On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-514-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Defendant, James J. Sullivan, appeals from the March 22, 2007 order of the Family Part judge denying his motion to modify an August 26, 2002 consent order executed by defendant and plaintiff, Patricia A. Sullivan, related to defendant's child support obligations. The Family Part judge determined that our decision in Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993) was dispositive and concluded that a modification was not warranted. We affirm.
Plaintiff and defendant were married on July 3, 1989. Two children were born of the marriage: J.S., born on January 10, 1990; and B.R.S., born on April 30, 1992. In March 1997, the parties entered into a property settlement agreement (PSA) that was incorporated into the final judgment of divorce (JOD) granted by the court on April 2, 1997.
Under the PSA, defendant's monthly alimony and child support obligation was $7,000, with $2,000 of that amount designated as alimony, terminable upon plaintiff's remarriage, while the remaining $5,000 represented child support. Additionally, the agreement required that defendant pay for the children's unreimbursed medical expenses, extracurricular activities, college or vocation school costs and other necessary costs. Further, under the PSA, defendant agreed to contribute $700 per month toward plaintiff's mortgage until the emancipation of the children, at which time the $700 would increase to the actual amount of the mortgage payment.
Although the record does not reflect the dates of remarriage, both parties remarried. Following plaintiff's remarriage, the parties revisited defendant's child support obligations. To that end, the parties executed a consent order dated August 26, 2002 that modified defendant's child support obligations. At the time the parties executed the consent order, defendant's annual income was between $135,000 and $177,254.
The consent order provided that defendant would pay $5,500 per month in child support and, upon the emancipation of J.S., the older of the two children, monthly child support would be reduced to $4,000. The fixed child support amount now included defendant's obligation to pay for the children's unreimbursed medical expenses, extracurricular activities and the $700 monthly contribution towards plaintiff's mortgage. Finally, both parties agreed to share their children's college costs based upon their respective earnings.
In addition to the specific obligations of each party, the consent order contained the following provision, commonly referred to as an anti-Lepis*fn1 clause:*fn2
The parties agree that a critical part of the consideration for the plaintiff's compromise on the support obligation is the defendant's waiver of any and all rights that he may have to seek a reduction in his obligations, including any reduction that he might otherwise seek as a result of the filing of his tax returns and any resulting tax liabilities, as well as any reduction that he might otherwise seek due to debts in his business (about which he testified on May 15[,] 2002) and any other reason that he might have to seek a reduction based upon a change in circumstances. Thus, the parties' agreement is that $5,500 per month will be paid until [J.S.] is emancipated and $4,000 per month will be paid until [B.R.S.] is emancipated and these amounts are not changeable by the defendant for any reason whatsoever.
On November 9, 2006, defendant filed a notice of motion to modify the parties' August 26, 2002 consent order or, alternatively, rescind and/or reform the consent order. Defendant alleged that there had been a change in his financial circumstances, claiming that his 2006 annual income was $87,450, which called for modification of the consent order. In his certification submitted in support of the motion, defendant stated that his financial situation had deteriorated. He explained:
11. At the time of the entry of this Consent Order, I was in the business of residential home construction, and I operated under two different names. The companies were Sullivan Development Corporation, LLC and Mechanics and Design, LLC., but essentially they were the same company. These were small companies in the sense that I generally only constructed one or two houses at a time, and generally over the course of 16-24 months per home. Generally, the homes were moderately expensive, in the seven-figure range, and when they were completed the profit I earned was generally my income for the year.
12. I was able to make a good living, but  having so much of my financial security invested in one or two homes  at a time created a very small margin for error in the event there was a problem with the payment. In September 2005, my financial circumstances ...