On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County.
Approved for Publication December 6, 1996. As Corrected March 4, 1997.
Before Judges Muir, Jr., Kleiner, and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by
Out of this appeal and cross-appeal from a final order in the Family Part regarding plaintiff's motions to enforce litigant's rights and defendant's cross-motion to reduce his alimony and child support obligations, emerges an issue of first impression discussed within section VIII of this opinion: whether the Family Part may order a payer of alimony to disclose his (her) income periodically in order to assist an ex-spouse in future applications to reinstate the original alimony award. We conclude that the Family Part may entertain such a request and grant appropriate relief. Our holding applies to those instances where a court, by its modification order, has reduced a prior award of alimony or where the court has reduced the amount of alimony negotiated by the parties and incorporated in a final judgment of divorce.
Plaintiff Carolyn Walles and defendant Peter Walles negotiated a property settlement agreement which was subsequently incorporated into a judgment of divorce. During the negotiations, both parties were represented by counsel. This present action arose when plaintiff filed a motion to enforce litigants' rights pursuant to R. 1:10-3. Plaintiff alleged that defendant had failed to comply with those provisions of the property settlement agreement that defined his obligations to pay permanent alimony to plaintiff and child support for Jeffrey, the only child of the marriage.
Under the terms of the property settlement agreement dated November 11, 1990, defendant agreed to pay "$17,000 per month as indefinite term alimony, not rehabilitative in nature." Additionally, defendant's child support obligation was fixed at $1,500 per month commencing November 1, 1990. The agreement provided, in part:
The extent of Peter's ongoing obligation, if any, to provide child support to Carolyn for Jeffrey following high school shall be subject to renegotiation at that time taking into account whether and where Jeffrey attends college, the costs associated therewith, and where Jeffrey resides both during the academic year as well as during vacation periods.
In addition to child support, the agreement also required defendant to pay all "sums as shall be reasonably necessary for payment of tuition, room and board, book expenses and reasonable travel costs so as to enable Jeffrey to attend college." The agreement also provided that defendant had the right to approve the selection of the college and to participate in the selection process.
Plaintiff's initial motion was granted, and defendant paid in full those arrears owed to plaintiff on his alimony and child support obligations. The court reserved decision on plaintiff's application for counsel fees.
After plaintiff's initial motion, the court was asked on five additional occasions to enforce plaintiff's rights. The motion Judge was also asked, on a cross-motion filed by defendant, to reduce or terminate the original alimony and child support obligations.
As discussed in greater detail (infra), the motion Judge enforced plaintiff's rights by invading defendant's only attachable property, his pension plan. This pension had been equitably divided when the parties were divorced. The Judge also held a plenary hearing to determine if, in fact, there was a change of circumstances warranting a reduction in alimony and child support. The motion Judge concluded that, because of a substantial reduction in defendant's income, reductions in both alimony and child support were warranted. Both reductions were made retroactive to January 1993. In a supplemental opinion, the Judge awarded both counsel fees and costs to plaintiff.
Plaintiff moved for reconsideration of the Judge's final order. Specifically, plaintiff asked the court to reconsider the retroactivity of the reductions in both alimony and child support. Additionally, plaintiff requested that the court establish a mechanism which would require defendant to disclose his future income to plaintiff on a regular basis. Such a mechanism would aid plaintiff in any future application to reinstate the original amounts of alimony and child support as encompassed in the final divorce judgment. The motion Judge refused to reconsider his final order as to retroactivity and also refused to grant plaintiff's request to create an automatic discovery mechanism.
Defendant, Peter Walles, appeals from the terms of the final order of modification. Defendant contends that the motion Judge erred in: (a) not sufficiently reducing the amount of alimony and child support; (b) ordering the invasion of defendant's pension plan as a mechanism to satisfy arrears owed to plaintiff; (c) awarding plaintiff counsel fees and expert costs incurred in her post-divorce motions to enforce litigant's rights including fees and costs incurred in the post-judgment plenary hearing; and (d) requiring defendant to pay $2,500 to defray educational expenses incurred by Jeffrey Walles while attending college during the summer term of 1993.
