COLETTE MOTT v. DENNIS MOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5508-05T15508-05T1

COLETTE MOTT,

Plaintiff-Appellant,

v.

DENNIS MOTT,

Defendant-Respondent.

_______________________________________________________________

 

Submitted April 17, 2007 - Decided May 3, 2007

Before Judges Lisa and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0068-04.

Donald P. Fedderly, attorney for appellant.

Laufer, Knapp, Torzewski, Dalena & Sposaro, attorneys for respondent (James C. Jensen, on the brief).

PER CURIAM

Plaintiff, Colette Mott, appeals the Family Part's May 19, 2006 order denying her post-judgment motion to enforce litigant's rights. We affirm.

Plaintiff and defendant, Dennis Mott, were married October 16, 1988. Two children were born of the marriage, Catherine, age nine and Christopher, age thirteen. The parties were divorced by a dual judgment of divorce (JOD) entered November 17, 2003. Both parties were represented by counsel in the divorce. A comprehensive property settlement agreement (PSA) dated November 17, 2003 was incorporated into the JOD.

The parties have joint legal and physical custody of the two children. The PSA provides that in each fourteen day period, defendant has physical custody of the children for eight days and plaintiff has physical custody of the children for six days.

I.

Plaintiff asserts that the trial court abused its discretion in denying her March 30, 2006 motion for enforcement of litigant's rights. Plaintiff contended that her rights were violated by defendant's constant exclusion of plaintiff from important decisions affecting the children. Specifically, plaintiff claimed defendant failed to consult her with respect to the children's activities. Defendant enrolled Catherine in psychological counseling without first consulting plaintiff. Defendant changed the children's pediatrician without consulting or informing plaintiff. Defendant told plaintiff he was moving with the children from the former marital home in Long Valley to either Long Hill Township or Bernardsville, but without informing plaintiff of the specific address or any other circumstances of the children's new living arrangements with him. Defendant also placed the children in various sports activities in Long Hill, sixteen to twenty miles from plaintiff's residence, without first consulting with plaintiff.

Plaintiff contends that the granting of joint legal custody requires that parents consult on all major issues relating to the health, education and welfare of the children. Plaintiff relies on Rule 1:40-5(a), in support of her argument that the court erred by its failure to find that her parenting time issues were substantial and genuine and in its failure to refer her contentions to mediation for resolution in the children's best interests. Rule 1:40-5(a) provides: "All . . . motions involving a . . . parenting time issue shall be screened to determine whether the issue is genuine and substantial, and if such a determination is made, the matter shall be referred to mediation for resolution in the child's best interests."

The judge acknowledged that defendant should have consulted plaintiff with respect to the issues involving the children. However, after considering the nature and scope of the issues, including the fact that Catherine's therapy was concluded by the time the motion was heard, the judge determined that plaintiff's complaints concerning defendant's failure to consult did not rise to a set of circumstances that would suggest "embark[ing] on a best interests evaluation and then refer all issues to mediation for resolution in the children's best interests."

We are satisfied that the court's ruling with respect to the custody/parenting time issues raised by plaintiff was a reasonable exercise of the court's discretion. See Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("because of the family courts' special jurisdiction and expertise in family matters, appellate courts should afford deference to family court factfinding.").

II.

Plaintiff also appeals the court's denial of her motion to be relieved of the obligation to pay defendant limited duration alimony as provided by paragraph 6 of the parties' PSA. Plaintiff contends there has been a change of circumstances since the parties' November 2003 JOD entitled him to alimony. Paragraph 6 of the PSA provides:

6. Alimony: The Wife shall pay to the Husband, spousal support for ten (10) years. This shall be considered term alimony.

a. The Wife shall pay to the Husband, $400.00 per month for the first two (2) years, following the execution of this agreement.

b. The Wife shall then pay to the Husband, $300.00 per month, beginning two (2) years after the execution of this agreement. The Wife shall continue to pay $300.00 per month for eight (8) additional years.

. . . .

d. This agreement shall be non-modifiable. Both the Husband and Wife agree that they will not modify the term alimony provisions of this agreement, despite a change of circumstances by either party. Both parties further agree that based upon the payment of alimony and their respective incomes and assets, they will each be able to maintain a similar standard of living, as that standard of living that was acquired during the parties marriage. The Husband and Wife agree that they will more further delineate their standard of marriage in open Court at the conclusion of the divorce proceedings.

