MEHRVASH WEAVER v. RONALD WEAVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2901-09T1

MEHRVASH WEAVER,

Plaintiff-Respondent,

v.

RONALD WEAVER,

Defendant-Appellant.

___________________________

May 26, 2011

Submitted April 6, 2011 Decided

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-806-00.

Hollander, Strelzik, Pasculli, Hinkes, Vandenberg & Hontz, L.L.C., attorneys for appellant (Alan Strelzik, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Ronald Weaver appeals from the January 12, 2010 Family Part order denying his motion to terminate permanent alimony based on changed circumstances, and granting the cross-motion of plaintiff Mehrvash Weaver to temporarily modify alimony. We affirm.

The parties were married on April 20, 1979, and divorced on December 12, 2002. Their Property Settlement Agreement (PSA), which was incorporated into the final judgment of divorce, required defendant to pay $2900 per month for permanent monthly alimony for thirty-six months and $2800 per month thereafter. The parties based the alimony amount on plaintiff having and anticipating no gross earned income in excess of $10,000 per year and defendant earning a yearly $90,000 gross income with eligibility for bonus income.1 At the time of the divorce, plaintiff was sixty-two years old and defendant was fifty-two.

The PSA also contained the following provisions:

6. Husband's alimony obligation as set forth herein shall continue until such time as either party dies, Wife remarries and/or an Order of the Superior Court of New Jersey suspends or terminates alimony consistent with the existing New Jersey case and statutory law respecting the issue of alimony.

. . . .

9. Husband and Wife mutually waive any rights he/she may have under the Lepis decision to later argue that such subsequent change in circumstances rendered the amount of alimony either unfair or inequitable.

10. Husband and Wife each acknowledge that the case of Crews v. Crews has been explained to them and further acknowledge that neither will be able to maintain a lifestyle reasonably comparable to that which they enjoyed during their marriage. Notwithstanding that fact, each party is willing to accept the terms of the within Agreement and waive any right either may have to make a future application to increase support based on lifestyle.

The parties equally divided approximately $200,000 from the net proceeds of the sale of the marital home, and plaintiff received an additional $39,000 from defendant's share. The PSA also required the sale of a timeshare property located in Pennsylvania and the equal division of the net proceeds between the parties.2 Plaintiff also received $213,000 from defendant's retirement benefits. Thus, plaintiff received approximately $352,000 in equitable distribution, not including the Pennsylvania timeshare, which had not yet been sold.

Defendant became unemployed in October 2007. He received $26,085 in unemployment benefits in 2008. He claimed he began depleting other assets to pay plaintiff's alimony. In December 2008, defendant filed a motion to modify alimony. By order dated February 6, 2009, the trial judge temporarily reduced alimony to $1400 monthly, effective February 6, 2009, and ordered its reinstatement to $2800 monthly when defendant obtained employment.

In August 2009, defendant obtained employment with an annual salary of $60,000. Thereafter, pursuant to the February 6, 2009 order, the $2800 monthly alimony payment was reinstated. Relying on paragraph 6 of the PSA, in October 2009, defendant filed a motion to terminate alimony. He argued his financial circumstances had changed because his new annual income is $60,000, or less than one-half of his previous income, and his net worth was $88,954. Conversely, plaintiff's circumstances had improved "dramatically" in that she owns a home worth $250,000 with no mortgage, and has a $250,000 retirement account, making her net worth $500,000.

Plaintiff filed a cross-motion to temporarily modify alimony to $1867 monthly, effective the date of the filing of defendant's motion and until he obtained employment with a minimum $90,000 annual salary. Plaintiff certified that despite her entitlement to a greater amount of alimony, she agreed to the lesser amount because it would be permanent, that is, until she died or remarried. Also, she did not seek an increase in alimony when defendant's gross income increased to $145,656 in 2007; she was almost seventy years old, in poor health, had never worked, and relied exclusively on the alimony; and she used her portion of equitable distribution to purchase her home in Maryland without a mortgage.

The trial judge denied defendant's motion and granted plaintiff's cross-motion. The judge found that pursuant to provision 9 of the PSA, defendant waived his right pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), to seek a termination of alimony based on changed circumstances. Addressing the merits, the judge found that defendant's reduced income did not warrant termination of alimony and plaintiff's cross-motion to temporarily modify alimony was an equitable and reasonable solution. Accordingly, the judge temporarily suspended defendant's alimony obligation by one-third until he obtains employment earning a minimum of $90,000 annually, effective October 28, 2009. This appeal followed.

On appeal, defendant contends the trial judge erred in failing to terminate his alimony obligation because he demonstrated changed circumstances based on his reduced income, two years of unemployment that required him to deplete his assets, and plaintiff's better economic situation. Defendant also contends the judge erred in failing to order discovery and a plenary hearing. We disagree with both contentions.

"Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (alteration in original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis, supra, 83 N.J. at 148-49; Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960). "'[S]eparation agreements . . . are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.'" Dolce, supra, 383 N.J. Super. at 20 (alteration in original) (quoting Konzelman v. Konzelman, 158 N.J. 185, 194 (1999)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). "And while incorporation of a PSA into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).

"[G]iven the inherent equitable powers of the Family Part, support orders . . . 'may be revised and altered by the court from time to time as circumstances may require,' including an order resulting from [a PSA]." Dolce, supra, 383 N.J. Super. at 18 (quoting N.J.S.A. 2A:34-23); see also Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (indicating that even if the parties enter an agreement about alimony, a former spouse may seek judicial review or modification of the spousal support based on a showing of changed circumstances), certif. denied, 180 N.J. 354 (2004). "[A] PSA is 'subject to amendment by the court when changed circumstances make its enforcement inequitable[.]'" Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 535 (App. Div. 2004) (quoting Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div.), certif. denied, 165 N.J. 138 (2000)); see also Lepis, supra, 83 N.J. at 148-49. However, the party challenging the validity and enforceability of a PSA must "show that its terms, in light of changed circumstances, are unfair and unjust." Petersen, supra, 85 N.J. at 644. "[T]hat party must demonstrate that changed circumstances have substantially" impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157.

Thus, here, the court clearly maintained the authority to determine whether, in light of changed circumstances, enforcement of the waiver provision in the PSA is unfair and inequitable. In addition, defendant bore the burden of showing that changed circumstances have substantially impaired his ability to support himself.

Defendant has failed to establish that the waiver provision is unfair and inequitable and his reduced income has "substantially impaired" his ability to support himself. Defendant still has a $60,000 annual income and an $88,954 net worth. Unlike, plaintiff, he is working and not at the normal retirement age, and thus, has time to recoup assets.

Defendant has also failed to establish that plaintiff's economic circumstances have improved so "dramatically" that a termination of alimony is warranted. Plaintiff's investment of her share of equitable distribution in a home and retirement account allowed her economic position relative to defendant's to improve slightly. Accordingly, because there is no sufficient evidence of changed circumstances, discovery and a plenary hearing were not required. See Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

A

1 Defendant's annual gross income at the time of the divorce was approximately $140,000.

2 In his 2002 Case Information Statement, defendant valued the timeshare at $34,000. The record does not disclose whether it was ever sold.