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Herridge v. Herridge

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 15, 2007

DEBORAH HERRIDGE, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
PETER HERRIDGE, DEFENDANT-APPELLANT/CROSS-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Morris County, No. FM-14-044-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 26, 2007

Before Judges Wefing, Parker and R. B. Coleman.

The parties appeal and cross-appeal from post-judgment orders entered by the trial court on June 6, 2006, and August 8, 2006. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part.

The parties were married in 1983, and a Judgment of Divorce was entered in September 2003. During the marriage, the couple had three sons. The oldest was nineteen years of age at the time of the divorce and already enrolled in college; he is now twenty-three. The next son was almost seventeen years old and is now twenty-one. The youngest boy was twelve years old when his parents divorced and is now sixteen years of age.

In connection with their divorce, the parties executed a comprehensive property settlement agreement. Article 3 of that agreement set forth their respective obligations with respect to child support. The following paragraphs of Article 3 bear upon the issues before us.

3.3 Support of the children.

A. Commencing July 15, 2003 the husband shall pay to the wife the sum of $4,800 per month as and for the support and maintenance of the children. These payments will be made by check or money order delivered to the residence of the wife. However, the wife may, at her option, elect at any time to have child support payments made through the appropriate probation department.

D. Child support shall be revisited two years from the date of this agreement.

E. Child Support shall cease when Christian graduates college or four years after Christian graduates high school, whichever occurs first.

F. The husband shall pay for Justin's car payment on a monthly basis.

G. The wife shall pay 100% of unreimbursed medical expenses of the children. However, should any of the children incur unreimbursed medical expenses in excess of $500 per year, the husband shall then contribute to medical expenses pursuant to each party's respective income. For the purpose hereof, the term medical expenses shall include, but not be limited to any expense of medical, dental, hospital, optical, orthodontic nature or the like.

3.4 Medical Insurance

A. The husband shall provide health care (and dental and optical if available to employees of the husband's employer) insurance coverage for the benefit of the children until the children reach emancipation. The husband shall be solely responsible for any costs associated with this health care insurance coverage.

B. Each year on the date of the signing of this agreement the husband shall provide proof to the wife of this medical coverage.

3.5 College

The parties acknowledge that the children should have the opportunity of post high school education if they so choose, including undergraduate college, vocational school and job training school. The wife shall pay 100% for that education, including funds for application expenses, review courses, tests, transcripts, room, board, tuition, living expenses, transportation, computer, and other miscellaneous fees and reasonable other expenses, subject to any scholarships, loans, assets held in the child's name or other assistance the child is able to obtain.

In addition, Article 2 provides:

2.1 The parties have agreed that at this time there will be no alimony payment from the husband to the wife. However, alimony will be revisited whenever child support is revisited.

B. Notwithstanding anything to the contrary contained herein, the husband waives his right to alimony, absolutely and forever.

In September 2004, defendant filed a motion seeking to set aside the Agreement in its entirety. That motion was denied. Defendant filed an appeal from that denial but subsequently withdrew his appeal. In April 2006, defendant filed another motion, seeking a modification of his child support obligations under paragraph 3.3(D) of the parties' Agreement. He also contended that the couple's oldest son, who by then had graduated from college, should be declared emancipated. Plaintiff opposed defendant's motion and filed a cross-motion in which she contended that if defendant were to prevail, she should receive alimony and reimbursement for college expenses she had advanced for the two oldest boys. The trial court denied defendant's motion, finding that he had not established changed circumstances. It also denied plaintiff's motion as moot. Defendant then filed a motion for reconsideration, which the trial court also denied. This appeal followed.

On appeal, defendant contends that he was entitled to have his child support obligation recalculated without a showing of changed circumstances. He contends in the alternative that he did, indeed, present a sufficient showing of changed circumstances. He also argues that the trial court erred in not declaring his oldest son to be emancipated. Finally, defendant contends that the trial court was presented with several disputed issues of material fact and should have let the parties proceed to discovery and a plenary hearing before deciding the merits of defendant's applications.

In our review of this matter, it has not escaped our notice that defendant did not argue to the trial court that he was entitled to a recalculation of his child support obligation without regard to a showing of changed circumstances. Indeed, defendant's motion papers filed in support of his original motion makes no such assertion. Rather, their entire structure and tone are devoted to demonstrating the presence of changed circumstances. Thus, defendant in his certification dated April 26, 2006, stated, "It was the intention of the parties to completely renegotiate the child support obligation in two years after Plaintiff had established herself in her chosen profession and generated an income history." Further, defendant in his certification dated May 17, 2006, stated, "[T]he intent of the parties at the time of signing [the Agreement] was that two years down the road we would renegotiate our respective child support obligations in light of the financial realities at that time." Within that certification, moreover, he set forth certain factors that he contended demonstrated changed circumstances. We are not persuaded by defendant's assertion on appeal that he did not need to demonstrate changed circumstances to obtain a modification of his child support obligations.

Nor are we persuaded by his alternate argument that he did, in fact, demonstrate changed circumstances. Those items to which he points, such as the graduation from college of the oldest boy and plaintiff's efforts in the real estate field, were within the contemplation of the parties when they signed the Agreement and thus do not constitute changed circumstances. Glass v. Glass, 366 N.J. Super. 357, 376 (App. Div. 2004).

It is apparent, moreover, that the parties' agreement on the monthly payment of $4,800 in child support cannot be viewed in isolation. Rather, it was but one part of the parties' overall allocation of their financial burdens. In return for this monthly child support, plaintiff agreed to forego alimony and to assume complete responsibility for the boys' college expenses and 100% of their unreimbursed medical expenses, to the extent those expenses did not exceed $500 for each son. Glass v. Glass, supra, 366 N.J. Super. at 373 (noting, "The [Agreement] was an integrated agreement. It not only resolved issues of custody and visitation but financial matters including equitable distribution and spousal and child support. No one element stands alone and can be read without reference or consideration of the others."). We decline to interfere with such a carefully structured plan.

We are constrained to agree with defendant in one respect. The trial court denied his request to declare the couple's oldest son, now 23 years old and, we are informed, enrolled in law school, emancipated. The Agreement, despite its apparently careful drafting, contains no provision defining when a child should be considered emancipated. A determination that a child is not emancipated may have consequences far beyond the agreed-upon payment of $4,800 per month. Under paragraph 3.3., for instance, defendant agreed to be responsible for the oldest son's car payment "on a monthly basis." He also agreed to provide health insurance coverage for the sons "until the children reach emancipation." A ruling that the sons are not emancipated until the youngest son graduates from college could result in defendant having to make monthly car payments and provide health insurance for a thirty-year-old man. Such a construction would be wholly unreasonable.

Conversely, however, a determination that the oldest son should be considered emancipated does not, in our judgment, have any effect on defendant's obligation under paragraph 3.3 to pay the agreed-upon monthly sum of $4,800 for child support. Absent a showing of changed circumstances, that obligation continues unabated until, in the language of paragraph 3.3(E) of the Agreement, the youngest son "graduates college or four years after [he] graduates high school, whichever occurs first."

Defendant's final argument, that the trial court should have ordered full financial discovery and a plenary hearing, lacks sufficient merit to warrant discussion in a written opinion for it would have no precedential value. R. 2:11-3(e)(E).

So much of the trial court orders that denied defendant's request to modify his child support obligation are affirmed, and those portions of the orders that denied his request to consider the oldest son emancipated are reversed. In light of this disposition, plaintiff's cross-appeal is moot.

On defendant's appeal, we affirm in part and reverse in part. We dismiss plaintiff's cross-appeal as moot.

20071115

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