On appeal from Superior Court, Chancery Division, Cumberland County.
Allcorn, Morgan and Horn.
The parties to this appeal were married in 1945. In 1962 plaintiff wife was awarded a divorce from defendant. The judgment nisi , entered April 30, 1962, directed, among other things, that defendant pay to plaintiff $35 a week for her support and maintenance; $110 a week for the support and maintenance of three children of the marriage whose custody was awarded to plaintiff, and
E: that defendant pay to plaintiff, the sum of Thirty-five ($35.00) Dollars per week, until and including the first day of July, 1974, in compliance with Paragraph 3 of a certain agreement made and entered into between plaintiff and defendant dated December 27, 1961, which agreement was received and marked as an exhibit in this cause, and that defendant will in all other respects comply with and perform the covenants and provisions of said agreement.
"Paragraph 3 of a certain agreement" referred to a separation agreement entered into by the parties on December 27, 1961 wherein Paragraph 3 read:
3. The aforesaid lands and premises conveyed by HUSBAND to WIFE is subject to a mortgage made and delivered by them to The Howard Savings Institution, recorded in the Cumberland County Clerk's Office in Book 495 of Mortgages, Page 134&c., and as of December 1, 1961 there remained unpaid the sum of $11,456.13. HUSBAND has been paying the monthly installments required to be paid to the mortgagee, pursuant to the terms of said mortgage,
amounting to $139.63. Said monthly payments include interest, principal and one-twelfth (1/12) of the estimated annual taxes. It is the intention of the parties hereto that HUSBAND pay said mortgage so that WIFE will ultimately become the owner of said property free and clear of the lien of said mortgage, and save wife harmless from the payment thereof, and accordingly, HUSBAND undertakes and agrees to pay to WIFE the sum of $35.00 per week in lieu of said monthly payments on said mortgage. In the event WIFE should sell said property HUSBAND, in such event, undertakes and agrees to pay to WIFE the balance of the principal then remaining on said mortgage in installments of $35.00 per week.
Paragraph 1 of the agreement provided for the payment of $35 a week by defendant for plaintiff's support. There is no question but that the agreement was the product of each party's having "had independent legal advice by counsel of his and her own selection; each fully understands the facts and has been fully informed of their rights and liabilities" and each, it is recited, believed the agreement to be fair, just and reasonable.
In February 1963 an order amending the judgment nisi was entered. The amendment recited defendant's arrearage of $1,155 on the support payments. It reduced the payment of $35 a week for her support to $20. It further reduced the payment of $110 a week for the children's support to $60. However, it specifically provided that paragraph E of the initial judgment nisi "remain as heretofore, the same arising out of a contract between plaintiff and the defendant."
In 1968 the support provisions were again amended to reduce payments of $80 ($20 and $60) a week for the respective support of plaintiff and the children to an aggregate of $60 if defendant elected to permit a son, Warren, to be emancipated. The provisions of paragraph E of the initial judgment nisi were again specifically noted "to remain as heretofore."
On November 21, 1974 plaintiff moved for an order to compel defendant to pay arrearages of sums due to her, pursuant to the terms of the ...