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Anello v. Anello


March 23, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket FM-02-2163-01.

Per curiam.


Submitted December 15, 2008

Before Judges R. B. Coleman and Simonelli.

In this matrimonial matter, defendant Robert Anello (Robert) appeals from the December 19, 2007 order denying his motion for reconsideration of the July 6, 2007 order denying his motion for permanent alimony based on changed circumstances relating to certain provisions of the parties' Property Settlement Agreement (PSA), dated February 1, 2002. We reverse and remand for discovery and a plenary hearing to determine the amount of permanent alimony to be awarded to Robert.

Robert and plaintiff Linda Anello, n/k/a Linda Ottomanelli (Linda), were married on June 12, 1982. Two children were born of the marriage: "Amy"*fn1 , born July 24, 1987, and "Brian," born January 1, 1992. Linda filed a divorce complaint on March 6, 2001. A Dual Final Judgment of Divorce, entered on February 15, 2002, incorporated the PSA. The PSA provides for joint custody of the children, with Linda as "the parent of primary residence."

The PSA reflects the parties' agreement that Robert was entitled to permanent alimony. However, he waived that entitlement, and he gave Linda a greater share of equitable distribution, conditioned on his non-payment of child support. In this regard, the PSA specifically provides that:

[Robert] shall not pay to [Linda], for any child support based upon [Robert's] waiver of his claim for alimony to be paid by [Linda]. [Robert's] waiver of alimony is specifically conditioned upon the absolute non-modifiability [sic] of his responsibility to pay any child support except as to college expenses and certain non-recurring extra-ordinary events as set forth hereinbelow. The parties have considered both foreseeable and unforeseeable changes of circumstances, including but not limited to employment changes of the parties or the children and in so doing acknowledge that based upon the totality of all the terms contained in this Agreement that [Robert] shall not be required to pay child support, having pre-paid same through equitable distribution and alimony considerations herein.

Notwithstanding anything to the contrary contained herein, this provision shall be deemed a waiver of alimony by both parties, absolutely and forever. [Robert's] waiver is, however, expressly conditioned upon his non-payment of child support as set forth in Section 5 hereinabove. [(Emphasis added.)]

On June 21, 2006, Robert filed a motion, seeking residential custody of Brian, child support, alimony and counsel fees. By consent order, dated August 4, 2006, the parties agreed to transfer residential custody of Brian to Robert "without prejudice" subject to a social and diagnostic evaluation and best interest report. The parties also agreed to reserve the issues of child support and alimony, pending discovery.

Nothing further occurred until March 27, 2007, when Robert filed a pro se motion, seeking child support for Brian. Although Linda did not file a cross-motion for child support for Amy, the motion judge entered an order on May 14, 2007, ordering, among other things, that Linda pay weekly child support of $169 for Brian and that Robert pay weekly child support of $151 for Amy.

On June 4, 2007, Robert filed a pro se motion, again seeking alimony. He argued that his payment of child support for Amy constituted changed circumstances entitling him to alimony pursuant to the PSA. In support of his motion, Robert submitted a Case Information Statement (CIS) and tax returns. Linda, represented by an attorney, did not file a CIS or submit any financial information.

Without having the parties' complete financial records, and despite Robert's protest about Linda's failure to file a CIS, the motion judge denied the motion, finding that the parties' income had not changed since the time of the divorce judgment in 2002. The judge also found that Robert paid weekly child support of $151, that Linda paid weekly child support of $169, and that these child support obligations, along with the parties' respective incomes, "wipe each other out." Thus, the judge concluded that "[t]here is no change in the financial circumstances . . . [that] demonstrate that there should be any alimony paid[.]" Citing Pascale v. Pascale, 140 N.J. 583 (1995), the judge also concluded that Robert's alleged pre-payment of child support did not extinguish his obligation to pay child support for Amy because "the right to child support belongs to the child and cannot be waived by the custodial parent."

