Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[137 NJSuper Page 478] Elizabeth C. Wertlake was divorced from Paul T. Wertlake on the ground of the latter's adultery, by judgment entered December 16, 1971. Applications were thereafter made by the parties for the enforcement and modification of a property settlement agreement annexed to the judgment. Mrs. Wertlake appeals from the whole of the order entered on June 5, 1974 after a plenary hearing, which, among other things, (1) "set aside in its entirety" the property settlement agreement, (2) made provision for the college education of the three children of the parties
and the support and maintenance of the two younger ones, (3) allowed plaintiff support for a period of six months from July 1, 1974, in the amount of $75 a week, and (4) declared defendant to be responsible for the full alimony under the agreement through June 30, 1974, less the alimony "for the seven month period of September 1, 1972, through March 31, 1974, while plaintiff was cohabiting with other men," and the sum of $3660 representing debts which defendant claimed he paid on behalf of plaintiff.
Dr. Wertlake*fn1 appeals from an earlier order, dated April 23, 1974, declaring invalid and unenforceable "the portion of the Final Judgment [sic] providing for arbitration."
We address ourselves first to the issue of whether the entire property settlement agreement should have been set aside. We conclude that it should not.
Following the plenary hearing the trial judge issued a letter opinion in which he said, in part:
The record is devoid of any motion or other application by defendant assailing the agreement itself. Initially, he sought to terminate the alimony because of the "'de facto' marriage of the plaintiff." He moved later to reduce the
alimony and support payments because of his "substantial decrease in earnings." While other matters were also included in the various motions, none pertained to any alleged unfairness or unjustness of the agreement.
The agreement is a detailed one, clearly evidencing that it was reached only after extensive negotiations between the parties and their attorneys. It comprehensively dealt with support of the wife (to be discussed in more detail hereinafter) and their children; the furnishing of hospital and medical insurance and the maintenance by the husband of disability insurance and substantial life insurance; provision for the college education of the children; a formula for the annual adjustment of support and alimony based upon the consumer price index established by the Federal Bureau of Labor Statistics; relinquishment by the husband of all personal property except for items listed in an attached schedule; filing of income tax returns and the taking of exemptions therein, and an additional allowance to the wife, not to exceed $2500, if the husband remarried and filed a joint tax return; custody of the children and visitation rights; indemnification of the husband against debts or obligations incurred by the wife; arbitration of "[a]ny financial claim, dispute or misunderstanding arising out of or in connection with this agreement * * *," and an undertaking by the husband to make a will leaving not less than one half of his estate to the children.
Paragraph 23 of the agreement states:
Both the legal and practical effect of this agreement in each and every respect has been fully explained to both parties by their respective counsel. The parties acknowledge that it is a fair agreement and is not the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon either of them, and they further agree that this agreement contains the entire understanding of the parties. * * *
It is noteworthy that the trial judge here also presided at the divorce hearing and signed the judgment, which contained a statement "that the property settlement agreement
entered into between the parties on December 13, 1971, and annexed hereto, is approved and made a part of the judgment."
Although defendant conceded below that when questioned about the agreement at the divorce hearing he said that he had read it, he understood it, he thought it was fair and he was satisfied with it after discussion with counsel, he said, with respect to "the clause as to the $2500 per year,"*fn2 that "I felt that at the time and at present that that was not a fair clause," "I felt * * * that in order to have a divorce I had no choice but to sign the agreement." He stated, further, that his accountants informed him that because of the difficulties the provision "was for all intents and purposes not a practical accomplishable thing."
The matter of the "relinquishment of assets"*fn3 was elicited during cross-examination of defendant on his understanding of and concurrence with the terms of the agreement. It produced this gratuitous comment by the trial judge:
I'm wondering if I shouldn't appoint a guardian for him at this stage and proceed to try and set the agreement aside, as being completely impossible of performance.
We see no justification whatever in the record for the trial judge's setting aside the agreement. Accepting for
the moment his concept that the two provisions referred to above were unfair and unjust -- although we find no support therefor in the record -- the disposition of defendant's assets under paragraph 10 is not in dispute here. As for defendant's obligation to pay an increased amount dependent upon any tax saving resulting from his filing a joint income tax return instead of a return as a single person, the record discloses only defendant's hearsay remark about difficulties in computing the amount to which plaintiff might be entitled. Moreover, the trial judge made no specific finding that the enforcement of this provision would be attended with such great hardship or manifest injustice that the court would refuse its aid. Cf. Schiff v. Schiff , 116 ...