Opinion
DOCKET NO. A-1956-11T3
05-29-2013
RAUL WONG, JR., Plaintiff-Appellant, v. VERA WONG, Defendant-Respondent.
Raul Wong, Jr., appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1051-07.
Raul Wong, Jr., appellant pro se.
Respondent has not filed a brief. PER CURIAM
In this post-judgment matrimonial matter, plaintiff Raul Wong, Jr. appeals from the December 23, 2011 Family Part order denying his motion to terminate his child support obligation for his then seventeen-year-old son, who started living with him in November 2011. For the reasons that follow, we reverse and remand for further proceedings.
I.
The parties were married in 1992 and divorced in 2008. They had one child, a son, born in November 1994. On March 20, 2008, the parties entered into a property settlement agreement (PSA), which designated defendant as the parent of primary residential custody and required plaintiff to pay child support of $175.50 per week. The PSA also obligated plaintiff to pay defendant $175.65 per week in permanent alimony.
In 2010, after plaintiff lost his job and fell behind in his child support and alimony payments, defendant moved for enforcement. Plaintiff responded by requesting a Lepis change-of-circumstances reduction of his support obligations. The parties resolved these issues by entering into a March 2, 2010 consent order (consent order), which provided that "plaintiff shall continue to pay child support in the amount of $175 per week . . . [which] payment is non-modifiable, and plaintiff hereby waives his right to seek modification of this term of this Consent Order for any reason . . . until such time as the parties' son graduates from high school and enters college[.]" The consent order also provided for an "irrevocable and non- modifiable" waiver of defendant's right to receive any further alimony.
Lepis v. Lepis, 83 N.J. 139 (1980).
On November 20, 2011, the son ceased living with defendant and moved into plaintiff's residence. On November 23, 2011, plaintiff filed a motion and supporting certification seeking an order that would transfer residential custody of his son to him, terminate his child support obligation to defendant, and initiate a child support obligation from defendant to him. In support of this motion, plaintiff submitted a copy of his year-to-date pay stub indicating that he was earning approximately $440 per week.
Plaintiff did not submit an updated case information statement with his motion nor did he provide a copy of his prior case information statement, as required by Rule 5:5-4.
Although defendant did not submit any written opposition to the motion, she did appear in court on the return date. The judge asked defendant if she agreed with the relief requested by plaintiff in his motion. Defendant responded, "[i]n part. Not all of it." At that point, the judge interpreted defendant's response to indicate that defendant agreed to the change of custody, which the judge granted, but opposed the balance of plaintiff's motion — i.e. both the request to terminate plaintiff's child support obligation as well as the request to establish a support obligation for defendant.
Without the benefit of case information statements from either party, or any financial information beyond plaintiff's last pay stub, the judge denied both of plaintiff's requests relating to support, finding that the "non-modifiable" child support language of the consent order prevented any adjustment of the parties' child support arrangement, even though defendant acknowledged that the son was living with plaintiff permanently.
On appeal, plaintiff asserts that the court erred by denying his motion to terminate his child support obligation based on the change of custody.
While it appears that plaintiff does not challenge the denial of his application to compel defendant to pay child support, for reasons indicated hereinafter, on remand the court should consider whether or not plaintiff should be permitted to waive child support, after considering the needs of the child, the parties' consent order, and the financial circumstances of the parties.
II.
Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). "The right to child support belongs to the child and 'cannot be waived by the custodial parent.'" Id. 591 (1995) (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)); see also Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) ("Of course, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent."); Patetta v. Patetta, 358 N.J. Super. 90, 94-95 (App. Div. 2003) (declining to enforce parents' agreement to emancipate child at age eighteen). Parents are permitted to fashion an agreement contrary to prevailing law, as long as they do not bargain away the child's support. See Ordukaya v. Brown, 357 N.J. Super. 231, 239-41 (App. Div. 2003) (parties may agree to deviate below the standards for child support in the guidelines, but not if the child will be prejudiced).
A party seeking modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting an adjustment. Lepis, supra, 83 N.J. at 157-58. Where that showing is made, discovery may be warranted as well as a hearing to resolve material factual disputes. Id. at 158-59. The decision must be made in accordance with the child support guidelines and the best interests of the children. See Caplan v. Caplan, 182 N.J. 250, 266 (2005). The trial court's discretion in determining the amount of child support is limited by the foregoing principles and the child support guidelines, which are designed to result in a fair allocation of the parental responsibility to provide appropriate child support given the parents' resources. See id. at 267-68, 271.
