KATHY S. deRENZY v. EDWARD A. deRENZY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2469-08T32469-08T3

KATHY S. deRENZY,

Plaintiff-Respondent,

v.

EDWARD A. deRENZY,

Defendant-Appellant.

___________________________________

Argued April 21, 2010 - Decided May 14, 2010

Before Judges Miniman and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-475-06N.

Krysta L. Berquist argued the cause for appellant (Law Office of Ira M. Senoff, attorneys; Ms. Berquist, of counsel and on the brief).

Richard M. Sevrin argued the cause for respondent (Mr. Sevrin, attorney; Lawrence R. Jones, on the brief).

PER CURIAM

Defendant Edward deRenzy appeals the denial of his motion for modification of his alimony and child support obligation, as well as the referral of his application for additional parenting time to mediation. We affirm.

I.

We discern the following facts and procedural history from the record on appeal. The parties were married in 1979. They had four children: a son born in 1982, a second son born in 1987, a daughter born in 1989, and a third son born in 2001.

The parties were divorced in 2006. The judgment of divorce incorporates the terms of their property settlement agreement (PSA). For the purposes of this appeal, the following are the relevant provisions:

3.1 Spousal Support (Alimony). Commencing November 1, 2005, the Husband shall pay as and for spousal support for the Wife the sum of $500 per month, payable directly to the Wife. . . . Said alimony shall be designated as Limited Duration Alimony and shall terminate upon the first occurrence of one of the following events: Husband's death; Wife's death; Wife's remarriage; or after the expiration of ten (10) years from the commencement date of the alimony. The parties acknowledge that alimony is taxable to the Wife and tax deductible to the Husband.

Alimony and child support have been based upon the Husband's annual income of $109,156, and the Wife's annual income of $40,000.

. . . .

3.2 Child Support. Effective November 1, 2005, the Husband shall pay to the Wife as child support for the three unemancipated children, the sum of $2,500 per month. After the expiration of eight (8) years, child support shall decrease by $1,000. The parties have specifically agreed that child support shall be increased each year with a three (3) percent annual cost of living adjustment. The parties have specifically agreed that there will be no decrease of child support upon [the daughter's] entry into college. The parties have specifically agreed that in return for the Wife accepting a lesser amount of alimony, the Husband will pay a higher amount of child support in order that the Wife may continue to pay the household expenses for herself and the unemancipated children. In addition to the basic child support amount, one-half of the Husband's net bonus each year after federal, state and social security taxes, shall be paid to the Wife as additional child support. . . .

. . . .

Upon each child's enrollment in college, the Husband's obligation to pay child support shall be reviewed, taking into consideration the contribution by each party to college expenses, the cost of college and the ability of the parties to support their children.

Defendant filed his first motion to recalculate his support obligation in April 2007. The motion was denied. In October 2008, he filed a second motion for recalculation of support and for adjustment of his parenting schedule with the youngest child. He argued that there were changed circumstances because plaintiff's income had increased and the parties' second son should be deemed emancipated.

Following oral argument on December 5, 2008, Judge Arnold B. Goldman issued a written decision in which the application to recalculate support was denied and the issue of parenting time was referred to mediation. With respect to support, the judge explained his reasons as follows:

2. Recalculation of child support. Denied. Under the PSA, at paragraph 3.2., Defendant agreed to pay Plaintiff a fixed sum of $2500 for the three unemancipated children, after the expiration of eight (8) years, child support is to decrease by $1,000.00. The parties agreed that there will be no decrease of child support upon [their daughter's] entry into college; and the parties specifically agreed that in return for Plaintiff accepting the lesser amount of alimony, the Defendant will pay a higher amount of child support in order that the Plaintiff may continue to pay the household expenses for herself and the unemancipated children. The child support was relatively fixed, subject to modification only in the event of additional expenses for college.

The parties had an agreement merely two (2) years ago when they entered into the PSA. This is the second attempt since then that the Plaintiff has sought to modify the Agreement. This Court echoes the reasoning of [the prior judge], in that Defendant knew two years ago that [one son and daughter] were likely to be emancipated within the [eight] (8) year period. Defendant was well aware that child support would not be modified based on their emancipation. Defendant has shown no basis for modifying the PSA.

