VALERIE WERNER v. EDWARD WERNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2659-04T22659-04T2

VALERIE WERNER,

Plaintiff-Respondent,

v.

EDWARD WERNER,

Defendant-Appellant.

________________________________________________________

 

Submitted November 1, 2005 - Decided November 17, 2005

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-1301-01S.

Valerie Werner, appellant pro se.

Edward Werner, appellant pro se.

PER CURIAM

Defendant Edward Werner, an attorney, appeals pro se from a December 17, 2004 order (a) denying his motion to reduce child support, (b) denying his request for discovery, (c) enforcing an escalation clause in the Property Settlement Agreement (PSA), and (d) requiring that he contribute toward the cost of a child's braces. We affirm the order from which defendant appeals.

Defendant and plaintiff Valerie Werner were married on April 13, 1985. The marriage produced four children. In or about March 2000, the parties separated following plaintiff's allegations of domestic violence and the issuance of a Temporary Restraining Order (TRO) against defendant. The hearing for a final restraining order was adjourned several times and eventually the TRO was vacated and dissolved.

On October 30, 2002, the parties entered into a PSA, and on December 2, 2002, the Judgment of Divorce with the Property Settlement Agreement was entered. That Judgment of Divorce incorporated the PSA negotiated by the parties and set defendant's weekly child support obligation at $500 per week for the three minor children. At the time, defendant was employed as a New Jersey Deputy Attorney General earning approximately $72,000 per annum. Plaintiff was a high school graduate earning approximately $11,000 per year at Wal-Mart. During the negotiations of the PSA, plaintiff was represented by counsel; defendant represented himself.

Defendant agreed to the child support obligation of $500 per week, even though that sum was more than the child support guidelines required. Paragraph 10 of the Judgment of Divorce states:

10. Husband will pay child support in the amount of $500.00 per week for the three minor children, effective October 30, 2002. The $500.00 per week was agreed to between the parties and is not in accordance with the Child Support Guidelines, but is a part of the overall Agreement, the waiver of alimony, and all other aspects of the Agreement. The $500.00 per week payment was not a strict child support guideline analysis and the parties have agreed to $500.00 per week despite the strict guideline analysis.

Defendant now asserts his child support obligation should be reduced because it deviates from the Child Support Guidelines contained in Appendix IX-A. We disagree.

The Judgment of Divorce explicitly provides that the child support obligation shall be decreased only in accordance with a Lepis showing. Lepis v. Lepis, 83 N.J. 139 (1980). Lepis requires a substantial change in circumstances to modify a child support obligation. Id. at 146-47 (citations omitted). Ordinarily, examples of such "changed circumstances" warranting modification include:

(1) an increase in the cost of living;

(2) increase or decrease in the supporting spouse's income;

(3) illness, disability or infirmity arising after the original judgment;

(4) the dependent spouse's loss of a house or apartment;

(5) the dependent spouse's cohabitation with another;

(6) subsequent employment by the dependent spouse; and

(7) changes in federal income tax law.

 
Id. at 151 (internal citations omitted).

The Judgment of Divorce specified, however, the agreement and expectation of the parties that the support obligation would "not be decreased except upon a showing by Husband of a LEPIS substantial change regarding any decrease in Husband's earnings. LEPIS will not apply with regard to any increase in Wife's earnings." Defendant did not produce evidence of any change in circumstances as required by Lepis nor as contemplated by the terms negotiated by the parties and incorporated into the Judgment of Divorce. Defendant merely asserts that the support obligation deviated from the Child Support Guidelines and should therefore be set aside.

Defendant was aware of the deviation from the child support guidelines when he voluntarily assented to the terms of the divorce. Under such circumstances, and absent a showing of substantial change of circumstances, we hold defendant is estopped and precluded from having the child support modified simply by arguing it was too high when it was first implemented.

The law is clear on the matter. In Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div. 2004), we held that the agreement of the parties, particularly when it is incorporated into a judgment of the court, is entitled to deference and its contents should be given significant consideration. Public policy favors the enforcement of consensual arrangements for support, as occurred here. Ibid. (citations omitted). The enforcement of such arrangements provides the parties with stability in their affairs. Ibid.

