ROBERT A. FORTSCH v. HOPE LEVENSON FORTSCH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4174-05T14174-05T1

ROBERT A. FORTSCH,

Plaintiff-Respondent,

vs.

HOPE LEVENSON FORTSCH,

Defendant-Appellant.

__________________________________

 

Submitted: February 7, 2007 - Decided April 20, 2007

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Burlington County, Docket No. FM-03-1161-00X.

Chamlin, Rosen, Uliano & Witherington, attorneys for appellant (Matthew A. Smuro, on the brief).

Richard Kelly, attorney for respondent.

PER CURIAM

In this appeal, we review an order entered following post-judgment matrimonial motions to adjust plaintiff's child support obligation that reduced plaintiff's monthly child support obligation from $2100 to $1725. Defendant appeals. She contends the motion judge misconstrued the property settlement agreement. We agree and reverse and remand for recalculation of child support.

On August 2, 2000, plaintiff Robert Fortsch and defendant Hope Levenson Fortsch were divorced. The Judgment of Divorce incorporated a Property Settlement Agreement (PSA) executed by the parties on July 7, 1998. Pursuant to the PSA, defendant waived alimony and plaintiff agreed to pay $525 per child each month for the four children born of the marriage. In other words, plaintiff agreed to pay $2100 each month in child support. Child support was predicated on annual income of $90,000 for plaintiff and $35,000 for defendant. According to the PSA, emancipation of each child would operate as a trigger for modification of plaintiff's child support obligation. Paragraph 8 of the PSA provides:

As each child is emancipated the amount remaining to be paid for the three (3) remaining children shall be adjusted based on the time that has elapsed, and the increased age of the children. Child support for each child in whatever amount, shall be paid until such time as the child is emancipated.

Paragraph 8B defined emancipation as follows:

(A) Reaching the age of 22 years of age or the completion of four academic years of college education, whichever last occurs (with the condition that the college education commences within nine (9) months after graduation from high school and that the child is a full-time student, with the understanding that any additional delay caused by illness of the child, either physical, mental, or emotional, shall extend the period during which time the child has the option of attending college). . . .

In June 2004, the parties' oldest son graduated from high school and enrolled in a college in Pennsylvania for the Fall 2004 term. By Thanksgiving, their son had withdrawn from school. In January 2005, he enrolled in the local community college as a full-time student but withdrew in April 2005. Thereafter, he commenced full-time employment as a restaurant cook.

Believing that his son was emancipated, plaintiff requested defendant to agree to a reduction of child support. When defendant failed to reply, plaintiff unilaterally reduced his monthly child support payment from $2100 to $1800. When defendant's attorney informed plaintiff that a court order was required to reduce this obligation, plaintiff filed a motion to declare his oldest son emancipated and to modify his child support obligation.

Defendant agreed that their son was emancipated, but filed a cross-motion to recalculate child support based on the current incomes of the parties, the amount of time that had elapsed since the initial child support was calculated, the increased age of the children, and the reduction in the parenting time exercised by plaintiff. On December 2, 2005, the motion judge issued an interim order reducing child support from $2100 monthly to $1800. The judge also required plaintiff to submit a case information statement (CIS) and defendant to submit a detailed list of the expenses of the parties' next oldest son.

Plaintiff's CIS revealed that he earned $132,946 in 2004 and had earned $126,144.05 by December 1, 2005. Plaintiff had remarried and claimed three children, including the parties' two oldest children, as dependents. The CIS submitted by defendant revealed that she earned $46,434 in 2004.

On January 20, 2006, the motion judge reduced plaintiff's child support obligation to $1725 monthly. He explained his reasoning as follows:

The Court's initial feeling was that [the next oldest child], who is now over the age of eighteen falls outside the guidelines. However, after a review of the Final Judgment of Divorce, it is clear that the parties negotiated an agreement that required the [Plaintiff]/Husband to pay $525.00 per child per month until such time as the child is emancipated. The parties chose to agree on a child support figure that deviated from the guidelines. Accordingly, the Court will enforce such agreement. [The next oldest child] is 18 years old, however he remains unemancipated. Therefore, his child support shall be fixed per the parties' Final Judgment of Divorce.

The motion judge also rejected defendant's contention that the lapse of time and increased age of the children warranted an increase in child support. He explained:

The increased deviation of $150.00 [from the child support guidelines] per child far exceeds any cost of living increase. Further, at the time the initial child support guidelines were run the children were ages 12, 10, 6 and 5. Per the guidelines, the child support schedules are based on child-rearing expenditures averaged across the entire age range of zero through 17 years. This averaging means that awards for younger children are slightly overstated due to the higher level of expenditures for older children. Further, since one child was 12 years old at the time the initial award the 14.6% increase has previously been applied.

He concluded that the $525 monthly per child support obligation was "fair, reasonable and equitable."

