ANDREW DWYER v. DEBORAH ELLIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1093-05T31093-05T3

ANDREW DWYER,

Plaintiff-Appellant,

v.

DEBORAH ELLIS,

Defendant-Respondent.

________________________________________________________________

 

Argued May 31, 2006 - Decided June 27, 2006

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-07-2777-02.

Andrew Dwyer, appellant, argued the cause pro se (Dwyer & Dunnigan, attorneys; Mr. Dwyer, of counsel and on the brief).

Jamie K. Von Ellen argued the cause for respondent (Wolkstein, Von Ellen & Brown, attorneys; Ms. Von Ellen and Lydia S. Latona, on the brief).

PER CURIAM

Plaintiff, Andrew Dwyer, appeals from a post-judgment order denying his motion to compel defendant, Deborah Ellis, to provide financial information and to modify his child support obligation, and granting defendant's cross-motion, awarding her counsel fees. We affirm.

The parties married in 1990. They had two children, born in 1993 and 1996. They separated in the latter part of 2000. Both parties are attorneys. By mutual agreement, on April 1, 2001, plaintiff began paying defendant $1,000 per month for the support of the two children. The divorce complaint was filed in May 2002. Both parties were represented by counsel. On September 17, 2003, a judgment of divorce was entered. On the same date, the parties executed a comprehensive property settlement agreement (PSA), which was incorporated in the judgment of divorce, after a finding, based upon the sworn testimony of the parties, that the parties freely and voluntarily entered into the agreement and deemed it fair "under all of the circumstances presently existing."

Throughout the entire time before and after the filing of the divorce complaint, up to the execution of the PSA, the $1,000 per month child support obligation remained unchanged. The parties had agreed upon this figure, and the record demonstrates that their attorneys were instructed that this aspect of the marital settlement was not subject to negotiation. The PSA included the $1,000 per month support obligation, subject to a bi-annual 5% cost of living increase. In addition to this base amount of child support, the parties agreed to share equally certain other expenses, such as work-related childcare expenses and certain uncovered health-related expenses incurred on behalf of the children. The parties also agreed that each would contribute $1,200 per year per child to a college savings fund.

Section 4.2 of the PSA set forth the cost of living increase provision and concluded: "Unless significant and substantial changed circumstances are found to exist, the automatic increases in support specified in this Paragraph shall be in lieu of any other modifications." Section 4.5 provided further content to that provision, defining "significant and substantial changed circumstances, which shall warrant a modification of child support" to include the following events:

A. The emancipation of either child.

B. If either child leaves the residence of the Mother on a permanent basis.

C. If for either child the Father becomes the Parent of Primary Residence, as that term is defined in the child support guidelines.

D. Other changes in accordance with the child support guidelines and applicable law.

At all times, defendant was the parent of primary residence. At the time of the divorce and PSA, the parties had been engaged in mediation regarding timesharing of the children. The one unresolved issue pertained to Monday overnights. It was agreed that on alternate Mondays, plaintiff would have the children overnight, and the other weeks he would have them until 8:00 p.m. But it was also agreed and anticipated that, subject to a trial period and further mediation, consideration would be given to allowing plaintiff to have the children overnight every Monday. This arrangement was in fact consummated after the divorce. However, at the same time, plaintiff was given additional parenting time on certain holidays. The net result allowed plaintiff an additional eighteen overnights on Mondays, as opposed to having the children on those Mondays until 8:00 p.m. Overall, plaintiff's overnights went from 141 to 159, a change of 39% to 44%. However, as stated, the additional overnights were on days that he previously had the children until 8:00 p.m. Thus, the change on those nights was merely sleeping over after they would have been with plaintiff under the previous arrangements until 8:00 p.m. in any event.

Both parties attended New York University (NYU) Law School and, for a time, they practiced law together. By the time the divorce proceedings began, defendant was no longer engaged in private practice, but was employed by NYU Law School. In a case information statement (CIS) she filed on January 29, 2002, she revealed combined income from NYU of $79,500, consisting of $57,000 plus benefits for a fulltime teaching position and an additional $22,500 with no benefits for teaching another course on a part-time basis as an adjunct. In February 2003, while the divorce proceedings were pending, plaintiff was offered and accepted a new position at NYU as Assistant Dean for Public Interest Law, effective June 1, 2003.