At the time of the divorce, plaintiff earned $80,600 per year and defendant earned $69,940 per year according to the Shared Parenting Worksheet attached to the JOD. According to plaintiff's certification in support of her claim of changed financial circumstances, at the time of divorce plaintiff was earning $86,000 annually in her employment at AT&T and defendant was earning approximately $75,000 as a lieutenant with the Basking Ridge Police Department. Defendant in his certification asserts that plaintiff was clearing $4,000 per month and he was clearing $3,200 per month at the time of the JOD.

Plaintiff contends and defendant agrees that as a result of a substantial increase in defendant's earnings (plaintiff claims 33%) and a corresponding 10 to 12% increase in plaintiff's salary since the divorce, plaintiffs and defendants salaries are now nearly equal, both earning approximately $100,000 per year.

Plaintiff further claims that defendant, as a result of his recent sale of the marital home, received a $200,000 profit, thus giving him the investment value of $200,000 as additional income. Plaintiff contends the profit resulted from substantially increased real estate values between the date of divorce and the date of sale. Plaintiff asserts that at the time of the parties PSA, the parties' equity in the house was only $10,000. As a result, plaintiff agreed to an equity buy-out, by way of equitable distribution, in the amount of $15,000 payable in two installments, $5,000 on June 30, 2016 and $10,000 before December 31, 2019. Defendant accelerated payment by paying plaintiff $15,000 on April 6, 2006.

Plaintiff asserts that she demonstrated a prima facie case of changed circumstances, because defendant no longer has a need for alimony. Relying on Lepis v. Lepis, 83 N.J. 139 (1980), plaintiff argues that the court should either have ordered defendant to file and serve a case information statement (CIS) based on her prima facie showing of changed circumstances and, thereafter, scheduled a plenary hearing on the issue or the court should have entered a finding that changed circumstances since the divorce entitled her to a vacation of her alimony obligation.

Defendant argues that the alimony provision of the PSA contemplated that he would earn the percentage increases in salary that he has received. Defendant also contends that based on the difference of two additional nights in each fourteen day period, in which the children live with him, and the difference in the parties' salaries at the time of divorce, he waived $71 child support per week to which he would have otherwise been entitled. The Child Support Guidelines Shared Parenting Worksheet attached to the JOD indicates that the child support guidelines were not used and the guidelines were adjusted because:

The wife will have to relocate and the husband will stay in the marital home which will be the primary home for the children. The parties anticipate that the wife will therefore have higher expenses associated with relocation including the cost of providing new furnishings for the children. The wife will have most of the responsibility for the cost of pick up and drop off for parenting time. The child support guidelines call for support of $71 per week or $3,600 per year and the parties anticipate that the wife's costs will offset the amount which will be due in support. Both parties reserve the right to seek amendment to the child support provision in the future.

Defendant asserts that the PSA never required that he remain in the marital home and that much of the profit that he netted from the sale of the marital home represented reimbursement to him for substantial repairs he made to the home post-divorce and $20,000 in upgrades to the house to prepare the house for sale. Defendant also contends that plaintiff's deeding of her equity in the marital home as part of equitable distribution is off-set by his waiver of any right to plaintiff's substantial 401K, pension and retirement benefits that plaintiff had accumulated during the marriage.

The court determined that the PSA, as reflected in the transcript of the divorce hearing, was freely and voluntarily entered into by plaintiff and was not the result of coercion, force or duress. The court found that the PSA was the product of arm's length negotiation, was incorporated into the JOD and should be enforced.

The court noted that a similar motion for vacation of alimony was filed by plaintiff before another judge on February 3, 2006, only three months prior to this motion, and the judge found there had been no changed circumstances since the November 2003 divorce. In denying plaintiff's motion the court stated:

The parties's financial circumstances and ability to pay appear to be based on what they have set forth in their certifications, at least in terms of their earnings, current earnings appear to be fairly close. They both seem to make in the neighborhood of 90 to $100,000 a year. So their financial circumstances and their ability to pay are fairly close.

. . . .

