ANDREW COHEN v. JENNIFER COHEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1216-06T21216-06T2

ANDREW COHEN,

Plaintiff-Appellant,

v.

JENNIFER COHEN,

Defendant-Respondent.

________________________________________________________________

 

Submitted July 3, 2007 - Decided

Before Judges Parker and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1460-04B.

Deborah A. Rose, attorney for appellant.

Paone & Zaleski, attorneys for respondent (Robert M. Zaleski, of counsel; Mr. Zaleski and Megan S. Weber, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Andrew Cohen appeals from an order entered on September 15, 2006 denying his application to terminate child support and decrease his financial contribution to unreimbursed medical and college expenses for the parties' son Alex.

The parties were married on June 7, 1981 and had two children: Evan, born May 5, 1983, and Alex, born May 3, 1986. A dual judgment of divorce was entered on June 2, 2005. The judgment incorporates a Property Settlement Agreement (Agreement) settling all issues, including custody, support and equitable distribution. At the time the divorce was granted, Evan was emancipated and the parties agreed to joint legal custody of Alex, who was at that time a freshman at the University of Massachusetts. The parties agreed to depart from the Child Support Guidelines and defendant agreed to accept substantially less child support because Alex was residing at school during most of the year. Plaintiff agreed to pay $85 per week to defendant in child support for Alex. The parties further agreed that plaintiff "shall open a bank account in Alex's name and shall deposit $50 [per] week in same for Alex's personal expenses commencing 6/3/05." If, at some point, Alex no longer resided primarily with defendant, the parties agreed to re-negotiate child support and, if they are unable to reach an agreement, "they shall attempt to do so through mediation, prior to resorting to the Courts." Plaintiff also agreed to pay sixty-five percent of Alex's college expenses after Alex "utilizes all loans, grants and scholarships available to him," and sixty-five percent of Alex's unreimbursed medical expenses. Emancipation of Alex was defined in the agreement as:

a. reaching the age of [eighteen] years or the completion of [four] academic years of continuous college education consisting of full-time attendance, taking at least twelve (12) credits per semester, whichever [occurs last];

b. marriage by the child;

c. permanent residence away from the residence of the parent who has physical custody. A residence at boarding school, camp or college is not to be deemed a residence away from the residence of the parent who has physical custody and hence such residence at boarding school, camp or college is not to be deemed emancipation;

d. death of the child;

e. death of the Husband;

f. entry by the child into the [A]rmed Forces of the United States;

g. engaging in full-time employment upon and after the attainment by the child of [eighteen] years of age except if the child is in college, and providing that

1. engaging by the child in partial employment shall not be deemed emancipation;

2. engaging by the child in full[-]time employment during school vacations and summer periods shall not be deemed emancipation.

At the time of the divorce, defendant continued to reside at the marital home which was listed for sale. When the marital home was sold, defendant moved to a studio apartment in New York City. Plaintiff now contends that defendant is no longer the primary residential parent because Alex has been spending more time with plaintiff and less time with defendant during his school vacations. Plaintiff maintains that defendant made no living arrangements for Alex in her New York apartment, and unilaterally declared that, as of December 2005, Alex no longer resided with defendant at all. In May 2006, he stopped paying child support without attempting to negotiate the issue nor did he seek to mediate it in accordance with the Agreement.

In August 2006, defendant moved to enforce the Agreement with respect to child support and other issues. Plaintiff cross-moved to terminate child support and decrease his financial contribution toward unreimbursed medical expenses and college expenses for Alex.

In his cross-motion, plaintiff alleged that defendant is no longer the primary residential parent of Alex and claimed that his income had significantly decreased since he entered the Agreement fourteen months earlier. He claimed that when he entered the Agreement, he "had no choice but to agree to stipulate [$115,000] as [his] income at that time" even though he had only been in his new business for six months, had incurred "a tremendous cost to purchase new digital equipment and other equipment to remain competitive" and "had no home base from which to operate" because he gave up his studio to avoid paying increased rent. Plaintiff certified that his gross revenues in 2004 were $467,832, but in 2005 they were only $297,107. Knowing all of this, plaintiff entered the Agreement on June 2, 2005.

Plaintiff attested to a long list of reasons why his income declined so precipitously in one year and maintained that "[i]t is unconscionable that Defendant continued to receive $85 a week from me during the time that Alex did not live with her." Plaintiff made this statement notwithstanding the fact that at the time he agreed to pay $85 per week in child support, Alex was already living away at school and plaintiff was well aware of Alex's schedule and expenses. Plaintiff sought to terminate child support retroactively to the time he stopped paying it. He further sought to reallocate Alex's expenses.

