On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1799-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2011 -
Before Judges Yannotti and Espinosa.
Plaintiff appeals from an order that denied his application for modification of alimony and child support paid to his former spouse. We reverse.
The parties were married on January 8, 1994 and had two children. They were divorced in 2004 and entered into a marital settlement agreement (MSA) that was incorporated into a supplemental judgment of divorce dated April 23, 2004.
In 2004, plaintiff was earning an annual salary of approximately $1 million as a pitcher for the Seattle Mariners. The MSA required him to pay $7,000 in monthly child support and, as corrected by consent order dated June 30, 2006, $12,000 per month "commencing on February 1, 2004 and continuing for nine (9) years thereafter until January 31, 2013[.]" However, plaintiff's earnings varied considerably based on his contracts. In their MSA, the parties agreed to criteria to be applied for modifications of the support obligations based upon changes in plaintiff's income or employment:
B. Payment of alimony in the sum as set forth in "A" shall continue, so long as the Husband has earnings from his current baseball contract, including licensing fees and endorsements, annually between the sum of Nine Hundred Fifty Thousand ($950,000.00) Dollars and One Million Five Hundred Thousand ($1,500,000.00) Dollars. In the event the Husband earns less than said sum, then the Husband has the right to apply to the Court for a reduction in alimony unless it can be otherwise negotiated by agreement between the Parties. If the Husband has earnings in excess of said sum, then the Wife may seek an increase in alimony from the Court.
C. If the Husband's baseball contract provides that he plays in the minor leagues and if he remains in the minor leagues for a period of sixty (60) days, then the Parties agree to re-negotiate alimony. In the event the Parties cannot come to agreement, the Husband has the right to seek the aid of the Court. If and when the Husband shall return to the major leagues and his earnings including salary, endorsements and licensing fees received within a calendar year, equal the sum of Nine Hundred Fifty Thousand ($950,000.00) Dollars to One Million Five Hundred Thousand ($1,500,000.00) Dollars then alimony will return to the sum as originally set forth commencing from the period of the return to the annual salary at the sums as set forth.
Paragraph II.A. of the MSA provided similar criteria for consideration of modifications to plaintiff's child support obligation:
Commencing on the first day of January, 2004, and continuing until emancipation or a change of circumstance as defined in Paragraphs B and C above, i.e., wherein the Husband's salary plus endorsements and licensing fees shall be reduced within the calendar year to a sum below Nine Hundred Fifty Thousand ($950,000.00) Dollars and above One Million Five Hundred Thousand ($1,500,000.00) Dollars, the Husband shall make direct payment to the Wife in the sum of Seven Thousand ($7,000.00) Dollars per month allocable to both children. The Husband shall have the right to return to the Court for a re-allocation of child support in the event his earnings being less than $950,000.00 inclusive of licensing fees, baseball salary and endorsements and if he returns to the minor leagues for a period in excess of 60 days.
In 2005, plaintiff signed a two-year contract with the Seattle Mariners, which paid him $2.2 million in 2005 and $2 million in 2006, including built-in performance based incentives. Defendant's motion for increased child support and alimony based upon this change in income was granted by the trial court, and plaintiff appealed. In an unpublished opinion, we affirmed the increase in child support but reversed the increase in alimony and remanded for further proceedings. Villone v. Villone, No. A-6292-05 (App. Div. Oct. 31, 2007) (slip op. at 1, 2). During the course of that opinion, we observed that the provisions in the MSA which permitted the parties to seek modifications based upon changes in plaintiff's income were "triggers" that, when met, constituted "the equivalent of a changed circumstance, which would then allow the court to consider a modification application without the necessity of the moving party demonstrating additional changed circumstances." Villone, supra, slip op. at 8.
The parties resolved the alimony issue through arbitration and entered into a consent order, dated January 28, 2009, which provided that "in any year where the Plaintiff's income exceeds $1,500,000.00, the payment to the Defendant for additional alimony shall be the sum of $40,000.00 and the payment for child support shall be the sum of $40,000.00."
In 2009, plaintiff signed a contract with the Washington Nationals and earned approximately $1.7 million for the 2009 year. As of April 2010, plaintiff was informed by the Washington Nationals that he would be assigned to pitch for its minor league team. Plaintiff pitched for the Washington Nationals' minor ...