December 16, 2009
ELEANOR GREEN, PLAINTIFF-RESPONDENT,
ROBERT GREEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-989-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 30, 2009
Before Judges Reisner and Chambers.
The issue in this appeal is whether defendant Robert Green is entitled to reimbursement from a lump sum payment made to his former wife, plaintiff Eleanor Green n/k/a Eleanor Riga, in accordance with their Inter-spousal Agreement. He maintains that because she remarried, he is entitled to the return of a portion of the monies which the Inter-spousal Agreement characterized as a "partial buyout of Wife's entitlement to alimony." We agree with the trial judge that the Inter-spousal Agreement does not require the return of any portion of these monies and affirm.
A review of the record reveals the following salient facts. The parties were married on March 6, 1976. They had two children who were emancipated by the time of the divorce. Plaintiff was a homemaker for a significant portion of the marriage. However, she commenced working as a teacher in 1995, or 1996, but her income was substantially less than that of defendant.
In the divorce proceedings, commenced on November 4, 2004, both parties were represented by counsel. They entered into an Inter-spousal Agreement dated September 15, 2005, which was made part of the Final Judgment of Divorce dated that same day. At the time the Inter-spousal Agreement was reached, defendant was pending sentencing for embezzlement in federal court, and he was expected to be incarcerated commencing on September 23, 2005.
The Inter-spousal Agreement contained the following agreement with regard to alimony:
Based upon the circumstances in this case, specifically that Husband is to be sentenced on or about September 23, 2005, the parties acknowledge that he will have no earning ability during the period of time that he is incarcerated, although he may become gainfully employed subsequent to his release from prison. In light of Defendant's permanent alimony obligation based upon various factors and the length of the parties' marriage, in the event Husband earns an amount greater than $75,000.00 any year after his release from prison until the expected time of retirement at age 65, Wife shall have the right to make an application to the Court for an evaluation of an award of alimony to her. The parties agree that the disproportionate allocation of equitable distribution as set forth in this Agreement (See paragraph 3A below) constitutes a partial buyout of Wife's entitlement to alimony for the next three (3) years from the date of the entry of the Final Judgment of Divorce.
Paragraph 3A of the Inter-spousal Agreement provided that:
[T]he total amount of the net proceeds from the sale of the marital residence equals $426,221.64 . . . . Wife shall be awarded all of the net proceeds from the sale of the marital residence. The parties agree that the disproportionate allocation of equitable distribution constitutes a partial buyout of Wife's entitlement to alimony for the next three (3) years from the date of the entry of the Final Judgment of Divorce.
In accordance with the provisions of the Inter-spousal Agreement, plaintiff received the net proceeds from the sale of the marital home. Defendant thereafter learned that plaintiff had remarried in October 2006, during the three-year period. Defendant filed a motion in aid of litigant's rights on March 26, 2008, seeking various forms of relief, including reimbursement of alimony which he maintained he had overpaid. Specifically, he argued that the sum of $426,222 was designed to cover his alimony obligations for the three-year period commencing September 2005. He sought reimbursement for the alimony allocated to the two years during that portion of the three-year period in which plaintiff was remarried, a sum he calculated to be $142,074.*fn1
His request for reimbursement was denied by order dated May 9, 2008.
Defendant appeals the denial of his application for alimony reimbursement. He maintains that he is entitled to the reimbursement due to plaintiff's remarriage. He relies on N.J.S.A. 2A:34-25 and Sharpe v. Sharpe, 109 N.J. Super. 410 (Ch. Div. 1970), which provide that alimony awards terminate upon the recipient's remarriage.
At the outset, we note that spousal agreements are presumed valid and are enforceable provided they are "fair and just." Addesa v. Addesa, 392 N.J. Super. 58, 66 (App. Div. 2007) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). It is only where spousal agreements are unconscionable or the product of fraud, overreaching, or mistake that enforcement may legitimately be challenged. Ibid. "Voluntary accommodations regarding matrimonial differences are highly desirable and make a major contribution to the fulfillment of 'the strong public policy favoring stability of arrangements.'" Petersen v. Petersen, supra, 85 N.J. at 645 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Indeed, spousal agreements may condition the cessation of alimony on certain conditions, see Konzelman v. Konzelman, 158 N.J. 185 (1999) (enforcing provision to terminate alimony if supported spouse cohabits with an unrelated male), and they may allow alimony to survive remarriage, overriding N.J.S.A. 2A:34-25, see Ehrenworth v. Ehrenworth, 187 N.J. Super. 342 (App. Div. 1982). In addition, the court may not make a "new or better" agreement for the parties than the one they reached. Aarviq v. Aarviq, 248 N.J. Super. 181, 185 (Ch. Div. 1991) (quoting Commc'ns Workers of Am., Local 1087 v. Monmouth County Bd., 96 N.J. 442, 452 (1984)).
Our careful review of the record and the language in the Inter-spousal Agreement indicates that defendant's argument overlooks the basic fact that the net proceeds from the marital residence paid to plaintiff were not direct alimony payments. Rather as the Inter-spousal Agreement expressly states, the proceeds represented "a partial buyout of Wife's entitlement to alimony for the next three (3) years." The monies not only compensated her for the alimony for the three years defendant was expected to be imprisoned, but they also compensated her for the limitations placed on her ability to obtain alimony thereafter. Under the terms of the Inter-spousal Agreement, plaintiff was able to seek alimony payments after defendant's release from prison only if his income exceeded $75,000, and she would be unable to collect alimony payments once he reached the retirement age of sixty-five. The Inter-spousal Agreement placed no conditions on her receipt of those funds, such as remarriage.
As the trial court correctly noted:
[I]f it was the intention that . . . this was an absolute strict alimony payment, someone could have put a string on it and said, however, if there is remarriage, cohabitation, things of that nature, or it could have been just put into trust to be [paid] monthly to her. Since nothing was set forth in the agreement and since the case law in this state is that I cannot put the parties in [a] better position - make a better agreement than they have bargained for, defendant's request for reimbursement of overpayment of alimony is hereby denied.
We also note that the Inter-spousal Agreement was the result of arms length negotiations; during its negotiations and execution, both parties were represented by counsel; it was executed with formality; and both parties agreed at the time it was executed that its provisions were fair and just. It is not inequitable or unjust to enforce this provision.