On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FM-11-19476-88.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 22, 2008
Before Judges Reisner and Sapp-Peterson
Defendant Evelyn Medley appeals from an October 19, 2007 order denying her motion to reinstate the alimony obligation of her ex-husband, plaintiff John R. Medley, Sr., and for counsel fees. We affirm.
The record reflects the following undisputed facts. The parties were married in 1959 and were divorced on June 14, 1989. According to the final judgment of divorce, the parties agreed that plaintiff would pay defendant $200 per week in alimony; defendant concedes that this obligation was later reduced to $100 per week. In addition, plaintiff agreed to pay $100 per week in child support for the couple's then seventeen-year-old child "until her emancipation." He also agreed to pay half of the daughter's college expenses and her medical bills. Defendant was awarded the marital home.
On June 1, 2001, the parties both signed under oath an Application for Post-Disposition Hearing (settlement agreement). The settlement agreement recited that the couple had one child, born on March 15, 1972, and that they were requesting a hearing on their application for the following reasons:
MINOR NOW BEING OF AGE--CASE ORGINATED [sic] AS C/S PLA/NMR & DEF/NFR ARE SEEKING CONSENT ORDER FOR LUMP SUM PAYMENT OF $28,000 & CLOSING ALIMONY CASE.
On June 1, 2001, Judge LeWinn signed a document entitled "Consent Order Spousal Support," to which both parties had affixed their signatures. The consent order was also signed by a "Supervisor," presumably from the Family Part, since the document recited that the matter had "been brought to the attention of the Court through the Mercer County Family Case Management Office." The order provided that since "the parties [had] reached an agreement on the issue of SPOUSAL SUPPORT," the court was entering the following order:
THE DEFENDANT SHALL PAY THE PLAINTIFF A LUMP SUM OF $28,100 IN LIEU OF THE $100 MONTHLY PAYMENTS, THUS CLOSING THEIR CASE FOR CURRENT SPOUSAL SUPPORT, AS AGREED BETWEEN THE PARTIES AND SPECIFIED IN THE ATTACHED COMPLAINT.
More than six years later, on August 30, 2007, defendant filed a motion asking that the probation department "be ordered to resume collecting alimony from the Plaintiff . . . in the amount of $100.00 per week" plus arrears of $3900 as of September 1, 2007. In the motion, which was filed by her counsel, defendant did not contend that the $28,100 represented arrears that defendant owed as of June 2001. Rather, she claimed that the $28,100 had been a "pre-payment" of defendant's future obligations and that when it ran out, she could seek resumption of alimony.
In a certification in support of her motion, she contended that in June of 2001, plaintiff had "offered to make a lump sum payment of $28,100 to pre-pay his alimony obligation." She alleged that the "pre-payment" lasted "5.4 years" and had run out in "November of 2006." However, she provided no other proof to support this contention. Moreover, although defendant claimed that she counted on the alimony "to make ends meet," she neither contended nor provided evidence that she had made a demand in November 2006, or at any time prior to the filing of her August 2007 motion, that defendant resume paying alimony.
In opposition to the motion, plaintiff filed a pro se certification attesting that the parties had agreed that he would pay $28,100 in lieu of spousal support, that he had made the payment, and that the spousal support case had been closed. He attached his ...