The Herald, Sharon, Pa.

May 18, 2013

Court: Divorce pact still a contract

By Joe Pinchot
Herald Staff Writer

MERCER COUNTY — Superior Court this week agreed with a local judge that a man’s change in fortune does not get him out from under an alimony agreement he entered long ago.

Dagmar R. Adams and Angelo S. Morini divorced in 1990 and their property settlement agreement requires him to pay $2,500 alimony a month for 26 years, the provision terminated only if she dies.

The agreement includes a provision that alimony still would have to be paid if she remarries, and that the alimony terms are “nonmodifiable by either party regardless of physical and/or financial circumstances.”

Adams, who remarried about 10 years ago, and Morini modified the alimony payments over the years due to his financial hardship, but she filed a petition in February 2012 to enforce payment of $92,513 in arrearages.

Morini responded that her remarriage meant he should not have to pay, and that the original agreement violated public policy, is unconscionable and is impossible for him to live up to. He also said she failed to mitigate her damages, such as by getting a job.

Morini said his ex-wife is now financially secure, while his sole source of income is Social Security and he is “on the verge of destitution.”

“In essence, he argues that enforcement of the contractual provision is punitive rather than rehabilitative, as alimony is intended to be, and that it should be terminated and all outstanding arrearages waived,” said Judge Mary Jane Bowes, writing for a three-judge panel.

The alimony provision was part of a negotiated settlement between Adams and Morini and “remains an agreement between the parties subject to general contract principles,” Bowes said in the opinion filed Tuesday.

The overriding public policy issue is not to give relief to someone who has fallen on hard times, but to enforce contracts, Bowes said.

“The parties anticipated that there could be a change in financial fortune or health,” she said, referring to the alimony provision in the divorce settlement.

Superior Court agreed with Mercer County Common Pleas Court Judge Robert G. Yeatts that “it is the circumstances surrounding the formation of the agreement, rather than Mr. Morini’s present circumstances, that are relevant to a conscionability determination,” Bowes said.

“The court found no evidence that Mr. Morini lacked any meaningful choice in accepting the alimony provision, or that the provision, viewed in the context of the entire settlement agreement, unreasonably favored Ms. Adams,” Bowes said.