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Hutton v. Hutton

January 14, 2009

SUZZANE R. HUTTON, PLAINTIFF-RESPONDENT,
v.
GARY HUTTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1010-96-S.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 17, 2008

Before Judges Waugh and Newman.

Defendant Gary Hutton, the former husband of plaintiff Suzzane R. Hutton, appeals from an order denying the vacation of a settlement, eight years later, regarding permanent alimony of $400 per month after a marriage of approximately thirty-two years and denying the termination of the alimony payments based on plaintiff's alleged co-habitation and/or on defendant's changed circumstances. On appeal, defendant contends that he made a sufficient showing, entitling him to a plenary hearing on the issues he raised before the trial court, and that it was error not to hold a hearing with prior discovery. We disagree and affirm.

The trial judge addressed each of the issues raised by defendant with regard to defendant's contention that he never fully understood that he was required to pay permanent alimony.

The trial judge noted that permanent alimony was expressly covered by Judge Piscal at the September 19, 2000, hearing. The trial judge had this to say:

In fact, plaintiff contends that the transcript of the 9/19/00 hearing shows that defendant's allegations are completely false. For example, on page 5 plaintiff's attorney mentioned that the alimony was "permanent," and since defendant interrupted the proceedings shortly thereafter (page 6), which plaintiff suggests is an indication that he was listening. On pages 23 and 24, defendant's former attorney questioned defendant whether he heard the settlement placed on the record, understood all the terms, agreed to all the terms, and whether he had enough time to reflect upon those terms. Defendant's attorney also inquired whether defendant thought the terms were fair and reasonable, and whether he was entering into it voluntarily. The court finds that defendant's answer was "yes" to all of the above questions from his former attorney. Finally, plaintiff points out that Judge Piscal stated that this agreement would be "final" on page 22, and proceeded to ask defendant several questions. Specifically, the court notes the following excerpt from page 26:

"THE COURT: Are there any questions you have about what's going on here or what's happening? You know what we're doing?

MR. HUTTON: Yes, I know what's going on.

THE COURT: This is the final settlement..."

Judge Piscal then once again asked each party whether they understood, and each replied in the affirmative. Lastly, Judge Piscal asked who would provide him an order, and plaintiff's attorney responded that he would.

Plaintiff also refutes defendant's allegations that he would have understood the agreement better had it been in writing since the oral agreement made on the record in front of Judge Piscal was reduced to writing. Moreover, plaintiff provides proof that the form of order was originally transmitted to defendant on 10/27/00 for review before it was submitted on 11/14/00 to Judge Piscal for a signature under the 5 day Rule. Plaintiff notes that defendant had ample time to review this document as it was not signed and entered by the court until 11/28/00. Besides specifically listing defendant's alimony as "permanent," this order stated that the parties entered into the agreement voluntarily and fully accepted all provisions therein.

For the foregoing reasons, the court is not persuaded by defendant's argument that he did not fully understand the provisions of the settlement agreement reached orally on 9/19/00 and memorialized in an order dated 11/28/00. In fact, the court finds that the evidence overwhelmingly suggests that defendant knew his alimony obligation would be permanent, and defendant was ...


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