On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FM-09-000444-02A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Seltzer and C.L. Miniman.
Defendant, David A. Sharon, appeals from a May 12, 2006, order denying his application for a reduction of child support and awarding plaintiff, Alyna Williams-Sharon, $4121.75 in counsel fees. We affirm.
The parties were married on January 7, 1995, and divorced by judgment dated November 15, 2001. The judgment incorporated a Property Settlement Agreement providing for joint custody of their child, Dylan, who was born on November 25, 1998; no alimony to plaintiff; and child support from defendant to plaintiff in the amount of $800 per month. The agreement also provided that when Dylan began to attend school, although the time spent with each parent would be roughly equal, his "primary residence shall be with [defendant]."
In 2003, defendant began "trading equities utilizing automatic trading systems" and his income "skyrocketed." In January 2005, plaintiff sought to modify the residential custody provisions of the Property Settlement Agreement and to obtain an increase in child support. Defendant filed a cross-motion for an order "maintain[ing] the current custody arrangement pending a custody evaluation of our son, Dylan." The judge considered plaintiff's support application while the custody evaluations were conducted. Based on defendant's 2004 income of 2.6 million dollars and a consideration of the other appropriate factors, the judge fixed child support at $4300 per month. Before issues of custody and parenting time could be judicially resolved, the parties settled their dispute by a consent order dated October 25, 2005.
The October 25, 2005, order modified custody and parenting time so that, although the parties continued to share joint legal custody, defendant was designated as parent of primary residence and a detailed schedule of parenting time was adopted that increased the time Dylan spent with defendant. The consent order specifically provided that "[a]ll other Orders, Agreements and Judgments not specifically modified herein shall remain in full force and effect." The order did not specifically deal with child support and, upon its entry, all litigation between the parties terminated.
On March 30, 2006, defendant filed a motion to modify his child support. He premised his request on what he characterized as the substantially changed circumstances of his increased parenting time and his reduction in income from the 2.6 million dollars he earned in 2004 to $1,261,245 he earned in 2005. Despite that income reduction, defendant's updated case information statement showed a savings component of almost $500,000 per year.
Judge Maureen B. Mantineo concluded that the October 25, 2005, order constituted a "global resolution" by virtue of the provision for the continued efficacy of all prior orders. She then found that there had been no reduction in income from October 25, 2005, to March 2006, when defendant applied to reduce support. She also rejected the increased parenting time as a substantial change of circumstances because it had been contemplated by the October 25, 2005, order.
We are in agreement with both the analysis of Judge Mantineo and the result she reached. The changed circumstance analysis requires fixing the point from which a change is to be measured. Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001). The October 25, 2005, order terminated the litigation and converted the outstanding pendente lite award to a final award. Similarly, the increased parenting time was agreed to by the parties at the same time the then-current support order was continued. It cannot be the basis for a claim of changed circumstances. See Lepis v. Lepis, 83 N.J. 139, 152 (1980).
Accordingly, we affirm substantially for the reasons expressed by the judge on the record on May 12, 2006. Defendant's arguments to the contrary lack sufficient merit to justify extended discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We add only that defendant's claim that he was unaware of the extent of his reduced income at the time of the consent order is unaccompanied by a claim that he attempted to determine either that the income was reduced or the quantity of the reduction. In the absence of such a claim, the failure to reserve the right to modify the support is fatal.
We also add that "[w]hen the movant is seeking modification of child support, the guiding principle is the 'best interest of the children.'" Lepis, supra, 83 N.J. at 157 (citing Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971); Clayton v. Muth, 144 N.J. Super. 491, 493 (Ch. Div. 1976)). There is no suggestion here that the child's needs have decreased or that defendant's lifestyle is in any way impacted by his obligation to pay the ordered support. His assertion in the certification supporting his application in March 2005 to the effect that he anticipated a further decline in income does not suggest an inability to pay the ordered support at the time he sought a reduction. Indeed, the evidence is otherwise. It is difficult to consider a reduction in income "substantial" where the reduction does not in any way affect the ability to pay child support while maintaining an unchanged standard of living.
We are also in complete agreement with the judge's award of fees. That award, of course, is discretionary. Williams v. Williams, 59 N.J. 229, 233 (1971), and the judge appropriately considered the factors enumerated in Rule 5:3-5(c). The substantial disparity in income, ...