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Kelly v. Arato

November 17, 2009

MAUREEN KELLY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
PETER ARATO, JR., DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-189-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 28, 2009

Before Judges Fisher, Sapp-Peterson and Espinosa.

In reviewing a post-judgment order, we consider, among other things, whether the judge correctly concluded that defendant should be required to pay alimony despite his exwife's remarriage. In reversing, we reject the argument that the parties' property settlement agreement (PSA), which makes no mention of remarriage, conclusively establishes that remarriage does not terminate the alimony obligation. Instead, we remand for an evidentiary hearing to establish the parties' intentions.

I.

The parties were married in 1985. They had two children, who are currently twenty-three and nineteen years of age. The judgment of divorce, which incorporated the PSA, was entered on January 2, 2004.

The PSA contains the parties' stipulations that plaintiff Maureen Kelly would maintain custody of the children subject to defendant Peter Arato's visitation rights. Defendant agreed to make monthly payments to plaintiff of $100 in alimony and $3100 in child support. The parties also agreed that defendant would pay at least half of the children's college education.

Plaintiff remarried in June 2004, approximately six months after entry of the judgment of divorce. Defendant immediately stopped paying alimony. It was not until four years later, when defendant's attorney wrote of the need to modify the child support obligation based on one of the children's attendance at an out-of-state college, that plaintiff complained of the cessation of alimony and asserted an intention to seek enforcement of the PSA's alimony provisions.

After the parties were unable to informally resolve their differences, defendant moved in July 2008*fn1 seeking, among other things, an order declaring that alimony terminated when plaintiff remarried in June 2004 and for an order downwardly modifying the child support obligation. Plaintiff cross-moved seeking, among other things, a continuation of alimony and child support in the amounts set forth in the PSA and the payment of the alimony defendant failed to pay after plaintiff's remarriage. By order entered on October 3, 2008, the judge denied defendant's motion regarding the alimony and child support obligations and denied plaintiff's motion for the payment of the alimony that accrued from the time of her remarriage until the judge's decision.

Defendant appealed, arguing that the judge erred with regard to her holdings on both alimony and child support. He contends, in essence, that: the PSA did not require that he pay alimony after plaintiff's remarriage or, at the very least, the PSA's terms are ambiguous in that regard and an evidentiary hearing was required to ascertain the parties' intentions; and the college attendance of one or both children, as well as other circumstances, warranted a reassessment of the child support obligation. Plaintiff cross-appealed, arguing that the judge erred in refusing to order defendant to pay the alimony arrears and her counsel fees.

II.

The Legislature has declared that an alimony obligation "shall terminate" upon the remarriage of the supported spouse. N.J.S.A. 2A:34-25. This statute memorializes "the strong public policy against enforcing support orders on behalf of remarried former [spouses]." Ehrenworth v. Ehrenworth, 187 N.J. Super. 342, 347 (App. Div. 1982). Despite the public policy, we have recognized that parties may contract for the continuation of alimony beyond the date of a supported spouse's remarriage. Id. at 349. Accordingly, we must initially turn to the PSA to consider whether the parties unambiguously agreed that defendant would remain obligated to pay alimony following plaintiff's remarriage.

The parties included in their PSA a provision that declares alimony would continue "for the natural lives of the parties, unless terminated by any one or more of the following" and then lists two events: repudiation or modification of the PSA by the written "mutual consent of the parties"; and defendant's death. Plaintiff argues that because remarriage is not included as an event that would terminate alimony the parties agreed it would continue. On the other hand, defendant argues that the parties did not have to expressly provide for what the Legislature ...


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