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Gartenberg v. Gartenberg

Superior Court of New Jersey, Appellate Division

October 3, 2013

ROBIN GARTENBERG, n/k/a ROBIN SACKS, Plaintiff-Respondent,
v.
MITCHELL GARTENBERG, Defendant-Appellant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-884-08 .

Allan Weinberg argued the cause for appellant.

Patrick M. Durning argued the cause for respondent.

Before Judges Fisher and Koblitz.

PER CURIAM

Defendant Mitchell Gartenberg appeals from an October 12, 2012 order denying his application to reduce child support based on his youngest child's attendance at college. Because at the time of their divorce the parties agreed to a set amount of child support until both unemancipated children were emancipated, we affirm.

The parties were married in 1982 and had three children. A property settlement agreement (PSA), was incorporated into their divorce judgment on April 14, 2008, at which time two of their three children were not yet emancipated. The older of the two children was enrolled in her junior year at a four-year university program living away from home. The younger child was in high school. In the PSA, defendant acknowledged he had annual income of "$250, 000 to $300, 000 plus additional bonuses." Plaintiff acknowledged an income of approximately $45, 000. After their long-term marriage, defendant agreed to pay plaintiff permanent annual alimony of $36, 000. He also agreed to pay her 18% of his bonus. Plaintiff has since remarried.

Defendant also agreed to pay plaintiff $36, 000 per year for child support. The PSA reflects that after the payment of alimony and child support, the parties anticipated that plaintiff would have an annual net income of approximately $96, 750 and defendant would have a net income of approximately $122, 600. The PSA states:

6.5 The payment of both alimony and child support as described in this Agreement shall be subject to modification in the event that Husband is no longer employed at BDO Seidman. . .

The PSA also states in pertinent part:

6.6 Child support shall be paid in the amount of $3, 000/month until such time as both children are emancipated, subject to modification as per Section 6.5 above. Husband's obligation to make payments for the support and maintenance of the children . . . shall terminate when the children are emancipated, which shall be defined as occurring at the happening of any one of the following events:
(a) Reaching the age of eighteen (18) years, completion of the child's college education or completion of a vocational educational program, whichever last occurs.

Another provision, §6.7, stated that, except for the middle child's college expenses, defendant would be solely responsible for the financial needs of the two oldest children.[1] The PSA indicates that college costs would be paid by a college fund and when the fund is depleted, any additional expenses would be divided 70% to be paid by defendant and 30% by plaintiff. At the time of defendant's motion, only one child remained unemancipated. This youngest child was in his second year of attendance at an out-of-state college. Plaintiff informed defendant that this child's monthly living expenses for rent, utilities and food amounted to $1000, which the parties should divide on a 70/30 basis as provided in the PSA. In his motion for an order "eliminating, modifying and/or reducing" child support, defendant agreed to pay all of his youngest child's expenses, which he claimed totaled approximately $2000 per month.

Defendant argues that the motion judge erred in reading the PSA to preclude a reduction in child support due only to the change in circumstances of his youngest child residing away from plaintiff's home at college.

Our scope of review is limited. The Family Part's factual findings are entitled to considerable deference. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, we do not pay special deference to its interpretation of the law. D.W., supra, 212 N.J. at 245 (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).

We "'do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations omitted); see also Cesare, supra, 154 N.J. at 413 (recognizing that deference is warranted because family courts have "special jurisdiction and expertise in family matters").

An application to modify a child support obligation requires a demonstration of a change in circumstances warranting an adjustment. Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (App. Div. 2012) (citing Lepis v. Lepis, 83 N.J. 139, 157 (1980)). In the execution of its considerable expertise and principled discretion, the Family Part's decision "must be made in accordance with the best interests of the children." Ibid.

Judge Tassini wrote in his decision:
The parties in their PSA specifically planned for their children's college education and they defined emancipation as subject to "completion of the child's college education." PSA [§]6.6 (Emphasis added.) The parties in their PSA specifically defined the defendant's child support obligation and change of circumstances by stating, "Child support shall be paid in the amount of $3, 000.00/month until such time as both children are emancipated, subject to modification as per Section []6.5 above." PSA [§]6.6 (Emphasis added.) A child's attendance at college is a change of circumstances warranting a review of the child support amount, but "each case must turn on its own facts." Jacoby[, supra, 427 N.J.Super. at 120]. Here, both children are not emancipated and the defendant has not supported modification as specifically defined in the PSA. Consequently, child support modification may not now be granted.

We agree with Judge Tassini's conclusion that the PSA removes this case from the general provisions controlling modification of child support absent an agreement to the contrary.[2] We encourage and enforce agreements between the parties in matrimonial actions. Sachau v. Sachau, 206 N.J. 1, 5 (2011). These agreements must be enforced when not contrary to public policy. J.B. v. W.B., __N.J. __, __(2013)(slip op. at 31) (quoting Konzelman v Konzelman, 158 N.J. 185, 193-94 (1999)).

Absent the parties' agreement to the contrary, attendance at college away from home is considered a change of circumstances calling for the recalculation of child support. Jacoby, supra, 427 N.J.Super. at 122-23. However, here the parties clearly agreed on what would constitute a change of circumstances. That would occur if defendant was no longer employed at his current job. The youngest child's attendance at college was fully anticipated by the parties in their agreement and not included as a modifying circumstance. The child support was not calculated with reference to the Child Support Guidelines, Rule 5:6A, which do not apply to a child in college in any event. Rather, the parents decided that child support would continue until their last unemancipated child graduated from college or was otherwise emancipated as long as defendant did not lose his job.

Defendant characterizes this continued child support as a "windfall" to plaintiff We agree with plaintiff that child support was "part and parcel of a larger agreement taken as a whole" It was a bargained-for provision of their PSA and as such should not be disturbed

Defendant's argument that material facts are in dispute and therefore a plenary hearing is necessary is without sufficient merit to address in a written opinion R 2:11-3(e)(1)(E).

Affirmed.


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