Elihu Rosen v. Michele Rosen (2010)

MEMORANDUM OF DECISION de DEFENDANT'S MOTION FOR ORDER (122)

The parties' marriage was dissolved by judgment rendered January 13, 2005.   The decree incorporated a written separation agreement (111.10) that provided in paragraph 3.1 for unallocated alimony and child support of $7,292 monthly payable to the defendant until the death of either party, her remarriage, her cohabitation as defined in paragraph 3.6 or until December 31, 2012, subject to recalculation annually to reflect a split of 53% of their combined gross income to the defendant.   The term is nonmodifiable.

On August 7, 2006 the parties submitted to the court a written stipulation (119.10) that was approved and so ordered that day modifying the judgment as follows:

1.  Paragraph 3.1 of the Separation Agreement is modified as follows:  The Plaintiff/Husband shall pay unallocated alimony and child support in the amount of $6,517 per month to the Wife on the first day of each and every month.   Payment shall continue until the first to occur of the death of the Husband, the death of the Wife, the Wife's remarriage or cohabitation as defined in paragraph 3.8 of the Separation Agreement, or until December 31, 2012.

2. Paragraph 3.4 of the Separation Agreement is modified as follows:  The Defendant/Wife shall be entitled to earn income up to $65,000 annually without the Plaintiff/Husband seeking a modification in support.

3. The modifications in this Stipulation shall be retroactive to July 1, 2006.

4. Except as modified by the terms of this stipulation, all other provisions and terms of the original Separation Agreement shall continue in full force and effect.

The court concludes that paragraph 3.1 as modified deleted the remaining portion providing for 53% of their combined gross income being paid to the defendant.

The court concludes that paragraph 3.4 as modified deleted the remaining portion allowing the plaintiff additional earnings without causing a basis for an increase in the unallocated order.

It was acknowledged by counsel in open court that the parties did not exchange their 1040 U.S. tax returns and recalculating never occurred.   The court concludes that only 2005 would be subject to a recalculation.   If additional payment is called for each party may be obliged to file an amended return with additional costs for each party.   Laches is found for both parties failed to follow the formula.   The motion is denied.

BY THE COURT

HARRIGAN, J.T.R.

Harrigan, Dennis F., J.T.R.