HANS J. MUHLER, IV v. VALERIE BURNS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0117-05T30117-05T3

HANS J. MUHLER, IV,

Plaintiff-Appellant,

v.

VALERIE BURNS,

Defendant-Respondent.

_________________________________

 

Submitted May 1, 2006 - Decided May 24, 2006

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, FM-10-36-05.

Hans J. Muhler, IV, appellant pro se.

Goldstein Isaacson, attorneys for respondent (Andrew J. Goldstein, of counsel and on the brief).

PER CURIAM

Plaintiff, Hans Muhler, IV, appeals from that portion of a Family Part order denying modification of a consent order, which he previously entered into with his former spouse, defendant, Valerie Burns, respecting his combined support and college expense obligation for his son Christian. We affirm.

Muhler and Burns were divorced by judgment of April 4, 1991, following almost five and one-half years of marriage. Burns was granted joint legal and full residential custody of Christian, who was born on October 30, 1986. Both plaintiff and defendant have re-married. During high school, Christian received a score of 1400 on his SATs, was inducted into the National Honor Society, and was a contender for The National Merit Scholarship. Christian entered Cornell University in August 2004, where he is currently an Engineering Physics major.

In June 2004, Burns filed a motion to compel Muhler to contribute to college-related expenses and other reimbursements for Christian. A plenary hearing was scheduled for September 21, 2004. On September 20, 2004, however, following an appearance before an Early Settlement Panel, the parties, represented by counsel, reached an agreement. The terms of the agreement were placed on the record on September 20, 2004. A consent order memorializing the agreement was entered in October 2004. It provided:

1. Commencing September 20, 2004, and continuing thereafter until the emancipation of Christian, the Plaintiff shall pay the Defendant $200.00 per week. This sum shall be the Plaintiff's contribution toward child support and college for Christian.

2. Both parties acknowledge that the Defendant has made several contributions toward Christian's college education in the year 2004. Both parties further acknowledge that the Plaintiff's share of these contributions would have been $2,200.00. In order to repay this amount, the Plaintiff agrees that, upon Christian's emancipation, he will continue to pay $200.00 per week for a period of 11 weeks. This $2,200.00 is not dischargeable in bankruptcy, nor is it modifiable by any court.

3. Any and all other relief sought by either the Plaintiff or the Defendant in their cross-applications is hereby withdrawn and deemed waived by that party.

Just over eight months later, on May 12, 2005, Muhler filed a pro se motion seeking the following relief:

1. Adjudicating the Defendant in violation of Plaintiff's rights for not responding to Plaintiff's reasonable requests for any information regarding their son, Christian H. Muhler, and sanctioning Defendant for same.

2. [D]irecting the Defendant to provide information including but not limited to [Christian's] current address at school, his current telephone number, his current e-mail address and a recent photograph.

3. [D]irecting the Defendant to provide information including but not limited to the name, address and telephone numbers of any and all educational institutions he is enrolled in, his enrollment status at each educational institution, his classes enrolled, his classes completed, his credits earned, his grade reports, any and all information or reports regarding Christian issued by any and all of his educational institutions, any and all information regarding extra-curricular activities he is involved [in] such as sports, music, clubs or hobbies as soon as they are available from August 1, 2004 until he is emancipated by the court.

4. [D]irecting the Defendant to provide information including but not limited to results of any and all medical tests, any and all diagnosis [sic], any and all treatments, any and all drugs prescribed from any doctors, dentists, psychologist, diagnostic laboratory or any other health care provider or medical facility from September 21, 2004 until he is emancipated by the court.

5. [D]irecting the Defendant to provide information including but not limited to any and all information regarding the health, dental, vision or any other health related insurance coverage of Christian H. Muhler, including complete copies of each and every health related insurance policy he is enrolled, copies of all claims submitted, copies of all explanation of benefits paid, and copies of any and all other information related to any and all of Christian's health related insurance coverage from September 21, 2004 until he is emancipated by the court.

