On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Morris County, No. FM-99-14-1469.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C.S. Fisher and Messano.
The parties appeal and cross-appeal from post-judgment orders entered by the trial court on December 20, 2005 and January 17, 2006. After reviewing the record in light of the contentions advanced on appeal, we reverse.
The parties were married in October 1988 and divorced pursuant to a judgment of divorce entered in July 1999. During the course of their marriage, the couple had four children, who now range in age from fourteen to nine. In conjunction with the divorce proceedings, the parties engaged in mediation which resulted in a comprehensive property settlement agreement. Under that agreement plaintiff agreed to pay child support of $2,405 per month and alimony of $5,100 per month. The agreement provided for a modification of those sums upon the sale of the marital residence; following that sale, plaintiff paid to defendant $56,000 per year in alimony and $26,000 per year in child support. After setting forth the formula by which that modification was to be calculated, the agreement stated, "Any subsequent change in Kelly's housing arrangements will not result in any further adjustment, upwards or downwards, in these [alimony and child support] payments."
The agreement contained the following provision with regard to plaintiff's obligation to pay alimony:
Alimony will terminate upon: (i) Kelly's death; (ii) Kelly's remarriage; or (iii) the youngest surviving child's graduation from high school or emancipation, as defined herein, whichever first occurs. Alimony will be subject to modification as otherwise prescribed by law. The parties have specifically structured alimony to terminate upon the youngest surviving child's graduation from high school or emancipation, whichever first occurs, not as a substitute for child support, but because Kelly's ability to earn her own income will markedly increase and her consequent need for alimony will decrease when she no longer has primary responsibility for caring for any of the parties' four Children. Alimony will also be reduced if and when Kelly's earned income exceeds $40,000 per annum, with the reduction being in the amount of $.30 (thirty cents) for every $1.00 Kelly earns over $40,000. Kelly will be responsible to notify Jack when her income exceeds the aforesaid $40,000 per annum and Jack may request a copy of Kelly's tax return each year in order to implement this provision. According to the record before us, defendant's income has never reached the $40,000 threshold. Plaintiff, on the other hand, is a partner in a major law firm. According to the financial information contained in the record before us, plaintiff was earning nearly $400,000 when the current dispute developed.
The agreement further provided that the parties would "renegotiate child support based on both parties' then current incomes every two years after [the modification based upon sale of the marital residence]." According to the record before us, the parties made no effort to renegotiate child support until the events which gave rise to the present dispute.
Following their divorce, each of the parties formed a new relationship. Plaintiff has remarried, while defendant has not. Defendant's boyfriend, however, moved into defendant's new residence in August 2003. In October 2003, plaintiff approached defendant about modifying his financial obligations, but the parties were unable to come to an agreement. In April 2004 plaintiff filed a motion seeking to terminate his obligation to pay alimony based upon defendant's cohabitation with her boyfriend, to modify his child support obligation, and for an increase in parenting time. Defendant filed a cross-motion seeking an increase in plaintiff's payments.
The parties determined not to litigate their disputes but, rather, to submit them to arbitration, and they selected a retired Superior Court judge to serve as arbitrator. Thereafter, they signed an arbitration agreement, drafted by the arbitrator. This agreement included the following provisions pertinent to the appeal before us:
2. Substantive Law, Statutes Governing Arbitration, Rules of Arbitration Applicable. Except as herein otherwise provided, the parties shall be bound by the substantive laws of the State of New Jersey with regard to the subjects raised by the issues in this arbitration.
The arbitration shall proceed in accordance with N.J.S.A. 2A:24-1 et seq.*fn1 The provisions of this Agreement shall govern in case of conflict with said laws and Rules to the extent not ...