ROBERT C. VAUGHN v. DIANE VAUGHN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1560-04T11560-04T1

ROBERT C. VAUGHN,

Plaintiff-Appellant,

v.

DIANE VAUGHN,

Defendant-Respondent.

 

Submitted: February 16, 2006 - Decided April 19, 2006

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket Number FM-18-449-97.

Mandelbaum, Salsburg, Gold, Lazris, Discenza & Steinberg, attorneys for appellant (David S. Carton, on the brief).

Dughi, Hewit & Palatucci, attorneys for respondent (Mario C. Gurrieri, of counsel; Gary L. Riveles, on the brief).

PER CURIAM

Plaintiff Robert C. Vaughn appeals from orders entered in the Family Part denying his application to enforce an alleged oral agreement to modify his child support and alimony obligations to defendant Diane R. Vaughn under their property settlement agreement, as incorporated into the final judgment of divorce, and from an award of counsel fees to defendant. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

The parties were married on September 6, 1986. Two children were born of their marriage: Blaire, on November 8, 1988; and Samuel, on June 6, 1992. A final judgment was entered on February 13, 2001, dissolving their marriage and incorporating the terms of a property settlement agreement executed on that date.

Pursuant to their agreement, the parties were to share joint legal custody of the children, with physical custody vested with defendant. Effective February 1, 2001, plaintiff agreed to pay the sum of $7,000 per month in child support, payable until the emancipation of the children.

Plaintiff also agreed to pay defendant limited duration alimony for a period of fourteen (14) years. The first thirty-six (36) monthly alimony payments were to be paid at the rate of $12,500 per month, which amount was to be reduced thereafter for the remaining eleven (11) years (132 payments) to the sum of $10,000 per month. The alimony was to terminate upon plaintiff's death, defendant's death or remarriage, or upon defendant's cohabitation with an unrelated male, at which time the alimony would be either eliminated or diminished depending upon the factual circumstances.

Notably, paragraph 6.10 of the property settlement agreement provides:

A modification or waiver of any of the provisions of this AGREEMENT shall be effective only if made in writing and executed with the same formality as this AGREEMENT. The failure of either party to insist upon strict performance of any of the provisions of this AGREEMENT shall not be construed as a waiver of any subsequent default of the same or similar nature.

In June 2001, plaintiff was terminated from his position as a managing director with Merrill Lynch, where he had been earning in excess of $1,000,000 gross income per year. Beginning in 2002, plaintiff began making support payments in amounts less than those required by the property settlement agreement.

On or about July 23, 2004, defendant filed and served a motion seeking enforcement of the alimony and child support provisions set forth in the property settlement agreement and requiring the payment of support arrearages as alleged, through July 31, 2004, in the amount of $349,000, plus interest thereon. In her motion, defendant also sought counsel fees and discovery of plaintiff's assets and income.

In her supporting certification, defendant stated that when plaintiff began making his decreased payments, she had complained and he had assured her he "would 'make things right' if [she] was patient with him." Defendant stated she relied upon plaintiff's representation; however, he never brought the arrearages current, his support payments increasingly diminished, and she was required to utilize funds received from equitable distribution to sustain the lifestyle of her and the children.

On or about October 12, 2004, plaintiff filed a cross-motion, seeking an order enforcing a purported oral agreement between the parties to modify his alimony and child support obligations; declaring that there are no arrears owing or, alternatively, ordering a plenary hearing on that issue. Plaintiff also sought an order declaring that all payments made by him since January 2002 be designated, in the first instance, as child support, with the balance deemed to be alimony; terminating his alimony obligation effective January 1, 2002; vacating alimony arrears that have accrued since January 1, 2002; reducing his child support to an amount consistent with the child support guidelines; and permitting him to liquidate child support arrears at the rate of $300 per month. Plaintiff also sought discovery and an award of counsel fees.

In his supporting certification, plaintiff stated defendant had agreed to accept lesser support payments based upon his significant change in financial circumstances. Plaintiff explained that after losing his position with Merrill Lynch, he was unable to find employment, particularly after the terrorist attack of September 11, 2001. He stated that he was eventually able to negotiate severance pay in the amount of $308,951, which he received in October 2003. Plaintiff certified he used that money, along with money he had from liquidated stock holdings, to purchase a two-bedroom co-op for $710,000 in April 2004.

Plaintiff maintained that he and defendant had expressly agreed that he would provide her with reduced support payments, with those payments to be equally allocated between child support and alimony. He denied defendant's contention that she had repeatedly requested him to make the full amount of the support payments, or that he had agreed that would be his obligation.

