On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-137-96B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
In this post-judgment matrimonial action, plaintiff Judith B. Murnen appeals from those portions of a January 2, 2007, order that denied without prejudice her motion to enforce the child support provisions of a previously-entered property settlement agreement (PSA) between her and her former husband, defendant Stephen R. Murnen, and further denied her request for counsel fees. The salient facts are essentially undisputed.
Plaintiff and defendant were divorced on December 12, 1995, with the judgment of divorce incorporating a previously-executed PSA dated August 2, 1995. The PSA provided that custody of the parties' three daughters would be shared jointly; defendant would pay $1000 per month per child, until emancipation, which was defined in the PSA as any child's completion of undergraduate studies; unreimbursed medical expenses, clothing, music lessons, camp, and other special activity expenses would be shared equally by the parties; college and related expenses would be covered through the establishment of an education trust funded by seventy-five percent of defendant's bonuses and the parties would share expenses not covered by the fund; private school tuition would be shared equally by the parties; and defendant would pay plaintiff alimony for a limited duration of ten years.
Thereafter, several post-judgment applications were made culminating in a consent order dated April 14, 2003 (the revised PSA). The revised PSA eliminated the education trust fund; provided that defendant would be one-hundred percent responsible for the children's college-related expenses and set an amount defendant would pay for each girl's wedding; altered the methodology for computing defendant's alimony obligations; increased child support obligations to $1650 per month for the youngest daughter and decreased the amount for the two older daughters to $500 each per month; provided for equal sharing of the costs of music lessons, camp and other special activity expenses as to their youngest daughter; required defendant to assume one-hundred percent of the private school tuition costs for their youngest daughter; and required defendant to pay plaintiff an additional lump sum of alimony in the amount of $17,000.
While the revised PSA was in place, the court issued an order to show cause dated August 18, 2003, temporarily transferring custody of the three children to defendant. By order dated September 25, 2003, the judge transferred residential custody of all three girls to defendant, permitted him to enroll his youngest daughter, fifteen years old at the time, in school in Illinois where defendant now resided, and suspended defendant's child support obligation "until further notice of th[e] court."
Over the ensuing months, plaintiff filed a motion to enforce the alimony portions of the PSA arguing that the method for calculation of defendant's obligations should yield a greater monthly amount. She also sought counsel fees.
Defendant cross-moved seeking to have the court impute income to plaintiff, award child support for his youngest daughter, and award him counsel fees. Apparently while these applications were pending, the parties began an exchange of e-mails in which they attempted to resolve certain issues.
After some preliminary e-mails in which the two parties negotiated a number of items related to the custody, support, and outstanding expenses of their youngest daughter, plaintiff set forth the terms of her understanding of the parties' consensual agreement in an August 27, 2004, e-mail. As it relates to the issues on appeal, plaintiff and defendant agreed that their daughter would live in Princeton with plaintiff, though defendant would still have legal custody, and that defendant would pay $1650 per month in child support. Plaintiff agreed to a temporary $400 per month reduction to allow defendant to recoup costs already expended for private school tuition in Illinois. Plaintiff then noted, "I understand that you do not want to pay full child support through college. But, on the other hand, our Agreement does say that child support would be paid through college and that issue has nothing to do with [our daughter] in 2004." Plaintiff suggested, "How about holding that issue in abeyance until it becomes an issue."
Defendant answered the e-mail the next day, and stated, "[he] [was] fine with this . . . ." He added that while he had no objection to "putting this on paper," if it "include[d] any language related to child support during college, [he] [would not] sign it." He continued, "The fact that I am now obligated to pay all tuition makes the payment of child support to you while [our daughter is] away at college ludicrous." The agreement reflected in the e-mail exchanges was never reduced to writing.
On August 30, 2004, the motions previously filed were decided and the judge incorporated his conclusions into a written memorandum. In short, the judge ordered defendant to pay plaintiff $5729 per month in alimony, imputed yearly income to plaintiff in the amount of $24,000, ordered plaintiff to pay defendant $147 per week in child support for her youngest daughter, and denied both parties' request for counsel fees.
The parties' youngest daughter returned to New Jersey to live with plaintiff in September 2004 and the parties apparently operated under the terms of their consensual e-mail agreement until May 2006. Then, in an e-mail to plaintiff dated May 4, defendant advised that he was forwarding the child support payments for July and August. However, he noted, "Th[ese] are the last checks ...