A change of circumstances since the November 2003 judgment of divorce. Again, not specified, but in the context of the motion, I've made findings that there are no changed circumstances here and, for that reason, I'm not permitting -- I'm not ordering that the defendant file an updated CIS. And it's an unmodifiable alimony provision.

In Lepis, the Supreme Court noted that the equitable power of the courts to modify alimony orders at any time is specifically recognized by N.J.S.A. 2A:34-23. Lepis, supra, 83 N.J. at 145. "[A]s a result of this judicial authority, alimony . . . orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of 'changed circumstances.'" Id. at 146.

The Court pointed out that divorcing spouses have often attempted to temper the court's power to modify with greater predictability by entering into separation agreements. Ibid. However, the Court stated that when considering post-judgment modification, consensual agreements and judicial decrees should be subject to the same standard of "changed circumstances." Id. at 148. The terms of such agreements should receive continued enforcement without modification only so long as they remain fair and equitable. Ibid.

The Court noted that the supporting spouse's obligation is mainly determined by the quality of economic life during the marriage. The Court stated that the needs of the dependent spouse "contemplate[s] [the spouse's] continued maintenance at the standard of living [he or she] had become accustomed to prior to the separation." Id. at 150 (quoting Khalaf v. Khalaf, 58 N.J. 63, 69 (1971)); see also Weishaus v. Weishaus, 180 N.J. 131 (2004); Crews v. Crews, 164 N.J. 11 (2000).

The Court in Lepis further determined that when support of an economically dependent spouse is in issue, the general considerations a court of equity must assess to determine whether a change in alimony based on a change of circumstances is warranted, are (1) the dependent spouse's needs, (2) that spouse's ability to contribute to the fulfillment of those needs, and (3) the supporting spouse's ability to maintain the dependent spouse at the former marital standard of living. Lepis, supra, 83 N.J. at 152. The Court made clear that "changed circumstances" are not limited in scope to events that were unforeseeable at the time of the divorce. Ibid. The Court stated that an increase in support becomes necessary whenever changed circumstances substantially impair the dependent spouse's ability to maintain the standard of living reflected in the original decree or agreement and that conversely, a decrease is called for when circumstances render all or a portion of support unnecessary for maintaining that standard. Id. at 152-53. In addition, the Court noted that earnings funded from investments by an equitable distribution award may be considered when determining the adequacy of the dependent spouse's income. Id. at 153. The Court explained that the plaintiff will have available a substantial capital fund to invest in order to produce additional income. Ibid. The Court mentioned that a closer look should be taken at the supported spouse's ability to contribute to his or her own maintenance both at the time of the original judgment or agreement and on applications for modification. Id. at 155.

The Court then set forth procedural guidelines for a court to follow on modification motions:

The party seeking modification has the burden of showing such "changed circumstances" as would warrant relief from the support or maintenance provisions involved. . . . A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status.

. . . .

Therefore, once a prima facie case is established, tax returns or other financial information should be ordered.

[Id. at 156.]

Were we convinced that the criteria in Lepis was determinative of our decision on this appeal, we might well be inclined to remand the issue of modification of alimony based on "changed circumstances" to the motion court for its reconsideration. Based on the certifications of the parties before the court, plaintiff has prima facie demonstrated two of the three Lepis circumstances necessary to be shown for modification. The equality of defendant's and plaintiff's earned income and the ability of defendant to earn income on his profit from the sale of the marital home demonstrate defendant may no longer have a financial need for alimony in order to maintain his former marital standard of living. Additionally, defendant has the ability to contribute to his needs. On the other hand, plaintiff's continued salary increases provide her the ability to maintain defendant at the parties' former standard of living.

In this case, the parties freely negotiated the alimony provision contained in paragraph 6 their PSA. Paragraph 6 of the parties' PSA states that the alimony agreement is "non-modifiable." The provision provides: "Both the Husband and Wife agree that they will not modify the term alimony provisions of this agreement, despite a change of circumstances by either party." We are convinced that this clause seeks to avoid the Lepis standard for modification.

Although alimony is ordinarily subject to modification in accordance with Lepis, we must determine whether the "non-modifiable" language agreed to by the parties precludes modification of the alimony obligation imposed on plaintiff by paragraph 6 of the PSA. We are convinced our decision here is governed by this court's decision in Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993).

