DAVID WEINBERG VS. MARINA S. WEINBERG (FM-02-0582-12, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2613-18T4
DAVID WEINBERG,
Plaintiff-Appellant,
v.
MARINA S. WEINBERG,
Defendant-Respondent.
_________________________
Submitted January 30, 2020 – Decided February 26, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0582-12.
Louis J. Lamatina, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff David Weinberg appeals the January 11, 2019 order granting
defendant Marina Weinberg's motion to enforce plaintiff's obligation to pay
alimony and arrears, and denying his cross-motion to terminate payments. We
affirm.
I.
Plaintiff and defendant were divorced on December 8, 2011, after sixteen
years of marriage and one child. Their property settlement and support
agreement (PSA) was incorporated into their final judgment of divorce.
Relevant to the issues on appeal, plaintiff agreed in the PSA to pay limited
duration alimony of $836 per week for eleven years starting in December 2011
and ending in November 2022. Unless "modified or eliminated," defendant
waived the right to further alimony. The PSA provided if defendant were to
cohabit with an unrelated person or if she were to remarry, alimony would stop.
In 2017, plaintiff claimed that financial circumstances had changed and
filed a motion to terminate alimony. The parties reached an agreement on June
28, 2017, and the court entered a Consent Order that modified the PSA's alimony
provisions. Under the Consent Order, plaintiff paid alimony of $1811 per month
effective June 1, 2017, and defendant agreed not to "seek or attempt to obtain
any sums in excess of those sums specified." Both parties also agreed to:
waive their ability to modify alimony, . . . and this
waiver shall be final and not subject to review. This is
because the parties have considered various foreseeable
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events occurring to either or both of them, including but
not limited to the following:
....
11. Future divorce, remarriage or cohabitation.
They agreed not to modify alimony based on "[i]ncreases, decreases or
elimination of income[;]" loss of employment, bankruptcy, retirement, illness,
disability or incapacity of any kind whether partial or total; "[t]he availability
. . . of any retirement asset[s]" or "[r]emote or unforeseeable circumstances,
whether significant or not, the possibility of which is explicitly recognized and
waived."
Plaintiff admits he stopped paying alimony in October 2018, after he
learned defendant remarried, claiming—based on the 2011 PSA—that it
expressly provided for termination upon remarriage, and also based on N.J.S.A.
2A:34-25, which provides alimony "shall" terminate upon remarriage. Shortly
after this, defendant filed a motion to enforce litigant's rights and to hold
plaintiff in contempt for stopping alimony payments. Plaintiff filed a cross-
motion to confirm he "properly ceased paying alimony . . . upon [defendant's]
remarriage," requesting reimbursement of any alimony payments after July
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2018, when he alleged defendant began cohabiting with her current husband.1
Although plaintiff agreed the alimony amount could not be modified, he argued
he never agreed alimony could not be terminated.
On January 11, 2019, the trial court granted defendant's motion to enforce
litigant's rights and denied plaintiff's cross-motion to terminate alimony finding
the Consent Order was "clear" and contained "no ambiguity." The trial court
found "[b]oth parties waived their ability to modify alimony" and took into
consideration the happening of "foreseeable events . . . including future divorce,
remarriage or cohabitation." It concluded the Consent Order accounted for those
circumstances. Plaintiff was ordered to pay alimony arrears of $6483.38 at $400
per month.
On appeal, plaintiff argues his obligation to pay alimony terminated under
the prior PSA and under N.J.S.A. 2A:34-25 once defendant cohabited with and
then remarried her current husband. He argues it is unfair and contrary to the
public interest to enforce the anti-Lepis2 provisions in the Consent Order. In the
alternative, plaintiff requests we remand the case and require a plenary hearing
to determine the parties' intent when they entered into the Consent Order.
1
The cross-motion addressed other issues that are not raised on appeal.
2
Lepis v. Lepis, 83 N.J. 139 (1980).
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II.
On appeal, we defer to the fact-finding of the Family Part court because
of its "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare,
154 N.J. 394, 413 (1998). Fact-finding that is supported by substantial and
credible evidence in the record is upheld. N.J. Div. of Youth & Family Servs.
v. L.L., 201 N.J. 210, 226 (2010). However, the trial court's interpretation of
the law or its legal conclusions are reviewed de novo. See Manalapan Realty,
L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Plaintiff argues that in agreeing to the Consent Order, he did not agree to
act contrary to New Jersey law or the parties' PSA. N.J.S.A. 2A:34-25 provides
that "[i]f after the judgment of divorce . . . a former spouse shall remarry[,] . . .
permanent and limited duration alimony shall terminate as of the date of
remarriage . . . except that any arrearages that have accrued prior to the date of
remarriage . . . shall not be vacated or annulled." The statute requires prompt
notice of the remarriage to the former spouse who is paying permanent or limited
duration alimony. Ibid. Contrary to plaintiff's argument, however, this statute
does not require termination of alimony in all circumstances where there is a
remarriage.