The overall analysis regarding whether or not to modify a PSA is one of equity. The court must consider:

(1) the adequacy of the agreement at inception, the presumed understanding of the parties at that time,

(2) the reasonable expectation of the parties during the life of the agreement,

(3) the manner in which the parties acted and relied on the agreement [and]

(4) the previously stated principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement or even during periods when modification is at issue.

Ibid.

We must view the Judgment of Divorce as a whole. In doing so, we recognize the explicit tradeoffs between the parties that went into the terms of the divorce decree. The resulting expectation of the parties was that defendant would pay child support of $500 per week. Plaintiff reasonably relied on this expectation and surrendered or waived other viable claims such as any interest in defendant's law license, alimony, back alimony and counsel fees. It would be inequitable now to grant defendant's request to reduce the child support obligation when it was a product of his knowing and voluntary act and agreement. When the terms of the divorce decree were negotiated, defendant, as a licensed attorney, plainly understood he was giving up the right to insist upon a calculation according to the child support guidelines. We see no reason why he should not remain bound by the agreement into which he voluntarily entered.

Next, defendant argues an escalation clause in the PSA should not be enforced because the subject heading to paragraph 12 purports to address a "decrease in child support." In spite of the heading, paragraph 12 contains a provision that expressly authorizes an increase in child support. The referenced paragraph states:

12. With Specificity, the parties agree on the following limitations regarding a decrease in child support (emphasis added):

A. If Husband, through no fault of his own, loses his job or has a decrease in income, he would be able to apply under LEPIS for a modification of his child support obligation and Wife would have a right to be heard on that issue.

B. The Court may or may not decrease support at the time of hearing, however, if Wife incurs an increase in her income (currently approximately between $8,000 and $14,000), and even if she incurs a substantial increase in her income, as part of the Agreement, Husband will not seek any decrease in child support as a result of such an increase.

C. Husband will provide Wife with copies of his annual Federal and State tax returns, as well as his W-2's and 1099's, by May 31st of each year. Any increase in Husband's gross income, beyond his current earnings of $72,000.00, will be reported to Wife within 10 days. The parties agree that 35% of any increase in Husband's net income will be paid by Husband to Wife as additional child support. Net pay is defined as gross earnings less federal taxes, state withholding taxes, FICA, Medicare, SUI and other mandatory withholdings. This does not include any deductions for student loans and existing tax arrears that Husband is currently paying, and any pension loans he may take, or any other similar liens. In other words, those are not deductible in calculating net earnings. (emphasis added).

Defendant had ample time to review the terms of the divorce before it was entered. As an attorney, defendant was well-equipped to scrutinize the agreement. There is no evidence of bad faith on plaintiff's part in placing the provision calling for an automatic increase in child support in paragraph 12 and, indeed, no credible evidence that defendant was misled. Thus, the escalator clause is enforceable regardless of the less than accurate subject heading. See, e.g., Petersen v. Petersen, 85 N.J. 638, 644 (1981); Rolnick v. Rolnick, 262 N.J. Super. 343, 356 (App. Div. 1993) (noting that enforcement of escalation clauses remain a judicial function that requires a determination of whether enforcement of those terms would be fair, just and equitable).

The trial court required defendant to contribute to the child's braces, determining that braces are not purely cosmetic, but rather are necessary to correct the child's teeth and prevent more serious dental problems in the future. The court ruled that such expenses come within paragraph 17 of the Judgment of Divorce, regarding un-reimbursed medical expenses. That ruling is a matter within the exercise of sound discretion on the part of the trial judge. We do not perceive any clear abuse of discretion.

Finally, since defendant failed to demonstrate a prima facie change in circumstances, an order for discovery is not warranted. Lepis, supra, 83 N.J. at 157.

 
Affirmed.

One of the children was deceased prior to the divorce.

Although plaintiff does not argue waiver or estoppel, we note either principle may be applicable. "Waiver is the voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003). "The doctrine [of equitable estoppel] is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment." Id. at 178.

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A-2659-04T2

November 17, 2005