On appeal from the Superior Court, Chancery Division, Family Part, Essex County.
Long and Keefe. The opinion of the court was delivered by Long, J.A.D.
Defendant Louana Adler here appeals from the denial of her motion that plaintiff Zachary G. Adler pay alimony to her and pay medical expenses for the two children of their marriage. Plaintiff cross appeals from the trial judge's order that he pay the college expenses of the children and also increased child support.
The parties were divorced in 1978 pursuant to a judgment which incorporated a comprehensive property settlement agreement. The agreement was silent as to alimony and provided for minimal child support for the two children of the marriage. At the time of the divorce, plaintiff had no income because he was attending medical school and defendant was earning about $10,000 per year. Thereafter, plaintiff completed his medical education. In 1983, the agreement was modified to require plaintiff to be responsible for one-half of the children's unreimbursed medical expenses.
In 1984, an event occurred which triggered this litigation. Defendant has a congenital eye condition called nystagmus, resulting from the lack of development of her retinas. As she aged, the condition deteriorated, thus affecting her vision. By September 1984, her visual acuity had been reduced to a level which made her unable to perform gainful employment on a
daily basis. According to her physician, defendant will never regain her previous degree of vision and will instead suffer even more visual impairment as she ages. As a result of her condition, defendant left her employment as an insurance representative in September 1984. In that position, she had earned gross income of $14,869 in 1983 and $14,049 through September 1984. By 1986, defendant's earned and interest income totalled $1,279.10, in addition to which she received Social Security disability payments of $338 per month for herself and $121 per month for her minor son Richard.
On the basis of her changed circumstances, defendant moved to modify the divorce judgment requesting alimony and the payment of all of the children's unreimbursed medical expenses. The judge denied the ultimate relief but ordered discovery and a plenary hearing on the issue of changed circumstances. Defendant then withdrew her application, ostensibly because she could not afford to finance the discovery and the hearing. In 1987 she borrowed money from friends and filed a new motion seeking various relief including plaintiff's payment of one-half of the children's unreimbursed medical expenses pursuant to a voluntary agreement the parties had made, increased child support, payment of college expenses and discovery and a plenary hearing on the issue of alimony. The plaintiff opposed the motion.
The financial facts of the case at the time of the motion were that the son's Social Security payments had ceased and defendant's income from all sources including Social Security was about $6500.00. Plaintiff's income in 1986 was $33,769.68 from a medical residency program. His subsequent earnings are not revealed in the record which is also silent as to any familial responsibilities shouldered by plaintiff who has remarried.
The two children of the marriage are grown. The daughter is emancipated. The son graduated from high school in June 1987 and was accepted at Colgate. Anticipated costs for his attendance at Colgate for the 1987-88 academic year were
$16,480; $3,400 of this was to come from his "family contribution." Defendant contended that she was financially unable to make any contribution toward Richard's education and urged the judge to order plaintiff to provide some monetary aid.
The trial judge rejected defendant's request for alimony and for a plenary hearing essentially because her failing eyesight did not represent "changed circumstances" since her condition was congenital and thus known to her when she negotiated the divorce agreement. Therefore, according to the judge, no real change in circumstances occurred when defendant lost her vision in September 1984. Additionally, he refused to make plaintiff responsible for one-half of the children's unreimbursed medical expenses, despite the June 29, 1983 modification agreement in which plaintiff accepted that responsibility. The judge ruled that he had denied such relief in his order of August 4, 1986, and that ...