On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-11938-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Plaintiff John Hutchison appeals from the September 26, 2008 order from the Family Part denying his application to modify his alimony obligation to defendant Marilyn Hutchison, denying him a plenary hearing and awarding counsel fees to defendant. We reverse.
The parties were married in 1981 and divorced in 1996. Their November 6, 1996 judgment of divorce does not contain a separately executed property settlement agreement. Rather, the judgment incorporates a transcript of their in-court settlement hearing of April 15, 1996.
At that hearing, the parties were represented by counsel who both participated in placing the terms of their settlement on the record. Pursuant to those terms, plaintiff agreed to pay permanent alimony to defendant in the amount of $3000 per month for the first five years, and $2500 per month thereafter.
The following colloquy ensued between the judge and counsel:
[DEFENDANT'S ATTORNEY]: And Your Honor, it's also my understanding that if [defendant] should become employed she'll be entitled to earn whatever income she can earn without there being an application made [by plaintiff] to reduce the amount of alimony that's being paid.
[PLAINTIFF'S ATTORNEY]: And for the same reason, You Honor, since we are attempt[ing] to limit the parties and we've agreed that obviously . . . any increases by [plaintiff] in terms of his income should not be looked at as . . . changed circumstances.
[THE COURT]: Okay. So in effect you have an anti-[Lepis] . . . provision?
[PLAINTIFF'S ATTORNEY]: Yes, we discussed that.
[DEFENDANT'S ATTORNEY]: That's correct, Your Honor.
[PLAINTIFF'S ATTORNEY]: We understand what the case was [sic]. The only aspect that we would deem as changed circumstances would of course be the retirement of the plaintiff.
When plaintiff was questioned by his attorney as to his understanding of the settlement terms, the ...