On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-959-98-C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2008
Before Judges Winkelstein and Gilroy.
Defendant Mark Sterling appeals from the December 7, 2007 order of the Family Part. We affirm in part; reverse in part; and remand the matter to the trial court for further proceedings in accordance with this opinion.
Plaintiff Joan R. Sterling and defendant were married on November 24, 1973, and divorced on September 29, 2000. Two children were born of the marriage, a daughter and son, born in June 1980 and February 1984, respectively. In May 2000, having separated prior to the divorce, the parties entered into a Property Settlement Agreement (PSA) resolving issues of alimony, custody, child support and equitable distribution. The PSA was incorporated into the September 29, 2000 Judgment of Divorce.
Under the PSA, the parties agreed that plaintiff would have legal and physical custody of the children, and defendant would have reasonable rights of visitation. Paragraph 1 provided that defendant would pay plaintiff $1,000 a month child support, said amount to be increased after ninety days to $1,500 a month. All payments were to be made through the Monmouth County Probation Department, now the Probation Division (Division). Paragraph 14 provided that plaintiff reserved her right to alimony, support and maintenance.
Paragraph 16 governed equitable distribution of all property acquired during the marriage. Under that paragraph, plaintiff was entitled to receive $681,000 from defendant as her share of equitable distribution. In addition, the amount due plaintiff was reduced to a judgment against defendant, with defendant agreeing to "propose and effectuate a reasonable schedule of payment on said [j]udgment." Lastly, Paragraph 16 provided that "[u]pon emancipation of a child or children, the [defendant] shall continue to pay the previous child support amounts to the [plaintiff] as and for payment on the open [j]udgment."
On May 2, 2003, the trial court entered an order declaring the parties' daughter emancipated as of May 23, 2002, and denying without prejudice defendant's motion to reduce his child support obligation by one-half. On September 24, 2007, defendant filed a motion seeking: 1) an order declaring the parties' son emancipated, effective May 2006, the month of their son's graduation from college; 2) credit against the judgment for his overpayment of child support in the amount of $36,000 for the parties' daughter and $19,500 for the parties' son; 3) an order terminating his probation account because any monies paid against the judgment are not for spousal or child support; 4) an order setting his payments against the judgment at $100 a week; and 5) counsel fees and costs.
On December 7, 2007, the trial court granted defendant's motion: declaring the parties' son emancipated, effective May 17, 2006; granting defendant a credit against the judgment in the amount of $39,940, determining that defendant had overpaid child support for the parties' daughter in the amount of $10,440 and for the parties' son in the amount of $19,500; denying defendant's application to terminate his probation account and directing that defendant continue making payments of $1,500 a month toward the judgment through the Division; and denying defendant's application for counsel fees and costs. In deciding that part of the motion pertaining to defendant's request to terminate his child support account and to reduce his payments against the judgment from $1,500 a month to $100 a week, the trial court reasoned:
He's also asking the [c]court to modify the terms of the property settlement agreement requiring his payment toward the equitable distribution which is to be paid pursuant to the agreement through the Probation [Division].
.... [Plaintiff] argues that the $1[,]500 monthly payment should not be extinguished. Plaintiff relies on the terms of the property settlement agreement which essentially converts the child support payment into payment toward the equitable distribution judgment once the children are emancipated.
Given the unique way in which the property settlement agreement is written here, the parties have agreed to extend support essentially past the day of emancipation. The article read[s] that, upon emancipation of a child or children the defendant shall continue to pay the previous child ...