In Morris, defendant husband appealed from an order denying reduction of his alimony payments. Id. at 238. The alimony provision of the parties' PSA required husband to pay wife alimony in the form of a fixed annual sum for ten years and then one larger sum on the tenth year. Id. at 239. The agreement was explicit that it was not modifiable for any reason except for husband's disability. Ibid. There was also a specific anti-Lepis provision which stated: "The parties hereby waive their rights for modification based upon changed circumstances as set forth in the case of Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980)." Id. at 240. Husband had two sources of income: consulting fees and rental payments. Based on a substantial downturn in husband's economic fortunes, he had a negative net worth, which caused him clearly to be unable to pay the agreed upon alimony. Husband claimed the terms of the agreement requiring him to pay $35,000 in alimony for ten years and a $150,000 balloon payment, a month after his tenth payment, was unconscionable and claimed an absolute entitlement to resort to Lepis notwithstanding the anti-Lepis clause in the agreement. Id. at 241. We disagreed.

We recognized that where the parties have agreed on the amount of alimony, Lepis permits later modification to the extent that changed circumstances render the agreed terms no longer "fair and equitable." Ibid. (quoting Lepis, supra, 83 N.J. at 148-49). However, when the parties have established different standards by which they agreed to be guided, we concluded the court must not only determine if the continued payment of alimony remains "fair and equitable" after an analysis of the criteria established in Lepis but whether a change is warranted given the plaintiff's agreement to accept and defendant's agreement to pay a fixed amount regardless of changes in circumstances. Id. at 242. We determined that unless the failure to modify would be "unreasonable and unjust" and thus the agreed upon support would no longer be "warranted in the light of prevailing circumstances" that Lepis recognized the parties standards as stated in their PSA may be reasonably enforced. Id. at 243. (quoting Lepis, supra, 83 N.J. at 153 n6).

Thus we concluded that when the parties establish their own standards, these standards, where not unreasonable under the circumstances, will be enforced irrespective of the need-based guidelines of Lepis, which are to be applied when there are no such standards. Id. at 246. In less extreme cases, as here, the court should endeavor to carry out the agreement of the parties on a reasonable basis. Ibid.

In this case, we recognize that defendant may no longer have a present need for alimony but plaintiff's own standard of living will not be impaired by a continued requirement to pay alimony in accordance with the alimony provision, which she agreed to in the parties' PSA. Although the agreement here did not contain specific anti-Lepis language, the unequivocal language of paragraph 6 is that the alimony provision of the PSA is non-modifiable despite a change in circumstances by either party.

We do not find an extreme circumstance present here that renders the PSA provision unreasonable or unjust to enforce and, which would give rise to the court's exercise of its equitable power to modify a provision that would no longer be warranted in light of the prevailing circumstances. See Melletz v. Melletz, 271 N.J. Super. 359, 362-63 (App. Div.), cert. denied, 137 N.J. 307 (1994); Smith v. Smith, 261 N.J. Super. 198 (Ch. Div. 1992). Accordingly, we are satisfied that the court correctly denied plaintiff's motion for modification. By doing so the court carried out the agreement of the parties on a reasonable basis. Morris, supra, 263 N.J. Super. at 246.

 
Affirmed.

We note that defendant in his certification stated that in the future he will consult with plaintiff prior to enrolling the children in any medical/psychological treatment. We further note that in plaintiff's reply certification, plaintiff acknowledged having had personal contact with Catherine's counselor, that her daughter was comfortable with the counselor and that she was satisfied the counselor would contact her, if she had any concerns with Catherine's progress or believed the counseling could be terminated.

The Shared Parenting Worksheet attached to the JOD reflects a gross taxable weekly income for defendant of $1,345 and $1,550 for plaintiff. The parties' annual gross taxable income was computed by multiplying their gross taxable weekly incomes by fifty-two weeks.

At the time of the parties' divorce hearing defendant described the parties' standard of living as middle or upper middle class.

We cited as an example where a hypothetical spouse becomes completely disabled with meager income and is barely able to cover his uncompensated hospital costs. We stated in such circumstances agreed upon support would no longer be "warranted in the light of prevailing circumstances." Id. at 243.

(continued)

(continued)

16

A-5508-05T1

 

May 3, 2007