DAVID WEINBERG v. MARINA S. WEINBERG

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2613-18T4

DAVID WEINBERG,

          Plaintiff-Appellant,

v.

MARINA S. WEINBERG,

     Defendant-Respondent.
_________________________

                   Submitted January 30, 2020 – Decided February 26, 2020

                   Before Judges Suter and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FM-02-0582-12.

                   Louis J. Lamatina, attorney for appellant.

                   Respondent has not filed a brief.

PER CURIAM

          Plaintiff David Weinberg appeals the January 11, 2019 order granting

defendant Marina Weinberg's motion to enforce plaintiff's obligation to pay
alimony and arrears, and denying his cross-motion to terminate payments. We

affirm.

                                       I.

      Plaintiff and defendant were divorced on December 8, 2011, after sixteen

years of marriage and one child.      Their property settlement and support

agreement (PSA) was incorporated into their final judgment of divorce.

Relevant to the issues on appeal, plaintiff agreed in the PSA to pay limited

duration alimony of $836 per week for eleven years starting in December 2011

and ending in November 2022. Unless "modified or eliminated," defendant

waived the right to further alimony. The PSA provided if defendant were to

cohabit with an unrelated person or if she were to remarry, alimony would stop.

      In 2017, plaintiff claimed that financial circumstances had changed and

filed a motion to terminate alimony. The parties reached an agreement on June

28, 2017, and the court entered a Consent Order that modified the PSA's alimony

provisions. Under the Consent Order, plaintiff paid alimony of $1811 per month

effective June 1, 2017, and defendant agreed not to "seek or attempt to obtain

any sums in excess of those sums specified." Both parties also agreed to:

            waive their ability to modify alimony, . . . and this
            waiver shall be final and not subject to review. This is
            because the parties have considered various foreseeable


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            events occurring to either or both of them, including but
            not limited to the following:

                  ....

            11. Future divorce, remarriage or cohabitation.

They agreed not to modify alimony based on "[i]ncreases, decreases or

elimination of income[;]" loss of employment, bankruptcy, retirement, illness,

disability or incapacity of any kind whether partial or total; "[t]he availability

. . . of any retirement asset[s]" or "[r]emote or unforeseeable circumstances,

whether significant or not, the possibility of which is explicitly recognized and

waived."

      Plaintiff admits he stopped paying alimony in October 2018, after he

learned defendant remarried, claiming—based on the 2011 PSA—that it

expressly provided for termination upon remarriage, and also based on  N.J.S.A.

2A:34-25, which provides alimony "shall" terminate upon remarriage. Shortly

after this, defendant filed a motion to enforce litigant's rights and to hold

plaintiff in contempt for stopping alimony payments. Plaintiff filed a cross-

motion to confirm he "properly ceased paying alimony . . . upon [defendant's]

remarriage," requesting reimbursement of any alimony payments after July




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2018, when he alleged defendant began cohabiting with her current husband.1

Although plaintiff agreed the alimony amount could not be modified, he argued

he never agreed alimony could not be terminated.

        On January 11, 2019, the trial court granted defendant's motion to enforce

litigant's rights and denied plaintiff's cross-motion to terminate alimony finding

the Consent Order was "clear" and contained "no ambiguity." The trial court

found "[b]oth parties waived their ability to modify alimony" and took into

consideration the happening of "foreseeable events . . . including future divorce,

remarriage or cohabitation." It concluded the Consent Order accounted for those

circumstances. Plaintiff was ordered to pay alimony arrears of $6483.38 at $400

per month.

        On appeal, plaintiff argues his obligation to pay alimony terminated under

the prior PSA and under  N.J.S.A. 2A:34-25 once defendant cohabited with and

then remarried her current husband. He argues it is unfair and contrary to the

public interest to enforce the anti-Lepis2 provisions in the Consent Order. In the

alternative, plaintiff requests we remand the case and require a plenary hearing

to determine the parties' intent when they entered into the Consent Order.


1
    The cross-motion addressed other issues that are not raised on appeal.
2
    Lepis v. Lepis,  83 N.J. 139 (1980).
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                                       II.

      On appeal, we defer to the fact-finding of the Family Part court because

of its "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare,

 154 N.J. 394, 413 (1998). Fact-finding that is supported by substantial and

credible evidence in the record is upheld. N.J. Div. of Youth & Family Servs.

v. L.L.,  201 N.J. 210, 226 (2010). However, the trial court's interpretation of

the law or its legal conclusions are reviewed de novo. See Manalapan Realty,

L.P. v. Twp. Comm.,  140 N.J. 366, 378 (1995).

