On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-0181-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012 - Before Judges Messano and Espinosa.
Defendant Julio Morales appeals from two provisions of the Family Part's May 4, 2011, post-judgment order granting retroactive alimony and child support to his former wife, plaintiff Melissa Morales, n/k/a Melissa Mattei, and requiring defendant to distribute additional funds from his 401K retirement account to plaintiff. Defendant raises the following points on appeal:
POINT I: THE WIFE'S EX PARTE [ORDER TO SHOW CAUSE] SHOULD NOT HAVE BEEN CONSIDERED AS IT FAILED TO COMPLY WITH THE PROCEDURAL REQUIREMENTS . . . FOR SUBMISSION.
POINT II: THE TRIAL COURT DID NOT HAVE JURISDICTION TO RENDER A DECISION AS TO PARAGRAPHS 1 AND 7 OF THE MAY 4, 2011 ORDER. POINT III: THE WIFE DID NOT SHOW A CHANGE IN CIRCUMSTANCE TO WARRANT A MODIFICATION OF THE [PROPERTY SETTLEMENT AGREEMENT] TO DIRECT THE HUSBAND TO MAKE CHILD SUPPORT AND ALIMONY PAYMENTS RETROACTIVE TO JANUARY 3, 2011.
POINT IV: THE TRIAL COURT ERRED IN MAKING THE CHILD SUPPORT PAYMENTS RETROACTIVE TO JANUARY 3, 2011.
POINT V: AS TO PARAGRAPH 7 OF THE MAY 4, 2011 ORDER, THE TRIAL COURT ERRED WHEN IT PROVIDED THE WIFE AN ADDITIONAL $4,000 FROM THE HUSBAND'S 401K.
POINT VI: THE TRIAL COURT ERRED IN MODIFYING THE [PROPERTY SETTLEMENT AGREEMENT] WITHOUT THE SHOWING OF EXCEPTIONAL AND COMPELLING CIRCUMSTANCES AND WITHOUT THE BENEFIT OF A PLENARY HEARING.
We have considered these arguments in light of the record and applicable legal standards. We reverse.
On October 8, 2010, after twenty-seven years of marriage, plaintiff and defendant entered into a property settlement agreement (PSA) that was incorporated into the final judgment of divorce (JOD) entered on January 3, 2011. Article 8.1 of the PSA provided in pertinent part: "The Husband shall pay to the Wife as unallocated, tax-free alimony, the total monthly sum of $100 per week . . . commencing upon the sale of the marital residence." Article 9.1 of the PSA provided: "[T]he Husband shall pay to the Wife as unallocated, tax-free child support, the total monthly sum of $200 per week . . . upon the sale of the marital residence."
Regarding equitable distribution, Article 13.10 of the PSA provided:
Until the time that the marital residence is sold, the Husband agrees to maintain 100% responsibility for the maintenance and upkeep of the marital residence with respect to the mortgage, taxes, homeowner's insurance, cleanliness of his personal items, cleanliness and maintenance of the front and backyard and any repairs which may be required. This shall include the payment of any outstanding costs associated with the sale of the home and owing as of the signing of this Agreement. The Husband and Wife mutually agree that they will continue to maintain responsibility for their respective obligations at the current status quo until the time of the sale of the marital ...