December 16, 2011
KRISTINA MONTUORO, PLAINTIFF-RESPONDENT,
ROBERT MONTUORO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1734-08B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 28, 2011
Before Judges Parrillo and Skillman.
This is an appeal from post-judgment orders entered on October 22, 2010 and December 10, 2010, which denied defendant's motion for a recalculation of child support in accordance with the Child Support Guidelines. We reverse.
The parties were divorced in 2008. The judgment of divorce incorporated a property settlement agreement entered into on December 20, 2007. Under this agreement, defendant was obligated to pay plaintiff $175 per month in alimony for a period of eighteen months. Defendant was also obligated during this same eighteen-month period to pay plaintiff $875 per month support for the two children of the marriage. The agreement stated that "[t]his [$825] amount is higher than the amount that was calculated under the New Jersey Child Support Guidelines for two children," but that "[b]oth parties acknowledge that Wife needs the additional $250.00 per month to maintain the [marital] home."
The agreement further provided in paragraph 18: "When the eighteen (18) months is completed, the parties will reconsider the child support and recalculate it using the New Jersey Child Support [G]uidelines." This is the provision of the property settlement agreement at issue in the present appeal.
In August 2010, after expiration of the eighteen-month period during which defendant was obligated to pay plaintiff $175 per month in limited duration alimony and $875 per month in child support, defendant spoke to plaintiff regarding the recalculation of his child support obligation in accordance with paragraph 18 of the agreement. However, plaintiff refused to agree to a recalculation.
On September 28, 2010, defendant filed a motion, pro se, for a reduction in his child support obligation. Notwithstanding paragraph 18, the trial court denied the motion on the ground defendant had not shown changed circumstances since execution of the property settlement agreement and entry of the judgment of divorce.
Defendant, now represented by counsel, filed a motion for reconsideration based primarily on paragraph 18. The trial court rejected defendant's argument that a recalculation of child support was mandated by paragraph 18 and denied defendant's motion. The court apparently based this denial on its view that paragraph 5(b) of the property settlement, which provides for "review [of] child support every two years following the date of the final divorce," prevailed over paragraph 18, which provides for recalculation of child support after eighteen months.
A party to a matrimonial action who seeks a modification of his or her support obligations ordinarily must show changed circumstances since the establishment of those obligations. See Lepis v. Lepis, 83 N.J. 139, 145-49 (1980). However, the parties may enter into a property settlement agreement under which support obligations will be modified at a specific future date without a showing of changed circumstances, at least in a case such as this in which the initial obligations exceed what would be provided under the Child Support Guidelines. See Weber v. Weber, 211 N.J. Super. 533, 535 (App. Div. 1986).
The parties' property settlement agreement clearly stated that defendant's child support obligations would exceed the amount that would be provided under the Child Support Guidelines for a period of eighteen months but that those obligations would be recalculated in accordance with the Child Support Guidelines at the end of that period. Paragraph 18 expressly states that at that time "the parties will reconsider the child support and recalculate it using the New Jersey Child Support Guidelines." (Emphasis added). Moreover, paragraph 5(a) states that the reason for the defendant agreeing to pay plaintiff a greater amount than would be calculated under the Child Support Guidelines for the first eighteen months after the divorce was to enable plaintiff "to maintain the [marital] home" during that period. Moreover, this eighteen-month period was the same period during which defendant was required to pay plaintiff limited duration alimony, the amount of which was substantially reduced during the course of negotiations between the parties to offset defendant's increased child support obligation.
Therefore, the parties' intent to provide for a recalculation of defendant's child support obligations in accordance with the Child Support Guidelines at the end of that period is clear on the face of the property settlement agreement.
Paragraph 5(b) of the agreement, upon which the trial court apparently relied in denying defendant's motion, under which the parties agreed "to review child support every two years following the divorce," does not create any ambiguity concerning the intent of paragraph 18. Paragraph 5(b) provides for periodic review of defendant's child support obligations in light of the parties' changing circumstances until the time of emancipation of the children of the marriage. It does not affect the parties' agreement under paragraph 18 to a recalculation of that obligation in accordance with the Child Support Guidelines, without a showing of changed circumstances, upon expiration of the agreed eighteen-month period.
Accordingly, we reverse the orders denying defendant's motion to reduce his child support obligation and remand the case to the trial court for a recalculation of defendant's child support obligations in accordance with the Child Support Guidelines. This modified child support obligation shall be effective as of September 28, 2010, which was the date of the filing of defendant's motion. In recalculating defendant's child support obligation, the court should consider, in accordance with the Child Support Guidelines, whether to use the "shared parenting" worksheet and whether defendant is entitled to an "other dependent" deduction.
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