On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1117-01-V.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Defendant James Adams appeals from a November 9, 2007 order of the Family Part which denied his motions requesting alimony modification and financial discovery and established that defendant is responsible for sixty-two percent of his child's college expenses.
The parties were married on May 24, 1975 and divorced on September 24, 2001. Although four children were born of the marriage, only one child remained unemancipated at the time of the divorce. The Final Judgment of Divorce incorporated the parties' Property Settlement Agreement (PSA), which provided that defendant would pay permanent alimony in the amount of $1,200 and child support for the one unemancipated child in the amount of $800. The PSA also provided that alimony would be reviewed by the parties or a court of competent jurisdiction after ten years from the entry of the Final Judgment of Divorce.
Under the PSA, the child would be emancipated upon reaching the age of eighteen or upon graduating from high school, unless she was "enrolled or scheduled to begin a post-high school course of study such as college or technical school." She would also be emancipated if she began college full-time, but did not complete higher education. The PSA provided further that "[t]he child shall, however, have two semesters from the date of the last semester to re-enroll in college on a full-time basis. If the child does return to college full-time during said period, the child shall be unemancipated and the terms of this Agreement shall be reinstituted."
In addition, the parties agreed to bear joint responsibility for the cost of the child's post-high school education "based on their respective financial circumstances at the time [the child] is accepted to the education institution she will be attending." The PSA further specifies:
As set forth in the case law in the state of New Jersey (specifically Newburgh v. Arrigo), the parties shall divide, according to their proportionate share of income at the time [the child] is prepared to enroll in college, responsibility for the unreimbursed costs (tuition, room and board, if applicable, administrative costs, books, etc.) associated with [the child's] post-secondary education. As of the execution of this agreement, the parties' proportionate shares are Husband, 62% and Wife, 38%.
Both parties shall be involved in choosing a post-secondary educational institution for [the child]. [The child] shall be required to apply for all available loans, grants, scholarships, etc., before each party's proportionate share of college expenses is calculated.
On September 20, 2007, defendant filed a motion to (1) terminate or reduce alimony and (2) emancipate the parties' twenty-year-old child, or alternatively set an appropriate order for college contribution. The Family Part judge concluded that the parties' PSA controlled and found that, pursuant to the PSA, defendant's share of the child's college expenses was sixty-two percent and that defendant's obligation to pay alimony would terminate upon remarriage or death. The PSA was silent as to the effect of cohabitation.
On appeal, defendant contends that he had made out a prima facie showing of cohabitation, and the Family Part erred in failing to shift the burden on that issue to plaintiff. Plaintiff acknowledges that, in June 2008, she had been cohabitating with another man for approximately two years. She contends, however, that cohabitation is not a ground for alimony modification under the parties' PSA.
We begin our discussion by noting that because "alimony and support orders define only the present obligations of the former spouses[,] [t]hose duties are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980). Importantly, consensual agreements and judicial decrees are reviewed under the same standard of changed circumstances. Id. at 148 (citations omitted). Thus, "the extent of the change in circumstances, whether urged by plaintiff or defendant, shall be the same, regardless of whether the support payments being questioned were determined consensually or by judicial decree." Smith v. Smith, 72 N.J. 350, 360 (1977).
Where the PSA is "silent on the issue of cohabitation and its impact on spousal support," the court must "decide the issue based on decisional law rather than by construing the settlement agreement." Ozolins v. Ozolins, 308 N.J. Super. 243, 247-48 (App. Div. 1998). An application for modification of a PSA is governed by the same standard as the original judgment of divorce. Miller v. Miller, 160 N.J. 408, 420 (1999). That is, "[w]hen support of an economically dependent spouse is at issue, the general considerations are the dependent spouse's needs, that spouse's ability to contribute to the ...