T.L.H. VS. M.H. (FM-20-0910-13, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4895-15T2
T.L.H.
Plaintiff-Appellant,
v.
M.H.,
Defendant-Respondent.
____________________________
Submitted August 30, 2017 – Decided November 14, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FM-20-0910-13.
Ronald A. Cohen, attorney for appellant.
Andrew M. Wolfenson, attorney for respondent.
PER CURIAM
Plaintiff appeals from the May 27, 2016 Family Part order
terminating defendant's alimony obligation pursuant to the
parties' Marital Settlement Agreement (MSA). We affirm.
After a twenty-year marriage, the parties divorced on July
11, 2013. An Amended Final Judgment of Divorce (JOD) was filed
on August 19, 2013, which incorporated an MSA requiring defendant
to pay alimony in the amount of $500 per week, effective September
1, 2013. The MSA provided that the alimony would "increase to
$700 per week when [plaintiff was] forced to leave the marital
home due to . . . foreclosure." In paragraph 5.2, the MSA provided
that alimony would terminate:
[U]pon the death of either party, or the
marriage or cohabitation of [plaintiff]. The
term "cohabitation[,"] in addition to its
meaning as construed by New Jersey courts,
shall also incorporate the scenario if
[plaintiff] should take up residence with any
family members (other than the children of the
parties) or friends.
Paragraph 8.1 of the MSA provided, in pertinent part:
In arriving at this agreement both [plaintiff]
and [defendant] had an opportunity to obtain
the assistance of separate legal counsel and
to be advised regarding the legal and
practical effects of this [a]greement. . . .
The parties have read this agreement in its
entirety and each of them has entered
voluntarily into this agreement. They have
consented to and assume all of the covenants
herein contained, having read the same and
having fully understood them. They both
acknowledge that it is a fair, just and
reasonable agreement and [is] not the result
of any fraud, duress, or undue influence
exercised by either party upon the other or
by any other person and that there have been
no representations, warranties, covenants, or
undertaking other than those as set forth
herein.
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On October 22, 2015, plaintiff was forced out of the former
marital home, due to a Sheriff's sale, and moved in with her
sister. When defendant ceased paying alimony, plaintiff moved to
enforce litigant's rights. In support of her motion, plaintiff
certified that she was paying her sister $800 per month to live
with her, which increased her monthly expenses. Plaintiff
explained "[t]he whole reason [she] negotiated an increase in
alimony after [she] left the former marital home [was] because
[she] knew [her] expenses would be higher."
Based on plaintiff's cohabitation with her sister, defendant
cross-moved to terminate his alimony obligation in accordance with
paragraph 5.2 of the MSA. Defendant averred "the whole reason
. . . [he] negotiated [p]aragraph 5.2 . . . [was] because [he]
expected that [plaintiff] would move in with her sister or another
family member." Plaintiff countered in a reply certification that
she disagreed with "defendant's definition of cohabitation[.]"
According to plaintiff, "living with someone and cohabiting with
them are two different things." Plaintiff admitted that she was
living in her sister's home; however, her understanding of
"cohabitation, for the purpose of alimony, mean[t] that someone
else [was] supporting [her] or significantly contributing to [her]
support[,]" which was not the case. Plaintiff certified that she
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was unable to work and had applied for disability benefits, but
was denied because of her receipt of alimony.
Plaintiff sustained injuries after a fall, which resulted in
the adjournment of the plenary hearing on the motions. Over the
next three months, conflicting schedules thwarted reaching an
agreement on a new date. As a result, on May 27, 2016, the trial
court granted defendant's cross-motion on the papers. In the
statement of reasons accompanying the May 27, 2016 order, the
court acknowledged that "[w]hile plaintiff [was] not cohabitating
in the legal sense of the word as defined by case law, . . . she
[was cohabitating] for purposes of the parties' own [MSA]." The
court noted that a MSA was favored by courts, and was "essentially
a contract, which [was] to be enforced as written, absent a
demonstration of fraud or other compelling circumstances."
The court rejected plaintiff's argument, pointing out that:
Plaintiff does not argue that she did not
understand the terms of the MSA or that there
was some level of fraud, duress or undue
influence involved, she merely argued that her
cohabitation is not cohabitation at all under
current case law. While [p]laintiff is
correct in her assertion that residing with
her sister does not rise to the level of
cohabitation under Konzelman [v. Konzelman,
158 N.J. 185 (1999)], her own MSA carves out
an express addition to the meaning of
cohabitation, which she seemingly chooses to
ignore.
The court concluded:
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The parties' MSA is explicit and unambiguously
includes taking up residence with a family
member under the definition of cohabitation,
as [p]laintiff admits she has. It is
uncontroverted that [p]laintiff resides with
her sister, who is clearly a family member,
which would then trigger the cohabitation
provision of the MSA. Additionally, the MSA
includes a provision outlining that the
agreement was entered into freely and
voluntarily and without coercion. It is clear
that while [p]laintiff's residing with her
sister does not equate to the Konzelman
definition of "cohabitation," the parties
voluntarily expounded the definition for
purposes of their own agreement. Plaintiff
never once in her moving papers certifies that
she was unaware of the provision, did not
understand the meaning, or signed the
agreement under duress. The [c]ourt will not
venture to modify the parties' agreement,
merely because [p]laintiff has now found it
to [be] inconvenient. Of note, [p]laintiff
did certify that she was denied disability
benefits as a result of her receipt of
alimony, therefore, the impediment of alimony
will be removed, and [p]laintiff will be able
to collect disability benefits leaving her in
a similar position as she would have been in
if she had continued to receive alimony
payments. The [c]ourt finds that [p]laintiff
is cohabiting under the parties' MSA,
therefore, in accordance with same,
[d]efendant's alimony obligation is
terminated.