So long as children receive appropriate support, parties are free to enter into voluntary agreements departing from the general Lepis rule and establish their own standards by which they agree to be guided in cases involving "reasonably foreseeable future circumstances[.]" Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993). Anti-Lepis provisions, which purport to waive the right to future modification, are enforceable in certain limited circumstances. Ibid. Nevertheless, until a child's emancipation, the inherent equitable powers of the Family Part allow the court to enter, revise or alter support orders "from time to time as circumstances may require." N.J.S.A. 2A:34-23; see also Lepis, supra, 83 N.J. at 146-47.
It has long been recognized that matrimonial agreements are essentially contractual in nature. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). In reviewing the trial court's determinations, we owe deference to the Family Part's expertise in matrimonial matters due to the specialized nature of the court. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "a question regarding the interpretation or construction of a contract is a legal one and our review is plenary, with no special deference to the trial judge's interpretation of the law and the legal consequences that flow from the established facts." Barr v. Barr, 418 N.J. Super. 18, 31 (App. Div. 2011).
We acknowledge the difficulty often presented by post-judgment matrimonial motions. We appreciate that spousal agreements, such as the parties' consent order, "have great potential for ensuring the desired degree of stability in support arrangements." Lepis, supra, 83 N.J. at 153. As a practical matter, such agreements are often comprehensive and particularized, and thus are "more carefully tailored to the peculiar circumstances of the parties' lives." Id. at 54 Accordingly, such agreements are "entitled to significant consideration." Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.), certif. denied, 180 N.J. 354 (2004). Only where circumstances arise where enforcement of the agreement becomes inequitable should an exception be made to the strict enforcement of the agreement's terms. Id. at 379.
"If the existing support arrangement has in fact provided for the circumstances alleged as 'changed,' it would not ordinarily be 'equitable and fair,' Smith v. Smith, 72 N.J. 350, 360 (1977), to grant modification." Lepis, supra, 83 N.J. at 153. In this case, however, a fair reading of the consent order does not suggest that, at the time it was negotiated, the parties contemplated the possibility of a transfer of custody. Because there is no indication that the parties considered this possibility when they agreed to the consent order, the court was required to determine what was warranted under the prevailing circumstances. Morris, supra, 263 N.J. Super. at 242.
Even if the possibility of a change of custody had been considered, strict enforcement of the agreement would have been indicated only if the court was first satisfied that plaintiff had sufficient resources, in the form of assets or unearned income, to provide the appropriate level of support for the parties' child.
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The judge ruled on this motion based upon incomplete information. In Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991), we held that the "complete financial information of both parents [is] necessary for any order of child support." We have further explained that "[t]his mandate is not just window dressing"; rather, it provides the motion judge with "the full financial picture of the parties[.]" Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991).
Finally, we note that the order does not include, as an attachment, the child support guideline calculations as required by Rule 5:6A. In this case, the judge concluded that defendant was relieved of the obligation to support her son by virtue of the consent order. Before making that determination, it was incumbent upon the court to determine the level of support indicated by the child support guidelines, and then decide whether plaintiff could reasonably supply that level of support from his own income and assets. Upon making that determination, the judge was required to provide the guidelines worksheet and a statement of the reason for entering an order that deviated from the guidelines amount. R. 5:6A; see Ordukaya, supra, 357 N.J. Super. at 241 (discussing parental agreements to deviate from the guidelines and emphasizing that a waiver of child support must be consistent with the interest of the children who are the beneficiaries of the support).
Child support is awarded to the parent with whom the child resides from the non-custodial parent in order that both parents support their child. The record shows that plaintiff earned $440 per week, with a $179 per week garnishment for child support. As plaintiff argues, it was grossly inequitable to require him to pay child support, and then from a very meager net salary, to provide all of the support for his son. It was also grossly unfair to the child to be denied the benefit of his mother's financial resources.
We therefore reverse the trial court's order with respect to plaintiff's obligation to continue to pay child support to defendant after his son came to live with him, and remand for the entry of an order terminating plaintiff's child support obligation as of the date he filed his motion. On remand, the court shall consider the current circumstances and entertain any further application by either party regarding child support or related financial issues. If the parties have reached an agreement that is mutually acceptable, and the court is satisfied that the agreement reasonably provides for the support of the son, the issue of support may be moot.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION