KENNETH SCHAEFER v. THERESA KAMERY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1032-11T1

KENNETH SCHAEFER,

Plaintiff-Respondent,

v.

THERESA KAMERY f/k/a

THERESA SCHAEFER,

Defendant-Appellant.

-

November 19, 2012

Submitted October 23, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County,Docket No. FM-18-0718-06.

Theresa Kamery, appellant pro se.

Kenneth Schaefer, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, defendant Theresa Kamery appeals from a September 8, 2011 order of the Family Part denying her motion to terminate her alimony obligation to her ex-husband, plaintiff Kenneth Schaefer. Defendant argues the trial court erred in denying her motion in light of plaintiff's remarriage. For the reasons that follow, we affirm.

I.

The parties married in 1986 and had two sons, now twenty-four and twenty-one years old. On January 29, 2007, the parties entered into a thirty-page property settlement agreement (PSA) addressing various issues, including equitable distribution, alimony, and child support. A dual judgment of divorce with the PSA attached was entered the same date. The PSA required defendant to pay plaintiff term alimony of $20,000 a year for five years and $10,000 in the sixth year. It further required plaintiff to pay defendant $236 per week in child support. The parties also agreed to equally share their children s post-education costs. Relevant to this appeal, the PSA contained the following anti-Lepis clause1:

Payment of alimony shall cease only upon the first to occur of: (1) the expiration of the alimony term set forth above; (2) Husband's death; or (3) Wife's death. The parties agree Wife s involuntary termination from her current employer or permanent disability preventing her continued employment shall be a changed circumstance justifying review of Wife s alimony obligation. No change in Husband's circumstances other than death shall constitute a changed circumstance affecting Husband's right to alimony.

Before making the application under review, defendant filed two other motions seeking to terminate and/or reduce her alimony obligation. Defendant filed her first motion at the end of 2009 after plaintiff started cohabiting with his then future spouse. The court denied defendant s motion by order of December 18, 2009, finding no basis for granting any relief to defendant in light of the clearly-worded anti-Lepis clause in the parties PSA and the lack of any evidence that enforcement of the PSA would be inequitable. In her second motion, defendant sought to terminate her alimony obligation based upon the fact that plaintiff remarried on September 4, 2010. For substantially the same reasons that the first motion was denied, a different judge denied the second motion by order of April 15, 2011.

Defendant filed her third motion in August 2011, renewing her request to terminate her alimony obligation, or in the alternative, to modify same. A third judge considered this motion and likewise found no basis for granting any requested relief, concluding:

In this case the parties bargained for an anti-Lepis protection. In fact, the Defendant bargained for and received an exception to the anti-Lepis provision by allowing her alimony modification under certain changed circumstances. However, the bargain struck by the parties provided that no changes in the Plaintiff s circumstances other than death [were] to constitute a changed circumstance affecting the husband s right to alimony.

The judge further noted that documents attached to defendant s motion indicated that the PSA was negotiated based upon a complex interrelationship of the terms of the agreement. . . . [A]ll of the support terms appear to have been negotiated in a totality so that modification of one may require a modification of other terms as well. In support of this conclusion, the judge referenced an email sent to defendant by her then attorney during negotiation of the PSA:

[I]f you look at the net amount resulting from payment of alimony and support, it is a wash. You pay $20,000 in alimony; deducting 30% (tax deductible to you) = $14,000. Ken is paying $12,220 in basic child support (not taxable to you, not deductible by him) plus [college tuition costs], which will equal the difference between the $14,000 and $12,220 amounts. If Ken wants to laugh all the way to the bank , let him; the joke s on him. He will be lucky to get a dime out of this deal.

The judge also considered and rejected defendant s contention that N.J.S.A. 2A:34-25, Termination of alimony, mandates termination of her alimony obligation based upon plaintiff s remarriage. The judge concluded that the statute did not require termination in a case where the parties had bargained for an anti-Lepis provision that clearly specified that no circumstance other than death would constitute changed circumstances affecting a husband s right to receive alimony.

II.

A court has the equitable authority to modify support obligations set forth in a property settlement agreement. Lepis, supra, 83 N.J. at 149. However, "[a]n application to modify an agreement is an exception, not the rule," as judges should contemplate that agreements entered into in good faith "shall be performed in accordance with their terms." Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.), certif. denied, 180 N.J. 354 (2004); see Avery v. Avery, 209 N.J. Super. 155, 160 (App. Div. 1986) (noting "there is a strong public policy favoring stability of consensual arrangements for support in matrimonial matters") (citing Lepis, supra, 83 N.J. at 141).

"As a practical matter, spousal agreements have great potential for ensuring the desired degree of stability in support arrangements. Such agreements have traditionally been more comprehensive and particularized than court orders, and thus more carefully tailored to the peculiar circumstances of the parties' lives." Lepis, supra, 83 N.J. at 153-54 (internal citations omitted). Accordingly, such agreements are "entitled to significant consideration." Glass, supra, 366 N.J. Super. at 372; see Ozolins v. Ozolins, 308 N.J. Super. 243, 249 (App. Div. 1998) (reversing the termination of alimony and finding that the judge erred in failing to "factor in the principle that the amount of alimony here was set originally by the parties themselves[,]" as such agreements ordinarily include trade-offs between the parties). Only where circumstances arise in which enforcement of the agreement becomes inequitable should an exception be made to the strict enforcement of the agreement's terms. Glass, supra, 366 N.J. Super. at 379.

Parties are free to enter into voluntary agreements departing from the general Lepis rule and establish their own standards by which they agree to be guided in cases involving "reasonably foreseeable future circumstances[.]" Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993). Anti-Lepis provisions, which purport to waive the right to future modification, are enforceable in certain limited circumstances. Ibid.

The party seeking modification has the burden of demonstrating such changed circumstances as would warrant relief from his or her obligation. When a supporting spouse brings an application for a downward modification, the central focus is on the supporting spouse's ability to pay. Miller v. Miller, 160 N.J. 408, 420 (1999). In determining whether a downward modification is appropriate, the court may consider the supporting spouse's income and assets. Id. at 422.

III.

Viewed broadly, the parties' negotiated agreement contains trade-offs that were freely and fairly negotiated, with the assistance of counsel on both sides. There is no evidence that the anti-Lepis provision was not knowingly and voluntarily negotiated. See Konzelman v. Konzelman, 158 N.J. 185, 203 (1999). Defendant makes no allegations of improprieties, fraud, overreaching, or coercion. See ibid. Moreover, the agreement was brought to the attention of the judge who found the parties entered into it freely and voluntarily.

In light of the high threshold required by the anti-Lepis provision, defendant failed to establish a prima facie case of changed circumstances. Defendant did not demonstrate any inability to support herself. At the time of the divorce, defendant s annual salary was $105,640. Her salary was $112,720 in 2010 and $116,200 in 2011.

There is no indication the court abused its discretion in giving effect to the anti-Lepis provision and denying defendant's application to adjust her alimony obligation. The provision setting the alimony obligation in permanent termswas enforceable, absent some unforeseen and very substantial change in circumstances. See Morris, supra, 263 N.J. Super. at 241.

1 Lepis v. Lepis, 83 N.J. 139 (1980).