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Garofalo v. Kutch

Superior Court of New Jersey, Appellate Division

December 20, 2013

GLORIA GAROFALO f/k/a GLORIA KUTCH, Plaintiff-Respondent,
ROBERT J. KUTCH, Defendant-Appellant.


Argued December 3, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-579-08.

Michael H. Nieschmidt argued the cause for appellant.

Seth A. Kurs argued the cause for respondent (Massar & Kurs, P.A., attorneys; Mr. Kurs, of counsel and on the brief; Christopher G. Hewitt, on the brief).

Before Judges Alvarez and Ostrer.


In this post-judgment matrimonial matter, defendant Robert J. Kutch appeals from the Family Part's January 4, 2013, order denying, without an evidentiary hearing, his motion for various forms of post-judgment relief. The principal issue raised is the interpretation of the provision of the parties' Marital Separation Settlement Agreement (MSSA) that required defendant to bear various carrying costs of the marital home exceeding $2000 a month, for a fixed time period, while it was occupied by plaintiff and her children of a prior relationship. Defendant argued the provision created an alimony obligation. As a result, defendant argues the obligation terminated upon plaintiff's remarriage, see N.J.S.A. 2A:34-25, and plaintiff should be compelled to reimburse payments received from defendant after she remarried and began living with her new husband in the former marital home. The trial court rejected defendant's argument. Following our review of the record and the arguments on appeal, we reverse.


The parties were married on February 13, 1999. It was her second marriage and his first. They separated in December 2006. Defendant voluntarily vacated the family home in West Windsor, relocating to an apartment in Long Branch.

There were no children born of the marriage. Plaintiff had a son and daughter from her previous marriage. The daughter was still attending the local high school after the separation. Plaintiff's son was already attending college.

On March 27, 2007, the parties executed the MSSA.[1] Neither party was represented by counsel. Plaintiff, a high school graduate with no legal training, drafted the agreement, utilizing various sources. Although the parties agreed there were preliminary drafts, they were not produced, nor did either party identify points of negotiation.

Under the MSSA, the parties were to divide the net equity in the marital home, after it was sold. But plaintiff was permitted to remain in the home, and to enjoy exclusive possession, until at least October 2010. At that time, the parties agreed the house would be placed on the market. The parties selected that date to enable plaintiff's daughter to graduate from the local high school and begin college before the family home was sold.

Defendant had purchased the marital home in the spring of 1998 for $242, 000, while the parties maintained a pre-marital romantic relationship. Defendant utilized his personal assets for the downpayment of at least $100, 000.[2] Plaintiff alleged that during the marriage, defendant promised to place her on the deed. After the parties' separation, plaintiff renewed the request and defendant agreed; he stated he believed it would show good faith and enhance prospects for a hoped-for reconciliation. The March 2007 MSSA states that the parties jointly owned the marital home. However, defendant did not actually transfer the deed until April 2007. Shortly thereafter, defendant asserted, plaintiff informed him there would be no reconciliation.

The MSSA allocated the various house-related expenses between the parties. Plaintiff was responsible for utilities, including gas, water, electric, sewer, communications, and minor repairs under $500. Repairs over $500 were to be divided equally.

Defendant was responsible for the following monthly expenses: mortgage payments, $1098.98; real property taxes, $813.34; home owner's insurance, $64; association fees, $165; and umbrella insurance, $28 (roof expenses). Defendant's total obligation was initially $2169.18 a month. Defendant's obligation was set forth in three provisions, one entitled "REAL ESTATE" and subtitled "EXPENSES, MORTGAGE AND MAINTENANCE"; a second section entitled "DEBTS"; and a third entitled "SPOUSAL SUPPORT." The latter two itemized the amounts of the various components of defendant's obligation. We note that the agreement included a general provision that subheadings "exist for convenience and reference only, " and "should not be construed as part of the text . . . nor as having any meaning or creating any obligation or duty by or to any party hereto."

