LYDIA ARCE v. MOISES AGOSTO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LYDIA ARCE, f/k/a

LYDIA AGOSTO,

Plaintiff-Respondent,

v.

MOISES AGOSTO,

Defendant-Appellant.

December 26, 2014

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-1320-04.

Matthew R. Petracca argued the cause for appellant (King and Petracca, attorneys; Mr. Petracca, of counsel and on the brief).

Ellen Jo Gold argued the cause for respondent.

PER CURIAM

Defendant Moises Agosto appeals from a post-judgment Family Part order dated June 28, 2013, which denied his application to reduce the portion of his pension that plaintiff is entitled to receive, and an order dated September 6, 2013, which denied his motion for reconsideration. Defendant also appeals from a November 8, 2013 order denying his motion to reduce his child support obligation. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

I.

The parties were married in March 1979 and divorced in June 2005. They had two children, born in 1986 and 1992. At the time of divorce, the older child was emancipated, while the younger child ("the daughter") was attending college. The parties' dual judgment of divorce ("DJD") incorporated a Property Settlement Agreement ("PSA"), and provided that defendant would pay plaintiff ninety-five dollars per week in child support. The parties further agreed to divide their daughter's college costs equally.1

The PSA also addressed the equitable distribution of the parties' pensions. It specifically provided, in relevant part

The parties agree to a 50/50 division of their respective pensions. They agree this shall be accomplished as follows

Husband waives any and all interest in Wife's pension[;] . . . in exchange, Wife will rec[ei]ve 33% of Husband's pension from the date of the marr[ia]ge to the date of the filing of the complaint. This shall also include years purchased during the marr[ia]ge. Wife's interest shall be calculated based upon a Marx[2] formula taking into account Husband[']s entitlement at time of retirement.

Pursuant to this provision, on March 27, 2006, the parties signed a qualified domestic relations order ("QDRO") confirming plaintiff's right to receive thirty-three percent of the marital share of defendant's pension plan.

Defendant is a police officer, who had been promoted to chief of police after the divorce, while plaintiff is a purchasing agent for a board of education. The PSA provided that "the support figures set forth in this [a]greement, are based on the Wife earning $55,000 gross per year and the Husband earning $100,000 gross per year." At the time of the motions under review, the record indicates defendant's annual salary was $133,108.12 and plaintiff's annual salary was $60,014.

In January 2012, defendant filed a motion to terminate or reduce his child support obligation, based on the daughter attending college and living on campus, and only residing with plaintiff four months of the year. On February 10, 2012, the motion judge issued an order granting defendant's request for a downward modification of child support based on the changed circumstance of the daughter's attendance at college and living on campus. However, the judge also indicated a lack of financial information, which prevented him from calculating a new child support figure.3 The judge ordered the parties to exchange supplemental financial information, and then confer to see if they could come to an agreement. If they were unable to agree, the parties were required to submit their dispute to post-judgment economic mediation.

After the parties failed to reach an agreement, defendant filed a motion requesting a plenary hearing to resolve the child support issue. In the same motion, defendant also requested relief from the DJD and the QDRO that divided his pension. Because he would receive a pension through the Police and Fireman's Retirement System, defendant did not contribute to social security during his employment and would not be receiving social security benefits upon retirement. Defendant therefore requested relief from the DJD and PSA, and sought an order to reapportion the QDRO to take into account plaintiff's social security benefits, arguing that he would be solely dependent on his pension once he retired.

On June 28, 2013, the motion came before another judge, who denied defendant's motion for relief from the DJD, finding no basis to modify the PSA. The judge granted defendant's request for a plenary hearing. However, rather than scheduling the hearing before the court, the judge scheduled the case for a hearing before a child support hearing officer. Before this hearing occurred, defendant filed a motion for reconsideration, which the court decided on September 6, 2013. The court denied reconsideration of its ruling that rejected defendant's request for relief from the DJD but granted reconsideration of its order for the parties to appear before a child support hearing officer.

On November 8, 2013, the judge held a hearing on the child support issue, and heard limited testimony from the parties and oral argument from counsel. Defendant argued that he should continue to pay ninety-five dollars per week during the four months the daughter lived with plaintiff, but the amount he pays for the daughter's college costs should satisfy his child support obligation during the academic year. The judge denied defendant's request for modification, concluding that ninety-five dollars per week was "not an unreasonable amount of child support to pay regardless of whether a percentage of the college tuition were credited to [d]efendant." The judge further noted that defendant's income had "substantially increased as [p]laintiff's income ha[d] risen less substantially and was lower initially."

This appeal followed with defendant arguing that the motion court erred by denying a downward modification of his child support obligation and his application to modify the QDRO. In his reply brief, defendant also argues that we should remand for a plenary hearing.

II.

We review a trial judge's decision to grant or deny modification of child support by examining "whether, given the facts, the trial judge abused his or her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (citation and internal quotation marks omitted). Thus, trial courts are given "substantial discretion in making a child support award" and "[i]f consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (citation and internal quotation marks omitted). However, we review the Family Part's interpretation of the law de novo, without giving any special deference to the trial court's decision. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).

A court may modify child support obligations when the party seeking modification "demonstrat[es] a change in circumstances warranting an adjustment." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). In determining child support in the context of college tuition, the factors enumerated in N.J.S.A. 2A:34-23a should be followed, as "the child support obligation is considered in light of all the financial circumstances of the parties and children." Raynor v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999).