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In Ehrenworth v. Ehrenworth, 187 N.J. Super. 342, 343-44 (App. Div.
1982), the plaintiff agreed to accept alimony payments, whether she remarried
or not, but after twelve years, the payments would cease. We noted that N.J.S.A.
2A:34-25, "was enacted in recognition of the strong public policy against
enforcing support orders on behalf of remarried former [spouses]." Id. at 347.
However, where the parties agreed contrary to this, we saw "no reason in public
policy why the agreement should not be enforced." Id. at 349. In Ehrenworth,
because the agreement was made in settlement of litigation, we concluded
"public policy require[d] that this agreement be enforced." Ibid. Thus, we
affirmed an order that held N.J.S.A. 2A:34–25 did not preclude enforcement of
an agreement to pay alimony after remarriage. Id. at 347-50.
In Morris v. Morris, 263 N.J. Super. 237, 238 (App. Div. 1993), the
plaintiff agreed to "relinquish[] all marital assets to the [defendant]."
Alimony—which was payable whether plaintiff remarried or cohabited—was
payable monthly for a fixed amount and fixed term after which a single lump
sum amount was to be paid by the defendant to the plaintiff. Id. at 239. The
parties agreed the settlement agreement was not modifiable for any reason
except for defendant's physical disability. Id. at 240. Defendant's financial
circumstances deteriorated significantly, and he sought to terminate alimony
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payments. Id. at 240-241. We denied termination, noting "the parties can with
full knowledge of all present and reasonably foreseeable future circumstances
bargain for a fixed payment or establish the criteria for payment to the dependent
spouse, irrespective of circumstances that in the usual case would give rise to
Lepis modifications of their agreement." Id. at 241. We concluded that while
parties "cannot bargain away the court's equitable powers . . . . [They] can
establish their own standards, and that these standards, where not unwarranted
under the circumstances, will be enforced by the court irrespective of the need-
based guidelines of Lepis, which are applied when there are no such standards."
Id. at 245-46.
We agree with the trial court the Consent Order was not ambiguous. The
express reference to remarriage in the Consent Order is what is significant. The
parties expressly agreed the alimony amount would be reduced significantly,
and that alimony could not be modified, enumerating specific grounds that
would preclude modification. One of the reasons that will not permit
modification is remarriage. It makes no sense to include a provision in the
Consent Order that prohibits modification if the alimony-receiving spouse
remarries, but that requires termination of the obligation under the same facts.
There is no reason to mention remarriage at all, if alimony must terminate by
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application of statute or if it terminated under the PSA. In this context,
"modification may include termination." Reese v. Weis, 430 N.J. Super. 552,
575 (App. Div. 2013) (citing Lepis, 83 N.J. at 151).
Plaintiff argues the anti-Lepis language should not be enforced because it
is unfair and contrary to public policy. He also argues the payment of alimony
is not needed because of defendant's 2016 bankruptcy discharge, sale of the
marital home and remarriage. We held in Ehrenworth that public policy was not
offended where the parties expressly agreed remarriage would not end alimony.
187 N.J. Super. at 349. Rather, public policy required enforcement of the
agreement because—just as here—the agreement was made to conclude
litigation. In our case, the parties agreed to a reduction in alimony and then not
to modify that amount for a host of expressly listed financial and non-financial
reasons. The Consent Order was a negotiated resolution of then pending
motions. Thus, in this context, it is not relevant whether defendant sold the
marital home, declared bankruptcy or has greater income than in 2011.
Plaintiff argues there should be a plenary hearing by a different trial judge
to ascertain the parties' intentions at the time when they signed the Consent
Order, and also because he alleges there is a dispute about their current financial
circumstances. However, a plenary hearing should be ordered "only where the
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affidavits show that there is a genuine issue as to a material fact, and that the
trial judge determines that a plenary hearing would be helpful[.]" Murphy v.
Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998) (quoting Shaw v. Shaw, 138
N.J. Super. 436, 440 (App. Div. 1976)). Here, no one disputes that defendant
remarried, or that the Consent Order expressly referenced remarriage. The
parties' financial circumstances are not relevant to the issue on appeal. There is
no reason for a plenary hearing.
Affirmed.
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