On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-696-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Grall.
This is a post-judgment matrimonial matter. Defendant Ruth Marie Meyer appeals from a post-judgment order allocating responsibility for child support and college costs entered on plaintiff Kenneth R. Meyer's motion. We affirm.
The Meyers married in 1979 when they were both about twenty-five years of age. They have two children, the first born in 1988 and the second in 1990. They were divorced in 1997. At that time, both plaintiff and defendant were practicing law. The final judgment of divorce incorporates their property settlement and custody agreement, pursuant to which defendant is the children's primary caretaker.
The Meyers' agreement on support is based upon their assumptions about their relative capacity to earn----plaintiff an annual base salary of $185,000 and defendant $72,500. With respect to alimony, they agreed to a term of eleven years at a rate of $18,000 during the first ten years and $33,000 in the final year, the term to expire after May 15, 2008. The amount was negotiated in light of defendant's receipt of more than fifty percent of the value of the marital residence, a joint bank account, and plaintiff's 401K plan.
The Meyers agreed to set plaintiff's child support obligation at $3250 per month. That amount, however, was expressly subject to renegotiation in the event either child "resides away from home" while attending college and to modification in accordance with Lepis v. Lepis, 83 N.J. 139 (1980). The parties further agreed to contribute to the children's college education expenses "in proportion with each party's financial ability" at the time.
As a consequence of a prior motion filed by defendant to acquire support for the children commensurate with plaintiff's financial success, plaintiff's monthly child support obligation was increased to $5750. In addition, he was directed to pay eighty percent of the cost of his youngest son's private school costs, and the children's unreimbursed medical and dental expenses, child care, and camp expenses. This court affirmed that order on appeal. Meyer v. Meyer, No. A-2327-05 (App. Div. July 26, 2007).
Plaintiff filed this subsequent post-judgment motion in the fall of 2007, while the Meyers' eldest son was attending his first semester at a college in Massachusetts. Plaintiff sought an allocation of responsibility for the college costs and a reduction in child support based upon their son's living away from home while attending college and the decline in plaintiff's earnings since 2005. Plaintiff proposed that defendant pay thirty-five percent of the college costs and he pay the remainder plus total monthly child support in the amount of $3500. Referencing the parties' respective financial positions and the minimal impact their eldest son's departure for college would have on her expenses, defendant suggested a "$1,000 reduction in child support" and assignment of eighty-nine percent of college costs to plaintiff.
The judge had the following information to consider on this motion. College costs for the 2007-2008 school year, including books and room and board, were $47,718, and financial aid was not available. Defendant's federal tax returns and W-2 statements reflect federal wages of $110,607 in 2003, $118,227 in 2004, $118,118 in 2005, and $116,738 in 2006. During the four years preceding the prior motion, years 2001 through 2004, plaintiff's earnings were far greater than the $185,000 anticipated at the time of judgment but were steadily declining from the high point of $1,064,752 in 2001, to a low of $476,472 in 2004. The four-year average was $762,049.*fn1 Plaintiff's annual earnings during the four years preceding this motion, years 2003 through 2006, were as follows: $625,737 in 2003; $476,472 in 2004; $425,913 in 2005; and $334,677 in 2006.
In an oral decision following argument on November 16, 2007, Judge Hansbury determined that plaintiff should pay seventy-five percent of the college expenses and defendant should pay twenty-five percent because plaintiff's "income and assets are substantially more [and] his liquidity is higher." The court also ruled that plaintiff was entitled to a reduction in his child support obligation while the older child attends college away from home. Between entry of the final judgment and the date of this motion, plaintiff was employed by the same law firm.
Although Judge Hansbury had not decided the prior post-judgment motion fixing child support at $5750 per month, he considered the change in circumstance since entry of that order and in light of the findings made by the judge previously assigned. For purposes of consistency and because he deemed the approach "reasonable" in light of the fluctuations in plaintiff's income, Judge Hansbury averaged plaintiff's earnings for the prior four years, as had the judge before him, and concluded that the four-year average was about $300,000 per year lower than the four-year average in 2005.
Judge Hansbury had two reasons for concluding that a reduction in child support in the monthly amount of $1500 was appropriate: (1) because of the decline in plaintiff's income; and (2) because of the eldest son's departure for college and the fact that his expenses for food and other variables would be covered by payments made to the college. Recognizing plaintiff's diminished earnings and his obligations to pay college expenses and alimony, Judge Hansbury concluded child support should be ...