On appeal from the Superior Court, Chancery Division, Essex County.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
This matter comes before the court on an appeal from an order entered June 8, 1981 denying defendant's application to terminate alimony and vacate arrears.
The unusual circumstances giving rise to defendant's application must be set forth at length. Plaintiff and defendant were married on June 12, 1955. Four children were born of the marriage. In 1980 plaintiff's complaint and defendant's counterclaim for divorce were pending in the Superior Court, Chancery Division, Essex County. On March 13, 1980 the matter came on before the court for a conference on the issues of equitable distribution and alimony. Both parties were present with their respective attorneys. The record indicates that there had been extensive negotiations in court on that day and on other days. The record further shows that the parties had received advice from a certified public accountant. There had also been advice, apparently with respect to tax considerations, obtained from another attorney who was not an attorney of record. Ultimately the case was settled on March 13, 1980. The record makes it clear that the trial judge participated in the settlement negotiations. Indeed, both attorneys indicated that without the judge's assistance settlement would have been impossible.
After the matter was settled the terms of the settlement were placed on the record. The procedure followed was that plaintiff was sworn as a witness. Her attorney, in the presence of defendant, questioned her at length concerning the terms of the agreement. The following germane questions were asked of plaintiff and she gave the answers indicated:
Q Now, you understand that from the time the agreement is signed; and I think everything in the agreement takes place at the time of signing; formally executing this agreement; until then I guess you have the right to change it, but from the time this agreement is signed, for a period of 12 years you will receive each and every week the sum of $800.00 per week. That sum will be as enforced, alimony. You understand that you will receive that sum of $800.00 per week, whether you remarry or don't remarry, no matter what your situation, no matter what your circumstances. However, at the end of that 12-year period,
your husband's obligation as to support to you, will end. Under no circumstances will you be entitled to any money after that 12-year period. That $800.00 will be paid to you each and every week regardless of your circumstances; health, income, earnings, or anything else, do you understand that?
Q Do you understand that should you die you have the right to leave whatever remainder there might be of that $800.00 per week to your estate or designate any beneficiary you want, or should you die without a will, or die intestate, that it would go according to the law as contested [sic]. In other words, that's your money for those 12 years, payable as we stated. That is the extent of Doctor's obligation, do you understand that?*fn1
Q Now, isn't it also a fact that you've agreed that you will not come back into court for an increase or a decrease? This is the deal; this is what you're to receive as far as alimony is concerned. We, on the other hand, also expect that Doctor is going to pay this money. His deal is that he will pay this $800.00. He will pay it this year, and he will pay it for 12 years. He's not coming back into court. You two have made a deal, no matter what your income, no matter what your assets, you're going to get this money, and he's going to pay that, isn't that right?
A I understand. Yes, that's right.
There were, of course, other terms to the settlement. Significantly, plaintiff agreed to turn over to defendant whatever interest she had in a certain medical building. The parties also divided personal property.
After plaintiff's testimony was completed defendant testified. Rather than examining him at length, his attorney asked him if he understood the agreement as it had been stated and whether he agreed to be bound by it. He said he did understand it and would be bound. He also testified that he entered into the agreement freely, without coercion or duress, and that he had been represented by counsel. The proceedings on March 13, 1980 were terminated with the understanding that a written agreement would be prepared.
The written agreement was in fact prepared and signed by the parties. It was dated July 3, 1980. The agreement in ...