PHILIP J. WISOFF VS. BARBARA WISOFF (FM-20-1693-03, UNION COUNTY AND STATEWIDE)
A-2131-15T2
| N.J. Super. Ct. App. Div. | Aug 29, 2017Background
- Philip and Barbara Wisoff divorced after a 24-year marriage in 2003 and executed a detailed Property Settlement Agreement (PSA) allocating child support, alimony, and related terms.
- PSA set alimony at $8,050/month (plus taxes) with specified adjustment formulas (CPI increases, downward modification if defendant earns income) and an anti-modification clause (¶15) barring changes except as listed.
- Plaintiff earned high post-divorce income but was terminated in July 2013; received severance through Jan 2014 and thereafter earned substantially less via consulting (MTC Services).
- After job loss, plaintiff sought modification of alimony and child support (filed motion Sept 2015); earlier arbitration (June 2014) addressed emancipation and arrears but did not decide child support reduction tied to job loss.
- Trial court denied discovery and modification motions, enforced the PSA’s anti-modification clause for alimony, declined to revisit child support (citing arbitration), and awarded defendant $2,000 counsel fee.
- Appellate court reversed and remanded for further proceedings under Lepis and Morris, directing discovery on whether defendant earned income from a design business (triggering PSA ¶12) and vacating the fee award for reconsideration after remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether child support could be reopened after arbitration given plaintiff’s post-arbitration job loss | Wisoff: job loss after arbitration is a continuing changed circumstance warranting modification | Wisoff: arbitration decision should preclude relitigation; no new change | Reversed: arbitration did not address child support reduction tied to later job loss; remand for Lepis analysis and further proceedings |
| Whether alimony is modifiable despite PSA ¶15 anti-modification clause | Wisoff: job loss and reduced income require discovery and possible modification under Lepis; ¶12 (downward mod if wife earns) and other PSA terms permit inquiry | Wisoff: PSA ¶15 bars Lepis modification; parties bargained away modification rights | Reversed in part: trial court erred by refusing discovery; remand for discovery and Lepis/Morris analysis (consider ¶12 evidence and prevailing circumstances) |
| Whether trial court properly denied discovery before ruling on modification | Wisoff: prima facie showing of decreased income entitles him to discovery to evaluate equity and ability to pay | Wisoff: plaintiff not entitled because PSA bars modification and prior agreements control | Reversed: Lepis requires discovery where a prima facie showing of changed circumstances exists; remand for discovery |
| Proper treatment of counsel fees awarded by trial court | Wisoff: fee award premature given remand and unresolved discovery | Wisoff: fee award appropriate | Vacated: fee award must be reconsidered after remand and outcome of proceedings |
Key Cases Cited
- Lepis v. Lepis, 83 N.J. 139 (1980) (establishes standard for modifying support: continuing changed circumstances and whether agreement made explicit provision)
- Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993) (permits modification of specific arrangements only where failing to modify would be unreasonable given prevailing circumstances)
- Crews v. Crews, 164 N.J. 11 (2000) (alimony set to maintain marital standard of living; dependent spouse may not share post-divorce windfalls)
- J.B. v. W.B., 215 N.J. 305 (2013) (PSAs are contracts and generally enforced according to parties’ intent)
- Smith v. Smith, 72 N.J. 350 (1980) (supports Lepis guidance that modification is inappropriate where agreement already provided for the change)
- Pacifico v. Pacifico, 190 N.J. 258 (2007) (PSAs treated as contracts and enforced as written)
- Hallberg v. Hallberg, 113 N.J. Super. 205 (1971) (procedural guidance that courts may decide modification on documents vs. hearing where appropriate)