On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket FM-02-2163-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges R. B. Coleman and Simonelli.
In this matrimonial matter, defendant Robert Anello (Robert) appeals from the December 19, 2007 order denying his motion for reconsideration of the July 6, 2007 order denying his motion for permanent alimony based on changed circumstances relating to certain provisions of the parties' Property Settlement Agreement (PSA), dated February 1, 2002. We reverse and remand for discovery and a plenary hearing to determine the amount of permanent alimony to be awarded to Robert.
Robert and plaintiff Linda Anello, n/k/a Linda Ottomanelli (Linda), were married on June 12, 1982. Two children were born of the marriage: "Amy"*fn1 , born July 24, 1987, and "Brian," born January 1, 1992. Linda filed a divorce complaint on March 6, 2001. A Dual Final Judgment of Divorce, entered on February 15, 2002, incorporated the PSA. The PSA provides for joint custody of the children, with Linda as "the parent of primary residence."
The PSA reflects the parties' agreement that Robert was entitled to permanent alimony. However, he waived that entitlement, and he gave Linda a greater share of equitable distribution, conditioned on his non-payment of child support. In this regard, the PSA specifically provides that:
[Robert] shall not pay to [Linda], for any child support based upon [Robert's] waiver of his claim for alimony to be paid by [Linda]. [Robert's] waiver of alimony is specifically conditioned upon the absolute non-modifiability [sic] of his responsibility to pay any child support except as to college expenses and certain non-recurring extra-ordinary events as set forth hereinbelow. The parties have considered both foreseeable and unforeseeable changes of circumstances, including but not limited to employment changes of the parties or the children and in so doing acknowledge that based upon the totality of all the terms contained in this Agreement that [Robert] shall not be required to pay child support, having pre-paid same through equitable distribution and alimony considerations herein.
Notwithstanding anything to the contrary contained herein, this provision shall be deemed a waiver of alimony by both parties, absolutely and forever. [Robert's] waiver is, however, expressly conditioned upon his non-payment of child support as set forth in Section 5 hereinabove. [(Emphasis added.)]
On June 21, 2006, Robert filed a motion, seeking residential custody of Brian, child support, alimony and counsel fees. By consent order, dated August 4, 2006, the parties agreed to transfer residential custody of Brian to Robert "without prejudice" subject to a social and diagnostic evaluation and best interest report. The parties also agreed to reserve the issues of child support and alimony, pending discovery.
Nothing further occurred until March 27, 2007, when Robert filed a pro se motion, seeking child support for Brian. Although Linda did not file a cross-motion for child support for Amy, the motion judge entered an order on May 14, 2007, ordering, among other things, that Linda pay weekly child support of $169 for Brian and that Robert pay weekly child support of $151 for Amy.
On June 4, 2007, Robert filed a pro se motion, again seeking alimony. He argued that his payment of child support for Amy constituted changed circumstances entitling him to alimony pursuant to the PSA. In support of his motion, Robert submitted a Case Information Statement (CIS) and tax returns. Linda, represented by an attorney, did not file a CIS or submit any financial information.
Without having the parties' complete financial records, and despite Robert's protest about Linda's failure to file a CIS, the motion judge denied the motion, finding that the parties' income had not changed since the time of the divorce judgment in 2002. The judge also found that Robert paid weekly child support of $151, that Linda paid weekly child support of $169, and that these child support obligations, along with the parties' respective incomes, "wipe each other out." Thus, the judge concluded that "[t]here is no change in the financial circumstances . . . [that] demonstrate that there should be any alimony paid[.]" Citing Pascale v. Pascale, 140 N.J. 583 (1995), the judge also concluded that Robert's alleged pre-payment of child support did not extinguish his obligation to pay child support for Amy because "the right to child support belongs to the child and cannot be waived by the custodial parent."
On July 25, 2007, Robert filed a pro se motion for reconsideration, seeking, among other things, permanent alimony, to terminate child support for Amy, to temporarily transfer custody of Amy, to permit discovery, and to require Linda ...