to say that you will agree to this because you feel forced under the circumstances. You understand all of the alternatives that you have. Do you understand all of the alternatives that you have?

MRS. CITKOWICZ: Yes.

THE COURT: Under the circumstances do you feel that this is a fair and reasonable term?

MRS. CITKOWICZ: Yes.

Defendant reasonably relied on the expectation of the fixed amount for a stated duration and in consideration of the stability that afforded, she surrendered or waived any and all claims she had to plaintiff's pension as well as any claim to increased alimony from any additional earned or unearned income of the plaintiff. It would be inequitable now to grant plaintiff's request to reduce or to terminate the alimony obligation when it was such a critical component of the explicit bargain. Plaintiff knowingly and voluntarily accepted the agreement, with its benefits and detriments. On the beneficial side, plaintiff shielded any gains, earned or unearned, in the foreseeable future, but he knew he was incurring the detriment of paying defendant $150 per week for twenty-five years. When he decided to retire voluntarily and to accept a reduction in his income, plaintiff did so with an awareness of his obligation. We see no reason in equity why he should not remain bound by the undertaking he voluntarily accepted.

We next address the court's award of past due alimony arrears to defendant in the amount of $17,500. The doctrine of laches is "invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party." Knorr v. Smeal, 178 N.J. 169, 180-81 (2003). It is often described as allowing the courtroom doors to close on a claimant who has delayed "for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001) (emphasis added) (citing West Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 153 (1958)). "The core equitable concern in applying laches is whether a party has been harmed by the delay." Knorr, supra, 178 N.J. 181 (citing Laving v. Hackensack Bd. of Educ., 90 N.J. 145, 152-53 (1982)).

Here, plaintiff knew of his continuing obligation to pay alimony in a fixed amount for a fixed duration of time. Plaintiff knew he was not fulfilling that obligation during the weeks when he was not paid by his employer. Plaintiff gave him no cause to believe she was excusing or forgiving his obligation. Thus, plaintiff cannot assert any prejudice as to the timeliness of defendant's claim. Moreover, plaintiff comes before the court with unclean hands. He knew he was not complying with his responsibilities when he failed to make alimony payments in the summer months and after he voluntarily accepted the early retirement package. He has not offered any reason and we see none to terminate the obligation he purposefully negotiated and undertook.

Affirmed.

 

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A-4449-04T3

March 17, 2006