On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-77-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012
Before Judges Carchman, Baxter and Nugent.
Plaintiff Sheryl Palmer appeals from the post-judgment Family Part order denying her motion to enforce part of the parties' alimony agreement incorporated into the Dual Final Judgment of Divorce (JOD), and awarding counsel fees to defendant Alexander Ceruzzi. The trial court determined that defendant did not breach the alimony agreement. The court also determined that plaintiff breached a provision in the alimony agreement that required the parties to attempt to resolve certain alimony disputes through negotiation before filing an application with the court. Based upon plaintiff's violation of that provision of the alimony agreement, the court awarded counsel fees to defendant.
We conclude the trial court correctly determined both that plaintiff failed to prove defendant breached the alimony agreement, and that plaintiff breached the provision requiring her to attempt to resolve disputes over alimony through negotiation before seeking judicial intervention. However, the parties' agreement included no provision for the payment of counsel fees by a prevailing litigant, and the trial court cited no other authority for awarding fees to defendant. Accordingly, we affirm that part of the Family Part order denying plaintiff's motion to enforce the alimony agreement, but reverse that part of the order awarding counsel fees to defendant.
Following a twenty-six-year marriage, the parties were divorced on September 15, 2005. The JOD incorporated the parties' agreement concerning equitable distribution, child support*fn1 , and alimony. The following provisions concerning alimony are relevant to this appeal: 8. The parties agree that effective September 12, 2005, the Defendant shall pay the Plaintiff the sum of $35,000 per annum as permanent alimony. This sum is based upon the Defendant having a base salary of $125,000 and the Plaintiff having a base salary of $32,000. It is recognized that the Plaintiff is temporarily without employment. However, the parties agree to enter into this arrangement with the anticipation that the Plaintiff will find employment that produces a comparable salary that she previously earned. Plaintiff reserves the right to make an application for a modification of the imputation of $32,000 per annum if she is unable to find employment within six months of the date of this Judgment. However, at the time of the application, the reasonableness of the imputation shall be reviewed by the court.
12. The parties agree that the Defendant's base salary shall be garnished in the amount of $1,346 per two weeks relative to his alimony obligation. As set forth above, there shall be an additional garnishment of $200 per two weeks relative to child support. This makes the total garnishment $1,546 per two weeks. This shall be effective September 12, 2005. The parties recognize that the account for garnishment is already created.
12.a. The parties also agree that the Plaintiff shall receive as additional taxable alimony a sum equal to 23.5% of the Defendant's future cash bonuses and cash patent payments. This shall commence with any cash bonuses and cash patent awards that Defendant receives from January 1, 2006 forward due to the fact that the Defendant was providing pendente lite support at a rate that considered his bonus receipt at approximately $68,000. In the event that Defendant's cash bonuses and cash patent awards decrease because of an increase in his base salary, the parties shall negotiate through counsel regarding the support provisions and garnishment. In the event that they are unable to resolve the issue, either is free to make an application to the Court.
b. The Defendant shall arrange for the Plaintiff's 23.5% to be garnished directly by Emcore and paid directly to the Plaintiff into an account that she specifies. This garnishment shall not occur via the relevant probation department. The Defendant shall provide proof of the cash bonus and cash patent awards with[in] seven (7) days of his receipt of the cash bonus and cash patent award.
c. The parties recognize that the Plaintiff shall not share in the Defendant's cash bonuses and cash patent awards to the extent that they exceed $68,000 gross, as that was the largest gross cash bonus and cash patent awards that the Defendant received during the course of the marriage. As such, the maximum amount of additional alimony that the Plaintiff may receive relative to the Defendant's receipt of cash bonuses and cash patent award[s] amounts to $15,980.
d. The Defendant shall directly provide his year-to-date pay stub and 1040 at year's end, with W-2 as a form of verification of the cash bonuses and cash patent awards.
e. By way of an example, if the Defendant receives one cash bonus of $15,000 in 2006, the Plaintiff shall receive a garnishment of $3,525 from the Defendant's net proceeds from the cash bonus payment. This amount shall be taxable to her as alimony.
15. In the event that either party brings an application for the modification of alimony in the future, their then-received incomes shall be a relevant factor for the Court's ...