      Plaintiff argues that in agreeing to the Consent Order, he did not agree to

act contrary to New Jersey law or the parties' PSA.  N.J.S.A. 2A:34-25 provides

that "[i]f after the judgment of divorce . . . a former spouse shall remarry[,] . . .

permanent and limited duration alimony shall terminate as of the date of

remarriage . . . except that any arrearages that have accrued prior to the date of

remarriage . . . shall not be vacated or annulled." The statute requires prompt

notice of the remarriage to the former spouse who is paying permanent or limited

duration alimony. Ibid. Contrary to plaintiff's argument, however, this statute

does not require termination of alimony in all circumstances where there is a

remarriage.




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      In Ehrenworth v. Ehrenworth,  187 N.J. Super. 342, 343-44 (App. Div.

1982), the plaintiff agreed to accept alimony payments, whether she remarried

or not, but after twelve years, the payments would cease. We noted that  N.J.S.A.

2A:34-25, "was enacted in recognition of the strong public policy against

enforcing support orders on behalf of remarried former [spouses]." Id. at 347.

However, where the parties agreed contrary to this, we saw "no reason in public

policy why the agreement should not be enforced." Id. at 349. In Ehrenworth,

because the agreement was made in settlement of litigation, we concluded

"public policy require[d] that this agreement be enforced." Ibid. Thus, we

affirmed an order that held N.J.S.A. 2A:34–25 did not preclude enforcement of

an agreement to pay alimony after remarriage. Id. at 347-50.

      In Morris v. Morris,  263 N.J. Super. 237, 238 (App. Div. 1993), the

plaintiff agreed to "relinquish[] all marital assets to the [defendant]."

Alimony—which was payable whether plaintiff remarried or cohabited—was

payable monthly for a fixed amount and fixed term after which a single lump

sum amount was to be paid by the defendant to the plaintiff. Id. at 239. The

parties agreed the settlement agreement was not modifiable for any reason

except for defendant's physical disability. Id. at 240. Defendant's financial

circumstances deteriorated significantly, and he sought to terminate alimony


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payments. Id. at 240-241. We denied termination, noting "the parties can with

full knowledge of all present and reasonably foreseeable future circumstances

bargain for a fixed payment or establish the criteria for payment to the dependent

spouse, irrespective of circumstances that in the usual case would give rise to

Lepis modifications of their agreement." Id. at 241. We concluded that while

parties "cannot bargain away the court's equitable powers . . . . [They] can

establish their own standards, and that these standards, where not unwarranted

under the circumstances, will be enforced by the court irrespective of the need-

based guidelines of Lepis, which are applied when there are no such standards."

Id. at 245-46.

      We agree with the trial court the Consent Order was not ambiguous. The

express reference to remarriage in the Consent Order is what is significant. The

parties expressly agreed the alimony amount would be reduced significantly,

and that alimony could not be modified, enumerating specific grounds that

would preclude modification.       One of the reasons that will not permit

modification is remarriage. It makes no sense to include a provision in the

Consent Order that prohibits modification if the alimony-receiving spouse

remarries, but that requires termination of the obligation under the same facts.

There is no reason to mention remarriage at all, if alimony must terminate by


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application of statute or if it terminated under the PSA.         In this context,

"modification may include termination." Reese v. Weis,  430 N.J. Super. 552,

575 (App. Div. 2013) (citing Lepis,  83 N.J. at 151).

      Plaintiff argues the anti-Lepis language should not be enforced because it

is unfair and contrary to public policy. He also argues the payment of alimony

is not needed because of defendant's 2016 bankruptcy discharge, sale of the

marital home and remarriage. We held in Ehrenworth that public policy was not

offended where the parties expressly agreed remarriage would not end alimony.

 187 N.J. Super. at 349. Rather, public policy required enforcement of the

agreement because—just as here—the agreement was made to conclude

litigation. In our case, the parties agreed to a reduction in alimony and then not

to modify that amount for a host of expressly listed financial and non-financial

reasons.   The Consent Order was a negotiated resolution of then pending

motions. Thus, in this context, it is not relevant whether defendant sold the

marital home, declared bankruptcy or has greater income than in 2011.

      Plaintiff argues there should be a plenary hearing by a different trial judge

to ascertain the parties' intentions at the time when they signed the Consent

Order, and also because he alleges there is a dispute about their current financial

circumstances. However, a plenary hearing should be ordered "only where the


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affidavits show that there is a genuine issue as to a material fact, and that the

trial judge determines that a plenary hearing would be helpful[.]" Murphy v.

Murphy,  313 N.J. Super. 575, 580 (App. Div. 1998) (quoting Shaw v. Shaw,  138 N.J. Super. 436, 440 (App. Div. 1976)). Here, no one disputes that defendant

remarried, or that the Consent Order expressly referenced remarriage. The

parties' financial circumstances are not relevant to the issue on appeal. There is

no reason for a plenary hearing.

      Affirmed.




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