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Deborah Ann Weiss v. Eric Weiss

February 10, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-803-08.

Per curiam.


Submitted January 10, 2012

Before Judges Carchman and Nugent.

Plaintiff Deborah Weiss appeals from an August 31, 2010 amended post-judgment order of the Family Part imputing income to defendant Eric Weiss in the amount of $45,000 and reducing defendant's child support obligation to $65 per week, retroactive to the filing date of the motion for modification -September 17, 2009. On appeal, plaintiff argues that defendant failed to demonstrate a substantial change in circumstances sufficient to warrant the modification; the date of retroactive application of the modification is in error, and the court erred in imputing income of $45,000, which was contrary to the terms of the parties' settlement agreement. We reject plaintiff's arguments and affirm.

We briefly set forth the facts. Following a six-and-one-half-year marriage, the parties were divorced by judgment of April 1, 2009. The judgment incorporated a hand-written property settlement agreement, which had been crafted following the parties' participation with a Blue Ribbon Early Settlement Panel. The relevant portions of the agreement provided that both parties were waiving alimony and the "[h]usband [was] to pay wife child support starting April 1, 2009 at the rate of $300/week . . . predicated upon husband's having imputed income of $175,000/year and wife having actual income of $60,000/year." In addition, defendant was responsible for sixty percent of the daycare expenses of the two children born of the marriage. Additional provisions imposed obligations on the parties for, among other things, retirement of various credit cards.

Finally, the proceeds from the sale of defendant's interest in the "Hammonton transaction" were allocated pursuant to the agreement, and defendant was to retain his LLC interests, as well as his rights in an asset identified as the "Richter litigation."

Within five months of the entry of judgment, defendant moved to modify his child support obligation based on a change of circumstances. Two primary considerations prompted the motion. First, the "credit crunch" and the absence of transactions in defendant's profession as a real estate syndicator led him to conclude that he would no longer earn $175,000, representing the imputed income set forth in the agreement. In addition, the Richter litigation, which purportedly generated substantial sums*fn1 for defendant, had resulted in a bankruptcy, rendering defendant's interest without any value.

The motion judge ordered a plenary hearing. At the hearing, defendant indicated that, although he had previously earned a substantial income, his income for 2007, 2008 and 2009 averaged approximately $45,000.*fn2 In addition, defendant's asset structure and interest in various partnerships had suffered from the collapse of the real estate market. As defendant proffered during the hearing, and as the judge observed in her findings of fact, the market value of defendant's various holdings were worth less than the outstanding mortgages on the properties.*fn3

In addition to finding that defendant had established changed circumstances under Lepis v. Lepis, 83 N.J. 139, 151 (1980), the judge concluded that the changed circumstances were not temporary but permanent.

There is no question that the assumptions made in the agreement as to defendant's imputed income were both incorrect. While his income during previous years had equaled or exceeded his imputed income, his income during the critical period of the pendency of the divorce and post-judgment never approximated the imputed income. Moreover, the value of his assets proved to be subject to severely adverse, economic conditions as well as the vicissitudes of the financial wherewithal of others, in this case, the Richter interests. In sum, the basis for generating income and the premise of the parties' agreement no longer existed. While we are wary of applications for modification submitted soon after the entry of a final judgment, we are satisfied that the judge in this case considered those circumstances in her ultimate determination.

"An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a 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.) (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. Peterson, 85 N.J. 638, 642 (1981)); see also Lepis, supra, 83 N.J. at 153; 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. 194 (1999)); see also Weishaus v. Weishaus, 180 N.J. 131, 143-44 (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).

There is no brightline rule to distinguish the duration of temporary changed circumstances from those which are long-term. Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). Rather, the determination of when changed circumstances have persisted long enough to warrant modification is left to the discretion of the court. Innes v. Innes, 117 N.J. 496, 504 (1990); Donnelly, supra, 405 N.J. Super. at 128; Larbig, supra, 384 N.J. Super. at 23; Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290, 304 (2005). Each motion to modify an alimony obligation "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law ...

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