On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FM-19-253-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and C.L. Miniman.
Defendant Iris Simon, former wife of plaintiff, Marc L. Simon, appeals from the April 13, 2006 order of the Family Part denying her motion to set aside the terms of a settlement and from a counsel fee award to plaintiff in the amount of $1,582.50. We affirm in part and reverse in part.
The case has a long history as witnessed by the voluminous record. At the outset of the relationship plaintiff was completing his surgical residency and about to start his practice as a general surgeon. Defendant was a surgical scrub nurse at Morristown Memorial Hospital. They began living together in the summer of 1983 and were married in November 1984. Two children were born of the marriage: Baylee, born on September 29, 1985, and Lindsay, born on May 18, 1988.
The parties separated in March 1991. A year later they signed a property settlement agreement (PSA), which was negotiated with the assistance of independent counsel. It provided for joint legal custody with defendant as residential custodian. Plaintiff agreed to pay child support of $1,000 per month until October 1, 1993, when his obligation increased to $2,000 a month allocated at $1,250 for Lindsay and $750 for Baylee. He also agreed to pay unreimbursed medical and dental expenses as well as an annual clothing allowance of $750 for each daughter. The PSA further provided plaintiff would pay rehabilitative alimony of $700 per month in addition to all necessary costs for defendant to obtain an R.N. degree at Morris County College. He also paid for defendant's new Volvo.
Defendant agreed to convey to plaintiff her interest in the former marital home in Sparta. A home was to be purchased for her in Millburn with plaintiff responsible for the down payment, mortgage and taxes until the termination of rehabilitative alimony. Plaintiff was then to pay $500 per month or thirty-five percent of defendant's net income, whichever was greater, toward the mortgage and taxes until defendant remarried or the house was sold. The parties took title as tenants in common with plaintiff as owner of thirty percent.*fn1 Other provisions of equitable distribution included the following:
In consideration of all the terms and conditions of the within property settlement agreement, the wife waives any claim she has or may have to equitable distribution of the husband's medical practice, the husband's interest in his MRI, the husband's 401k, IRA, etc., free from any claim of the wife whatsoever.
Each party waives any other claim he or she may have to any other assets acquired by the other during the course of the marriage and subject to equitable distribution pursuant to the laws of New Jersey.
The provision as to cost of education for the daughters read as follows:
The parties further acknowledge that it is their desire that the children obtain post-high school education, including but not limited to college, graduate school, etc. to the full extent that the children are capable. The husband agrees that he shall be solely responsible for all post-high school education expenses to be incurred on behalf of the children including but not limited to room and board, tuition, lab fees, reasonable costs of transportation, etc.
The PSA was amended three times. On March 23, 1992, it was agreed that defendant would pay an additional $13,500 toward the down payment of the Millburn house. An addendum in 1994 made plaintiff responsible for the first two years' payment of a new Saab leased by defendant, payment of defendant's automobile insurance, payment of $1,000 per year for the children's vacations, the cost of Hebrew school and a three percent annual increase in child support beginning in January 1995.
Additionally, the amendment stated that,
In the event of the wife's remarriage or cohabitation as defined by Gayet, or sale of the Millburn property, the child support shall be a total combined amount of $3,000 per month, allocated $1,875 for Lindsay and $1,125 for Baylee. The aforesaid child support of $3,000 per month will be subject to the three percent annual increase herein before referred to. Notwithstanding anything contained herein to the contrary, any obligation the husband has to contribute to the taxes and/or mortgage payment on the Millburn property shall terminate at the time the youngest child attains eighteen years or is graduated from college, which ever is later.
The third addendum was executed on September 24, 1997, the date of the divorce judgment. It increased child support to $3,500 per month allocated one half for each child and also stated:
Notwithstanding deviation from the guidelines pursuant to this Addendum, same shall not bar either party from seeking application of the "new guidelines" in connection with the subsequent modification of child support. It is further acknowledged by the parties that at the time child support was negotiated and modified as provided for herein, the parties' respective incomes at the time were and are reflected in the parties' joint federal and state income tax returns for the year 1996....
It is specifically agreed that in addition to modification of child support as provided for by statute, court rules, case law and as otherwise provided for herein, child support for both children shall be reviewed at the time a child commences college, taking into account husband's contribution for college, as provided for in the property settlement agreement.
On August 29, 2003, almost six years after the divorce, plaintiff filed his first motion to modify child support, unreimbursed medical, and his college contribution payments. He certified that he was remarried with another child and that his income was reduced from over $300,000 to about $216,000 while defendant's income subsequently increased from $22,000 to $120,000. He added that Baylee was about to enter college which would cost him about $35,000 per year. Alleging changed circumstances, he sought modification of the PSA to reduce his child support obligation and require defendant to pay forty percent of the cost of the daughters' college educations.
Defendant filed a cross-motion for child support arrearages accumulated as a result of the PSA addendum for an annual increase of one and one-half percent.*fn2
The motion judge ordered a plenary hearing on child support but denied a revision of the PSA as to unreimbursed medical expenses and cost of college educations. He added:
The parties entered into an agreement. There is no reason that has been given that I can find, no true change of circumstances that would warrant changing that.
Plaintiff's motion for reconsideration was denied. During oral argument counsel for defendant stressed that the issue at the plenary hearing would be plaintiff's application to reduce child support and not modification of plaintiff's college contribution. Counsel for plaintiff agreed.*fn3
Between June 2004 and February 2005, four discovery motions were filed by defendant. During oral argument on November 12, 2004, counsel for defendant stated:
Dr. Simon continues to mislead the court by stating what is his issue at the plenary hearing. He continues to say that its a reduction of child support and his college contribution. That second issue has been adjudicated by this court and its been denied. So that is not a pending issue.
Dr. Simon has one pending issue at the plenary hearing. And that is whether he is entitled to a child support reduction, if any amount is warranted.
Counsel for plaintiff responded,
And as far as the college expense issue, judge, that was part of his application. That's the reason it was mentioned to the court.
However, the issue of his college contribution was repeatedly raised by plaintiff. In the motion hearing of December 17, 2004 defendant, then pro se, had the following colloquy with the motion judge:
MRS. SIMON: Another very disturbing, and there's only one more thing, is Your Honor justly ruled that I had no obligation to college expense. It was part of the divorce agreement, the settlement between Dr. Simon and I. It is mentioned continually, in almost every motion, in every motion. In this motion, Your Honor, it is mentioned five times. Your Honor, it is always coupled with a request for a reduction in child support and a reduction in child expense obligation. It is in the notice of motion. It is in Mr. Baldwin's memorandum of law. It is in the certification. It is the order that he left blank... for Your Honor to sign.
THE COURT: It's actually kind of interesting. Because if a party, you know, says that he has an agreement that he is supposed to be making college contribution, and then he comes back and says he has changed circumstances, that at least on its face-and let me finish before you jump in, the argument can be made that I'm supposed to look at this case called Newburgh v. Arrigo, and determine what the parties' contribution to college should be and that I might have to modify it based on it. But, big but, if I do that, then I have to reform the whole agreement, because if there ...