JOHN ANGELASTRO v. MICHELLE D. ANGELASTRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5313-09T1

JOHN ANGELASTRO,

Plaintiff-Appellant,

 

v.

 

MICHELLE D. ANGELASTRO,

 

Defendant-Respondent.

______________________________

March 7, 2011

 

Argued January 26, 2011 - Decided

 

Before Judges Sapp-Peterson and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1868-07W.

 

Cristina L. Vazquez argued the cause for appellant.

 

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from that portion of the June 2, 2010 Family Part order denying his post-judgment motion seeking modification of alimony and child support. We reverse.

The parties entered into a property settlement agreement (PSA), which they orally placed on the record before the court in May 2008, and a final judgment of divorce (FJOD) was entered in June 2008. In September 2008, the parties memorialized the PSA. The specific terms of the PSA relevant to this appeal are as follows:

ARTICLE II

SUPPORT AND MAINTENANCE OF HUSBAND AND WIFE

 

1. SPOUSAL SUPPORT AMOUNT

 

The [h]usband shall pay to the [w]ife[,] starting at the sale of the marital home[,] the sum of $350[] a week in [a]limony commencing for a period of six (6) years. Upon the completion of aforementioned six (6) years[,] the [h]usband's [a]limony obligation shall reduce to that of $200[] and continue for a period of eight (8) years thereafter representing a total payment period of fourteen (14) years.

 

The aforementioned shall be terminated upon the following factors:

 

A. Death of either of the parties;

 

B. The remarriage of the [w]ife;

 

C. Defined by New Jersey Case Law;

 

E. Co-habitation of the [w]ife.

 

2. CREWS STANDARD OF LIVING

 

The parties recognize and acknowledge that they will[,] upon the payment of child support and alimony[,] have sufficient monies to respectively allow them to maintain their marital standard of living to which the parties have grown accustomed. The [w]ife currently has imputed income at the amount of approximately $25,000[] in calendar year 2008. In addition[,] when one accounts for child support and [a]limony[,] the aforementioned income of the [w]ife will be that of $53,600[] with an estimated monthly budget of $4,000[].

 

. . . .

 

ARTICLE III

CHILD SUPPORT, MAINTENANCE, EDUCATION AND CUSTODY OF CHILDREN

 

1. CHILD SUPPORT AMOUNT

 

Husband has agreed to pay [w]ife $200[] per week in child support for both the unemancipated children, which support award[] is by consent. Payments will start on September 1, 2008 when the children begin school.

 

On April 19, 2010, plaintiff filed a motion seeking, among other things, a modification of alimony and child support based upon changed circumstances, namely, an increase in defendant's income that was considerably more than the $25,000 imputed to her in the PSA. The court conducted oral argument and concluded that it did not "think that [plaintiff's] showing that his ex-wife . . . is now making $40,000 more than what they anticipated[d] at the time they signed the agreement is enough for him to convince me that a modification would be necessary." The court also reasoned that it did not believe it had the right to set aside what "these parties both agreed to." The present appeal followed.

On appeal, plaintiff raises the following points:

[POINT IV]1

 

THE COURT ERRED IN DENYING PLAINTIFF'S APPLICATION FOR ANNUAL REVIEW OF DEFENDANT'S 2009 W-2[]S AND TAX RETURNS WITHOUT MAKING PROPER FINDINGS OF FACT AND CONCLUSIONS OF LAW.

 

[POINT V]

 

THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S REQUEST FOR REVIEW OF W-2[]S AND TAX RETURN FOR MODIFICATION OF SUPPORT, AFTER PLAINTIFF MADE A PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCES, AND THE COURT FAILED TO FIND SUFFICIENT FACTS AND LAW IN ITS DENIAL.

 

[POINT VI]

 

THE TRIAL COURT ERRED IN DENYING PLAINTIFF COUNSEL FEES, AFTER PLAINTIFF PREVAILED IN ENFORCING . . . THE PROPERTY SETTLEMENT AGREEMENT PERTAINING TO THE USE OF A PARENT COORDINATOR BY FAILING TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW TO SUPPORT ITS DENIAL.

Notwithstanding the existence of a PSA between parties, the court retains jurisdiction to modify marital agreements based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). Inclusion of a property settlement within a divorce decree does not render the agreement immutable. Thus, "[c]ourts have continuing power to oversee divorce agreements and the discretion to modify them on a showing of changed circumstances that render their continued enforcement unfair, unjust, and inequitable." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999) (citations and internal quotation marks omitted).

Here, plaintiff's income has remained unchanged, but he argues that the $40,000 increase in defendant's income constitutes changed circumstances. We have previously recognized that

modification of agreements based on changed circumstances applies not only to a significant diminution of resources of the supporting spouse that impairs that spouse's ability to meet his or her support obligations, but to a significant change for the better in the circumstances of the dependent spouse, that may obviate the need for continued support.

 

[Glass v. Glass, 366 N.J. Super. 357, 371 (App. Div.) (internal citation and quotation marks omitted), certif. denied, 180 N.J. 354 (2004).]

We are satisfied that plaintiff presented sufficient facts before the trial court to warrant an order directing the parties to exchange discovery. The motion judge did not question that defendant's income had increased significantly. Instead, the record suggests that the court engaged in a re-evaluation of the parties' PSA, despite recognizing that it was not the court's role "to look into the reasons why the parties chose to settle their case in this manner." The court pointed out that the net income based upon "paragraph two of that agreement . . . didn't even meet the monthly budget of $4[]000 that [defendant] claimed in that same paragraph [of the PSA.]" The court concluded:

So whoever did the math back then, I can't even begin to figure that out. But it wasn't enough for her to even meet her budget at that time, let alone two years later with children who are now a little bit older, and expenses do go up, as we know, they never seem to go down.

 

In our view, these are conclusions that should have been reached only after the parties engaged in an exchange of discovery and, if warranted, after a plenary hearing.

In light of our reversal, we need not address the remaining issues raised by plaintiff. However, upon completion of the remand proceedings, plaintiff may re-file his application for counsel fees.

Finally, because the motion judge made certain factual findings relative to the merits of plaintiff's modification request, in fairness to the judge, a different judge should preside over the remand proceedings.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

1 1.), 2.), and 3.) in the Table of Contents are entitled "Procedural History," "Statement of Facts," and "Argument," respectively.