The legal issue presented in this case is the right of the court to consider an upward modification of child support in the face of an agreement between the parties. There has been a substantial change in circumstances which would warrant a modification of a judgment, but the change would probably not reach the unconscionability test mandated by Schiff v. Schiff , 116 N.J. Super. 546 (App. Div. 1971), certif. den. 60 N.J. 139 (1972).
The wife has moved for an increase in child support based on substantially undisputed facts. A 15-year marriage was terminated in May 1970 by a divorce judgment which incorporated an agreement executed a few days earlier. It provided for child support of $15 a week for each of the four children, and alimony of $10 a week. It further required the husband to pay most of the carrying charges on the house, which was to be sold and the proceeds equally
divided, upon the remarriage of the wife. Two of the four children are now emancipated. The wife has remarried. The house has been sold. Each received about $15,000. Hence, the husband is now paying $30 a week for the support of two children and has been relieved of alimony and house maintenance costs.
The present state of the law is stated in Wertlake v. Wertlake , 137 N.J. Super. 476 (App. Div. 1975):
While a showing of changed circumstances may warrant the court in modifying an agreement between husband and wife if the changes are such as to convince the court that to enforce the agreement would be unconscionable, "[a] far greater showing of changed circumstances must be made before the court can modify a separation agreement than need be shown to warrant the court amending an order for alimony or support." Furthermore, subsequent events which should have been in contemplation of the parties as possible contingencies when they entered into the contract will not excuse performance. [at 484; citations omitted]
Obviously, the changes in circumstances relied upon here were, or should have been, within the contemplation of the parties. Hence, if the doctrine of Schiff, supra , as summarized in Wertlake, supra , is applicable to child support, this court is powerless to grant relief. The Schiff case involved alimony, not child support.
How has the doctrine been applied when children were involved? The children are not parties to the agreement. To what extent should their rights be affected?
Judge Lane, who decided Schiff , held in Hallberg v. Hallberg , 113 N.J. Super. 205 (App. Div. 1971), that
The agreement between the parties has no binding effect insofar as visitation is concerned. The question is always what is in the best interests of the children no matter what the parties may have agreed to. [at 209]
Nor can an agreement control the issue of custody. Sheehan v. Sheehan , 38 N.J. Super. 120 (App. Div. 1955); S.M. v. S.J. , 143 ...