Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D.
Upon leave granted defendant appeals from three interlocutory orders: (1) an order dated March 18, 1971 denying her application for an order compelling plaintiff to restore support payments called for under a written agreement which he had arbitrarily reduced and to compel plaintiff to pay certain medical bills; (2) an order dated April 1, 1971 denying defendant's motion for summary judgment under the written agreement for payments in excess of the basic amount provided for which payments were to be made when plaintiff's "calendar year gross income" was in excess of certain figures, and (3) an order dated April 19, 1971 denying a motion of defendant for judgment for arrears in payments called for under the separation agreement which had accrued between January 8, 1971 and April 8, 1971.
A detailed statement of the facts is necessary for an understanding of the issues. The parties were married August 3, 1952. There is one child who is 11 years old at the present time. An agreement was executed between the parties on February 9, 1965 into which was incorporated a supplemental written agreement executed a short time thereafter.
The February 9, 1965 agreement was executed "to settle their property rights, and to agree upon provisions for custody of the child, and for the support, care, maintenance and education of said child and for the separate support of the wife." Under the agreement the plaintiff was to pay $190 a week for the support of the wife and $35 a week support for the child. Provision was made for additional support:
a. Between $50,000.00 and under
$60,000.00 gross income $1,000.00
b. Between $60,000.00 and under
$70,000.00 gross income 2,000.00
c. Between $70,000.00 and under
$80,000.00 gross income 3,000.00
d. Between $80,000.00 and under
$90,000.00 gross income 4,000.00
e. Between $90,000.00 and under
$100,000.00 gross income 5,000.00
Other relevant portions of the agreement were:
5. These support payments shall be due and payable by husband to wife but shall cease to be an obligation of husband (1) should the wife, in the event of a divorce between the parties, remarry; (2) should the husband die; or (3) should the wife die; whichever of the foregoing events first occurs.
24. The parties respectively acknowledge that each has had independent legal advice by counsel of his or her own selection; that each fully understands the facts and has been fully informed as to his or her legal rights and obligations; and that having had such advice, and with such knowledge, each of them is signing the agreement freely and voluntarily.
Under the supplemental agreement plaintiff agreed to pay the federal and state income taxes for each year for the wife; the annual cost of Blue Cross-Blue Shield and major medical insurance coverage for her; gas, oil and general maintenance on any automobile owned by her, excluding major repairs; annual liability and collision insurance coverage on any motor vehicle owned by her; any annual water bills at 63 Vassar Avenue, Newark, as long as she lived there; and the amount of any mortgage payment exceeding $2,424 a year.
Following the execution of the agreement, defendant instituted suit in the Second Judicial Court of the State of Nevada which resulted in a decree of absolute divorce on
September 9, 1965. The decree ratified, approved and adopted the agreement.
On September 8, 1970 plaintiff filed a verified complaint alleging the marital history and claiming he had sustained a heart attack in July 1968 and that as a result of his present condition and "other untoward circumstances" he had been required to reduce his work activity (attorney at law) and "has therefore presently sustained a consequential loss of income." The first count of the complaint sought a judgment reducing plaintiff's obligations under the agreements. The second count sought a declaration of the meaning of paragraph 4 of the agreement, the escalation clause.
On February 5, 1971 defendant filed an answer and counterclaim. The delay in filing the answer and counterclaim was apparently caused first by her attorney waiting to be supplied with a copy of plaintiff's 1963 income tax return upon which the agreement was allegedly based, and upon the further fact that defendant suffered a serious accident as a result of which for a period of time she could not have any visitors.
The first count of the counterclaim alleged a default under the agreement in the amount of $1,683.05 for various miscellaneous items. The second count sought $1,655 for schooling for the child. The third count sought increased support alleging that at the time of the agreement defendant did not know plaintiff's true income and that living costs had increased because of the increased age of the child. The fourth count sought a judgment for $15,000 which defendant claimed she was entitled to under the escalation clause of the agreement. The fifth count sought an order to compel plaintiff to implement by testamentary disposition an oral agreement between the parties that should both parties die while the child was a minor, defendant's sister would be given custody and appointed guardian. The sixth count prayed for an order compelling plaintiff to establish
an educational fund for the child. The seventh count sought an order compelling plaintiff to post security.
There was submitted with the counterclaim defendant's affidavit showing that on January 8, 1971 plaintiff had suddenly and without warning reduced the $225 primary support figure to $112.50. The affidavit further showed that in 1969 plaintiff's income was $99,889; and in 1968, $80,621. It was alleged that on May 23, 1969 plaintiff purchased a home in Mendham for $108,000 which he sold May 25, 1970 for $123,000. It was further alleged that on May 25, 1970 he purchased a home in South Orange for $97,500. Defendant said that she was in dire need of the amounts that had been withheld. She further set forth certain medical bills resulting from her accident for which she sought recovery. Based upon the affidavit defendant obtained an order dated February 5, 1971 directing plaintiff to show cause "why he should not forthwith restore to the defendant the $112.50 a week denied her for the past four and possibly five weeks, and why he should not be required forthwith to pay the medical bills of defendant."
On the return of the order to show cause there was also before the court an affidavit by the plaintiff. This affidavit dwelt upon the fact that defendant had not listed in her affidavit her costs, assets, cash income, etc. Plaintiff further averred that he and his accountant had projected his income for 1971 at $26,850. He dwelt upon his heart condition. Schedules were attached showing his assets as of December 31, 1970 and his assets as of December 31, 1964. He admitted receiving the following total income and set forth the capital gains portion of that income as follows:
Total Income Capital Gains