Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Divorce Settlement Agreements Are Difficult To Change Down The Road

It is a long-standing fundamental reality of New Jersey divorce law that agreements, mad with lawyers, respectively, voluntarily and consensually entered into.  Attorneys who focus only on divorce law understand all of the essential language required in a Property (or Matrimonial Settlement Agreement) to make it “iron clad.”  Full financial disclosure is another reason you want an lawyer here in New Jersey who only handles divorce and family law.  While not impossible, it Is quite difficult to change a divorce settlement agreement.

In the very recent case of Ackerman v. Freitag, an ex-wife’s motion for increased child support, alimony, and expenses was denied because she failed to establish a basis for more child support, expenses were already agreed upon in the settlement agreement, and the unemployment was due to her failure to follow the instructions of her governing board and deemed to be voluntary.

Cheryl Ackerman and Warren Freitag, were both physicians and divorced in 1999. They entered into a separation and property settlement agreement that contained a waiver of “any and all rights for alimony which either may have against the other, now and in the future.” However, in 2012, Cheryl’s license to practice medicine was suspended by the New Jersey Board of Medical Examiners. This suspension precluded her from practicing as a dermatologist and internist.

Despite the agreement, Cheryl’s suspension drove her to file a series of motions that sought relief upon this event and its impact on her financial situation. On April 25, 2014, Judge Donald A. Kessler, denied the motion, and observed that Cheryl had been before the court on virtually the same issue on  March, 2013, April 2013, August 2103, September 2013, November 2013, December 2013, and January 2014.

In April 2013, Cheryl’s motion of for the commencement of alimony and an increase in child support was denied by the trial judge. Cheryl had been required by the judge to produce evidence as to why her license had been suspended by the New Jersey Board of Medical Examiners, a sworn doctor’s report addressing her ability to work, a case information statement that was properly complete and current, and an explanation, in writing, that addressed whether her medical condition cause her license to be suspended. Cheryl failed in the afore-mentioned requirements, and was not able to comply with the judge’s instructions.

In regards to the Board of Medical Examiner’s suspension of her license, the court observed that Cheryl was forced to  enter into a private letter agreement with the board, after the Board raised concerns about her mental health and professional practice. Cheryl was requested to provide reports to the professional assistance program offered to physicians and refused to undergo an independent psychiatric evaluation. Cheryl failed to comply with the Boards requirements, and the Board indicated that the same was the reason as to why she was still unemployed. Judge Kessler concurred, and held that because Cheryl failed to comply with the Board’s requirements, her unemployment was purely voluntary.

Again in August 2013, Judge Kessler denied another of Cheryl’s motions for increased child support and the commencement of alimony. In his opinion, Judge Kessler noted that the doctor’s report he received in support of the motion stated that Cheryl was fully capable of returning to work. As a result of the doctor’s report, Judge Kessler concluded that there was no valid change of circumstance that justified relief, unless there was a reason why Cheryl could not be reinstated.  Cheryl was instructed to file an application for reinstatement with the Board immediately.

While this was going on, the parties’ son had reached the age of eighteen and their daughter was even older. Warren filed a cross-motion to have him become the parent of primary residence for the son and terminate child support for him. The judge responded by stating while the son was an unemancipated adult, he was still an adult. Therefore, he could decide for himself where he wanted to live. Emancipation is the conclusion of the dependent relationship between a parent and child. A parent is legally obligated to provide support for his or her child until that child reaches the age of eighteen. Warren had also applied for counsel fees, but the denied him only because there was no possible way for Cheryl to pay them.

Cheryl filed a motion for reconsideration on September 27, 2013, but was denied by the judge. One of Cheryl’s requests was for the reimbursement of expenses, but the judge stated that the expenses were no identified with specificity. Not one to be defeated, Cheryl filed another motion for reconsideration, which was also denied on January 31, 2014. Judge Kessler stressed that Cheryl kept making the same motion over and over again. He further stated that there was no basis for an increase in child support payments because the son now resided with his father. As to the reimbursement of expenses, Judge Kessler stated that the bar mitzvah expenses were covered in the settlement agreement, and Cheryl had failed to supply proof to support her claim for reimbursement of medical expenses. He went on and proclaimed that he would only consider a motion that was properly supported by documentation. Judge Kessler noted that nothing new had been presented in the motion to reconsider, and categorized Cheryl’s applications as frivolous. He was sure to restate that she had failed to apply for a reinstatement of her medical license as she was advised during her first motion. Cheryl had considerable time to do the same, and had the ability to get her license reinstated. All she had to do was simply comply with the Board’s reasonable requirements but she failed to do so.

Cheryl appealed Judge Kessler’s order, and put forth three different arguments to support her case. First, Cheryl contended that the family court wrongly denied her motion for child support and related expenses owed to her by her ex-husband. Then, she argued that the family court’s ruling that the children were emancipated was not made in accordance with New Jersey law. Finally, she argued the family court erred by denying her motion for increased child support and payment of alimony based on changed circumstances. The Appellate Division did not find any of Cheryl’s arguments persuasive.

Cheryl’s order sought reconsideration of prior orders entered by the court. The Appellate Division state that a motion for reconsideration is governed by New Jersey Court Rule 4:49-2, and thus is a matter to be exercised in the trial court’s sound discretion. A motion to reconsider is not appropriate simply because someone is not happy with a court decision, or because the same person wishes to argue a motion. Actually, a motion for reconsideration should be utilized only for cases that fall into a category where either the Court has ordered its decision based on a clearly incorrect or irrational basis, or it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. Furthermore, to prevail on a motion for reconsideration a person must demonstrate that the Court acted in an “arbitrary, capricious, or unreasonable manner,” before the Court should commence an actual reconsideration process. Finally, the majority of Cheryl’s arguments at the trial court level and at appeal were really just an effort to reargue decisions that she did not agree with. She failed to show that either category of cases appraise for reconsideration applied. The Appellate Division affirmed Judge Kessler’s decisions. 

If you seek to change the terms of your divorce settlement agreement, please contact my office today to learn how we may help you reach this high standard of the law and to persuade a New Jersey Family Court to decide in your favor.  Thank you.