On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1023-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and King.
Plaintiff, Thomas Crabe, appeals pro se from part of a May 16, 2007 order of the Superior Court, Chancery Division, Family Part, directing him to continue paying $2418 per month in alimony and child support. Plaintiff argues that the May 16, 2007 order is inconsistent with a prior order of November 3, 2006, which stated that he had demonstrated a substantial change in circumstances.
We agree with plaintiff that the November 3, 2006 order appears inconsistent with the May 16, 2007 order. Although this standing alone may not be enough to sustain a remand, we find that there are genuine issues of fact with respect to plaintiff's ability to continue paying $2418 per month in alimony and child support. Thus, we remand for a plenary hearing on the issue of modification.
Plaintiff and defendant, Mary Crabe, were married in a religious ceremony in Bayonne on December 27, 1980. Two children were born of the marriage: Matthew on October 8, 1982, and Alexandra on May 8, 1987. During the marriage, plaintiff worked in the property management field. He earned about $80,000 a year, while defendant was primarily a homemaker.
Problems began in April 2000. After a failed attempt at reconciliation, plaintiff left the marital home on July 4, 2001, and eventually filed for divorce. The parties entered into a property settlement agreement (PSA) on January 23, 2003. The PSA provided that defendant would have primary residential custody of the children. Plaintiff was to pay $1500 per month in alimony and $1500 in child support. He was also to pay 65% of unreimbursed medical expenses and 50% of college expenses for both children.
At the time the parties entered into the PSA in 2003, plaintiff was no longer regularly employed due to his alleged disability.*fn1 He was, however, anticipating a rather significant inheritance from his mother's estate. Given these circumstances, the parties included the following stipulation in the PSA:
At the time of entering into this Agreement, the Husband is unemployed and anticipates receiving interest income from an inheritance. The Wife is employed as a per diem visiting nurse whose work fluctuates depending upon assignment from her employer. Therefore it is difficult to estimate incomes and therefore stipulate an appropriate allocation between alimony and child support. Accordingly, the parties stipulate that of the monthly support payment, $1,500.00 shall be allocated for alimony and $1,500.00 shall be allocated for child support. With respect to any future review, the allocation of support shall be considered but not controlling as to future adjustments. At the time of review, the parties shall consider their respective incomes and assets and college obligations.
As to the timing of this future review, the PSA further provides:
In the event of the emancipation of one of the children, child support shall be adjusted and reduced accordingly. Similarly, in the event the parties' daughter, Alexandra attends residential college away from home, at the option of either party, the support contained herein shall be reviewed. There shall be a review in five (5) years from the date of this Agreement as to the appropriate level of support to be paid. [(Emphasis added).]
Three and a half years later, on June 9, 2006, the parties entered into a consent order in which they agreed to the emancipation of their son, Matthew, no longer attending college. They also agreed to reduce plaintiff's support arrears to $0 and his total monthly support obligations to $2418. According to defendant, plaintiff made no mention of his inability to pay the $2418 during the parties' negotiations.
Shortly after this, in July 2006, the Social Security Administration (SSA) granted plaintiff's request for disability benefits and awarded him $1330 per month ($15,960 per year). The SSA determined that plaintiff had been disabled since April 2001. In August 2006 the SSA informed plaintiff that $798 would be withheld from his disability benefits to pay his child support and alimony obligations.
On August 23, 2006 plaintiff filed a motion to terminate alimony and decrease child support based on a substantial change in circumstances. Defendant filed a cross-motion for payment of support arrears and tuition and medical reimbursement.
On October 6, 2006, after considering the parties' moving papers, the judge denied plaintiff's motion without prejudice. The Statement of Reasons accompanying the order provides in pertinent part:
The movant bares [sic] burden of showing substantial and permanent changed circumstances before entitlement to modification. Lepis v. Lepis, 83 N.J. 139 ...