6. Directing the Defendant to provide the plaintiff with information regarding Christian H. Muhler as required by the Internal Revenue Service as well as the New Jersey State Division of Taxation, including but not limited to, copies of IRS form 1098T (report of student tuition and other qualified expenses paid) from any and all of his educational institutions, copies of any IRS form 1098E (report of student loan interest paid) from any financial institutions providing a student loan to Christian, any and all information regarding scholarships, fellowships, grants, qualified tuition reductions, student loans, including applications sent and awards granted, any and all information regarding Christian's employment, earned and unearned income and complete and true copies of his tax returns from the 2004 tax year until he is emancipated by the court as well as directing the defendant to answer whether or not Christian H. Muhler has been convicted of a felony for possessing or distributing a controlled dangerous substance.

7. Terminate College support payments from Plaintiff.

8. Decrease Child Support payments from $200.00 per week to $20.00 per week.

9. Affirm that the first $250 per year of unreimbursed medical expenses is included in the child support payments.

10. Allocate unreimbursed medical expenses over $250 by the income shares formula.

11. Ordering such other relief as the Court may deem just and equitable.

12. Oral argument is requested.

A Family Part judge heard oral argument on Muhler's motion on July 15, 2005. On July 26, 2005, the judge entered an order mandating the following:

1. The defendant shall procure and send copies of all Cornell University financial aid information and forms including the "form 1098-T" to the plaintiff on a continuing basis throughout their son's schooling.

2. The defendant shall procure and send copies of all grade transcripts to the plaintiff on a continuing basis throughout their son's schooling.

3. While the court finds that plaintiff has presented credible evidence of ongoing attempts to reach the parties' son as well as credible evidence that the defendant may have thwarted contact and thus promoted the current alienation between the plaintiff and his son, the court is now without power to effect any resolution, and must deny plaintiff's request for relief in regards to contact, because the parties' son has now reached his majority.

4. All requested relief not granted is hereby deemed denied without prejudice.

5. All previous orders will continue in full force and effect except to the extent modified by this Order.

On appeal, Muhler does not challenge the judge's order granting him the requested financial information. He asserts that the judge erred in not terminating his obligation to provide payments for Christian's college expenses and reducing his support obligation based upon changed circumstances. He repeats the same arguments asserted before the Family Part judge, namely, his circumstances have changed in such a way that it is no longer fair to enforce the consent order.

The asserted changed circumstances are that the October 6, 2004, Consent Order (1) provided for duplicate expenditures including both college expenses and support, (2) was entered into without consideration being given to his three minor children born of his current marriage, (3) was entered into without consideration of the factors enumerated in Newburgh v. Arrigo, 88 N.J. 529 (1982), (4) was without adequate explanation, and (5) was not based on the income shares formula. Muhler also claims changed circumstances because Christian was seventeen years old at the time the consent order was entered into and has now reached his majority. Finally, he contends that he is unable to pay the college costs because his debt service has doubled.

The Case Information Statement (CIS) filed on July 26, 2004, listed current gross earned income of approximately $3615 per month ($43,380 per year) with combined monthly expenses with his three children of $5887 ($70,644 per year). In the July 2004 CIS, Muhler listed $208,738 in total assets and $235,528 in liabilities for a total net worth of -$26,790. By contrast, Muhler's CIS dated May 1, 2005, listed his current year-to-date earned income through April 30, 2005, at $10,144 ($30,538 per year) and total monthly expenses with three children at $6488 ($77,856). His total gross assets, however, increased to $253,527 with liabilities equal to $269,510 for a net worth of -$15,983 (an increased net worth of $10,807).

