On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-549-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Grall.
Plaintiff's appeal and defendant's cross-appeal are from post-judgment orders entered on November 2, 2007. The orders terminate alimony, reduce child support for their youngest son, reinstate alimony upon emancipation of that child, emancipate his older brother and vacate all arrears.
Plaintiff Pamela A. Schvey and defendant Robert M. Schvey were married in 1977 and have two sons, the first born in 1985 and the second in 1987. The complaint for divorce was filed in 1993, and the final judgment terminating the Schveys' marriage was entered on October 1, 1997 and amended on January 9, 1998. The judgment incorporates their agreement on custody, equitable distribution and support.*fn1
Defendant agreed to pay monthly support of $4166.66 for the first three years. Thereafter, subject to an application by either party for review based on relative income, the agreed amount was $4500 monthly, $2250 as alimony and $2250 as child support. The Schveys' agreement also addresses college expenses. Responsibility for costs not covered by the children's trust funds, $107,000 per child at the time, is to be allocated "between the parties in proportion to their income at the time" after "all other means of funding the educational expenses are exhausted."
By post-judgment order of November 15, 2002, defendant's support payments were modified on his motion. At the time of that motion, plaintiff had no earned income and her unearned income, exclusive of alimony, was $2891. The judge found that defendant's earned and unearned income, $80,000, was about twenty-percent lower than the parties anticipated at the time of the judgment, and he reduced both support obligations by about twenty percent. Effective December 1, 2002, the monthly obligation was $3700, $1500 as alimony and $2200 as child support. The child support was allocated at $550 per month for the Schveys' eldest son and $1650 for their youngest son. The judge did not apply the child support guidelines.
Although no appeal was taken from the order of November 15, 2002, on December 5, 2002, defendant moved to have child support calculated pursuant to the guidelines, and plaintiff filed motions to have support reinstated or increased and to enforce the judgment. On June 16, 2003, the judge entered an order disposing of the parties' competing motions for modification of support and plaintiff's motion for enforcement of the judgment.
On appeal and cross-appeal from the June 16, 2003 order, this court reversed and remanded, directing the judge to consider specific issues: 1) whether there was "good cause" warranting disregard of the child support guidelines pursuant to Rule 5:6A; and 2) plaintiff's claim that defendant owed $1,071,819 for marital assets that were not distributed in accordance with the judgment. Schvey v. Schvey, No. A-6316-02 (App. Div. June 6, 2005) (slip op. at 5-6). Consequently, apart from any modification required by Rule 5:6A, the support order of November 15, 2002 was controlling and subject to revision only upon a showing of changed circumstances arising after its entry. Lepis v. Lepis, 83 N.J. 139, 146 (1980).
On remand, the judge did not consider the question of "good cause" under Rule 5:6A because defendant did not provide his tax return, but the judge ruled on plaintiff's application to enforce equitable distribution, defendant's new motion to eliminate a cost-of-living adjustment imposed pursuant to Rule 5:6B, and plaintiff's new requests for payment of the children's medical and camp expenses. Plaintiff appealed and challenged those rulings. Schvey v. Schvey, No. A-0150-06 (App. Div. June 23, 2008).
While that appeal was pending, the judge considered new applications for modification of support - plaintiff's application was filed on June 25, 2007 and defendant's on July 20, 2007.*fn2 Plaintiff sought alimony and child support at the rate established in the judgment or higher, and defendant, alleging inability to work attributable to his health and grounds for emancipation of Schveys' eldest son, sought a reduction of support.*fn3
Following exchange of discovery, the Schveys testified at a hearing held in September 2007. Defendant, who had provided a note from his doctor in March, was granted leave to testify by telephone. The court received documentary evidence and posed questions that were answered by plaintiff and defendant. There were no other witnesses.
Defendant was fifty-two years of age and plaintiff was fifty-three. Their eldest son had graduated from college in June 2007 and enrolled in a post-graduate program. Their youngest son had completed his second year of college out-of-state.
According to defendant, in 1996, which was prior to the divorce, he had quadruple bypass surgery. Although he was able to return to work thereafter and reported income from his business in excess of $188,000 in 2001, in October 2002 he had a heart attack. Earned income reported on his federal income tax returns for years 2002 through 2005 was: 2002, $48,544; 2003, $10,541; 2004, $3028; and 2005, $0.*fn4 His total income, including earned income, taxable and non-taxable interest, capital gains and income from rental was higher: 2002, $66,570; 2003, $23,113; 2004, $16,553; and 2005, $7530. According to defendant, he earned about $2000 in 2006 and had not yet filed his tax return for that year.
Defendant's testimony was as follows. In December 2006 he had a second bypass surgery, which his cardiologist said could not be delayed because his condition could not be addressed through angioplasty. In February 2007, defendant developed congestive heart failure, from which he was still suffering. His symptoms of fatigue and chest pain precluded him from doing what he had in the past. Defendant acknowledged that he was not receiving disability benefits from social security and had not received any disability benefits for about three years.*fn5 The support payments he had made in recent years were possible only because of contributions from his ...