Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D.
Defendant appeals from an order denying his motion to modify the provisions for alimony and maintenance contained in the judgment nisi and denying his application to have visitation with two infant children, seven and ten years old, for two weeks during the summer.
Plaintiff obtained a judgment nisi for divorce dated November 6, 1967 on the ground of desertion. The judgment nisi approved an agreement dated July 7, 1967 for support for the wife and the two children. At the time of the agreement
and the judgment nisi , the plaintiff was unemployed. On April 28, 1970 defendant filed a notice of motion to modify the judgment nisi by reducing the alimony and support. The motion also sought visitation for a two-week period during the summer with the children. Affidavits submitted to the court by the parties disclosed that the defendant had remarried and was supporting his second wife who was not employed. Under the terms of the agreement, he was required to pay $514 a month for the support of his first wife and the two children. The plaintiff had been employed during the year 1969, receiving a net income from such employment of $2,177.03. She alleged that she was no longer employed. In 1967 defendant had gross income of $9,005.88. In 1969 he had gross income of $11,737.63. His moving papers showed that his income had dropped substantially in 1970 up to the time of the motion. Both parties set forth their living expenses from which it appeared that neither had sufficient to live on.
When the motion came on for hearing, the Chancery Division recognized that there were diametrically opposed contentions of fact. Rather than holding a plenary hearing, the judge directed that depositions be taken and the matter determined on the affidavits and the depositions. This was error. The court should have set the matter down for a plenary hearing and taken oral testimony. Tancredi v. Tancredi , 101 N.J. Super. 259 (App. Div. 1968). Here the defendant had made a prima facie showing of a change of circumstance. The employment of the plaintiff and the remarriage of the defendant were factors that the court had to consider in determining whether in fact there was such a change of circumstances as to justify a modification of the judgment nisi. Martindell v. Martindell , 21 N.J. 341, 353 (1956); Bartok v. Bartok , 52 N.J. Super. 266 (App. Div. 1958); 11 N.J. Practice (Herr, Marriage, Divorce and Separation) (3d ed. 1963), § 721 at 11. The court properly gave leave to take depositions. Often applications to modify are amicably adjusted after depositions are taken.
Whenever there is presented to the court a motion to modify the terms of a judgment and the motion makes a prima facie showing that the moving party is entitled to relief and there are contested issues of fact, the motion should not be disposed of by affidavits, answers to interrogatories and depositions. There should be a plenary hearing. At the conclusion of the plenary hearing, the trial court must find the facts both subsidiary and ultimate and "state its conclusions of law thereon." R. 1:7-4.
The trial court denied the application for summer visitation because at the time the motion came on for hearing, the defendant was in arrears. The trial court refused to make any modification of the order until the defendant paid the arrears.
In Sarner v. Sarner , 45 N.J. Super. 216 (App. Div. 1957), certif. den. 25 N.J. 103 (1957), this Court stated:
In the absence of exceptional extenuating circumstances, courts are not inclined to hear a litigant who resists or evades the enforcement of its orders until he has satisfactorily settled his default. [45 N.J. Super. at 221-222]
This statement must not be read out of context. It was dicta because in fact the defendant had purged himself of the contempt. In addition, the facts in Sarner were unusual. There the defendant had the ability to comply with the order of the court but refused to do so. In the case before us, as in the majority of cases in which a former husband seeks a modification, there is a factual question as to his ability to ...