Soon after accepting the position, plaintiff became aware of his wife's new position. They discussed it directly between themselves. The children informed plaintiff of it. The parties' attorneys discussed it in detail in negotiations regarding parenting time, because defendant tailored her work hours in the new position to fit her parenting time arrangements by taking some time off on certain days and working late on other days. Finally, in numerous emails from defendant to plaintiff after June 1, 2003, she signed the communications with the designation of her new title.

Undoubtedly, plaintiff was fully aware many months in advance of the PSA of defendant's new employment status. Obviously, it was a promotion and would be reasonably expected by anyone to carry with it an increase in pay. Apparently plaintiff never inquired what defendant's new salary was, and defendant never volunteered the information. The parties mutually agreed, through their attorneys, that they would not conduct further discovery. Defendant determined that she would not pursue an evaluation of plaintiff's sole law practice and the value of benefits and perquisites he derived from that practice in addition to his "reported" income. Plaintiff filed a CIS on August 2, 2002, disclosing that for the first seven months of the year he had taken partnership draws of $38,000. Thus, it was estimated that he would earn net income of about $80,000 for the year, which translated into adjusted gross income of nearly $127,000.

As is typical, the PSA was a comprehensive agreement containing many interrelated provisions, including the child support provisions. The PSA did not contain a specific recital of each party's present income. It did contain this general provision regarding financial disclosure and waiver of discovery:

13.1 The parties represent to each other that they have fully and completely disclosed their respective assets, liabilities, income and expenses. Each party represents that the financial information provided to each other is true, accurate and complete. Both parties knowingly and willingly waive their respective rights to take further discovery in this matter by way of interrogatories, depositions, examination of the books and records of the other party as well as all rights to an independent, separate evaluation of the assets possessed or controlled by the other, and such other tools of discovery as may be available pursuant to Court Rules. The parties have had the opportunity to consult with accountants and tax advisors prior to entering into this Agreement.

On August 7, 2005, plaintiff filed a motion seeking an order compelling defendant to provide financial information regarding her income and seeking a reduction in his child support obligation. He contended that he relied upon her representation of income contained in her January 29, 2002 CIS of $79,500 when he entered into the PSA, and he now believed that she was earning substantially more as a result of her new position as assistant dean. Because NYU is a private institution, the income of its employees is not public record. However, plaintiff researched several comparable public institutions and learned that assistant deans of highly regarded law schools earned salaries of well over $100,000 per year. Thus, he contended he made a sufficient showing of changed circumstances to warrant discovery and further proceedings to consider a change in child support. As a second basis for relief, plaintiff asserted his increased timesharing of the children, which would warrant a corresponding decrease in his child support obligation.

Plaintiff represented himself on the motion, and at the hearing he was sworn in by the judge, as was defendant. Defendant did not give testimony. Plaintiff's discussion at the motion hearing was a mixture of legal argument and factual testimony.

The judge found plaintiff incredible and disingenuous in his denial of knowledge at the time of the divorce and PSA of his wife's new position. He also found it incredible and disingenuous that plaintiff was unaware when he entered into the PSA that defendant had likely obtained a substantial increase in salary. Finally, the judge found it incredible and disingenuous that plaintiff relied upon the income represented by defendant in an outdated CIS, filed long before she obtained her new position. That income figure was clearly no longer operative and plaintiff knew it when he entered into the PSA. Being an attorney himself, and being represented by counsel, plaintiff was well aware of his entitlement to discovery, which he voluntarily waived. He did so based upon the agreement and understanding between the parties that the $1,000 per month child support obligation was fair under all of the circumstances then existing, which included his wife's assistant dean position. The judge found that plaintiff's lack of knowledge of defendant's exact income was not controlling under all of the circumstances surrounding the negotiations, the waiver of discovery, and the agreement.

