Dunne v. Dunne

• Decision Date: 06 May 1986
• Citation: 209 N.J.Super. 559,508 A.2d 273
• Parties: Noel C. DUNNE, Plaintiff-Respondent, v. James DUNNE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 559

209 N.J.Super. 559

508 A.2d 273

Noel C. DUNNE, Plaintiff-Respondent, v. James DUNNE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted March 18, 1986.

Decided May 6, 1986.

Beck, Reichstein & Guidone, Montclair, for defendant-appellant (Ronald Reichstein, Montclair, on brief).

Hock, Silverlieb & Kramer, Livingston, for plaintiff-respondent (Vincent R. Kramer, Jr., Livingston, on brief).

Before Judges MICHELS and DEIGHAN.

The opinion of the court was delivered by

DEIGHAN, J.A.D.

Defendant-husband appeals from an order entered by the Chancery Division, Family Part on August 2, 1985 fixing child support arrearages at $32,002 and directing defendant to pay the arrearages at the rate of $300 per month. In addition, child support payments were increased to $2,729 per month from $1,050 per month under an alleged oral agreement.

The parties were married on October 31, 1964. Two children were born of the marriage, Erin, on June 16, 1966 and Melissa on July 6, 1968. The parties separated in May 1976, at which time they entered into a property settlement agreement which was incorporated into the judgment of divorce entered on March 23, 1978. In addition to payment of medical, dental and drug expenses for the children, the matrimonial agreement provides:

4. The husband shall pay to the wife for the support and maintenance of the two unemancipated children of the marriage, whichever is greater of the following:

(a). $8,840.00 per year allocated one-half to each child, at the rate of $700.00 payable on the first day of each and every month,

or

(b). twenty-eight percent (28%) of his gross income, allocated one-half to each child, payable at the rate of one-twelfth ( 1/12th) of said twenty-eight percent (28%) on the first day of each and every month.

The agreement further provides that if defendant's gross income exceeded $50,000 per year, he would be responsible for the entire cost of a college education for each child, and in that event, his support obligation for that child would be reduced one-half if the child resided at school. At the time of the motions before the trial court, Erin, who was almost 19 years old, was attending college in Boston, Massachusetts, and Melissa, who was almost 17 years old, was a junior in high school.

Since April 1982 defendant had been paying child support at the rate of $1,050 per month for both children pursuant to an alleged oral agreement. In her certification plaintiff equivocates concerning the oral agreement and states that she "reluctantly accepted the $1,050.00 monthly although my children's financial needs were greater."

As a result of defendant's subsequent relocations and several changes of employment, defendant's gross income increased substantially from approximately $30,000 in 1976 to approximately $160,000 in 1984. Based upon gross income under the agreement, defendant calculates that his obligation for child support, subject to adjustment for college expenses which defendant is required to pay, would increase from $8,400 per year to almost $45,000 per year.

The events leading up to the present appeal began when plaintiff moved to compel defendant to produce copies of his income tax records for 1982, 1983 and 1984. Defendant filed a cross-motion to modify his obligation to pay child support to conform to the alleged oral agreement of the parties, to reassess the child support escalation clause and to eliminate his obligation to furnish tax returns. On May 15, 1985, an order was entered granting plaintiff's motion and denying defendant's cross-motion.

Thereafter defendant moved for a rehearing concerning the alleged oral agreement. In response, plaintiff filed a cross-motion to establish the arrearages at $42,748, to require defendant to make payments thereon, and to establish the amount of support from May 1, 1985. Defendant established that if arrearages were due pursuant to the original agreement, the amount would be $32,000, instead of $42,748.

The order of August 2, 1985 from which defendant appeals was entered without a hearing. Defendant contends that there are genuine issues of material facts which require a hearing to determine the existence of the oral agreement to pay $1,050 per month instead of the amount under the original agreement. This in turn would establish whether there are any support arrearages. He further contends that the escalation formula in the agreement which increases child support based on a percentage of gross income cannot be given automatic affect without consideration of the needs of the children and his ability to pay.

I.

Under the statute authorizing alimony and support, the "court may make such order ... as to the care, custody, education and maintenance of the children, ... as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. In the landmark case of Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), Justice Pashman recognized that "[l]ong after the bonds of matrimony are dissolved, courts of equity are frequently called upon to reassess the persisting obligations of financial support." Id. at 142-143, 416 A.2d 45. The power of the courts to modify alimony and support orders stems, not only from inherent equitable powers, but also from the authority granted under N.J.S.A. 2A:34-23: "Orders so made may be revised and altered by the court from time to time as circumstances may require."

