When most parties enter into what is commonly referred to as a Property Settlement or Marital Settlement Agreement, they do so with the intention that this is a comprehensive agreement, resolving all the issues and a document that will govern their dealings with an ex-spouse going forward.

Oftentimes people are shocked to learn that some provisions in those agreements can be subject to modifications by a court.  Such is the case of the recent unpublished appellate division matter of Anello v. Anello, Decided March 23, 2009, A-2405-07T3.

These parties were married in 1982 and divorced in 2002 by way of a dual final judgment of divorce incorporating the terms of their Property Settlement Agreement. (“PSA”)  Two children were born of this marriage.  In the PSA entered into by the parties, the husband was entitled to alimony, to which there was a specific and detailed waiver of this right.  Husband waived the right to receive permanent alimony and gave wife a greater share of equitable distribution in exchange for a total and permanent waiver of a child support obligation for both children.  Husband did agree to contribute to college expenses and non-recurring extraordinary events for the children.  Husband’s waiver of permanent alimony was expressly conditioned upon his non-payment of child support.

Some four years after the agreement was entered into, husband filed a motion seeking custody of the son, child support, alimony and counsel fees.  The parties entered into a Consent Order resolving this motion, which reserved the issues of child support and alimony pending discovery.

Approximately 7 months later, husband filed another motion seeking child support for the son. This motion was granted, however the trial judge also ordered husband to pay child support for daughter, who remained with wife. About one month later, husband filed a motion seeking alimony. He argued that his obligation to now pay child support for daughter was a change in circumstances that entitled him to alimony per the terms of the agreement. This motion was denied as the trial judge found there was no change in the financial circumstances of the parties demonstrating a need for alimony to be paid.

One month thereafter, husband filed a motion for reconsideration and sought permanent alimony, termination of his obligation to pay child support for daughter, custody of daughter, discovery and for wife to file a CIS. This motion was also denied.

From there, husband filed his appeal arguing that the trial judge overlooked his entitlement to permanent alimony; did not properly read the PSA; failed to find that the change in custody of the son was a change in circumstances; improperly altered the terms of the PSA; and decided the matter without a plenary hearing.

In its opinion, the Appellate Court noted that trial judges are given deference to the issue of alimony, if those findings are supported by substantial credible evidence in the record as a whole. The Court also found that the parties could not waive the children’s right to support, thus making that portion of the PSA unenforceable. Therefore, there was no error in the trial court’s denial of husband’s application to terminate child support for daughter.

As to the issue of alimony, the Court found that the PSA clearly and unambiguously provided that husband waived his right to alimony in exchange for non payment of child support. Thus, his obligation to pay child support for daughter constitutes a change of circumstances making enforcement of the alimony waiver unjust and inequitable. The Court found sufficient evidence of changed circumstances and ordered discovery and a plenary hearing to determine the amount of the alimony award.

EDITOR’S NOTE:  This case re-affirms the basis tenet that agreements regarding support are modifiable  based upon changes of circumstances.  Moreover, agreements are integrated and when two provisions are clearly related to each other and one is modified, it may be possible and/or necessary to modify the other provision too.  ERIC S. SOLOTOFF

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