Justice John Colangelo
In this post-judgment matrimonial case, wife sought accumulated Cost of Living (COLA) increases regarding maintenance payments previously paid by husband. Husband has been making such payments, without the COLA increases, for over 30 years, since the parties’ stipulation of settlement was signed in 1983. He moved to dismiss wife’s complaint. Wife testified she orally demanded the COLA increases on numerous occasions beginning in 1984, but husband always had excuses. Husband alleged he never had any conversations with wife regarding COLA adjustments, and no oral demands were made. The court found wife clearly knew she had a right to periodic COLA increases, yet neglected to enforce such provision of the stipulation. It ruled her failure to enforce her rights could not be reasonably characterized as “simple neglect,” and she could not plausibly claim she was unaware of her cause of action. The court concluded wife’s conduct presented a clear case of waiver, including meeting with a lawyer who informed her of her rights, but wife failed to do anything further. Thus, wife’s actions of accepting maintenance without COLA increases supplanted the stipulation’s nonwaiver clause. Hence, husband’s motion to dismiss was granted.
