Plaintiff, by motion, seeks to modify provisions of a judgment nisi for divorce with respect to support provisions and provisions made therein for respective claims of dependency in connection with federal income tax returns. It appears uncontroverted that the provisions in these respects originally appearing in the judgment nisi of December 14, 1966, and concerning which a final judgment was entered on March 15, 1967, were the result of agreement between the parties at that time after arms-length negotiation.
While there is no question that this court has continuing jurisdiction to modify support as provided in a divorce judgment, N.J.S.A. 2A:34-23, some question does appear as to whether such modification is to be based upon a consideration of the elements which ordinarily enter into the picture (see Turi v. Turi , 34 N.J. Super. 313, 322-323 (App. Div. 1955)), as they exist at the time of the application for modification, or whether such modification can result only from a demonstration of altered circumstances subsequent to the original judgment. Solution to this problem is both helped and hindered by an apparent conflict in judicial expressions concerning modification of support provisions in a prior judgment.
The rule was long thought to be that the party who seeks such a modification has the burden of establishing that changed circumstances call for the relief sought. Boorstein v. Boorstein , 142 N.J. Eq. 135 (E. & A. 1948). Only the unofficially reported determination of Advisory Master Van Winkle in Cohen v. Cohen , 15 N.J. Misc. 666 (1937), appears to have suggested to the contrary. With an awareness of the injunction of Reinauer Realty Corp. v. Paramus , 34 N.J. 406, 415
(1961), that "Trial judges are privileged to disagree with the pronouncements of appellate courts; the privilege does not extend to non-compliance," I am of the judgment that dictum in Martindell v. Martindell , 21 N.J. 341, 353 (1956), suggesting that Cohen may prevail over Boorstein in appropriate circumstances, not only permits but compels me to view the matter as though a conflict in appellate pronouncements exists. Martindell advises:
In the motion before me, a new element for consideration appears, to wit, the fact that the property aspects of the prior judgment were a matter of agreement on arms-length negotiation. Thus, we have a novel problem: whether, on such an application, plaintiff must demonstrate a change of circumstances since the original judgment, or, on the other hand, may demonstrate a need for modification on the basis of things as they are now.
It seems to me that the principles involved in the law as expressed in the cases cited above require first, in any case, a determination by this court as to whether there was "a full and fair judicial inquiry" at the time of the original judgment. If there was, a demonstration of changed circumstances is required. If there was not, the question "should be decided in accordance with the very right of the matter at the time it is before the court for disposition."
The rationale of this proposition as a general statement of law is obvious and, I believe, profound. If the parties have had an opportunity to demonstrate the circumstances upon which there was a determination and "the justice of the terms of the original order" were or should have been
apparent to the judge then sitting, then a belated examination supplementary thereto will not be permitted. If they have not had such an opportunity or have not availed themselves of it, absent other equities, simple justice requires the full examination.
Applied to the instant matter, the inquiry becomes one of whether an arms-length negotiated agreement is the equivalent of "a full and fair judicial inquiry," as that phrase is used in Martindell. I believe it is the equivalent. The end product of such an inquiry is the informed judgment of the judge based on a full presentation of the facts toward the goal of a fair adjudication of support. The significant component is the availability of all facts. Where the parties agree after arms-length negotiation, and the court's approval by incorporation into a judgment appears, I think it can be fairly presumed that the totality of facts was available. To permit a court to be asked on the application of either one of the litigants at some later time to re-examine the facts which they and the court have already considered, toward the end of adding a supervening judgment to the parties' own considered determination, seems to me to be wrong in several respects. First, it fosters a sort of second-bite-from-the-apple philosophy. Either party may consciously accept a voluntary determination of support with confidence that if things do not work out right, he can start all over again. Second, it imposes upon a trial judge the obligation of making a determination as to support, not in the relatively uncluttered arena of a first presentation of the facts, but rather, influenced, subconsciously or otherwise, by the support considerations which the parties have voluntarily assumed after full fact finding, as it ...