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Pamela Heard v. Dean Dunbar

January 18, 2013

PAMELA HEARD, PLAINTIFF-RESPONDENT,
v.
DEAN DUNBAR, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-0735-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 9, 2013 Before Judges Nugent and Haas.

In this post-judgment matrimonial matter, defendant appeals from the November 30, 2011 order of the Family Part denying his motion to modify his child support, college contribution and life insurance obligations. We reverse and remand for further proceedings.

The parties were married in July 1992, separated in August 2000, and divorced in March 2004. They have one child, who is now fifteen years old.

Defendant worked at Goldman Sachs from 1988 until October 1997 and he earned as much as $800,000 per year during this period. He resigned his position in 1997 after he was accused of unauthorized discretionary trading. While no disciplinary action was ever taken, defendant asserted that this allegation prevented him from obtaining similar employment in the financial management field.

After leaving Goldman Sachs, defendant began managing the funds in the parties' investment account on a full-time basis and, by the time the parties separated in 2000, their portfolio had grown from $800,000 to over $8 million. After the separation, however, defendant's investments faltered and, by 2002, their account balance had fallen to $304.

At the time the parties entered into their Property Settlement Agreement (PSA) in August 2003, defendant was employed as the managing director of a "start-up hedge fund." He earned $15,011 in 2003. During the marriage, plaintiff was employed as a psychologist at a university. In 2003, she earned $52,000.

In the PSA, defendant agreed to pay plaintiff $1,885 per month in child support.*fn1 Neither the parties' incomes nor a specific explanation of how this support obligation was calculated was set forth in the PSA. The PSA merely stated that the $1,885 monthly payment was "to cover [defendant's] share of providing the parties' child with a standard of living comparable to that during the marriage." This "standard of living," however, was not defined in the agreement. Defendant also agreed to pay for the child's college expenses, up to a $250,000 cap, by regularly contributing to a college fund and to maintain a $2 million life insurance policy to secure his support and equitable distribution obligations.

In October 2011, plaintiff filed a motion to enforce the support and equitable distribution requirements of the PSA. She alleged that defendant was $57,660 in arrears on child support and that he had also failed to abide by other terms of the PSA, including the requirement that he start a college fund for the parties' child and that he maintain a $2 million life insurance policy.

Defendant filed a cross-motion. His primary contention was that the PSA should be set aside because he had not entered into it voluntarily. In the alternative, he argued his child support obligations should be reduced based on a claimed change of circumstances, namely that the parties' incomes had changed after their divorce.

In his certification in support of his cross-motion, defendant asserted his child support obligation was based upon the assumption that he would be able to again earn the high salaries he received prior to his 1997 resignation from Goldman Sachs. However, he has never returned to that income range. Following the divorce, he began working in real estate and he expected to earn $119,000 in 2011. Plaintiff was still employed at the university and certified she was now the Director of Counseling, with an annual salary of $101,900. Plaintiff also earned between $2,500 and $3,000 per year from her private counseling practice.

The trial judge heard oral argument and then rendered a decision from the bench, granting plaintiff's enforcement motion and denying defendant's motion in its entirety. The judge found defendant had failed to meet his support obligations and he granted plaintiff "a money judgment against [d]efendant in the sum of $81,957.40 representing [d]efendant's child support arrears, equitable distribution arrears, and life insurance premium arrears." The judge further found that defendant had failed to establish that the PSA "was anything other than a ...


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