On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FM-17-290-00.
Before Judges Conley, Carchman and Parrillo.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2002
Plaintiff Lisa G. Ordukaya appeals from orders of the Family Part: 1) denying her motion to modify a child support award arising from a negotiated property settlement entered into between plaintiff and defendant Paris H. Brown; and 2) denying her motion to set aside the property settlement agreement incorporated in the judgment of divorce. In both instances, the motion judge denied the respective applications without a plenary hearing. At the original divorce hearing, the parties submitted a property settlement agreement incorporating child support provisions that were below child support guidelines. Neither party nor the judge prepared a child support guidelines worksheet nor was any "good cause" determined to support deviation from the guidelines as required by subpart 22 of Appendix IX-A. Pressler Current N.J. Court Rules, Appendix IX-A "Considerations in Use of Child Support Guidelines," subpart 22 (2002). We hold that under the facts presented here, the failure to comply with the guidelines mandates a reversal and remand. We reverse the order of May 4, 2001, denying a modification of child support and remand for a plenary hearing as to this issue. As to the property settlement agreement, we affirm the order of July 13, 2001, denying such relief.
After residing together for thirteen years and parenting three children, the parties were married on March 6, 1996. In August 1996, a fourth child was born, and the parties continued to reside together until May 2000, when plaintiff and the children left the marital home. According to plaintiff's complaint, a root cause of the separation was defendant's abusive conduct towards plaintiff.
Plaintiff filed a pro se divorce complaint in May 2000, and sought, among other things, a dissolution of the marriage, custody and a "[m]utually agreed upon" amount of $800 per month child support, as well as medical insurance for the children. When later challenging that amount, plaintiff explained that she requested $800 for child support because she "was told by [defendant] that he would pay no more than $800 in child support after the divorce and I did what I was told."
Defendant retained an attorney who, according to that attorney, filed an answer and then drafted a Final Judgment of Divorce and settlement agreement, based on "a handwritten, but sketched out, proposal for preparation of a final judgment of divorce" given to him by defendant. Defendant represented that the notes were based on discussions between the parties. The attorney, through defendant, invited plaintiff to review the agreement at the attorney's office.
Plaintiff asserted that she "was told [she] had to sign the documents prepared and . . . had no part in negotiating the settlement." She also stated that she was not able to fully review the divorce agreement as she could not leave the office with it, and she was never told that she had the right to have an attorney look at the papers. This is contradicted by a certification from the attorney's secretary who advised plaintiff that defendant's attorney could not give her any legal advice, that "she would be best served by obtaining her own counsel if she had any questions," and that "she would have more than ample opportunity to take the document to an attorney for review."
At the divorce hearing, defendant's attorney briefly reviewed the provisions of the agreement entered into between plaintiff and defendant. Plaintiff was not represented by counsel at the hearing or at the time of negotiation of the agreement. The attorney represented that both parties waived their right to alimony as they knew their "financial arrangement" and had "exchanged all of the documentation that was necessary." He further noted that because defendant was paying $800 in child support, he would be entitled to declare the children as exemptions on his federal and state income tax returns. No explanation was forthcoming as to the computations resulting in the $800 per month child support award, nor was a child support guidelines worksheet prepared. See R. 5:6A.
The judge then questioned plaintiff, under oath:
Q: Okay. With nothing further, Mrs. Brown, you did not have an attorney review this document on your behalf?
Q: You have just listened to [the attorney], in a rather replete fashion, go over all of the terms that are embodied in this divorce action, the custody of the children, moving to out of state, all of those issues. First, is there anything about what has been said here today, that you do not understand fully?
Q: And you understand also that you do not have to sign this agreement, you do not have to agree to those terms, you do not have to agree, frankly, to any terms. You could have your proofs presented, and it would be my responsibility to make a decision on all of these issues.
Q: Does this agreement encompass, or deal with, or dispose of all of the issues of your marriage, and all of the debts, all of the property that was acquired, ...