On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County.
J. H. Coleman and Long. The opinion of the court was delivered by J. H. Coleman, J.A.D.
[209 NJSuper Page 156] The question raised by this appeal is whether a former wife's increased earnings subsequent to the divorce constitute changed circumstances entitling the former husband to terminate alimony irrespective of the former wife's needs for support of herself and the children born of the marriage. Plaintiff and defendant were divorced by judgment dated August 9, 1982. An Interspousal Agreement originally made in 1980 was modified and incorporated into the Judgment of Divorce. That agreement provided, among other things, for the payment of alimony, child support and college educational expenses for the
three children born of the marriage. On February 28, 1985 an order was entered terminating alimony based upon plaintiff's increased earnings without consideration of her current needs. Thereafter, plaintiff sought (1) a reconsideration of the order terminating alimony, (2) an increase in child support, and (3) contribution by defendant for the children's college educational expenses. Under an order dated March 29, 1985, plaintiff's applications for reinstatement of alimony and for increased child support were denied. That order directed that plaintiff pay 35% of the college expenses and that defendant pay 65%.
Plaintiff has appealed, according to her notice of appeal, "from the Order entered in this action on March 29, 1985 in favor of the defendant." Defendant has cross-appealed from that portion of the March 29, 1985 order "in favor of plaintiff directing defendant to pay sixty-five percent of reasonable college education expenses."*fn1 For the reasons which follow, we reverse the order of February 28, 1985 which terminated alimony.
The facts essential to our decision are not in serious dispute. The 1980 Interspousal Agreement, in pertinent part, provided:
6. ALIMONY AND CHILD SUPPORT. Commencing March 1, 1980, and continuing until March 1, 1981, the husband shall pay to the wife the sum of $300 per week, allocated $150 per week alimony and $50 per week, per child, as and for the support of the minor children. Commencing March 1, 1981, the husband shall pay to the wife the sum of $250 per week, allocated $100 per week alimony and $50 per week, per child, as and for the support of the children.
Payments of alimony shall terminate upon the wife's remarriage, her living in a relationship with another man tantamount to remarriage or the children of the marriage becoming emancipated.
Payments of child support shall continue as to each child until he or she becomes emancipated. For purposes of the within agreement the children shall not be deemed to be emancipated if they continue their education beyond high school, as full time students in a college, university or trade school, provided
however, that if the children do continue their education beyond high school, the husband's obligation of child support shall not extend beyond four years of the child's post-high school education.
7. COLLEGE EDUCATION OF THE CHILDREN. The parties shall contribute to the expenses of the college or trade school education of the children to the extent of their financial ability. The continuing child support payments made by the husband while the child is continuing his or her education shall be a factor to be considered in determining the amount to be contributed by the husband toward the expenses of such education. The choice of the school which the child shall attend shall be by agreement between the husband, the wife and the child involved. All children shall be encouraged to defray portions of their education expenses through scholarships, loans, monies from summer employment and the like.
At the time of the divorce, however, the agreement was modified to the extent that the $50 per week reduction in alimony effective March 1, 1981 was eliminated. In all other respects, the agreement as ...