After hearing argument on the cross-motions, the trial judge addressed each of the issues raised by the parties. This appeal focuses only on child support and plaintiff's contributions to his son's medical and college expenses. With respect to child support, the trial court noted that the Agreement provided for the parties to negotiate with each other and mediate child support issues before resorting to the court. "That's a bargained for provision. The Court honors that alternative dispute resolution which the parties have asked to have done when the issue of child support . . . becomes an issue." Because plaintiff had not attempted to negotiate or mediate with defendant, the court declined to "grant any reduction with regard to the amount of child support."

Notwithstanding the court's enforcement of the negotiation/mediation provision in the Agreement, the court addressed the merits of plaintiff's claim, indicating that "the question [of changed circumstances] is whether the condition is or is not permanent." Relying on Lepis v. Lepis, 83 N.J. 139, 151 (1980), and Bonanno v. Bonanno, 4 N.J. 268, 275 (1950), the court noted that to demonstrate changed circumstances warranting modification of an Agreement, a party must demonstrate that the change in circumstances is permanent. In considering plaintiff's certification and representations with respect to the decline of his income, the court took into consideration that it had only been fourteen months since the Agreement was signed and that plaintiff had been in the photography business all of his adult life. Consequently, the court found that his financial condition was temporary, not permanent, and denied his application.

In this appeal, plaintiff argues:

POINT ONE

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING A MODIFICATION OF CHILD SUPPORT

A. The trial court's finding that because Plaintiff failed to mediate before seeking Court relief, his child support obligation would continue even though the child no longer lived with Defendant was a punitive Decision and not based on law

B. Even if it were found that the child still lived with Defendant, the trial court erred by failing to carefully scrutinize Plaintiff's financial situation before holding that his reduced income was temporary

POINT TWO

THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO MODIFY THE SHARE PAID BY PLAINTIFF FOR THE CHILD'S MEDICAL AND COLLEGE EXPENSES BASED ON HIS CURRENT ECONOMIC SITUATION

We have carefully considered the record in light of plaintiff's arguments and the applicable law. We are satisfied that plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

The trial judge properly enforced the terms of the Agreement by requiring plaintiff to negotiate/mediate with defendant before resorting to the court. In New Jersey, public policy strongly favors negotiated settlements. Puder v. Buechel, 183 N.J. 428, 437 (2005); Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Aguerre v. Schering-Plough Corp., ___ N.J. Super. ___, ___ (App. Div. 2007); Peskin v. Peskin, 271 N.J. Super. 261, 274 (App. Div.), certif. denied, 137 N.J. 165 (1994). Plaintiff negotiated the Agreement, knowing his financial circumstances, knowing Alex's vacation and recess schedule, knowing Alex's expenses, and knowing that defendant would be moving to a smaller home after the marital home was sold. Plaintiff cannot now seek to abrogate the Agreement. He must first comply with the negotiation/mediation provision before resorting to the court.

Even if we were to consider the merits of plaintiff's arguments, we agree with the trial court that plaintiff failed to demonstrate a permanent change of circumstances. See Lepis, supra, 83 N.J. at 151. Plaintiff stopped paying child support in May 2006, eleven months after entering the Agreement. As stated above, plaintiff knew all of the circumstances when he entered the Agreement. Moreover, Alex, as a young adult and full-time college student, would not be expected to spend all of his school recesses and vacations living at his mother's home. Indeed, if he did, plaintiff would undoubtedly be demanding his share of parenting time. In Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006), an application for modification of alimony and child support, made twenty months after the Agreement, led us to conclude that, even if defendant's business's condition was as he alleged, he had not demonstrated that "the change was anything other than temporary." Id. at 22. We held that the trial judge "correctly determined not to permit discovery or a plenary hearing . . . . until a movant provides sufficient evidence of [a] material[ly] changed circumstance." Id. at 23 (citing Lepis, supra, 83 N.J. at 157).

 
In short, we affirm substantially for the reasons set forth on the record of September 15, 2006 by Judge Robert A. Coogan. Affirmed.

Under the Child Support Guidelines, plaintiff would have been obligated to pay $292 per week.

(continued)

(continued)

9

A-1216-06T2

July 23, 2007