On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-2985-00.
Before Judges Wefing, Wecker and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Sydney Weishaus (now Silver) appeals from a final judgment of divorce entered by the Family Part setting the amount of alimony to be paid by defendant based on the court's determination of the standard of living enjoyed by the parties during their marriage. Plaintiff argues that the Family Part erred in two respects. First, the court failed to consider the parties' actual lifestyle during the marriage and improperly extrapolated the marital lifestyle based on defendant's current earnings. Second, the court improperly rejected a settlement reached by the parties which vacated the Family Part's determination of the marital lifestyle and deferred a judicial determination on this issue until such time as a motion for modification of alimony is filed by either party. We agree as to the first issue and reject plaintiff's argument as to the second.
The parties were married January 13, 1985, and had three children, two girls who are now the ages of 16 and 15 and a boy age 10. The parties separated in March 2000 and filed for divorce in the summer of that same year. The two youngest children remained with plaintiff. The oldest child went to live with her father.
In her Case Information Statement (CIS), plaintiff indicated that the cost to maintain the marital lifestyle amounted to $36,345 per month, or $436,140 per year. This lifestyle was maintained by a combination of four sources: (1) expenses paid by defendant's earnings; (2) expenses paid by defendant's business; (3) expenses paid by defendant's mother; and (4) expenses paid by liquidating marital assets. Defendant did not deny before the Family Part, and does not deny here, that these sources, when considered together, supported the family's lifestyle during the marriage.
On December 4, 2000, the Family Part entered a pendente lite order awarding plaintiff child support for the two children residing with her in the amount of $339 per week, alimony in the amount of $500 per week and directing defendant to pay and "immediately bring current" all household expenses, including credit card balances, utilities and maintenance expenses.
On February 20, 2001, a different Family Part judge heard plaintiff's motion to enforce the pendente lite order. This judge denied plaintiff's motion and reduced defendant's weekly child support obligation to $290 per week, increased the alimony payment to $550 per week and reduced defendant's overall support obligation to exclude payments for the mortgage, home equity loans and taxes, transportation expenses in excess of $100 per month, unreimbursed health care expenses and counseling expenses for the oldest child.
The court made the following statement in support of its decision:
As I see it, his income is a hundred forty-five to a hundred forty-eight thousand dollars a year. After taxes he's down to about $84,000. Now I cannot take $117,000 a year from him. That does not allow him to live. And I know lifestyle is a factor that I have to consider, but I also have to consider expenses of both parties. And in a case like this even with $148,000 there is not enough money to maintain the former lifestyle because number one assets have been depleted. They were living on assets. I can't order the husband's mother to continue to make gifts and support this family. So I'm at that figure.
On June 29, 2001, the parties entered into a Property Settlement Agreement (PSA), which provided, inter alia, for plaintiff to receive term alimony for a period of three years, $28,400 in the first year; $23,400 in the second; and $15,000 in the third. These payments were subject to termination in the event of the death of either party or plaintiff's remarriage or co-habitation. The Agreement further provided as follows:
The Wife acknowledges that the foregoing alimony is term alimony and is for the specific period of time set forth above. The Husband has taken into consideration the equitable distribution and the terms of this Agreement when agreeing to pay the wife the aforesaid amount of alimony for a period of three (3) years and he would not have agreed to the terms of the equitable distribution if alimony extended beyond the three (3) year period. The parties acknowledge however that the case of Lepis v. Lepis shall be applicable to the terms of this Agreement.
The Agreement also required the defendant to pay child support for the two younger children on a declining scale, as follows: from July 1, 2001 until June 30, 2002 at the rate of $7,500 per year per child; from July 1, 2002 until June 30, 2003, at the rate of $7,000 per year per child; from July 1, 2003 until June 30, 2004, at the rate of $6,500 per year per child; from July 1, 2004 until the middle child "goes to college", at the rate of $6,000 per child. The Agreement further provided as follows:
The parties waive their right to the cost of living adjustments and the automatic two year review. The parties do not waive any other rights under the law, including any rights either ...