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J.S. v. L.S.

December 15, 2006

J.S., PLAINTIFF-RESPONDENT,
v.
L.S., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2285-04.

The opinion of the court was delivered by: Coleman, R. B., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 24, 2006

Before Judges Coburn, R. B. Coleman and Gilroy.

Defendant, L.S., appeals from a December 2, 2005, order that, among other things, denied his request to set aside portions of a Property Settlement Agreement (PSA) with plaintiff, J.S., dealing with equitable distribution and denied his request for reimbursement of past child support payments, notwithstanding the determination that he is not the biological father of the child for whom the support payments were made. We affirm.

The parties were married on August 18, 2001, and were separated after defendant was arrested in February 2004. Plaintiff filed a complaint for divorce on April 22, 2004, and her unopposed motion for pendente lite support was granted on June 25, 2004. That order required defendant: (1) to pay $133 per week as child support for one child, born on April 28, 2003; (2) to contribute to daycare expenses incurred by plaintiff to enable her to work; and (3) to contribute to the medical expenses of the child.

On May 13, 2005, defendant moved to compel plaintiff to cooperate with a paternity test concerning the child. On the scheduled trial date for the divorce action, the parties settled the case, subject to resolution of the paternity issue. Defendant's attorney placed the agreement on the record. Counsel stated:

Firstly, with respect to custody, the parties have consented to proceed with the paternity test. We are presuming, for the purposes of this settlement, that paternity exists with [L.S.] with respect to the child . . . . If paternity is found not to exist, unfortunately we have to revisit certain issues. But assuming we have paternity, sole legal custody and primary residential custody will be with the plaintiff, [J.S.]. But in the event circumstances change, we will address that situation in the future. It cannot be addressed now. . . . .

All other claims between the parties have been waived that are not set forth in this agreement. As I noted before, there will be a paternity test and various issues will have to be revisited if paternity is not found but we are proceeding on the basis that paternity is found.

There was no further discussion on the record to identify the "certain issues" or "various issues" mentioned, and the parties did not specify what provisions would be revisited if paternity was not found.

When the paternity test established that defendant was not the biological father of the child, defendant filed a motion seeking the termination of any financial obligations to the child, the vacation of certain provisions of the PSA, reimbursement of pendente lite child support, a discovery schedule, and a plenary hearing. Plaintiff agreed to terminate voluntarily all ongoing financial obligations from defendant to the child, but opposed the vacation of the equitable distribution portions of the agreement and the reimbursement of past child support.

On December 2, 2005, the trial court ordered that defendant was relieved of his obligation to contribute towards child support, daycare expenses, medical insurance costs, and any unreimbursed medical expenses for the child. However, the court ruled that because paternity was addressed following the generalized statement of revisiting "certain issues" and because there was no specific mention of revisiting equitable distribution, the "revisit" was limited to child-related issues. The court observed there was no nexus between non-paternity and the equitable distribution provisions. Thus, defendant's motion to set aside certain equitable distribution provisions of the amended dual judgment of divorce was denied. Also denied was his request for reimbursement of child support.

On appeal, defendant argues that the phrases "certain issues" or "various issues" in the PSA were used so that the equitable distribution portions of the agreement would be "revisited." The trial court construed that language to encompass all child-related provisions but it left intact provisions relating to the division of the marital home and vehicles. We find that ...


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