Defendant asserts that the first motion judge's order granting a reduction in child support was the "law of the case" and prevented the second motion judge from denying his modification motion. The law of the case doctrine is "triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue." Lombardi v. Masso, 207 N.J. 517, 539 (2011). Although its purpose is "'to prevent relitigation of a previously resolved issue[,]'" it is a non-binding rule. Jacoby, supra, 427 N.J. Super. at 117 (quoting In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). As such, this doctrine is discretionary and "calls for flexible, 'good sense' application of the doctrine" and also "call[s] upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those 'factors that bear on the pursuit of justice and, particularly, the search for truth.'" Hart v. City of Jersey City, 308 N.J. Super. 487, 497-98 (App. Div. 1998) (quoting State v. Reldan, 100 N.J. 187, 205 (1985)).

We conclude that the second motion judge's decision to deny defendant's request for a downward modification of child support is justified and not an abuse of discretion, despite the previous ruling of the first motion judge. Although the first order granted defendant's request for reduction, the record lacked the financial information necessary for the court to set a new amount. After the parties later submitted the additional information, the second motion judge was presented with updated information that, when analyzed, indicated no basis for reducing defendant's child support obligation.

The discretionary nature of the law of the case doctrine did not require the second motion judge to order a reduction in child support. The second motion judge had supplemental information, which allowed him to more thoroughly analyze the circumstances of the parties and the child. These facts support the second motion judge's decision not to mechanically apply the law of the case doctrine.

While a child going away to college will typically warrant an adjustment in child support, in this case, defendant's income had increased substantially, by approximately one-third, following the divorce and he no longer paid alimony to plaintiff. "Children are entitled to have their 'needs' accord with the current standard of living of both parents, which may reflect an increase in parental good fortune." Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

Although defendant's annual salary had increased by almost one-third following the divorce, plaintiff's annual salary had increased by less than ten percent. The record supports the court's determination that the various post-judgment changes in circumstances basically offset one another, thus requiring no change in defendant's child support obligation. Defendant otherwise failed to demonstrate that the court's decision was unreasonable, arbitrary, or clearly contrary to reason.

III.

Defendant further argues that the second motion judge erred in denying his motion to grant him relief from the DJD concerning his pension. Defendant asserts that the judge failed to realize the impact that dividing his pension would have on him, and that it is inequitable and unfair because plaintiff will ultimately receive retirement income from her own pension and social security benefits, as well as a portion of his pension. Again, we disagree.

New Jersey courts have "long espoused a policy favoring the use of consensual agreements to resolve marital controversies." J.B., supra, 215 N.J. at 326 (citation and internal quotation marks omitted). Consequently, absent "unconscionability, fraud, or overreaching in negotiations of the settlement,' a trial court has 'no legal or equitable basis'" to alter matrimonial agreements. Ibid. (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).

Defendant cites Rule 4:50-1(f) as the basis on which his relief should be granted. This rule states "the court may relieve a party . . . from a final judgment or order for . . . any other reason justifying relief from the operation of the judgment or order." R. 4:50-1(f). While a categorization of circumstances that merit application of Rule 4:50-1(f) eludes specification, the "very essence of [section] (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (citation and internal quotation marks omitted). However, Rule 4:50-1(f) "affords relief only when truly exceptional circumstances are present," and is "limited to situations in which, were it not applied, a grave injustice would occur." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 468, 484 (2012) (citation and internal quotation marks omitted). When reviewing decisions under this rule, we will only reverse if there is a clear abuse of discretion. Id. at 467.

In support of his argument, defendant relies on White v. White, 284 N.J. Super. 300 (Ch. Div. 1995), aff'd o.b., 309 N.J. Super. 139 (App. Div. 1996). In that case, the husband was a federal employee and did not contribute to social security during his employment. Id. at 303-04. The trial court stated that because of this, the husband and wife had a greater income during the marriage and the husband was entitled to an offset for the wife's social security benefits. Id. at 306.

White is readily distinguishable from the case under review, as it addressed a situation where the parties had no written agreement. Here, the pension division was included in the PSA, and then memorialized in the QDRO, with both parties represented by counsel. See also Panetta, supra, 370 N.J. Super. at 499-501 (distinguishing that case from White based on the husband's receipt of social security payments from his prior private employment, and denying the offset because he "failed to comply with the parties' agreement").

Given the special preference for marital agreements and the lack of any exceptional circumstances that would warrant redress under Rule 4:50-1(f), we discern no mistaken exercise of discretion or misapplication of the law in the trial court's finding that defendant was not entitled to any relief from the DJD. As the motion judge found, the PSA here "involved give and take for both sides and resulted in a document that both sides, whom were represented by counsel, believed was fair and equitable."

A good example of such "give and take" is the provision that requires the parties to equally share the daughter's college costs, even though defendant's salary, at the time of the divorce, was almost double that of plaintiff's salary. Additionally, there is no evidence of fraud, unconscionability, or overreaching in the negotiations of the PSA, nor is there any evidence that a grave injustice would result. We conclude that defendant has failed to establish exceptional circumstances to warrant relief from the DJD.

Finally, defendant argues that "myriad factual issues" require that we remand this case to the Family Part for a plenary hearing. We do not agree. Because defendant has failed to identify issues of material fact that require resolution by the trial court, we discern no basis for an evidentiary hearing. See Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988) (holding that a hearing is not required, or even warranted, in every contested proceeding for support modification, but only where "necessary to resolve a genuine issue of material fact").

Affirmed.

1 The PSA also required that defendant pay plaintiff alimony of $1000 per month. Defendant was relieved of this obligation, however, upon plaintiff's remarriage in 2011.

2 See Marx v. Marx, 265 N.J. Super. 418, 428 (Ch. Div. 1993) (establishing the formula for allocating the marital share of a deferred distribution pension).

3 This missing information included the amount each party paid for the daughter's tuition, if the daughter was employed, if she had any significant debts, received any grants, what her needs were, or "any other relevant factor[s]." The judge also requested the parties' 2011 tax returns.