This appeal followed.
On appeal, plaintiff argues that the court erred in
"[d]ispensing with the plenary hearing" because "[a] genuine issue
of fact existed . . . as to the intent of the parties in crafting
certain language in the [MSA]." Plaintiff also argues that the
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court erred in interpreting the cohabitation clause so as to
dispense with the requirement to examine "the economic
circumstances[.]" We disagree.
"Settlement of disputes, including matrimonial disputes, is
encouraged and highly valued in our system." Quinn v. Quinn, 225
N.J. 34, 44 (2016). "[I]t is 'shortsighted and unwise for courts
to reject out of hand consensual solutions to vexatious personal
matrimonial problems that have been advanced by the parties
themselves.'" Ibid. (quoting Konzelman, supra, 158 N.J. at 193).
"Therefore, 'fair and definitive arrangements arrived at by mutual
consent should not be unnecessarily or lightly disturbed.'" Id.
at 44-45 (quoting Konzelman, supra, 158 N.J. at 193-94).
"Moreover, a court should not rewrite a contract or grant a better
deal than that for which the parties expressly bargained." Id.
at 45.
"An agreement that resolves a matrimonial dispute is no less
a contract than an agreement to resolve a business dispute" and
"is governed by basic contract principles." Ibid. "Among those
principles are that courts should discern and implement the
intentions of the parties" and not "rewrite or revise an agreement
when the intent of the parties is clear." Ibid. "Thus, when the
intent of the parties is plain and the language is clear and
unambiguous, a court must enforce the agreement as written, unless
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doing so would lead to an absurd result." Ibid. "To the extent
that there is any ambiguity in the expression of the terms of a
settlement agreement, a hearing may be necessary to discern the
intent of the parties at the time the agreement was entered and
to implement that intent." Ibid. (citing Pacifico v. Pacifico,
190 N.J. 258, 267 (2007)).
Undoubtedly, "'the law grants particular leniency to
agreements made in the domestic arena' and vests 'judges greater
discretion when interpreting such agreements.'" Id. at 45-46
(quoting Pacifico, supra, 190 N.J. at 266). Nevertheless, "the
court must discern and implement 'the common intention of the
parties' and 'enforce [the mutual agreement] as written[.]'" Ibid.(citations omitted) (first quoting Tessmar v. Grosner, 23 N.J.
193, 201 (1957); then quoting Kampf v. Franklin Life Ins. Co., 33
N.J. 36, 43 (1960)). "A narrow exception to the general rule of
enforcing settlement agreements as the parties intended is the
need to reform a settlement agreement due to 'unconscionability,
fraud, or overreaching in the negotiations of the settlement.'"
Id. at 47 (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).
In Quinn, supra, our Supreme Court considered a spouse's
receipt of alimony under a marital settlement agreement, and the
circumstances in which alimony may be terminated. The Court
acknowledged that "[i]n the absence of an agreement that permits
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the obligor former spouse to cease payment of alimony, this Court
has permitted a modification of alimony, including cessation of
alimony, in the event of post-divorce cohabitation 'only if one
cohabitant supports or subsidizes the other under circumstances
sufficient to entitle the supporting spouse to relief.'" Id. at
49 (quoting Gayet v. Gayet, 92 N.J. 149, 153-54 (1983)).
"On the other hand, when the parties have outlined the
circumstances that will terminate the alimony obligation, [the]
Court has held that it will enforce voluntary agreements to
terminate alimony upon cohabitation, even if cohabitation does not
result in any changed financial circumstances." Id. at 50. In
so doing, the Court reiterated its declination "to import the
Gayet economic dependence or reliance rule when the parties have
agreed in a marital settlement agreement that cohabitation is an
alimony-termination event." Id. at 55. The Court summarized its
holding thusly:
[A]n agreement to terminate alimony upon
cohabitation entered by fully informed
parties, represented by independent counsel,
and without any evidence of overreaching,
fraud, or coercion is enforceable. . . . When
a court alters an agreement in the absence of
a compelling reason, the court eviscerates the
certitude the parties thought they had
secured, and in the long run undermines this
Court's preference for settlement of all,
including marital, disputes.
[Ibid.]
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Here, there were no compelling reasons to depart from the
clear, unambiguous, and mutually understood terms of the MSA.1 The
agreement was voluntary, knowing and consensual, and the alimony-
termination event upon cohabitation was fair under the
circumstances of the case. We agree with the court's finding
that, while residing with her sister does not rise to the level
of cohabitation under Konzelman, supra, plaintiff understood that
residing with her sister was an event that could trigger
termination of alimony under the description of cohabitation
specified in her MSA. In our view, the explicit terms in the MSA
obviated the need for a plenary hearing. Accordingly, we find no
error in the court deciding the cross-motion on the papers.
Affirmed.
1
On September 10, 2014, the Legislature enacted N.J.S.A. 2A:34-
23, which provides that "[a]limony may be suspended or terminated
if the payee cohabits with another person." L. 2014, c. 42, § 1.
The Legislature clarified that this law "shall not be construed
either to modify the duration of alimony ordered or agreed upon
or other specifically bargained for contractual provisions that
have been incorporated into: a. a final judgment of divorce or
dissolution; b. a final order that has concluded post-judgment
litigation; or c. any enforceable written agreement between the
parties." Id. § 2. Because this law was enacted after the MSA
in this case was entered, it does not govern this case, and, in
any event, the terms of the MSA apply. See Quinn, supra, 225 N.J.
at 51 n.3.
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