For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
In this matrimonial action plaintiff seeks to reduce the support payments for his children. The Chancery Division held that changed circumstances warranted a reduction and denied defendant counsel fees and costs. The Appellate Division affirmed in an unreported per curiam opinion and we granted defendant's petition for certification. 54 N.J. 511 (1969).
The parties were married on March 2, 1943. Three children were born of the marriage: David in 1946, Donald in 1948, and Susan in 1953. In 1964 they separated and shortly thereafter a "Property Settlement and Support Agreement" (Agreement) was signed. The Agreement provided that defendant and the three children were to continue residing
in the home which the parties owned as tenants by the entirety. Moreover, so long as the three children were living with defendant, plaintiff would pay $8,500 yearly for their support and make all required payments on the mortgage, insurance, taxes and heating for the home.
The Agreement further provided that as each child entered "college or any other institution of learning away from the home after said child graduate[d] from high school," plaintiff would pay for four years of such education and that the support payments were to be reduced by $2,000 as each of the first two went to college "and by an additional $3,000 when the third child [left] home." Plaintiff was to pay for major medical and certain other incidentals for the children. The money defendant received was to be used for the ordinary living expenses of the children when they were home, the utilities and house repairs, and any and all expenses "not to be defrayed by the husband."
In case of divorce and subsequent remarriage by defendant, the Agreement obligated plaintiff to convey to her his interest in the home, subject to the existing mortgage. Thereafter plaintiff was relieved from any expenses regarding the property.
Defendant acknowledged that the provisions of the Agreement were adequate and "include[d] the required attention for the youngest child, who still require[d] someone to be home when the child return[ed] from school each day."
In 1966 plaintiff sued for divorce on the ground of desertion. The two sons were then in college and only the daughter resided with defendant. The divorce was uncontested, but defendant filed an appearance requesting a hearing on the issues of support for the children, custody, and counsel fees. After negotiations, the parties agreed to incorporate the Agreement in the judgment nisi with one exception regarding the amount defendant was to receive for the support of the children. While the daughter resided with defendant and the two sons attended college, defendant was
to receive $100 per week, rather than $4,500 per year as specified in the Agreement. The judgment nisi was filed January 6, 1967.
On May 3, 1968, defendant remarried and her second husband moved into the home where she was then living with her daughter. Pursuant to the Agreement, plaintiff conveyed to defendant his interest in the property and accordingly was no longer responsible for the mortgage, insurance, taxes, etc.
On July 2, 1968, plaintiff filed a motion to modify the support provision in paragraph 2 of the judgment nisi from $100 per week to $40 per week. Plaintiff admitted that his 1967 gross income was $56,610.14, plus certain fringe benefits. He did not allege an inability to pay the $100 per week, but claimed changed circumstances, viz.: (1) defendant's present husband was able to support her and, therefore, she could remain at home and eliminate the housekeeper to care for the daughter; (2) the absence of the two boys from the home for the greater part of the year; and (3) the gift to ...