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Auerbach v. Auerbach

January 5, 2009

ELYSE B. AUERBACH, PLAINTIFF-RESPONDENT,
v.
RUSSELL J. AUERBACH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-676-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 15, 2008

Before Judges Parker, Yannotti and LeWinn.

In this post-judgment dissolution matter, defendant Russell Auerbach appeals from the order entered on September 10, 2007, denying his application to terminate alimony based upon plaintiff's cohabitation, and from the order entered on November 16, 2007, denying his motion for reconsideration. For the reasons that follow, we reverse.

The parties were divorced on February 23, 1996, after almost twenty-four years of marriage. Three children were born of the marriage, all of whom were emancipated at the time of defendant's application to terminate alimony.

The parties executed a property settlement agreement (PSA) incorporated into their final judgment of divorce. Pursuant to the PSA, defendant agreed to pay limited duration alimony to plaintiff according to the following schedule:

(1) Commencing upon the first day of the month next following the date of execution of this Agreement, through and including April 1, 2001, HUSBAND shall pay to WIFE for her support and maintenance the sum of ELEVEN THOUSAND TWO HUNDRED ($11,200) DOLLARS per month on or before the first day of every month.

(2) Commencing upon May 1, 2001, through and including December 1, 2009, HUSBAND shall pay to WIFE for her support and maintenance the sum of SEVEN THOUSAND SEVEN HUNDRED ($7,700) DOLLARS per month, on or before the first day of every month.

The PSA provided for the termination of alimony as follows:

The terms of this Article shall continue until December 1, 2009 unless terminated by any one or more [of] the following:

(1) Death of WIFE;

(2) Remarriage of WIFE;

(3) Repudiation or modification of this Agreement by mutual consent of the parties, provided that said repudiation or modification is in writing ...


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