Savarese v. Corcoran

709 A.2d 829, 311 N.J. Super. 240, 1997 N.J. Super. LEXIS 553
CourtNew Jersey Superior Court Appellate Division
DecidedApril 30, 1997
StatusPublished
Cited by13 cases

This text of 709 A.2d 829 (Savarese v. Corcoran) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Savarese v. Corcoran, 709 A.2d 829, 311 N.J. Super. 240, 1997 N.J. Super. LEXIS 553 (N.J. Ct. App. 1997).

Opinion

HAYSER, J.T.C., temporarily assigned.

Defendant brought a motion seeking, among other things, an increase in child support for the two children of the marriage. The motion was denied on January 31, 1997, the court having found that the anti-Lepis clause inserted in a post judgment agreement between the parties was valid. Thereafter, defendant filed the present motion for reconsideration.

On November 10, 1986, a Final Dual Judgment of Divorce was entered. Provision was made for the sale of the marital home, alimony and child support under the Property Settlement Agreement (PSA) dated October 27, 1986 and incorporated therein.

Under Paragraph 7 of the PSA, the marital residence was to be listed for sale in or about March, 1992, with no closing to take place prior to July 1, 1992. Until the sale, the plaintiff was required to pay the mortgage, real estate taxes and homeowner’s insurance. (Paragraph 9)

[243]*243While the defendant resided in the marital residence she was to receive alimony payments in the amount of $7,000 per year, payable monthly in the amount of $583.33. (Paragraph 10A) If the marital residence was sold before September 1, 1992, the alimony payments would increase to $13,000 per year, payable monthly in the amount of $1,083.33. (Paragraph 10B)

Child support was to be paid by the plaintiff in the amount of $7,000 per year, payable monthly in the amount of $583.00, which on September 1, 1992 was to increase to $15,000 per year, or $1,250 per month. (Paragraph 12)

On October 21, 1988, the parties executed a post judgment agreement. The agreement acknowledged that “both of the ... parties are desirous of modifying the Property Settlement Agreement that they had entered into without the process of going into Superior Court and desire that the modification be promptly completed.”

Among other things, the agreement provided that the plaintiff would transfer his interest in the marital residence to the defendant, “in lieu of future alimony due and payable to Theresa Savarese ... equivalent to a lump sum payment.” (Paragraph 1)1 The agreement also provided for continued child support to be paid by the plaintiff in the amount of $500 per month, and the defendant was “prohibited from seeking a modification of the child support payments at any future date” and “waives her right to seek any modification of the child support payments.” (Paragraph 2) Furthermore, “[i]n lieu of any cost of living expense increases in the amount of child support ... Joseph A. Savarese will place the sum of 5% per year of the total child support in a[sic] interest bearing bank account for the benefit of his two children of the marriage.” (Paragraph 5)

Under Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), a party may seek modification of a child support obligation under its [244]*244ability/needs tests by demonstrating that circumstances have changed in such a way as to make the existing payment provision inequitable. Id. at 152 and 157, 416 A.2d 45. Defendant asserts a number of reasons in her contention that the “anti-Lepis ” provision of Paragraph 2 of the post judgment agreement is invalid:

1. The defendant did not have the benefit of adequate counsel prior to the modification of the property settlement agreement.
2. There was a significant change in circumstances that warrants a modification in the child support.
3. The defendant did not have the legal right to bargain away child support.
4. There was no consideration for the child support waiver and thus, it should be held unenforceable.
5. That under the holding in Bengis v. Bengis, 227 N.J.Super. 351 [547 A.2d 701] (App.Div.1987), any detriment to the children now warrants a modification of the child support payments required under the post judgment agreement even if the anti-Lepis clause is valid.

Before considering the defendant’s arguments, a number of additional facts should be indicated. Subsequent to their divorce, both parties remarried, and each has custody of two children, with the defendant being the custodial parent of the children of the parties’ marriage. The parties, and their spouses, have been employed. Finally, since the post judgment agreement was executed, the plaintiff has transferred his interest in the former marital residence to the defendant, and has paid the required child support under that agreement.

I. ADEQUACY OF COUNSEL

The defendant claims that the post judgment agreement should be set aside since she lacked adequate counsel when agreeing to its terms.

During the pendency of this matter, the defendant was deposed on January 16,1997, at which time she discussed her conversation with her previous attorney as to the 1988 post judgment agreement:

A: ... My mom paid for my original attorney. I was just starting a new position, a new job, and I basically had — I called my original attorney and he said it’s $2500 to sit in front of me again, so I really didn’t want to do that, so I said he [245]*245is offering me the house and at a much lower child support figure I said should I do it, and he said you’re crazy. No, it’s a bad deal. No, you should not do it.
Q: And when you said he, referring to your attorney, that was the attorney who represented you in the divorce?
A Yes.
Q: And his name was?
A: Philip Jaeobowitz.
[T8-14 through 19,21 through 23]

Defendant also testified at her deposition that she had a real estate attorney prepare the written draft of the parties’ agreement as she gave it to him and that he provided her with no advice. T13-22 through 14-25.

It is undisputed that neither party had an attorney to represent them in the negotiations of the post judgment agreement, concluded without recourse to court intervention. However, it is also undisputed that the defendant consulted with her former divorce attorney, a leading matrimonial attorney, who advised her not to enter into such an agreement. Nevertheless, rather than seeking any necessary enforcement of the existing PSA, she concluded the new agreement.

Under the circumstances there is no similarity between this situation and that, as defendant argues, in Guglielmo v. Guglielmo, 253 N.J.Super. 531, 542, 602 A.2d 741 (App.Div.1992), wherein the wife was represented by a relative of her husband. Whatever was lacking in the formality of their present attorney/client relationship, the clarity of her former divorce attorney’s advice is beyond question, as even the defendant acknowledges.

II. CHANGE IN CIRCUMSTANCES

Further in her deposition of January 16, 1997, the defendant was questioned as to her claim of “changed circumstances” warranting an adjustment in child support:

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Bluebook (online)
709 A.2d 829, 311 N.J. Super. 240, 1997 N.J. Super. LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savarese-v-corcoran-njsuperctappdiv-1997.