ROBERT E. BUTLER, Plaintiff-Respondent/ Cross-Appellant,
TRACEY H. BUTLER, Defendant-Appellant/ Cross-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1035-06.
Patrick T. Collins argued the cause for appellant/cross-respondent (Franzblau Dratch, attorneys; Mr. Collins, on the brief).
Julie L. Kim argued the cause for respondent/cross-appellant (Cohn Lifland Pearlman Herrmann & Knopf LLP, attorneys; Joshua P. Cohn, of counsel and on the brief; Ms. Kim, on the brief).
Before Judges Alvarez and Carroll.
Defendant Tracey H. Butler appeals from a March 26, 2012 Family Part order modifying child support payable by plaintiff Robert E. Butler, and the subsequent denial of reconsideration of that order. For the reasons that follow, we vacate the child support modification, remand for a plenary hearing to be conducted after a ninety-day discovery period, and do not retain jurisdiction.
Plaintiff and defendant were divorced on April 5, 2007, at which time their property settlement agreement (PSA) was incorporated into the judgment. Plaintiff, who had previously earned over $500, 000 annually, was then between jobs. Nevertheless, he agreed in the PSA to pay defendant $3000 monthly in support for the parties' three children, in addition to contributing to certain enumerated expenses. Plaintiff works in foreign exchange, while defendant is a self-employed interior decorator.
On August 20, 2008, the parties entered into a consent order which recognized plaintiff's ongoing difficulties in securing employment comparable to that which he held during the marriage. The consent order reduced plaintiff's child support obligation to $1500 per month effective May 1, 2008, based on plaintiff's reduced wages of $125, 000 annually. It also provided:
In the event Plaintiff realizes in excess of $125, 000 in a given year, Plaintiff shall pay additional child support to Defendant directly and not through Probation, in accordance with a schedule to be agreed upon by the parties in a separate Order.
The parties never agreed upon a "schedule" or a "separate Order."
Although plaintiff disputes this claim, defendant alleges that she did not learn that his earnings exceeded the $125, 000 threshold until approximately November 2011 when she filed a motion to compel reimbursement of certain child support expenses. It is her position that she was aware that plaintiff had finally secured better employment, but that he did not disclose that his earnings exceeded the $125, 000 benchmark.
The judge who decided the motion increased plaintiff's monthly child support obligation by $500 effective November 14, 2011, the motion filing date, bringing plaintiff's total obligation to $2000 monthly. Partial discovery of plaintiff's financial situation, however, had revealed that he earned $150, 000 starting in November 2009, at least $200, 000 in 2010, and approximately $314, 000 in 2011. The judge heard oral argument on defendant's original ...