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Kulyk v. Kulyk

January 15, 2010

NICHOLAS KULYK, PLAINTIFF-APPELLANT,
v.
DANALYNNE KULYK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1724-06A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2009

Before Judges Messano and LeWinn.

Plaintiff, Nicholas Kulyk, appeals from the September 5, 2008 order of the Family Part denying his motion to terminate his alimony obligation to defendant, Danalynne Kulyk, as well as his request for counsel fees. Plaintiff also appeals from the August 22, 2008 order of the Family Part granting his application for a credit on his child support obligation because he contends that the amount of the credit, $7000, is in error. For the reasons that follow, we affirm.

The pertinent factual background may be summarized as follows.*fn1 The parties were married on December 9, 1987, and have two children, a daughter born in 1987, and a son born in 1996. They were divorced by final judgment entered on November 13, 2006, which incorporated their settlement agreement of the same date. Pursuant to that agreement, plaintiff is obligated to pay defendant term alimony for fifteen years in the amount of fifty dollars per week. Child support for the two children was set at $250 per week.

During the spring of 2007, defendant encountered financial difficulties; she and the children moved in with plaintiff and the family lived together until approximately August 2007. During that time, it appears that plaintiff continued to pay alimony and child support to defendant.

At the same time, defendant advised plaintiff that the parties' daughter was enrolled at the University of Arizona. Defendant expressed a desire to relocate to Arizona with the parties' minor son.

Plaintiff contended that, in exchange for his consent to this request, defendant agreed to waive her claim to alimony as of October 2007. Plaintiff produced two statements signed by defendant, the first, dated September 13, 2007, reads: "I received alimony paid in full from Nicholas Kulyk and no more alimony is due from him." The second statement, dated October 15, 2007, contains the same language with defendant's notarized signature.

At some point, plaintiff filed a motion to terminate his alimony obligation, and the court scheduled a hearing on September 5, 2008, at which plaintiff appeared in person with counsel and defendant appeared pro se telephonically from Arizona. Plaintiff contended that defendant's two signed statements evinced her agreement to the quid pro quo of termination of alimony in exchange for his consent to her moving to Arizona with the parties' son. Plaintiff further contended that additional consideration for plaintiff's alimony waiver was his payment of $35,000 in debt on her behalf. Plaintiff's own documents, however, demonstrated that the debt in issue consisted of pre-divorce bills that were plaintiff's obligation to pay under their settlement agreement.

Defendant testified that the documents she executed were intended to reflect that plaintiff had made his alimony payments for 2007; however, she did not intend to waive alimony going forward. Rather, she stated that "[they] have never had a problem with him paying . . . [her] alimony. It was always the child support that he had a problem paying. And that was why the next payment date was written for the child support." The statement that "no more alimony is due" was "for the payments that he paid [her]."

In denying plaintiff's motion to terminate alimony, the trial judge stated:

[T]he [c]court is faced with two documents signed by the defendant in this case, indicating a statement that no more alimony is due from the [plaintiff].

Now, while that on its face indicates a waiver of alimony . . . , not so much a waiver as a statement of . . . no other required payments and it doesn't limit that to a specific timeframe. The [c]court was concerned as to having an understanding of all the circumstances surrounding these statements to determine the intent of the parties at the time that this statement was made. Not just the intent of the ...


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