Plaintiff, Dollie and defendant William Harris were married on June 25, 1977. Two children were born of the union, David, age ten and Samantha, age eight.
After several years of marriage, Dollie Harris filed a complaint for divorce. An accountant was appointed to evaluate the marital assets and liabilities. Both parties and the children were represented by independent counsel.
The parties executed a Property Settlement Agreement, hereafter referred to as Agreement, on May 9, 1986, which is also the recited effective date of same. The Agreement was memorialized in court at Final Hearing on May 9, 1986. The actual Final Judgment of Divorce was signed on December 19, 1986. Of significance are the facts that both spouses waived any right to support from one another, that defendant warranted that "as of the effective date of this Agreement he earns or is capable of earning a gross annual income of the approximate amount of $50,000.00 a year", that defendant acknowledged that "he owes the wife the sum of $80,000.00 in additional child support and maintenance as of the effective date of this Agreement, and that defendant agreed to monthly payments in the amount of $1,675.00 "for the support and maintenance of children" beginning on June 1, 1986. The parties negotiated an installment payment plan for the arrearages. This court finds that the settlement agreement was a lengthy, carefully considered document which encompassed all areas of dispute and contained schedules for resolution of all items from arrears to visitation.
On November 19, 1986 a Notice of Motion for Enforcement of Litigant's Rights was received from plaintiff's counsel, alleging that defendant had failed to follow through in several areas of
the Agreement. Specific to the issues addressed herein, defendant failed to provide five months of child support, and paid only $7,000.00 towards the first installment of $10,000.00 due and owing with regards to the $80,000.00 arrearage figure. (As of February 9, 1989, defendant owed plaintiff child support in the amount of $81,017.50 pursuant to the applicable clauses of the Agreement). Defendant's cross-motion, received on January 9, 1987, sought, in pertinent part, modification of the arrears and reduction in his monthly support obligation. The proffered basis for relief was his alleged change of circumstances. Interim steps towards resolution, including a re-investigation by the court appointed accountant, were ordered to facilitate resolution of some issues and preparation of others for a plenary hearing.
Each of the parties continued to file various applications on the topic of visitation and related disputes. In particular, on June 29, 1988, plaintiff filed an Order to Show Cause. She planned to vacation with the children in Florida and sought non-interference from defendant. During a conference between this court and counsel, plaintiff's attorney advised that Mrs. Harris wanted to move to Florida with the children on a permanent basis. An Order was issued on July 1, 1988 stating that the children's permanent removal to Florida would be addressed along with the issue of child support at the plenary hearing which was subsequently held on several days in February of 1989.
MODIFICATION OF CHILD SUPPORT
As of February 9, 1989 the time of the plenary hearing, defendant owed $81,017.50 in child support arrearages. William Harris states that pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), he is entitled to a modification in his monthly child support obligation. In essence, defendant applies to this court to be relieved from his obligations set forth in a fully negotiated
agreement with plaintiff for which each party gave due and full consideration.
Defendant holds a masters degree in business administration and has worked primarily in the field of survey and market research for the past twelve years. Recently, he taught two courses at Manhattan Community College for which he earned approximately $3500.00. Defendant has been the president and owner of two companies, William H. Harris Co., and Library Access Co.
Mr. Harris' financial lifestyle can be described as perplexing at best. He claims a zero income in 1986, approximately $4500.00 for 1987 and an approximate amount of $9000.00 for 1988. He resides with Damyanti Hari, his fiancee, who works at three separate and distinct places of employment six and one half days a week and according to defendant, pays all rent and daily living expenses for both of them. Mr. Harris testified to borrowing large sums of money from his fiancee, relatives and friends, borrows the use of automobiles from the same sources, including his fiancee's Jaguar and has made some child support payments with nontraceable money orders. In 1986, he inherited a Florida condominium and sold it to a cousin.
Defendant alleges that he has been unable to obtain employment in his chosen field of market research and points to corporate mergers and new corporate priorities during 1986 and 1987 as the cause and effect impact on his income. While such market activity may have narrowed Mr. Harris' choices of employment, it has neither relieved him of his responsibility to support David and Samantha, nor has it made the need of the children for food and clothing any less. This court recognizes that defendant has unsuccessfully applied for market research jobs and has obtained a teaching position for which he earned approximately $3500.00. However, this, without more, is insufficient and falls far below any semblance of any good faith attempt on his part to provide even minimal support for his children. Defendant and his children "cannot afford the luxury
of his waiting for employment in his field", Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch.Div.1982), or in the particular case of Mr. Harris, the continued benevolence of so many family and friends who have allegedly gifted and loaned hundreds of thousands of dollars to him. This court finds as fact that Mr. Harris has the ability to earn more than $3500.00, has himself set his earning power at $50,000.00, and in fact, has not provided sufficient proof of a diminished capacity to earn said amount. Parenthetically, it is observed that defendant paid absolutely no support during this plenary hearing.
As further evidence of his changed circumstances defendant relies on three petitions for bankruptcy. The first was executed on May 27, 1986 by Mr. Harris as president of the Library Book Access Corp., A MERE THREE WEEKS AFTER THE PARTIES ENTERED THE AGREEMENT. The second bankruptcy petition was marked filed on December 30, 1986 and executed on April 14, 1987 by Mr. Harris as president of the William H. Harris Co., Inc. The third and last bankruptcy petition for personal debts was executed by Mr. Harris on January 8, 1987. The latter two bankruptcy petitions and defendant's cross-motion for modification of child support and elimination of arrears are in perfect sequential order.
During the plenary hearing the court appointed accountant testified that he was involved in the negotiations resulting in the Agreement and had since the filing of the motion and cross motion sub judice reviewed the bankruptcy petitions along with other documents. As to Mr. Harris' alleged changed circumstances, the accountant found that the bankruptcy petitions "didn't tell anything new." The fact that the debts of defendant's two companies exceeded their assets was known to Mr. Harris prior to and concurrently with his entering the Agreement. The accountant further testified that at the time of the final judgment of divorce, Mr. Harris had a de minimus income and there was no great change, in fact, his income increased from zero in 1986 (time of agreement) to $4,500.00 in 1987 and to $9,000.00 in 1988.
This court finds as fact that defendant has failed to provide proof that his circumstances changed for the worse during the period May 8, 1986 to January 9, 1987, or to the present, but, in fact, improved. Defendant has failed to provide this court with proof that his earning ability is less than he previously stated and he certainly has not shown a decrease in income during the aforementioned time period. In actuality, he may very well be in better stead financially as a result of debt clearance through the bankruptcy petitions. This court finds that the defendant has no intention of finding substantial employment in his or any other field. This court finds that defendant has found his niche in this world, in that he is maintaining a high lifestyle without having to work for it. To use the vernacular, he has it made. This court finds that defendant is content to sit back and become a complete human parasite,*fn1 permitting a succession of fiancees, friends and relatives to provide for him so as to enable him to live in and maintain a lifestyle commensurate with his self-imposed high standard of living, while his children are reduced to the status of virtual beggars. He professes love and concern for them, yet this court finds a complete lack of same. Defendant's application for modification of child support is denied.
RETROACTIVITY OF N.J.S.A. 2A:17-56.23a
Mr. Harris' request to eliminate child support arrears presents an issue of first impression. A new statute, N.J.S.A. 2A:17-56.23a states, in part, "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except for the period during which the party seeking relief has pending an application for modification . . .". This
statute became effective on November 21, 1988. The question to be determined is whether or not this statute applies to the action herein. As expected, plaintiff argues the statute applies and this court is precluded from eliminating or modifying arrears while defendant argues ...