The motions were argued in the Family Part on November 5, 2004. The judge reserved decision, and then issued an order on November 8, 2004, supported by a statement of reasons, that:

1. Denied plaintiff's request to enforce an alleged oral agreement as to modification of his alimony and child support obligation;

2. Granted defendant's request for enforcement of her rights under the final judgment of divorce, and required plaintiff to comply with the terms of the property settlement agreement;

3. Established plaintiff's child support and alimony arrearages in the amount of $385,000, and required him to pay defendant the sum of $32,125 per month for a period of twelve months, beginning December 1, 2004;

4. Required plaintiff to provide discovery concerning his income from 2001;

5. Denied plaintiff's request to terminate alimony effective January 1, 2002;

6. Denied plaintiff's request to vacate support arrears accruing since January 1, 2002;

7. Denied, without prejudice, plaintiff's request for an order reducing his child support obligation, noting that plaintiff has demonstrated a prima facie case of changed circumstances, is entitled to discovery, and may submit a new motion with the prior case information statement and an updated case information statement pursuant to R. 5:5-4;

8. Denied plaintiff's application to permit him to pay child support arrears at the rate of $300 per month;

9. Denied plaintiff's request for an order compelling defendant to submit proof to support her contention that equitable distribution assets were liquidated to pay living expenses;

10. Granted plaintiff's request for an order compelling defendant to file a case information statement;

11. Denied, without prejudice, plaintiff's request for an order permitting an appraisal of defendant's residence;

12. Granted defendant's request for counsel fees, requiring defendant to submit an affidavit of counsel's services;

13. Denied, without prejudice, defendant's application for an order requiring plaintiff to pay a $15,000 pendente lite counsel fee; and

14. Denied plaintiff's request for an award of counsel fees.

After review of the submission by defendant in support of her application for counsel fees, and plaintiff's opposition thereto, the motion judge issued an order on November 19, 2004, requiring plaintiff to pay defendant a counsel fee in the amount of $4,500 within fifteen days.

Upon a motion by plaintiff for a stay, and a cross-motion by defendant for enforcement, the court entered an order on January 21, 2005, supported by a statement of reasons, that:

1. Denied plaintiff's application for a stay pending appeal;

2. Upon payment by plaintiff to defendant of certified funds in the amount of $32,125 or before January 28, 2005, the court shall deny enforcement of the November 8, 2004 order, as it concerns past arrears for a period of thirty days to permit plaintiff to seek a stay from this court;

3. Upon failing to pay the $32,125 prior to January 28, 2005, or upon failing to apply for a stay to this court within thirty days, then defendant may reapply for enforcement of litigant's rights;

4. Plaintiff shall provide defendant with $12,000, reflecting the unpaid amount of the December 2004 support obligation, immediately; and

5. That plaintiff shall pay defendant a counsel fee in the amount of $1,500 on these applications.

On June 9, 2005, on application by plaintiff, we entered an order remanding the matter to the Family Part for a ruling on the issue of plaintiff's application to modify his support obligations. On remand, the Family Part conducted a further hearing and issued an order on July 29, 2005, accompanied by a statement of reasons, that

1. Granted plaintiff's request for an order modifying his support obligations, requiring plaintiff to pay defendant alimony in the amount of $640 per week, effective January 1, 2005, and child support in the amount of $492 per week, also effective January 1, 2005. In addition, plaintiff was ordered to pay defendant 10% and the children 20% of any discretionary bonus he received on an annual basis from his employer GFI Securities;

2. Granted plaintiff's request for an order permitting him to pay arrears at a reduced rate, requiring him to pay defendant the sum of $5,000 per month toward liquidation of the arrearage amount, as determined by the Somerset County Probation Department. Plaintiff was to obtain a $300,000 mortgage on his co-op in Manhattan to satisfy the support arrearages;

3. Granted plaintiff's request for an order compelling defendant to file a full and complete case information statement within ten days; and

4. Denied the request of both parties for an award of counsel fees.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO RECOGNIZE THE ORAL AGREEMENT BETWEEN THE PARTIES MODIFYING THE ALIMONY AND CHILD SUPPORT AS SET FORTH IN THE JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT AGREEMENT, ALTERNATIVELY, THE COURT ERRED AS A MATTER OF LAW BY NOT ALLOWING DISCOVERY AND A PLENARY HEARING TO RESOLVE THE FACTUAL DISPUTES AS TO WHETHER THERE WAS OR WAS NOT AN ORAL AGREEMENT BETWEEN THE PARTIES MODIFYING THE JUDGMENT OF DIVORCE.

POINT II

TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO REDUCE APPELLANT'S CHILD SUPPORT AND ALIMONY DUE TO A SUBSTANTIAL CHANGE IN CIRCUMSTANCES, OR ALTERNATIVELY, ERRED AS A MATTER OF LAW BY NOT ALLOWING DISCOVERY AS TO THE PARTIES' RESPECTIVE FINANCIAL CIRCUMSTANCES.

POINT III

TRIAL COURT ERRED AS A MATTER OF LAW BY AWARDING RESPONDENT COUNSEL FEES AND COSTS.

After analyzing the record on appeal, which includes the remand proceedings, in the light of the written arguments advanced by the parties, we conclude that the issues presented are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth by the motion judge in his statements of reasons issued on November 8, 2004, January 21, 2005, and July 29, 2005.

In his most recent rulings, the motion judge noted that plaintiff was now earning $150,000 per year, plus bonuses, and that the support obligation should thereby be reduced to $58,864 per year, with $33,280 of that amount tax deductible by plaintiff as constituting alimony. The findings and conclusions of the motion judge are supported by substantial, credible evidence contained in the record as a whole, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), and we find no reason or basis to interfere with the conclusions reached by the judge.

Affirmed.

 

(continued)

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A-1560-04T1

April 19, 2006