On appeal from Superior Court, Chancery Division, Bergen County, whose opinion is reported at 180 N.J. Super. 569 (Ch.Div. 1981).
Botter, Pressler and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.
Plaintiff-wife appeals from several orders emanating from her motion to modify alimony and child support. The principal issue concerns construction of the parties' agreement.
The parties were married on January 22, 1963. Two children were born of the marriage: Daniel, born October 15, 1963 and Anthony, December 9, 1969. Plaintiff graduated from Hunter College in 1966 and began working as a teacher in September of that year. At that time defendant was in his last year of medical school.
Plaintiff continued teaching until June 1968 when defendant was drafted into the Navy for a two-year period, having just completed his internship. In the fall of 1970, while defendant was serving his residency in a New York hospital, the parties bought a home in Oakland, New Jersey. Plaintiff worked at the same hospital as a data collector from 1972 to 1974.
Marital discord developed while defendant was in service. Plaintiff began to suffer from emotional problems which we need not detail here, except to note that to the extent they persist, they are relevant to her needs and earning capacity.
The parties were divorced by judgment dated March 4, 1975, which incorporated their agreement as to alimony and child support. Defendant agreed to pay $100 per week support for each of the two children and $150 per week alimony the first year, to
increase to $175 in the second year and $200 in the third year, plus a cost-of-living adjustment. Paragraph 14 of the agreement contained the following provision:
Both parties agree that neither will apply to this Court for a modification of this agreement before February 1, 1978. It is further understood that the support provided for in the third year, as outlined above, will continue thereafter until such time as the parties modify it by agreement or an application is made to the court for modification. In this regard, defendant agrees to provide plaintiff as of February 1, 1978 with a statement as to his current earnings and further agrees to provide plaintiff with a statement of earnings every six months thereafter, upon request of plaintiff. (See addendum.)
The addendum to paragraph 14 reads:
In addition, commencing with the filing by defendant of his 1977 Federal Income Tax Return he shall for each year that he files such a return deliver at the time of filing an exact copy thereof to plaintiff.
On March 18, 1981 plaintiff moved for an increase in alimony and child support. The trial judge, in an opinion reported at 180 N.J. Super. 569 (Ch.Div.1981), stated the issue as "the resolution of the time frame within which a standard of living is to be defined, wherein the parties, by agreement, contemplate a 'standard' higher than that actually enjoyed during the marriage." He distinguished this case from the "standard of living formerly shared" referred to in Lepis v. Lepis, 83 N.J. 139, 152 (1980), and concluded that the agreement took this case out of the Lepis criteria. (Plaintiff did make a " Lepis application" on March 24, 1982.) Finally he ...