N.J.S.A. 2A:34-23 provides the court with the authority to revise and alter orders regarding the care and maintenance of children "from time to time as circumstances may require." Thus, a child support order is "always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)). In Lepis, the Court outlined the procedures to be followed in petitioning a court for a modification of an alimony order. First, the party seeking modification has the burden of making a prima facie showing of changed circumstances, id. at 157-59, that is "whether 'changed circumstances had substantially impaired the [spouse's] ability to support himself or herself.'" Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (quoting Lepis, supra, 83 N.J. at 157). This prima facie showing requires full disclosure of the dependent spouse's financial status, including tax returns. Lepis, supra, 83 N.J. at 157. Examples of changed circumstances that require modification include "child maturation, increases in need, employment, or child emancipation . . . ." Miller v. Miller, 160 N.J. 408, 420 (1999) (citing Lepis, supra, 83 N.J. at 151-52). The child's needs, not the child's age, are "determinative of the duty of support." Patetta v. Patetta, 358 N.J. Super. 90, 93-94 (App. Div. 2003). Accordingly, "while parents are not generally required to support a child over eighteen, [the child's] enrollment in a full-time educational program has been held to require continued support." Ibid.

The standard that governs an application for modification of a property settlement agreement is the same standard that applies at the time of the original judgment of divorce. Miller supra, 160 N.J. at 420. Consensual agreements are subject to the same standard of changed circumstances as judicial decrees. Lepis, supra, 83 N.J. at 148; see Patetta, supra, 358 N.J. Super. at 95 (stating attempt to distinguish another case because it involved a property settlement agreement as opposed to a consent order "is a distinction without a difference").

A changed-circumstances analysis necessarily requires determining the starting point for such changes, Foust, supra, 340 N.J. Super. at 316, and "'[t]he moving party has the burden of establishing the circumstances that warrant the change,'" Dolce v. Dolce, 383 N.J. Super. 11, 19 (App. Div. 2006) (quoting Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991)).

Only after the moving party has made this prima facie showing of changed circumstances may the court order discovery and hold a hearing to determine the supporting spouse's ability to pay. Lepis, supra, 83 N.J. 157. The responding party's ability to pay becomes a factor for the court to consider, in which case, discovery of tax returns or other financial information should be ordered. Ibid. Following such discovery, the court should hold a plenary hearing only when material facts are in dispute. Id. at 159. A party must clearly demonstrate the existence of a genuine issue of material fact before a hearing is necessary. Ibid. "In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties." Ibid. Prior agreements "should receive continued enforcement without modification only so long as they remain fair and equitable." Id. at 148-49.

Here, the starting point was the consent order of October 6, 2004. We are satisfied from our review of the record that Muhler has failed to establish a prima facie case of changed circumstances to warrant a plenary hearing. The consent order was entered into less than one month before Christian's eighteenth birthday. At that time, Christian was already attending Cornell. Muhler's contention that Christian attaining majority represented a changed circumstance following the entry of the consent order strains credulity. Likewise devoid of merit is Muhler's contention that his present obligation to the three children of his second marriage represents a changed circumstance sufficient to require a plenary hearing. He was obligated to support those children at the time he entered into the consent order. Muhler's complained lack of contact with Christian existed for approximately two and one-half years prior to execution of the consent order. Moreover, his 2 004 CIS and 2005 CIS fail to establish that his financial circumstances have changed significantly since the entry of the October 6, 2004, order. Finally, Muhler's contentions regarding the propriety of the agreed upon consent order do not implicate changed circumstances warranting relief.

 
Affirmed.

It is unclear from the record whether Christian received the National Merit Scholarship, but it is not listed on the letter from Cornell detailing his grants and scholarships.

The notice of motion to compel is not included in the appellate record.

The transcript from the September 20, 2004, proceeding is not included in the appellate record.

Christian received $25,908 as financial aid and scholarship monies during his freshman year, which reduced the amount of tuition and expenses for which his parents are responsible to $14,000. The total cost of Christian's first year at Cornell was $42,158. Cornell expected that Christian would contribute $2,250 in summer savings and student assets.

At the time Muhler filed his May 10, 2005, affidavit in support of his motion, the children were age two, four, and six.

(continued)

(continued)

11

A-0117-05T3

May 24, 2006