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Schwartzman v. Schwartzman

Decided: May 7, 1991.

MAXINE SCHWARTZMAN, PLAINTIFF-RESPONDENT,
v.
MARVIN SCHWARTZMAN, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County.

Antell, Scalera and Keefe.*fn1The opinion of the court was delivered by Keefe, J.A.D.

Keefe

Defendant Marvin Schwartzman appeals from a post divorce judgment issued by the Family Part, denying his application for modification of a property settlement agreement (the Agreement) incorporated into a final judgment of divorce and denying him credit toward alimony arrears dating back to the commencement of plaintiff's employment. For the reasons stated herein, we affirm the judgment under review.

The order in question resulted from a motion filed by plaintiff Maxine Schwartzman to enforce alimony and property payout provisions of the Agreement. Defendant filed a cross-motion for an order modifying his alimony obligation and granting him relief from his property payout responsibility under the Agreement. In support of his cross-motion, defendant filed a certification indicating that the business (Ammco), which was the subject of the property payout provision of the Agreement, had failed, due to no fault of his own, and had been involuntarily

terminated. Thus, he argued that he should no longer be required to continue payments under the property payout provision and that his alimony obligation should be reduced in light of his reduced income resulting from the business failure. Further, defendant alleged that plaintiff intentionally neglected to indicate in her motion for enforcement that she was employed, an event which would reduce defendant's alimony obligations under the Agreement. Thus, he argued that plaintiff should be barred from any relief she requested.

The Family Part judge denied defendant's motion for relief from the property payment provisions of the Agreement. He fixed the arrears for alimony in the amount of $1,904.33 and further ordered a reduction, in futuro, of the alimony payment as the result of plaintiff's recent employment. He also ordered that alimony should be adjusted twice yearly to take into account plaintiff's future earnings.

The Agreement provided that defendant was to pay plaintiff the sum of $52,000 over a period of 20 years at $50 per week which sum represented payment in full of plaintiff's interest in defendant's business (Ammco). Defendant argues that, given the dissolution of Ammco and his changed financial condition, he should be relieved from his obligation pursuant to the property payout provision of the Agreement. He argues initially that an equitable distribution agreement, whether unincorporated or incorporated into a final judgment of divorce, is modifiable under the "changed circumstance" standard set forth in Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), applicable to modifications of alimony and/or support agreements. Alternatively, he argues that, pursuant to R. 4:50-1(f), he is entitled to relief from the property payout obligation, because enforcement of that aspect of the Agreement would be unjust, oppressive and inequitable, given his current financial status. We hold that Lepis does not apply to such agreements and, although, R. 4:50-1(f) affords an avenue of review, defendant's proofs are insufficient to afford him relief under that rule.

In Lepis, supra, the Supreme Court held that alimony and support agreements are always subject to review and modification pursuant to N.J.S.A. 2A:34-23. Id. at 145, 416 A.2d 45. To obtain a modification, the party requesting it must demonstrate "changed circumstances." Id. at 146-147, 416 A.2d 45. However, it is settled law in New Jersey that, unlike an award of alimony or support, property division or equitable distribution provisions may not be adjusted after divorce to reflect unanticipated changes in the parties' circumstances, because the finality of a property division precludes any modification based on such changed circumstances. Mahoney v. Mahoney, 91 N.J. 488, 498, 453 A.2d 527 (1982); Monte v. Monte, 212 N.J. Super. 557, 561, 515 A.2d 1233 (App.Div.1986); Rosen v. Rosen, 225 N.J. Super. 33, 36, 541 A.2d 716 (App.Div.1988), certif. denied 111 N.J. 649, 546 A.2d 558 (1988).

However, in Rosen, supra, we recognized that an application for modification of a property settlement agreement could be considered under R. 4:50-1(f). Id. at 36, 541 A.2d 716. Because the rule is designed to reconcile the strong interests in the finality of judgments and the need for judicial efficiency with the equitable notion that courts should avoid unjust results in any case, Baumann v. Marinaro, 95 N.J. 380, 392, 471 A.2d 395 (1984), relief is not available absent a showing of "exceptional and compelling circumstances." Id. at 393, 471 A.2d 395. Stated otherwise, relief can be obtained under the rule only if the party requesting it can demonstrate that enforcement of the order would be unjust, oppressive or inequitable. Quagliato v. Bodner, 115 N.J. Super. 133, 138, 278 A.2d 500 (App.Div.1971).

Such motions are addressed to the sound discretion of the trial judge whose discretion in such matters is broad. Court Investment Co. v. Perillo, 48 N.J. 334, 341, 225 A.2d 352 (1966). Thus, the judge's decision should not be overturned unless ...


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