The "SPOUSAL SUPPORT" provision defined the amount and duration of defendant's ongoing obligation during plaintiff's occupancy:

A. Husband shall pay the Mortgage – 1098.82, municipal taxes $813.34, and Association fees $165.00, Homeowners Insurance $64.00, Umbrella Policy $28.00 and ADT Alarm Company $34.00.[3] The total amount monthly is $2203.16. This amount will be paid by Husband for the next forty-four Months (October 2010) or until the family residence is sold. The family residence will be put for sale in the lateral [sic] part of 2010.[4]

The same section included waivers of alimony. However, the waivers were not entirely mutual. Defendant waived rights to alimony unqualifiedly: "Husband hereby waives all past, present and future rights he might have [sic] otherwise have to require the Wife to provide alimony for support and maintenance." Plaintiff's waiver gave up any claim to support after the house was sold:

At the time of sale of the family residence, and when the settlement agreement is met, (which is that Husband and Wife will subtract balance of mortgage and other household debt from sale price of house and split the remaining balance between both Husband and Wife equally[)], Wife hereby waives all rights that she might otherwise have to require Husband to provide alimony for her support and maintenance after the family residence is sold in 2010.

[(Emphasis added).]

On the other hand, the provision included an additional sentence mutually waiving any present, as well as future, claim of support. "Similarly it is the intention of this agreement that neither party shall now or hereafter seek alimony or support from the other and that this mutual waiver of alimony is final." (emphasis added).

In a separate section entitled "DIVORCE" and subtitled "FINAL AGREEMENT; NO MERGER, " the parties apparently agreed that if circumstances changed before entry of divorce, they could seek alimony.

Nothing in this Agreement shall be construes [sic] as a relinquishment by either party of the right to prosecute or defend and [sic] suit for divorce in any court of proper jurisdiction. Other than upon a showing of substantially changed circumstances, neither party to any such action shall seek alimony or support contrary to the provisions of this Agreement.
[(Emphasis added).]

The clause, "alimony or support contrary to the provisions of this Agreement, " reflects that the agreement limited the award of alimony, but does not clearly provide that the MSSA completely barred it.

The same section also includes a paragraph that preserves the parties' agreement, whether or not they remarry. The paragraph states:

Should either of the parties hereto obtain a decree, judgement or order of separation or divorce in any other state, county or jurisdiction, each of the parties hereto hereby consents and agrees that this Agreement and all of its covenants shall not be affected in any way by such separation or divorce, and that nothing in such decree, judgement or order or further modification or revision thereof shall alter, amend or vary any term of this Agreement, whether or not either or both parties hereto should remarry, it being understood by and between the parties that this Agreement shall survive and shall not be merged or altered in any decree, judgement or order of separation or divorce.

When the parties entered the agreement, plaintiff earned between $20, 000 and $23, 000 a year as a school crossing guard. She admitted she would have been unable to remain in the marital home, and maintain the marital standard of living, without defendant's contribution to the roof expenses. Defendant was a licensed pharmacist who had worked at various supermarket pharmacies. He earned about $95, 000 a year.

The MSSA required defendant to maintain a pre-existing $350, 000 life insurance policy, with plaintiff as the named beneficiary, until the house was sold. Plaintiff explained this was intended to secure defendant's obligation (although it provided more security than necessary). The MSSA stated that plaintiff was responsible for paying the life insurance premium, although defendant asserted that he paid the premium some time after he moved out of the house.

In addition to dividing the equity of the home — without crediting defendant for his pre-marital contribution — plaintiff was to receive all the home furnishings. The MSSA provided that the parties would retain their respective retirement accounts. The record does not disclose the value of defendant's retirement accounts, or the value of the coverture portion. Plaintiff possessed a retirement account that defendant estimated ranged between $3000 and $5000. The coverture portion was not disclosed. Each party was to become responsible for their leases on their respective Nissan automobiles.

Plaintiff asserts that the MSSA obliged defendant to pay the identified roof expenses without regard to her cohabitation or remarriage. Within the agreement, she points to a general provision providing that the parties agreed they would be "able to engage in relationships, cohabitation or marriage." She also asserted that she included defendant's payment obligation within a section entitled "SPOUSAL SUPPORT" only because a person in the court clerk's office told her to do so. She noted that the ...

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