Defendant's motion for reconsideration was also denied. She argued that the motion judge misconstrued the parties' PSA because the parties did not absolutely fix the child support obligation at $525 per month until emancipation. Moreover, she was incurring substantially more expenses due to the increased age of her children.

The motion judge denied the motion for reconsideration, including defendant's application for counsel fees. He reasoned that the parties initially agreed not to utilize the child support guidelines to fix plaintiff's support obligation, agreed to a monthly sum in excess of that required by the guidelines, and that plaintiff had "received the benefit of the bargain for the past eight years."

On appeal, defendant argues that the motion judge misconstrued the PSA, ignored a change of circumstances that warranted a re-examination of plaintiff's child support obligation, and wrongly denied her application for counsel fees. Plaintiff responds that the diminution of his child support obligation was appropriate.

It is well established "that 'settlement of litigation ranks high in [the] public policy' of New Jersey." Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.) (quoting Lahue v. Pio Costa, 263 N.J. Super. 575, 595 (App. Div.), certif. denied, 134 N.J. 477 (1993)), certif. denied, 142 N.J. 455 (1995). "Nowhere is this policy more imperative than in the ever-burgeoning field of family law." Davidson v. Davidson, 194 N.J. Super. 547, 550 (Ch. Div. 1984). Public policy favors consensual settlement agreements because "[m]arital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)).

Furthermore, consensual settlement agreements such as the PSA entered between plaintiff and defendant, are "enforceable subject, however, to . . . considerations of unconscionability, fraud or overreaching." Harrington, supra, 281 N.J. Super. at 46. "'[F]air and definitive arrangements [to resolve marital controversies] arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). Therefore, property settlement agreements "if found to be fair and just, are specifically enforceable in equity." Id. at 194 (citing Schlemm v. Schlemm, 31 N.J. 558, 581-82 (1960)).

In determining whether a consensual agreement is fair and just, the court must look at several factors, including the parties' understanding about the terms of the agreement and their expectations thereto. Specifically, this court has held that:

[w]e must consider issues such as the adequacy of the agreement at inception, the presumed understanding of the parties at that time, the reasonable expectation of the parties during the life of the agreement, the manner in which the parties acted and relied on the agreement as well as the previously stated principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement or even during periods when modification is at issue.

[Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.), certif. denied, 180 N.J. 354 (2004).]

This focus on the intent of the parties, their needs and expectations is equally applicable when a former spouse seeks to reduce or terminate a support obligation.

In Glass, this court reversed an order terminating an alimony obligation due to the employment of the supported spouse following divorce. Id. at 367. The judge had held that the defendant no longer required support. We held that a "'numbers' inquiry and analysis was too narrow and limited." Id. at 372. We further stated:

A judge's determination [of support] must be based not only on numbers, but also on "what, in light of all the facts presented to it, is equitable and fair, giving due weight to the strong public policy favoring stability of arrangements."

[Ibid. (quoting Rolnick v. Rolnick, 262 N.J. Super. 343, 353 (App. Div. 1993)).]

In Glass, the motion judge failed to acknowledge that the defendant had surrendered any interest in the plaintiff's law practice. Id. at 364.

Similarly, the motion judge's focus in this case was too narrow and failed to consider the intent of the parties expressed in the PSA. To be sure, the motion judge gave some effect to the parties' intentions when he acknowledged that plaintiff had a continuing child support obligation to the second son despite reaching eighteen years of age. The motion judge, however, ignored the clear import of the PSA that child support was not fixed at $525 monthly per child. The reference to lapse of time and increased expenses due to age clearly indicated that the parties considered that the agreed monthly sum might be increased.

The motion judge's reliance on the agreed deviation from the child support guidelines and the so-called benefit of the bargain received by defendant also does not account for other terms of the agreement. Based on the information before us, it appears defendant would have received alimony absent an agreement to the contrary between the parties. See N.J.S.A. 2A:34-23. This waiver is not irrelevant. Our examination of the PSA strongly suggests that the parties' agreement was an effort to structure the spousal and child support due to defendant in a manner to minimize her taxable income. Viewed in this light, defendant has received no exceptional benefit over the years. She received no more and no less than what she was entitled to receive. The motion judge's narrow "numbers inquiry" did not account for this feature of the agreement.

The motion judge's calculations also do not appear to account for plaintiff's increased earnings. Since 1998, plaintiff's child support for each child has remained static while his earnings have increased by almost $50,000. Children generally are entitled to participate in a parent's good fortune. Walton v. Visgil, 248 N.J. Super. 642, 649 (App. Div. 1991). We, therefore, reverse the January 20 and March 24, 2006 orders and remand for reconsideration of defendant's motion for an increase in child support for the three unemancipated children. We do not, of course, address in any way the order emancipating the oldest child. Both parties agree that he is emancipated.

Reversed and remanded for further proceedings consistent with this opinion.

 

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A-4174-05T1

April 20, 2007