Gulick v. Gulick

• Decision Date: 09 February 1971
• Citation: 273 A.2d 792,113 N.J.Super. 366
• Parties: June C. GULICK, Plaintiff, v. John GULICK, Defendant.
• Court: New Jersey Superior Court

Page 366

113 N.J.Super. 366

273 A.2d 792

June C. GULICK, Plaintiff, v. John GULICK, Defendant.

Superior Court of New Jersey Chancery Division.

Feb. 9, 1971.

Regina H. Meredith, Trenton, for plaintiff (Meredith, Meredith & Chase, Trenton, attorneys).

Daniel A. O'Donnell, Jr., Trenton, for defendant (McLaughlin, Dawes & Abbotts, Trenton, attorneys).

FRITZ, J.S.C.

Plaintiff, by motion, seeks to modify provisions of a judgment Nisi for divorce with respect to support provisions and provisions made therein for respective claims of dependency in connection with federal income tax returns. It appears uncontroverted that the provisions in these respects originally appearing in the judgment Nisi of December 14, 1966, and concerning which a final judgment was entered on March 15, 1967, were the result of agreement between the parties at that time after arms-length negotiation.

While there is no question that this court has continuing jurisdiction to modify support as provided in a divorce judgment, N.J.S.A. 2A:34--23, some question does appear as to whether such modification is to be based upon a consideration of the elements which ordinarily enter into the picture (see Turi v. Turi, 34 N.J.Super. 313, 322--323, 112 A.2d 278 (App.Div.1955)), as they exist at the time of the application for modification, or whether such modification can result only from a demonstration of altered circumstances subsequent to the original judgment. Solution to this problem is both helped and hindered by an apparent conflict in judicial expressions concerning modification of support provisions in a prior judgment.

The rule was long thought to be that the party who seeks such a modification has the burden of establishing that changed circumstances call for the relief sought. Boorstein v. Boorstein, 142 N.J.Eq. 135, 59 A.2d 247 (E. & A.1948). Only the unofficially reported determination of Advisory Master Van Winkle in Cohen v. Cohen, 15 N.J.Misc. 666, 194 A. 257 (1937), appears to have suggested to the contrary. With an awareness of the injunction of Reinauer Realty Corp. v. Paramus, 34 N.J. 406, 415, 169 A.2d 814, 819 (1961), that 'Trial judges are privileged to disagree with the pronouncements of appellate courts; the privilege does not extent to non-compliance,' I am of the judgment that dictum in Martindell v. Martindell, 21 N.J. 341, 353, 122 A.2d 352, 358 (1956), suggesting that Cohen may prevail over Boorstein in appropriate circumstances, not only permits but compels me to view the matter as though a conflict in appellate pronouncements exists. Martindell advises:

* * * Where the original alimony order was preceded by and was based upon a full and fair judicial inquiry the doctrine (Boorstein) may have considerable merit, for neither the courts nor the parties should be heavily burdened with a belated re-examination of the original facts and the justice of the terms of the original order entered thereon. Where, however, there was never any such judicial inquiry, the doctrine may have much less force. * * *.

In the motion before me, a new element for consideration appears, to wit, the fact that the property aspects of the prior judgment were a matter of agreement on arms-length negotiation. Thus, we have a novel problem: whether, on such an application, plaintiff must demonstrate a change of circumstances since the original judgment, or, on the other hand, may demonstrate a need for modification on the basis of things as they are now.

It seems to me that the principles involved in the law as expressed in the cases cited above require first, in any case, a determination by this court as to whether there was 'a full and fair judicial inquiry' at the time of the original judgment. If there was, a demonstration of changed circumstances is required. If there was not, the question 'should be decided in accordance with the very right of the matter at the time it is before the court for disposition.'

The rationale of this proposition as a general statement of law is obvious and, I believe, profound. If the parties have had an opportunity to demonstrate the circumstances upon which there was a determination and 'the justice of the terms of the original order' were or should have been apparent to the judge then sitting, then a belated examination supplementary thereto will not be permitted. If they have not had such an opportunity or have not availed themselves of it, absent other equities, simple justice requires the full examination.

Applied to the instant matter, the inquiry becomes one of whether an arms-length negotiated agreement is the equivalent of 'a full and fair judicial inquiry,' as that...