In view of the power of courts to reassess, revise and alter alimony and support orders, those orders define only a present obligation. The duty of support is always subject to review and modification upon a showing of "changed circumstances." Lepis, 83 N.J. at 150, 416 A.2d 45; Chalmers v. Chalmers, 65 N.J. 186, 192, 320 A.2d 478 (1974); Martindell v. Martindell, 21 N.J. 341, 352-353, 122 A.2d 352 (1956). The Superior Court may exercise its "highly flexible" remedial powers to enforce the terms of an interspousal support agreement "to the extent that they are just and equitable," Lepis, 83 N.J. at 146, 416 A.2d 45; Schlemm v. Schlemm, 31 N.J. 557, 581-582, 158 A.2d 508 (1960), and such an agreement is enforceable only if it is "fair and just." Petersen v. Petersen, 85 N.J. 638, 642, 428 A.2d 1301 (1981); Di Giacomo v. Di Giacomo, 80 N.J. 155, 159, 402 A.2d 922 (1979); Edgerton v. Edgerton 203 N.J.Super. 160, 171, 496 A.2d 366 (App.Div.1985). "[A] decrease [in support] is called for when circumstances render all or a portion of support received unnecessary for maintaining [the standard of living reflected in the original decree or agreement]." Lepis, 83 N.J. at 153, 416 A.2d 45.

It is therefore readily apparent that separation agreements are not immutable; changed circumstances which result in an increase or decrease in support or alimony are not limited in scope to events that were unforeseeable at the time of the divorce. Lepis, 83 N.J. at 152, 416 A.2d 45. Even events which are foreseeable at the time of the divorce may later justify a modification of the court order. Ibid. As one commentator observed:

Rejection of the "foreseeability" defense is an obvious by-product of the public policy determination made by the supreme court that in most cases, the courts should reserve the power to modify not only prior decrees, but also agreements that no longer remain fair and equitable.156

Footnote 156 then continues:

What the supreme court seems to be saying is that given the trauma of divorce, sometimes even these circumstances that should have been foreseen by litigants are overlooked because of the emotions of the moment. In this regard, Lepis attempts to protect litigants from themselves. [Hymerling, "Commentary on Lepis v. Lepis: A practitioner's guide to recent changes in the law of alimony and child support in New Jersey," 12 Rutgers L.J. 1, 26 (1980) ].

Although escalation clauses are not invalid per se, it does not follow that they are to be automatically enforced according to their specific terms. Petersen, 85 N.J. at 644. Enforcement of such agreements remains a judicial responsibility and is subject to judicial supervision. Lepis, 83 N.J. at 148-149, 416 A.2d 45; accord Petersen, 85 N.J. at 644, 428 A.2d 1301; Mastropole v. Mastropole, 181 N.J.Super. 130, 141, 436 A.2d 955 (App.Div.1981). Thus, the supporting spouse who is subject to a matrimonial agreement with an escalation clause may still seek to have the escalator modified because of changed circumstances, Petersen, 85 N.J. at 644, 428 A.2d 1301, even if the subsequent events concerning child support were foreseeable, and a fortiori, if the events were unforeseeable.

II

A parent should be compelled to pay such amount for child support as the circumstances of the parties and the nature of the case renders fit, reasonable and just. Many factors must be taken into consideration to determine the proper and reasonable amount for child support. The touchstone to determine that amount is always the welfare of the child. Gordon v. Gordon, 147 N.J.Super. 585, 590, 371 A.2d 791 (App.Div.1977).

When support is at issue, the general considerations are the children's needs and the supporting spouse's ability to contribute to the fulfillment of those needs. See Lepis, 83 N.J. at 152, 416 A.2d 45. The supporting spouse's obligation is mainly determined by the quality of economic life during the marriage, not bare survival. Id. at 150, 416 A.2d 45.

In Khalaf v. Khalaf, 58 N.J. 63, 67, 275 A.2d 132 (1971), the Supreme Court reiterated the rule governing the computation of support and maintenance stated in the seminal case of Dietrick v. Dietrick, 88 N.J.Eq. 560, 561, 103 A. 242 (E. & A.1918): "The amount is not fixed solely with regard, on the one hand, to the actual needs of the wife, nor, on the other, to the husband's actual means." (emphasis in original). Khalak emphasized that "defendant's means are not the sole criterion" for support and alimony but need "must be...