In response to the motion, defendant filed a detailed certification, accompanied by documentary evidence from NYU, setting forth her salary arrangements. Her salary as dean was initially set at $125,000, plus she was permitted to teach one course for a stipend of $10,000. Thus, effective June 1, 2003, her salary was $135,000. In each year after that, she received a 3% merit increase applied to the base salary of $125,000, plus she retained the $10,000 stipend for teaching a course.

Therefore, it cannot reasonably be argued that there was a significant change in circumstances regarding the income of either party after the divorce and PSA in September 2003. The crux of plaintiff's argument is that he was unaware of defendant's income and relied to his detriment on a misrepresentation of her income as contained in her earlier CIS. In rejecting this position, Judge Camp said this:

She accepted a job prior to your agreement and, in fact, had paystubs from June, July and August. Unless you came forward on the record and demonstrated to this Court that she intentionally withheld those documents and misrepresented her income when you entered into that agreement in September, then by your waiving discovery, you slept on your rights. Unless you could show me that you asked her point blank, in writing, orally or otherwise and that she denied starting June 2003 that she was making the money she's making now, you have no case.

. . . .

I'm making a finding of fact that you knew that in 2003 she was making six figures, 125, 135 or $145,000 income. You knew it and, therefore, that is the same amount of money she's making now and you have not -- for all the reasons, all the inferences the Court can draw, all the documents that have been in the file and the fact that you settled the case, and you have made no allegations she misrepresented.

The record supports these findings, and we will not interfere with them. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). With respect to the additional parenting time, the judge found the change insignificant and not a basis to warrant modification of the child support obligation.

Child support orders are subject to judicial review, Kiken v. Kiken, 149 N.J. 441, 455 (1997), and may be modified upon a showing of substantial changed circumstances, Lepis v. Lepis, 83 N.J. 139, 152-53 (1980). Public policy strongly favors the stability of consensual arrangements in family matters. Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999). Courts will enforce marital agreements as written in the absence of changed circumstances that would render continued enforcement unfair, unjust and inequitable. Id. at 194 (citing Lepis, supra, 83 N.J. at 154-55).

We agree with Judge Camp that plaintiff failed to make the required threshold showing of a substantial change in circumstances here. In essence, the judge determined that under all of the circumstances, plaintiff was constructively on notice of the approximate amount of plaintiff's income months before entering into the PSA. He could have easily ascertained the exact amount by an informal inquiry, directly or through counsel, or by exercising his discovery rights. He could have learned the approximate amount, as he did when he decided to file his motion two years later, by researching the salaries of assistant deans at comparable law schools. Thus, it was reasonable for the judge to conclude that the plaintiff knew, could have known, or should have known defendant's income when he entered into the PSA and he could not later use his asserted lack of knowledge to gain an advantage. The negotiations were open and fair, and plaintiff had knowledge of the material facts that induced his agreement to enter into the comprehensive terms of the PSA, including the child support obligation.

We also reject, as did Judge Camp, plaintiff's contention that the Child Support Guidelines should be utilized in recalculating his child support obligation. Clearly, the combined incomes of the parties exceed the maximum Guidelines amount. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2382 (2006). This was never a Guidelines case from the time the parties mutually agreed to the amount between themselves, through the negotiations and completion of the PSA, and it is still not a Guidelines case.

We also agree with Judge Camp that the slight adjustment in the parenting time schedule was of insufficient consequence to result in a child support modification. Little, if any, additional expense to plaintiff would be occasioned by having the children sleep over eighteen additional Monday nights instead of going back to defendant's house at 8:00 p.m. on those nights.

Finally, the judge awarded defendant $1,846.90 in counsel fees and costs. The amount was in accordance with the affidavit of services filed, which the judge found reasonable for the services rendered. The judge found there was no merit whatsoever to plaintiff's motion and that his contentions bordered on bad faith. Defendant was compelled to obtain counsel to defend a baseless motion. Trial judges are accorded broad discretion in awarding counsel fees in matters such as this. We find no mistaken exercise of discretion here. See Williams v. Williams, 59 N.J. 229, 233 (1971).

 
Affirmed.

(continued)

(continued)

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A-1093-05T3

June 27, 2006