NICHOLAS KULYK v. DANALYNNE KULYK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0882-08T30882-08T3

NICHOLAS KULYK,

Plaintiff-Appellant,

v.

DANALYNNE KULYK,

Defendant-Respondent.

__________________________

 

Submitted October 14, 2009 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1724-06A.

Nicholas Kulyk, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff, Nicholas Kulyk, appeals from the September 5, 2008 order of the Family Part denying his motion to terminate his alimony obligation to defendant, Danalynne Kulyk, as well as his request for counsel fees. Plaintiff also appeals from the August 22, 2008 order of the Family Part granting his application for a credit on his child support obligation because he contends that the amount of the credit, $7000, is in error. For the reasons that follow, we affirm.

The pertinent factual background may be summarized as follows. The parties were married on December 9, 1987, and have two children, a daughter born in 1987, and a son born in 1996. They were divorced by final judgment entered on November 13, 2006, which incorporated their settlement agreement of the same date. Pursuant to that agreement, plaintiff is obligated to pay defendant term alimony for fifteen years in the amount of fifty dollars per week. Child support for the two children was set at $250 per week.

During the spring of 2007, defendant encountered financial difficulties; she and the children moved in with plaintiff and the family lived together until approximately August 2007. During that time, it appears that plaintiff continued to pay alimony and child support to defendant.

At the same time, defendant advised plaintiff that the parties' daughter was enrolled at the University of Arizona. Defendant expressed a desire to relocate to Arizona with the parties' minor son.

Plaintiff contended that, in exchange for his consent to this request, defendant agreed to waive her claim to alimony as of October 2007. Plaintiff produced two statements signed by defendant, the first, dated September 13, 2007, reads: "I received alimony paid in full from Nicholas Kulyk and no more alimony is due from him." The second statement, dated October 15, 2007, contains the same language with defendant's notarized signature.

At some point, plaintiff filed a motion to terminate his alimony obligation, and the court scheduled a hearing on September 5, 2008, at which plaintiff appeared in person with counsel and defendant appeared pro se telephonically from Arizona. Plaintiff contended that defendant's two signed statements evinced her agreement to the quid pro quo of termination of alimony in exchange for his consent to her moving to Arizona with the parties' son. Plaintiff further contended that additional consideration for plaintiff's alimony waiver was his payment of $35,000 in debt on her behalf. Plaintiff's own documents, however, demonstrated that the debt in issue consisted of pre-divorce bills that were plaintiff's obligation to pay under their settlement agreement.

Defendant testified that the documents she executed were intended to reflect that plaintiff had made his alimony payments for 2007; however, she did not intend to waive alimony going forward. Rather, she stated that "[they] have never had a problem with him paying . . . [her] alimony. It was always the child support that he had a problem paying. And that was why the next payment date was written for the child support." The statement that "no more alimony is due" was "for the payments that he paid [her]."

In denying plaintiff's motion to terminate alimony, the trial judge stated:

[T]he [c]ourt is faced with two documents signed by the defendant in this case, indicating a statement that no more alimony is due from the [plaintiff].

Now, while that on its face indicates a waiver of alimony . . . , not so much a waiver as a statement of . . . no other required payments and it doesn't limit that to a specific timeframe. The [c]ourt was concerned as to having an understanding of all the circumstances surrounding these statements to determine the intent of the parties at the time that this statement was made. Not just the intent of the drafter and I recognize that the inferences should be taken against the person who drafted the document.

. . . .

On its face[,] I agree with the plaintiff, it looks like that to be the case. But I don't think after hearing the argument here and seeing the documents that have been presented that that was the case.

First of all, I note that while it was represented to me . . . that a lot of things were paid for by the plaintiff as . . . in some way [a] counterweight for giving up future alimony, looking at these bills [as has] been argued by the defendant, all these bills, with the exception of a payment for a . . . rental truck to go out to Arizona, are all pre[-]marital termination bills and there is a provision within the divorce agreement that the plaintiff was responsible for the payment of those pre[-]marital bills and it may have taken him a longer time to do that, but he certainly didn't make those payments as a consideration for a giving up by the defendant of her right to alimony.

. . . .