On July 25, 2007, Robert filed a pro se motion for reconsideration, seeking, among other things, permanent alimony, to terminate child support for Amy, to temporarily transfer custody of Amy, to permit discovery, and to require Linda to submit a CIS. Linda did not file any opposition or a CIS.

Represented by an attorney at oral argument, Robert argued that he need not show changed circumstances because under the PSA, he pre-paid child support by waiving alimony. Thus, he either pays no child support for Amy, or he pays child support and receives alimony. Relying on her prior ruling that the parties' incomes and child support obligations constituted "a wash," the judge denied the motion. She stated that no analysis of the statutory factors in N.J.S.A. 2A:34-23b was required because there was no prima facie showing of substantial changed circumstances.

On appeal, Robert contends that the judge: (1) failed to recognize that his waiver of permanent alimony was expressly contingent on his not paying child support, which he pre-paid by waiving alimony and by giving Linda a greater share of equitable distribution; (2) failed to consider the terms of the PSA; (3) overlooked his entitlement to permanent alimony; (4) failed to find that a change in Brian's custody constituted changed circumstances; (5) summarily decided the matter on disputed proofs without ordering a plenary hearing; and (6) improperly altered the terms of the PSA.

"We ordinarily defer to the factual findings of the trial court[.]" New Jersey Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotations and citations omitted). We should "intervene and make [our] own findings" only in situations in which "the trial court's conclusions are so "clearly mistaken" or 'wide of the mark'" that it results in a "denial of justice." Ibid. We also give deference to a trial judge's findings as to the issue of alimony, if those findings are supported by substantial credible evidence in the record as a whole. See Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007); Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998); Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998). With these standards in mind, we review Robert's contentions.

"An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent demonstration of 'fraud or other compelling circumstances,' should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)), certif. denied, 94 N.J. 600 (1983). "Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just."

Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)).

Separation agreements "'are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.'" Dolce, supra, 383 N.J. Super. at 20 (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004)). "And while incorporation of a PSA into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).

Although property settlement agreements are favored, such agreements cannot circumvent a parent's child support obligation. As the motion judge correctly concluded, "[t]he purpose of child support is to benefit children, not to protect or support either parent. Our courts have repeatedly recognized that the right to child support belongs to the child, not the custodial parent." J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007). See also Pascale, supra, 140 N.J. at 591; Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). "[T]he right to child support belongs to the child and may not be waived by a custodial parent." Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008) (quoting L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002)). See also J.S., supra, 389 N.J. Super. at 205 (citing Pascale, supra, 140 N.J. at 591). As such, "the parental duty to support a child may not be waived or terminated by a property settlement agreement." Patetta, supra, 358 N.J. Super. at 95.

Accordingly, we find no error in the judge's denial of Robert's motion to terminate child support for Amy. That obligation could neither be pre-paid nor waived by the PSA or otherwise.

We do not reach the same conclusion about Robert's motion for alimony. "[G]iven the inherent equitable powers of the Family Part, support orders . . . 'may be revised and altered by the court from time to time as circumstances may require,' including an order resulting from an agreement." Dolce, supra, 383 N.J. Super. at 18 (quoting N.J.S.A. 2A:34-23). However, the party challenging the validity and enforceability of a property settlement agreement "must show that its terms, in light of changed circumstances, are unfair and unjust." Petersen, supra, 85 N.J. at 644. "[A] PSA is 'subject to amendment by the court when changed circumstances make its enforcement inequitable[.]'" Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 535 (App. Div. 2004) (quoting Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div.), certif. denied, 165 N.J. 138 (2000)). See also Lepis, supra, 83 N.J. at 148-49.

Here, the parties agreed that Robert is entitled to permanent alimony. The PSA clearly and unambiguously provides that Robert waived alimony in exchange for non-payment of child support. Thus, Robert's payment of child support constitutes a changed circumstances making enforcement of the alimony waiver unjust and inequitable. Because sufficient evidence of changed circumstances exists, discovery and a plenary hearing are required to determine the amount of alimony to award Robert.

Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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