On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-149-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
This appeal by defendant Peter Triestman represents the second review in as many years of orders denying his application to modify child support, relieving him from his obligation to maintain and fund a medical escrow account as well as relieving him from his obligation to reimburse plaintiff Barbara Savini for their children's medical expenses consistent with the Property Settlement Agreement (PSA) entered into by the parties. Judge Weisenbeck, in the Family Part, denied the relief. We affirm.
In 2007, defendant moved for similar relief, which was denied. In an unpublished opinion, we affirmed. Savini v. Triestman, No. A-5095-07T1 (App. Div. July 10, 2009). We quote from that opinion to set forth relevant background information:
After approximately fourteen years of marriage, the parties were divorced on February 15, 2005. The Final Judgment of Divorce (FJOD) incorporated a Property Settlement Agreement (PSA), which resolved all collateral issues raised in the matrimonial matter.
Relevant to the issues to be examined on appeal are two provision of the PSA. First, defendant was required to pay $3,000 per month as child support for the parties' three children. In a section labeled "Modification," the parties' agreement at section 3f stated:
Child support shall be subject to renegotiation and review every two years to take account of changes in the income of the parties and the Child Support Guidelines of the Courts of New Jersey.
Second, the PSA addressed payment of the children's medical expenses, stating:
The Husband shall continue to provide health insurance for the unemancipated children. The Husband shall be responsible for orthodonture, psychotherapy and other uninsured medical and dental expenses for the children. The Husband shall put $10,000 in an escrow account to be administered by the Wife and the Wife shall draw from the escrow account for these unreimbursed expenses. Whenever the account is drawn down under $5,000, the Husband shall contribute additional funds to restore the account to $10,000.
Defendant solely owned and operated a building restoration business known as Triestman & Sons. The PSA contains no statement of the parties' respective incomes. Under the equitable distribution provisions of the PSA, defendant received 100% of the value of the business and agreed to pay all debts associated with its past and current operation. Plaintiff waived her right to obtain a formal business valuation and to receive any portion of the business. Defendant also operated a restaurant, which he solely retained.
The parties filed cross-motions essentially seeking enforcement of various provisions of the PSA. The requests were denied without prejudice pending airing the issues in mediation, as required by the PSA. When mediation was unsuccessful, defendant again sought adjudication of the issues and both parties refiled their motions.
On November 16, 2006, after oral argument, the court entered two orders. The first denied without prejudice defendant's request to recalculate child support and required plaintiff to submit discovery. The second denied much of the relief sought by plaintiff in her cross-motion. However, the order granted plaintiff's request regarding payment of the children's medical expenses and for replenishment of the $10,000 medical escrow account. Defendant was ordered to fund the account within sixty days and to pay certain medical expenses incurred for the children. The court also included a mechanism for defendant's review of future medical expenses after insurance reimbursements were obtained by plaintiff.
Defendant again filed a motion to reduce child support, suspend future child support payments, and require plaintiff to file a Case Information Statement (CIS). Defendant's CIS reported the business's gross income, which he alleged dipped to -$51,577 in 2006. He asserted his personal net income for that year was -$66,122. Plaintiff filed a cross-motion to enforce litigant's rights.
In a statement of reasons accompanying the February 14, 2008 orders, the judge addressed defendant's arguments that the PSA required an automatic recalculation of child support every two years and that he ...