NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1051-07.
Raul Wong, Jr., appellant pro se.
Respondent has not filed a brief.
Before Judges Hayden and Hoffman.
In this post-judgment matrimonial matter, plaintiff Raul Wong, Jr. appeals from the December 23, 2011 Family Part order denying his motion to terminate his child support obligation for his then seventeen-year-old son, who started living with him in November 2011. For the reasons that follow, we reverse and remand for further proceedings.
The parties were married in 1992 and divorced in 2008. They had one child, a son, born in November 1994. On March 20, 2008, the parties entered into a property settlement agreement (PSA), which designated defendant as the parent of primary residential custody and required plaintiff to pay child support of $175.50 per week. The PSA also obligated plaintiff to pay defendant $175.65 per week in permanent alimony.
In 2010, after plaintiff lost his job and fell behind in his child support and alimony payments, defendant moved for enforcement. Plaintiff responded by requesting a Lepis change-of-circumstances reduction of his support obligations. The parties resolved these issues by entering into a March 2, 2010 consent order (consent order), which provided that "plaintiff shall continue to pay child support in the amount of $175 per week . . . [which] payment is non-modifiable, and plaintiff hereby waives his right to seek modification of this term of this Consent Order for any reason . . . until such time as the parties' son graduates from high school and enters college[.]" The consent order also provided for an "irrevocable and non- modifiable" waiver of defendant's right to receive any further alimony.
On November 20, 2011, the son ceased living with defendant and moved into plaintiff's residence. On November 23, 2011, plaintiff filed a motion and supporting certification seeking an order that would transfer residential custody of his son to him, terminate his child support obligation to defendant, and initiate a child support obligation from defendant to him. In support of this motion, plaintiff submitted a copy of his year-to-date pay stub indicating that he was earning approximately $440 per week.
Although defendant did not submit any written opposition to the motion, she did appear in court on the return date. The judge asked defendant if she agreed with the relief requested by plaintiff in his motion. Defendant responded, "[i]n part. Not all of it." At that point, the judge interpreted defendant's response to indicate that defendant agreed to the change of custody, which the judge granted, but opposed the balance of plaintiff's motion —— i.e. both the request to terminate plaintiff's child support obligation as well as the request to establish a support obligation for defendant.
Without the benefit of case information statements from either party, or any financial information beyond plaintiff's last pay stub, the judge denied both of plaintiff's requests relating to support, finding that the "non-modifiable" child support language of the consent order prevented any adjustment of the parties' child support arrangement, even ...