Although not bearing on the Court's determination, it is noted that the income of the Defendant, according to his own C.I.S. is $2,682.17/wk, and not the $2,188 that he claims. (Approx. $139,473.00 for the year.) It is not known whether the year to date which he lists, ($80,464.23 for 30 wks), includes his expected end of the year bonus of $14,104 admitted in page 4 of the C.I.S. If so, this would further increase his gross weekly income. Parenthetically, the Court projects Wife's income out to $1,663.85 per week gross, or approx. $86,520 for the year. Interestingly, this would take the parties out of the Child Support Guidelines for at least a portion of their combined income.

. . . .

8. Decrease in alimony. Denied. Support orders are subject to modification upon changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). Changed circumstances are not limited in scope to events that were unforeseeable at the time the support was fixed. Id. at 152.

The movant bears the burden of showing substantial and permanent changed circumstances before the movant is entitled to a modification of a support award. See Lepis v. Lepis, 83 N.J. 139 (1980); Bonanno v. Bonanno, 4 N.J. 268 (1950).

. . . .

Defendant has failed to demonstrate a change in circumstances which would warrant a modification of child support. Defendant contends that he is entitled to [modification of] support because Plaintiff's income has nearly "doubled" since the time of the divorce. Additionally, he adds in child support and spousal support to show that Plaintiff's income is now on par with his own. Plaintiff's increase in income from the two years since the divorce is commendable. She will need this increase to pay for loans she has taken out to pay for the college education of [their daughter]. Moreover, it is not stated in the PSA that an increase in her income during the eight year period of time would affect the amount of support. Was it contemplated that Plaintiff would be capable of affording the home and other expenses on the income that she had at the time of divorce? Unlike what appears to be Defendant's viewpoint, the Court is examining the entire circumstances, alimony, child support, college costs, and other expenses as a whole, and not merely through a prism.

This appeal followed.

II.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), although, in this case, there were no findings of fact based upon an evidentiary hearing. A judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

As stated in Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995):

This State has a strong public policy favoring enforcement of agreements. See Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div. 1985). Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability. Petersen v. Petersen, 85 N.J. 638, 642 (1981); Dworkin v. Dworkin, 217 N.J. Super. 518, 524 (App. Div. 1987). Marital agreements, however, are enforceable only if they are fair and equitable. Petersen, supra, 85 N.J. at 642; Carlsen v. Carlsen, 72 N.J. 363, 370 (1977); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992); Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988). Any marital agreement which is unconscionable or is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship may be set aside. Guglielmo, supra, 253 N.J. Super. at 541; Dworkin, supra, 217 N.J. Super. at 523. In fact, the law affords particular leniency to agreements made in the domestic arena and similarly allows judges greater discretion when interpreting these agreements. Guglielmo, supra, 253 N.J. Super. at 542. Such discretion is based on the premise that, although marital agreements are contractual in nature, "contract principles have little place in the law of domestic relations." Id. [(citing Lepis v. Lepis, 83 N.J. 139, 148 (1980))]. Nevertheless, the contractual nature of such agreements has long been recognized and principles of contract interpretation have been invoked particularly to define the terms of the agreement and divine the intent of the parties. Capanear, supra, 222 N.J. Super. at 407. In interpreting the agreement, the court will not draft a new agreement for the parties. Aarvig v. Aarvig, 248 N.J. Super. 181, 185 ([Ch.] Div. 1991).

In this case, the parties agreed in their PSA to spousal and child support provisions different from those that would likely have resulted from a judicial application of established law, and they explained their reasons for doing so in the PSA itself. Because this was a twenty-seven year marriage, an award of permanent alimony or at least a more significant amount of limited-duration alimony would likely have been the result had the case gone to trial. Conversely, the level of child support would probably have been lower and subject to more frequent change, such as by emancipation of the children, than the parties agreed to in this case. Nevertheless, plaintiff agreed to a reduced amount of spousal support, specifically-denominated limited-duration alimony, for a relatively short period of time in exchange for an enhanced amount of child support for a specific period of time and subject to limited review in the interim. In that regard, the record reflects that the plaintiff is incurring expenses with respect to the daughter's college education without assistance from defendant.

Having reviewed the record in the context of the agreement voluntarily entered into by the parties, we agree with Judge Goldman that defendant failed to demonstrate a sufficient change in circumstances to warrant modification under the terms of the PSA. A plenary hearing was not necessary to reach that conclusion.

The issue of the referral of parenting time to mediation does not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). It was a reasonable exercise of judicial discretion that did not foreclose defendant from seeking judicial relief if mediation were to prove unsuccessful. In any event, we were informed at oral argument that the mediation took place and that the resulting consent order has been entered.

Affirmed.

 

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