Also I note that the defendant has been very careful in order to accord the plaintiff credit for things that were actually paid and done, more specifically in the area of child support. And [she] certainly has committed herself to a[n] understanding that child support, up to August 1st of this year, was no longer due from the plaintiff and I think it's abundantly clear that to the extent that the plaintiff paid any child support up until . . . August the 1st, 2008, he is entitled to a credit for that.

But I don't think that there was a waiver of alimony here. The alimony waivers, considering all the context, w[ere] designed up and to the point that the waiver was entered into, but it was not for the future. To say so would be to indicate that for the few things that the plaintiff had done for the defendant and admittedly he did some things, like the prepayment for the transportation out to Arizona, that she was willing to give up substantially more and thousands of dollars more by way of alimony. I just don't think that reasonably that could be the case.

To the extent that it was done, I consider it to have been a mistake in the drafting and . . . no party should benefit by the mistake of another, especially when it's clear that that's a substantial mistake.

The judge also denied plaintiff's request for counsel fees because he had "misled the court in terms of what was paid or not paid in exchange for that termination of alimony . . . ."

On appeal, plaintiff presents the following argument for our consideration:

CLAIMANT ENTERED INTO A CONDITIONAL CONTRACT ON SEPTEMBER 13, 2007 WITH EX-WIFE, WHO IS RENEGING ON HER PART OF THE AGREEMENT. EITHER THE SEPTEMBER 13, 2007 CONTRACT SHOULD BE UPHELD OR REVERT BACK TO THE ORIGINAL DIVORCE DECREE OF NOVEMBER 13, 2006. CLAIMANT CANNOT BE HELD TO BOTH THE ONEROUS PART OF THE NOVEMBER 2006 DIVORCE DECREE (ALIMONY) AND SIMULTANEOUSLY TO THE ONEROUS PART OF THE SEPTEMBER 2007 AGREEMENT (GIVING UP VISITATION RIGHTS BY ALLOWING EX-WIFE TO TAKE SON OUT OF STATE).

Having considered this contention in light of the record and the controlling legal principles, we conclude that it is without merit. We affirm the order of September 5, 2008 substantially for the reasons stated by Judge Terence P. Flynn in his oral decision from the bench on that date, which we find "is based on findings of fact which are adequately supported by the evidence . . . ." R. 2:11-3(e)(1)(A). We add only the following comments.

We note initially that "[t]he scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (citation omitted). Furthermore, "matrimonial courts possess special expertise in the field of domestic relations. . . . Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 412-13.

With these principles in mind, we are satisfied that Judge Flynn properly weighed the countervailing views of the parties and determined that defendant had not waived her claim to alimony upon her relocation to Arizona.

Waiver is the voluntary and intentional relinquishment of a known right. An effective waiver requires a party to have full knowledge of h[er] legal rights and intent to surrender those rights. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. The party waiving a known right must do so clearly, unequivocally, and decisively.

[Knorr v. Smeal, 178 N.J. 169, 177 (2003) (citations omitted).]

We are satisfied that the trial judge properly concluded that plaintiff's proffered quid pro quo for defendant's alimony waiver -- i.e., consenting to her relocation to Arizona with the parties' son and the payment of certain expenses, including $35,000 in pre-divorce debt -- did not suffice to demonstrate a "voluntary and intentional relinquishment" by defendant of her ongoing right to alimony. Ibid.

Plaintiff asserts that if his alimony obligation is not terminated, defendant should be compelled to return to New Jersey with the parties' son to allow him to resume his visitation rights. We decline to order such relief as we have concluded no quid pro quo existed between those two factors. We note that extant orders of the Family Part address the issue of reunification between plaintiff and his son. The September 5, 2008 order expressly contemplates the appointment of a reunification specialist to assist the parties in resolving this situation. Counsel directly addressed this issue at oral argument and requested "as part of [his] application[,] to get this reunification therapy going . . . ."

Regarding the issue of the $7000 credit on plaintiff's child support obligation as set forth in the August 22, 2008 order, while plaintiff has included this order in his notice of appeal, he has failed to address it in his brief. Therefore, we deem this issue waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008).

 
Affirmed.

Plaintiff has not included his motion papers in his appendix. Therefore, we glean the factual background from the transcript of oral argument on his motion on September 5, 2008.

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A-0882-08T3

January 15, 2010