TAMARA MILLER v. ROBERT MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5098-04T25098-04T2

TAMARA MILLER,

Plaintiff-Appellant,

v.

ROBERT MILLER,

Defendant-Respondent.

____________________________

 

Submitted January 31, 2006 - Decided February 24, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Ocean County, FM-15-1504-01.

Tamara Miller, appellant pro se.

Respondent did not file a brief.

PER CURIAM

Plaintiff appeals from a post-judgment order reducing defendant's child support obligation. Because we believe the modification improperly ignored a valid provision of the parties' Property Settlement Agreement, we reverse.

The parties were married on April 21, 1990. Three children were born of the marriage: Travis, born November 29, 1991; Kyle, born September 19, 1994; and Garret born July 3, 1997. The parties were divorced by judgment dated April 16, 2002. All issues implicated by the divorce were resolved by a Property Settlement Agreement, also dated April 16, 2002, which was incorporated into the Final Judgment.

The Property Settlement Agreement designated plaintiff "as the children's primary residential custodian." It also provided that plaintiff should receive "limited duration alimony . . . for a period of five (5) years in the amount of $250 per week." The alimony was to commence on the date the former marital residence was sold. The marital home was sold on October 15, 2002.

In the provision that is at issue on this appeal, the parties further agreed that

13. Commencing on the date of the closing of the former marital residence, Husband's child support obligation shall automatically increase to the sum of $400.00 per week. The parties acknowledge and understand that Wife has agreed to accept a lesser amount of alimony in exchange for receiving child support in excess of the amount recommended by the Child Support Guidelines. As such, Husband shall not be entitled to any modification of his child support obligation without making a prima facie showing of a substantial, unanticipated and involuntary change in his financial circumstances. The parties further acknowledge and understand that Husband has indicated that he may declare bankruptcy in relation to TLM Transportation. Because the potential bankruptcy is anticipated, same would not represent a change [in] circumstance for purposes of modifying support.

On October 2, 2003, the Family Part recognized that the parties' older child, Travis, had begun to reside with defendant and, accordingly, on defendant's application, reduced defendant's child support obligation from $400 to $303 per week. No appeal was taken from that order.

One year later, on November 29, 2004, defendant moved to reduce his child support. The application for reduction of child support was premised on defendant's contention that his income had been reduced and on his asserted inability to regain the income level existing at the time of the divorce. The motion judge rejected defendant's claim of reduced income, finding that defendant "has not provided the court with any evidence that he is no longer able to work full time." Nevertheless, the court found that plaintiff's income had increased since the date of the divorce and "determined that there is a changed circumstance for child support computations in that plaintiff is now employed, earning $464 per week." The judge then computed a new support level utilizing the Child Support Guidelines with plaintiff's current income and with no reduction of defendant's income. This computation resulted in a new support obligation of $146 per week. On plaintiff's application for reconsideration, the motion judge recognized that the child support payment required by the Property Settlement Agreement was 38% percent higher than that required by the guidelines "in exchange for reduced alimony." He, therefore, increased the $146 per week amount he had originally set by 38% to $201 per week. The decision was memorialized in an order dated April 22, 2005, and it is from that order that plaintiff appeals.

We begin our analysis with the recognition that Property Settlement Agreements "are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). They are specifically enforceable to the extent they are "just and equitable." Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960). Therefore, the parties' agreement to restrict defendant's right to a reduction in child support to those circumstances in which his income has been reduced is enforceable to the extent it is just and reasonable.

We perceive no basis for a belief that the restriction is unfair. It was the result of a quid pro quo. The agreement recites that the restriction of defendant's right to seek a reduction in his child support was accepted by him in return for plaintiff's agreement to accept "a lesser amount of alimony" than would otherwise be awarded. There is simply nothing unjust or unfair in holding a litigant to his promise, given in return for a reduction in his alimony obligation, not to seek a reduction in his child support unless his income is reduced.

Moreover, the Property Settlement Agreement contemplates the circumstances under which defendant may seek a reduction of his child support obligations. Those circumstances are limited to an unexpected and substantial reduction in his income. All other circumstances are excluded as a basis for an application to reduce support. When the parties have considered, and provided for, the circumstances said to be changed, "it would not ordinarily be 'fair and equitable' to grant modification." Lepis v. Lepis, 83 N.J. 139, 153 (1980).

The motion judge apparently felt that the agreement did not provide for changes in plaintiff's income. He said:

"it is not clear to me and I do not find that the agreement as written says that -- a substantial increase in income for the plaintiff in the future is barred from the court utilizing it. That is an extreme position. And, if the parties had agreed to that, and intended to bind the court to that in the future . . . but if they had agreed to do something that extraordinary that they would have spelt it out. They do not even mention her income in that provision."

We take the paragraph to be unambiguous. It specifically provides that "husband shall not be entitled to any modification of his child support obligation without" showing a substantial, unanticipated and involuntary change in his financial circumstances. As the judge noted, it does not list all of those circumstances that would not support an application for reduction; such a list would be unmanageable. Instead, it lists the only circumstance which, if changed, would support a reduction, thus excluding all other changed circumstances as a basis for reduction. We do not see how that agreement could be read to permit a decrease in child support by virtue of the wife's increased income. Indeed, defendant never made that argument. There is simply nothing in this record to suggest that the parties did not exclude an increase in plaintiff's income as a basis for a modification of support.

Finally, the agreement does not impact the child negatively, since the support being paid by defendant is greater than the child would otherwise receive. Accordingly, this is not a case where the agreement has "bargained away" the child's right to support. See Kopak v. Polzer, 4 N.J. 327, 331 (1950).

The agreement restricting defendant's right to seek a reduction in support is enforceable. The motion judge improperly ignored it and modified defendant's support obligations under circumstances that the parties had contemplated would not permit such modification. We are constrained to reverse.

 
Reversed and remanded for the entry of an order consistent with this opinion.

Defendant also sought to eliminate his alimony obligation, alleging plaintiff was now cohabitating with another man. That application was denied without prejudice and is not a subject of this appeal.

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A-5098-04T2

February 24, 2006