We affirm each component of the various orders encompassed within this appeal but reverse that component of the order which reduced defendant's child support obligation retroactive to January 1993. We also reverse that portion of the order which denied plaintiff the right to receive periodically information regarding defendant's future income. We remand to the trial court for the entry of an order consistent with this opinion which will establish an equitable mechanism enabling plaintiff to monitor defendant's future income.
Due to the number of proceedings which led to the plenary hearing which, in turn, resulted in the reduction of alimony and child support, we deem it necessary to discuss the entire post-divorce procedural history in greater detail.
After the entry of the judgment of divorce on November 13, 1990, defendant fell into arrears on his alimony payments. This led to plaintiff's first motion to enforce litigant's rights, returnable September 25, 1992. An order was entered on October 19, 1992, which required defendant to pay all of the then-outstanding alimony arrears. The Judge reserved decision on plaintiff's request for counsel fees.
Although defendant apparently complied with the October 19, 1992, order, he once again became delinquent in his alimony and child support payments. Plaintiff filed her second motion to enforce litigant's rights on April 7, 1993. This motion was argued on May 7, 1993. The plaintiff's motion and supporting pleadings indicated that defendant at that time was $26,000 in arrears on alimony and $4,800 in arrears on child support.
When the parties appeared in court on May 7, 1993, plaintiff's counsel correctly represented that as of June 1, 1993, assuming defendant had not made any additional payments, defendant's total arrears on both alimony and child support would total $65,300. Prior to the return date of plaintiff's motion, defendant filed a cross-motion seeking to reduce his alimony and child support obligations. *fn1
At the May 7, 1993, hearing, the motion Judge determined that defendant's pleadings, as then filed, failed to demonstrate a substantial change in defendant's income. It is implicit in the colloquy between the motion Judge and defendant's counsel that defendant's application for a modification of the judgment of divorce would be continued to a future date, affording plaintiff an opportunity to serve interrogatories and to depose defendant. In the interim, defendant was ordered to pay all outstanding arrears. The Judge did not establish a specific method for the payment of the arrears, nor did the Judge identify the source that defendant was to use to comply with the enforcement order.
Although the Judge intimated that it may be necessary to enforce litigant's rights by a levy, including a possible levy upon defendant's vested pension, the court did not in fact order an invasion of that pension plan. The Judge again reserved any decision on plaintiff's counsel fee request, which included a request for counsel fees not awarded on October 19, 1992.
Thereafter, defendant's counsel prepared a "Qualified Domestic Relations Order," pursuant to N.J.S.A. 2A:34-23. This order provided, in part, for the payment of $65,750 to plaintiff from defendant's existing pension plan. The proposed order was consented to by plaintiff's counsel and was then submitted to and executed by the motion Judge on July 16, 1993.
On that same date, plaintiff filed another motion, returnable August 6, 1993, seeking enforcement of litigant's rights. Plaintiff's motion was based on defendant's failure to pay his alimony and child support obligation due on July 1, 1993. The motion also specifically addressed defendant's alleged refusal to pay Jeffrey's summer school expenses. The motion was returnable on August 6, 1993.
In plaintiff's pleadings she certified that Jeffrey had entered the Berklee School of Music in September 1992. Shortly after entering school, Jeffrey needed an emergency appendectomy. Due to the appendectomy, Jeffrey withdrew from classes for the fall semester. Defendant received a full refund for all monies paid to the college for the fall semester. Jeffrey re-enrolled as a student at the start of the spring semester and planned to attend school during the 1993 summer term in order to take those courses which he had been unable to complete due to his medical problems.
In response to plaintiff's motion, defendant filed a cross-motion seeking to terminate his alimony obligation and to ...