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Nowak v. Nowak


June 27, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1527-05.

Per curiam.


Submitted June 12, 2007

Before Judges Kestin and Lefelt.

During their divorce proceedings, plaintiff Henry Nowak and defendant Maureen Nowak settled disputes involving custody, visitation, alimony, equitable distribution, and child support.

In conjunction with the settlement, defendant waived alimony in exchange for the marital home and plaintiff's payment of the remaining mortgage on the home. Despite this agreement, child support worksheets were prepared, which included alimony as plaintiff's obligation. Subsequently, defendant objected to the $242 child support included in the judgment of divorce claiming that the worksheets should not have referenced any alimony because of her waiver. Judge Reisner concluded that a "scrivener's error" had been made as the worksheets should not have included any alimony. Accordingly, the judge adjusted plaintiff's child support obligation upward to $369, and plaintiff moved for reconsideration. Upon reconsideration, the judge lowered plaintiff's weekly child support obligation to $317,*fn1 but rejected plaintiff's argument that he had misapplied the law of mistake. The judge also assessed $2,323.75 in counsel fees against plaintiff. Plaintiff appeals from these determinations.

On appeal, plaintiff argues that the court erred: (1) by failing to enforce the original settlement to which the parties had agreed, (2) by failing to correctly apply the law of mistake, (3) by failing to order a plenary hearing, and (4) by assessing counsel fees against plaintiff. We reject all of these arguments and affirm.

In the settlement, each party waived "any right to alimony from the other." While articulating the additional terms, plaintiff's attorney stated that "[c]hild support will be paid through Probation by way of a wage garnishment. We have done the guidelines and we are going to attach them. It's $242 a week, is the amount that my client will pay to his wife." This statement implies that the parties expected child support to be in accordance with the guidelines.

Judge Reisner, therefore, explained how the error occurred. "The actual calculations [were] completed based upon information supplied by [plaintiff's] attorney." "The amount inserted for 'alimony' was supplied by [plaintiff's] attorney as an estimated amount as to what he thought [plaintiff] would have paid had the equitable distribution been reduced." However, because the parties had agreed to child support in accordance with the guidelines, the imputation of an alimony amount after alimony had been waived "was the equivalent of a scrivener's error in a deed and equitably can be corrected by the court."

We agree with Judge Reisner that this was not technically a unilateral mistake by defendant but instead was an attempt to implement a settlement that was not in compliance with the actual terms agreed to by the parties. Only actual alimony paid or received can be incorporated into the shared-parenting worksheet. Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IX-B to R. 5:6A (2007). Therefore, no evidentiary hearing was necessary as Judge Reisner correctly concluded that it was error "[t]o include alimony in the child support [worksheets]."

We also recognize that Judge Reisner was familiar with this family and had managed the proceeding. Family court judges have expertise in family matters that we do not possess. Cesare v. Cesare, 154 N.J. 394, 399 (1998). Consequently, we defer to the judge's expertise. Ibid. Furthermore, the judge's finding that an error was made rather than a unilateral mistake was well supported by the uncontested evidence pending before the judge. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Finally, we also reject plaintiff's objection to the counsel fee that was assessed by Judge Reisner against plaintiff. We review any award of counsel fees in a matrimonial matter under an abuse of discretion standard. E.g., Jobe v. Jobe, 197 N.J. Super. 596 (App. Div. 1989). The award in this case, where plaintiff earns almost ten times what defendant earns, was not an abuse of discretion.


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