On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-586-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
This appeal is from a post-judgment order in a divorce case that addresses plaintiff Stuart Lantz's obligations for child support, college expenses, alimony, and life insurance and authorizes his former wife, defendant Ivy Lantz, to collect arrears from plaintiff's NFS/IRA account. The order was entered on October 28, 2010 on remand from this court. We remanded for a limited purpose, that is reconsideration of the child support award entered on October 24, 2008 and an order denying plaintiff's application for modification of that child support entered on May 27, 2009. Lantz v. Lantz, No. A-1622-08 (App. Div. May 24, 2010).*fn1
On remand, the judge reduced child support. In addition, and despite the fact that neither party had filed any motion seeking additional relief, the judge considered and rejected plaintiff's requests for reduction of his alimony obligation and share of college expenses. The judge also granted plaintiff's request to reduce the death benefit on his life insurance, fixed child support arrears and entered, sua sponte, an order freezing plaintiff's NFS/IRA account and authorizing defendant to collect arrears from that account. Plaintiff appeals; defendant has not filed a cross-appeal.
The procedural history and factual background of this case is set forth in our prior unpublished opinion. Accordingly, we limit our discussion to the matters essential to our decision.
Plaintiff and defendant married in 1985, and they have a son and daughter. Id. at 2. They divorced in 2003, and the judgment incorporates a property settlement agreement which addressed all financial issues. Ibid. Based on the parties' respective earning histories, they agreed to impute annual income of $170,000 to plaintiff and $25,000 to defendant. At that time, plaintiff was employed by Lincoln National. Id. at 3.
Plaintiff's support obligations under the settlement agreement include permanent alimony, child support and a contribution to college expenses. College expenses are broadly defined to include room and board, whether on or off campus, tuition, fees, books and four round trips to and from New Jersey and the college. The agreement also recognizes that plaintiff "may be entitled to a reduction in child support" if a child attends college away from home.
Under the agreement, plaintiff's monthly child support obligation for two children was $1591 and his monthly alimony obligation was $3750, annually $19,092 for child support and $45,000 for alimony, which was about thirty-eight percent of his gross imputed income. During the years following divorce, plaintiff remarried, left his employer, started a business and repeatedly sought reduction of his support obligations due to decline in his income. The judge determined plaintiff was earning $108,000 in July 2005 and $90,000 in October 2008, but the judge never indicated that these earnings were at a level commensurate with plaintiff's capacity to earn. The judge reduced annual alimony to $22,500 in July 2005 and to $18,900 in October 2008, and he denied further modification on May 27, 2009. In the May 2009 order, the judge directed plaintiff to file biweekly reports with the judge detailing his income and his efforts to find more gainful employment. We affirmed the determinations on alimony reflected in the October 2008 and May 2009 orders on the prior appeal.
In contrast to the dramatic reduction in alimony, the judge slightly increased child support in the order of October 24, 2008. The order sets total child support at $1600 monthly, effective November 1, 2008, allocating $800 per month for each child. It also provides for expiration of child support for the parties' son effective May 31, 2009, when he was to complete college, and for payment of the son's child support in a lump sum to be deducted from plaintiff's share of the proceeds from the sale of the marital residence. In contrast, the $800 support for the daughter, who started college in Florida in August 2008, id. at 4, was to be paid periodically when due. On May 27, 2009, the judge again denied reduction of child support. Consequently, plaintiff was left with a total support obligation, exclusive of college expenses, at about forty-two percent of his $90,000 income until May 31, 2009 and about thirty-two percent of income thereafter.
On the prior appeal, we reversed the last two child support determinations and remanded for reconsideration, primarily because the $800 monthly support for each child attending college away from home did not account for the fact that the children were not living at home. We also noted that the total amount of child support had not been reduced since entry of the judgment. In addition, we indicated that plaintiff was "free to make an appropriate application to the trial judge" for adjustment of his contribution to college expenses.
Prior to the hearing on remand, the judge wrote to the parties stating he had scheduled the matter "for resolution of any potential reduction in [plaintiff's] child support obligation" and directing the parties to file case information statements, 2008 and 2009 tax returns and recent pay stubs. As noted above, neither party filed a motion requesting additional relief. Plaintiff submitted a 2009 tax return showing income of $60,572 and adjusted gross income, after alimony and self-employment tax, of $45,654. Nothing in this record indicates that plaintiff produced any evidence complying with the May 27, 2009 order, which obligated him to submit biweekly reports on his income and search for more gainful employment.*fn2 Defendant's 2009 tax return reflected earned income of $41,702. At that time, plaintiff's contribution to his daughter's college expenses were $10,000.
On remand, the judge twice noted plaintiff's failure to present evidence of his efforts to earn at his potential. Adjusting for the daughter's attendance at college in Florida, the judge directed $567 monthly child support, an amount annualized to provide $400 during the seven months the child was attending college and $800 for the remaining months. In doing so, the judge appropriately noted the inapplicability of the child support guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A at 2513 (2012), and he determined that plaintiff's disproportionate contribution to college expenses warranted this adjustment of child support, which had never been based on the guidelines. Based on the actual amount of defendant's two-thirds share of college expenses, however, the judge determined that no further ...