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Paul C. Gallagher v. Maria Gallagher Altobello

April 19, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1109-09.

Per curiam.


Submitted January 31, 2012

Before Judges Carchman and Fisher.

Defendant Maria Gallagher Altobello appeals from a November 9, 2010 order of the Family Part denying her motion to vacate a property settlement agreement (PSA) that had been incorporated into a judgment of divorce (JOD) on November 19, 2009. The PSA, entered into by defendant and her former husband, plaintiff Paul Gallagher, included a mutual waiver of alimony as well as a provision commonly known as an "anti-Lepis[*fn1 ] provision." The motion judge concluded that defendant had failed to demonstrate any basis for vacating the agreement or the specific provisions in issue. We agree and affirm.

These are the facts adduced from the limited record before us.*fn2 Plaintiff and defendant were married in October 1989, and although no children were born of this marriage, both parties had children from prior relationships. The parties separated in August 2008. At the time of the divorce in 2009, plaintiff was a retired Navy Captain on pension-pay status. Defendant was employed by the Navy in a position that she assumed at approximately the same time she and plaintiff separated. The duration of the position was for a two-year period and was scheduled to terminate in November 2010. At the time of termination, defendant was earning approximately $93,000. Both parties were represented by counsel during the negotiation of the PSA. Although defendant details difficulties she encountered with her former attorney, defendant was represented by different counsel at the time of the execution of the PSA.

According to the certifications filed by the parties in support and in opposition to the motion to vacate, the PSA, dated November 19, 2009, the same day as the JOD, was negotiated over a period of time. The parties had limited assets with the primary asset being the marital home with an equity approximating $100,000 to 150,000. In addition, the parties had modest brokerage accounts as well as pensions.

Under the terms of the PSA, both parties waived alimony. As to equitable distribution, defendant retained all of the equity in the residence, the parties each maintained their vehicles, personalty was divided by a separate agreement, and defendant was awarded a twenty percent interest in plaintiff's pension. Defendant retained her pension.

The agreement contained the following provision addressing the issue of alimony:


Both parties expressly waive, discharge and release any and all rights or claims which he or she may have, now or thereafter, by reason of the parties' marriage, to alimony and alimony pendente lite. Further, each party agrees to be responsible for his or her own legal fees and expenses.

(A) NONMODIFIABILITY OF ALIMONY WAIVER -The parties hereto agree that the alimony waiver pursuant to the terms of this clause is non-modifiable in any respect by either party. The parties have envisioned and considered any and all foreseeable and unforeseeable events occurring to either of them. The parties have specifically considered increases or decreases in the cost of living; increases or decreases in their income; their loss or inability to secure employment; any prospective changes of employment; the subsequent acquisition or loss of assets by either of them; the dissipation, whether negligent or not, of the assets received by each of them as and for equitable distribution in this matter; and any other event or events which may or do change the quality of their economic life. Nevertheless, the parties agree specifically, that no [c]court shall have jurisdiction or power to modify this provision; both parties being familiar with and having been advised about their rights for modification based upon changed circumstances as set forth in the case of Lepis . . . , and its progeny.

The parties acknowledge that the rationale in the case of Lepis . . . has been explained to them in the sense that a substantial change of circumstances would permit either party to make an application to a [c]court of competent jurisdiction to modify the alimony waiver of the within Agreement. It is the intention of the parties hereto, that the rationale of the Lepis case not apply to any present or future interpretation of the reasonableness of the alimony waiver of this Agreement, for they intend, and they acknowledge, that the alimony waiver of this Agreement shall express their rights and obligations for now and for all time, despite substantial changes in their monetary circumstances.

(B) Specifically, both parties waive any right they may have under [Lepis] decision to later argue that subsequent changes and circumstances render the ...

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