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Nash v. Nash

May 9, 2008

CHRISTOPHER JOHN NASH, PLAINTIFF-APPELLANT,
v.
KATHLEEN MARIE NASH N/K/A KATHLEEN MARIE MACDONELL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2797-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2008

Before Judges Sabatino and Alvarez.

Christopher John Nash ("the ex-husband") appeals the Family Part's order of June 8, 2007. The order denied his motion to reduce child support payable to his former spouse, Kathleen Marie Nash, now known as Kathleen MacDonell ("the ex-wife"). Because the record suggests that the parties' circumstances significantly changed since the last time that child support was calculated, we vacate the June 8, 2007 order and remand for a plenary hearing.

The parties were married in 1981. Their marriage produced a son born in August 1983, a daughter born in November 1984, and a second daughter born in August 1988.

The parties divorced in the State of New York in 1993. Since that time, both of the parties have remarried. Both have also since moved to New Jersey. The three children of the marriage resided with the ex-wife, pending the completion of their schooling. The ex-wife gave birth to a daughter with her new husband in January 1996.

In August 2003, the New York divorce judgment was registered in the Family Part. The ex-husband concurrently moved to emancipate the son, modify child support, address college tuition obligations, and for other relief. After exchanging discovery, the parties entered into a Consent Order resolving the contested motion issues. The Consent Order, which was negotiated with the assistance of counsel and the advisory input of an Early Settlement Panel, was filed with the Family Part on February 24, 2004.

In paragraph 1 of the Consent Order, the parties agreed that:

Child support for the three children . . . shall be set at $450.00 per week payable directly by [the ex-husband] to the [ex-wife]. Said amount shall consist of $335.00 per week as and for support of the parties' [younger daughter], plus $115.00 per week as and for the support of the parties' [son and older daughter] who are both attending college full time at Quinnipiac University and Sacred Heart University, respectively. As the two [older] children in college graduate and are emancipated, the $450.00 per week in child support shall step down in the amount of $57.50 [per week] for each child.

The next and final sentence of that same paragraph addressed what also was to happen, apart from the two $57.50 reductions for the older children, when the younger daughter became the sole unemancipated child:

At the time that there is only [the younger daughter] remaining as unemancipated, child support for her shall be recalculated based upon the then existing financial circumstances of the parties and the then existing case-law of the State of New Jersey. [Emphasis added.]

The Consent Order also specified that "[t]here shall be no Cost of Living [increase] applied to the above referenced child support obligation."

The Consent Order further provided that the ex-husband was to relinquish certain life insurance policies, which then had a cash surrender value of about $190,000, to the ex-wife, in order to help finance the three children's college costs. In return, the ex-wife agreed to assume responsibility for college costs, and to waive irrevocably any right to seek future contributions from the ex-husband. In that regard, the Consent Order made clear that "[a]ny change in the needs, expenses, incomes, employment or circumstances of the parties shall not . . . be used, directly or indirectly[,] as ...


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