On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-832-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Yannotti, Espinosa and Skillman.
Defendant appeals from a post-judgment matrimonial order that denied his motion for a reduction in his child support payment, directed that the full amount of an investment account be distributed to plaintiff and awarded plaintiff counsel fees. For the reasons that follow, we affirm.
The parties were married for approximately eighteen years and had four children. Defendant is a vascular surgeon and, during the course of their marriage, plaintiff was not employed outside the home. They entered into a property settlement agreement (PSA) which was incorporated into their final judgment of divorce. Following the divorce, defendant remarried and had a child with his current wife. Plaintiff is now employed as a registered nurse.
Article III of the PSA addressed "Custody, Support, Maintenance and Education of Children." The parties shared joint legal custody; plaintiff was identified as the parent of primary residence. Pursuant to the PSA, defendant was required to pay plaintiff $650 per week child support for the four unemancipated children. Article III contains the following provisions relevant to defendant's motion:
Basis of child support: it is acknowledged that this is a non-New Jersey Child Support Guidelines case where consideration was given to various factors to include, but not be limited to, Husband's anticipated 1999 income from employment of approximately $320,000, Wife's 1999 income from employment $0.00, Husband's obligation to pay cost of private education for children, Husband maintaining medical insurance for the children.
It is specifically agreed that the amount of child support to be paid to Wife at the time of a child's enrollment in college shall be renegotiated at the time of that enrollment, taking into consideration the respective contributions made by each party to the child's college education and whether that child continues to reside for a portion of the enrolled year with Wife.
In 2004, defendant filed a motion in which he sought to be designated the parent of primary residence. He also asked for a modification of his child support obligation, contending that one of the children resided with him virtually full-time and two others spent fifty to sixty percent of the time at his residence. By order dated July 30, 2004, the court declared that the parties had joint legal and physical custody of the children and directed the parties and counsel to meet and determine the sharing of parenting time. The order also stated:
3. CONSIDERATIONS/FACTORS TO BE CONSIDERED IN DETERMINING MODIFICATION, IF ANY, TO DEFENDANT'S CHILD SUPPORT OBLIGATION SHALL INCLUDE BUT NOT BE LIMITED TO PARTIES CONTRIBUTION TO COLLEGE, TIMESHARING, OTHER DEPENDENT DEDUCTION. THE EFFECTIVE DATE FOR MODIFICATION TO CHILD SUPPORT, IF ANY, SHALL BE MAY 27, 2004.
Cost of living adjustments in 2006 and 2008 resulted in increases in defendant's child support obligation to $703 per week in 2006 and $744 per week in 2008.
In 2009, defendant filed another motion that sought, in part, his designation as the parent of primary residence for the three children who remained unemancipated and the termination of his child support obligation. The factual basis for defendant's motion was his assertion that his three college-age children resided with him. In support of his motion, defendant submitted an unsigned case information statement (CIS) with recent pay stubs and his 2007 tax return showing a total income that exceeded $522,000. He failed to provide information regarding assets, debts, or liabilities in the CIS. As part of his reply certification, he provided a Schedule K-1 for his share in his surgical partnership for 2008 showing he earned over $532,000.
Plaintiff opposed the motion. She filed a cross-motion that sought, in part: that defendant be ordered to turn over plaintiff's distribution of three accounts, including a Merrill Lynch investment account identified in the property settlement agreement and the July 30, 2004 court order, and counsel fees.
The court issued a tentative order addressing each of the forms of relief requested by the parties and then heard oral argument on those issues to which the parties took exception. The court issued a detailed written statement of reasons to accompany its order of February 18, 2010.
In denying defendant's request to terminate his child support obligation based upon changed circumstances, the court found defendant failed to prove a substantial change in circumstances. The court noted that, despite an increase in plaintiff's earnings, there remained a "very significant" disparity in the parties' incomes, with defendant continuing to enjoy "significant excess funds after deducting his CIS expenses from his net income." The court also specifically addressed the provision of the PSA that called for the renegotiation of child support upon a child's enrollment in college:
This language calls for consultation regarding college choice and renegotiation of child support to include disclosure of up to date financial information. Such information logically includes the anticipated (per the PSA and Judge Testa's 2004 Post Judgment Order) flow of information regarding the value of the Merrill Lynch college fund (controlled by defendant). Additionally and at a minimum, the parties' current non-business assets and income and the expenses of the proposed/actual college would need to be disclosed.
The Property Settlement Agreement language regarding the living arrangements of the children as related to calculating the plaintiff's child support refers to whether the children are residing with the wife (plaintiff) for a portion of the time that the child is not residing on campus. (Emphasis supplied by trial court.) Clearly the parties anticipated and planned for a post high school situation in which the unemancipated children would reside with each of the parties for significant amounts of time. In short, the children would have two non school year homes and specifically be able to spend summers and vacations at their mother's shore home. . . .
However, neither terminating the defendant's child support obligations or imposing a child support obligation on the plaintiff is supported by the limited analysis and incomplete information defendant provides in this portion of his application. [Emphasis added.]
On plaintiff's cross-motion, the court awarded plaintiff $2,500 in counsel fees. The court addressed each of the factors enumerated in R. 5:3-5(c). Regarding factors (1), the financial circumstances of the parties, and (2), the ability of the parties to pay their own ...