Law Lessons from BONNI KISBERG V. FRANKLIN KISBERG, App. Div., A-3870-07T2, March 2, 2010:

There is a “strong public policy favoring stability of consensual arrangements for support in matrimonial matters[.]” Avery v. Avery, 209 N.J. Super. 155, 160 (App. Div. 1986). Enforcement of consensual agreements ensures their stability and “enabl[es] parties to order their personal lives consistently with their post-marital responsibilities.” Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). “An application to modify an agreement is an exception, not the rule . . . [and] agreements entered into in good faith . . . shall be performed in accordance with their terms.” Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.), certif. denied, 180 N.J. 354 (2004).

When a significant change in circumstances renders enforcement of a support agreement inequitable, an exception may be made resulting in modification of the parties’ agreed terms. Ibid.; see also Innes v. Innes, 117 N.J. 496, 518 (1990) (stating a settlement agreement should be enforced by a trial court only to the extent it is equitable and just); Miller v. Miller, 160 N.J. 408, 420 (1999); Lepis, supra, 83 N.J. at 146. “The equitable power of the courts to modify alimony and support orders at any time is specifically recognized by N.J.S.A. 2A:34-23[.]” Lepis, supra, 83 N.J. at 145; Weitzman v. Weitzman, 228 N.J. Super. 346, 353 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Payment obligations are subject to review and their modification may be granted upon a showing of “changed circumstances.” The party requesting modification bears the burden to show circumstances have changed in a way to compel an increase or decrease in the order for support. Lepis, supra, 83 N.J. at 157.

Importantly, “deciding whether a support agreement should be modified based upon changed circumstances requires the court to determine ‘what, in the light of all the facts presented to it, is equitable and fair, giving due weight to the strong public policy favoring stability of arrangements.’” Avery, supra, 209 N.J. Super. at 160 (quoting Lepis, supra, 83 N.J. at 148). The court is obliged to examine “whether the agreement or decree has made explicit provision for the change.” Lepis, supra, 83 N.J. at 152. “If the [] support arrangement . . . provided for the circumstances alleged as ‘changed,’ it would not ordinarily be ‘equitable and fair’ to grant modification.” Id. at. 153 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

In Lepis, supra, the Court identified certain events that qualify as changed circumstances. 83 N.J. at 151. These include:

(1) an increase in the cost of living;
(2) increase or decrease in the supporting spouse’s income;
(3) illness, disability or infirmity arising after the original judgment;
(4) the dependent spouse’s loss of a house or apartment;
(5) the dependent spouse’s cohabitation with another;
(6) subsequent employment by the dependent spouse; and
(7) changes in federal income tax law.

[Ibid.]

There is no firm rule governing when an existing support obligation ceases to be “‘equitable and fair’”; rather, courts must assess and balance a myriad of factors presented in each individual case. Id. at 153. (quoting Smith, supra, 72 N.J. at 360). These factors include whether the change is temporary or permanent, voluntary or involuntary, motivated by bad faith or a desire to avoid payment or renders the payor unable to pay.

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