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Foster v. McGee

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 16, 2008

KELLY J. FOSTER,*FN1 PLAINTIFF-APPELLANT,
v.
JOHN MICHAEL MCGEE, JR., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-652-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2007

Before Judges Winkelstein and Yannotti.

Plaintiff Kelly J. Foster appeals from orders entered in this action on September 7, 2006 and November 17, 2006, which increased the parenting time of defendant John Michael McGee and reduced the amount of defendant's child support obligation. We affirm in part, reverse in part, and remand for a plenary hearing.

I.

The parties were married on December 5, 1998. Three children were born of the marriage, in 1999, 2001, and 2002, respectively. The marriage was dissolved by a final judgment of divorce entered on November 30, 2004. The judgment incorporated the terms of a property settlement agreement dated September 26, 2004 (PSA) which provides that the parties shall share joint custody of the minor children, with plaintiff designated as the primary residential parent, and defendant afforded "liberal and reasonable rights of visitation." The PSA addresses child support. It states in pertinent part:

Based upon the Husband's current annual gross income of approximately $50,000.00, and the Wife's current annual gross income of approximately $36,000.00, the Husband shall pay to the Wife directly child support in the sum of $289.00 per week for the three unemancipated children of the marriage, which payment shall be made to the Wife every Friday on a weekly basis. Such sum has been agreed upon by and between the Parties after reviewing the current child support guidelines. [Emphasis added.]

The parties agreed to relinquish any right they may have to spousal support or alimony.

The PSA also provides for the equitable distribution of the marital property. The agreement states that plaintiff would retain the pension plan issued through her employer, and defendant would retain his 401k plan maintained through his employer. The parties agreed that upon the payment by plaintiff of $10,000, defendant would convey his interest in the marital home to plaintiff, and plaintiff would be solely responsible for the payment of a mortgage loan with an outstanding balance of approximately $129,000, and another loan with an approximate balance of $14,000. Plaintiff retained all furniture and furnishings in the marital home, except for certain items identified on an attached schedule.

In addition, the parties agreed they would be the sole owners of the vehicles they were then driving. The parties further agreed that, prior to execution of the agreement, they had distributed all checking and savings accounts "to their mutual satisfaction." They also represented that they had not incurred any debts other than those specifically identified and allocated in the agreement.

The PSA further provides that, "Should any provision of this [a]greement be held invalid or unenforceable by any court of competent jurisdiction, all other provisions shall nonetheless continue in full force and effect to the extent that the remaining provisions are fair, equitable and just." In addition, the agreement states that:

No modification or waiver of any of the terms of [the] [a]greement shall be valid unless in writing and executed by the [p]arty to be charged. The failure of either [p]arty to insist upon strict performance of any of the provisions of this

[a]greement shall not be deemed a waiver of any subsequent breach or default of any provisions contained in this [a]greement.

In the PSA, the parties acknowledged that they entered into the PSA "voluntarily and without any threat, force, coercion and/or duress being placed upon" them. Plaintiff acknowledged that she had been represented by counsel and defendant acknowledged that he had been advised as to his right "to seek the services of a competent, independent counsel of his own choosing."

In October 2005, plaintiff applied to the Camden County Probation Department to have defendant's child support obligation paid through wage garnishment, as permitted by the PSA. Defendant countered with an application for a reduction in his child support obligation. A hearing officer directed that defendant pay the amount required by the PSA directly to the Probation Department.

On December 20, 2005, defendant filed a motion in the Family Part seeking a reduction in his support obligation based on an oral agreement by the parties to reduce child support to $240 per week and plaintiff's acceptance of that amount for several weeks. Plaintiff filed a cross motion to compel defendant to pay the $289 per week as provided in the PSA.

The judge considered the motions on January 27, 2006, and placed his decision on the record on that date. The judge refused to enforce the alleged oral agreement by the parties, noting that the PSA provides that no modification of the agreement is valid unless it is in writing. The judge also stated that the court "has an obligation to enforce the written agreement between the parties." The judge entered an order dated January 27, 2006, which states in pertinent part that, effective that date, defendant's child support obligation shall be $289 per week, pursuant to the terms of the PSA.

On June 5, 2006, defendant filed another motion seeking a reduction in child support and establishment of a different parenting schedule for the children. In support of this motion, defendant provided a certification dated June 2, 2006, in which defendant asserted that the $289 per week child support amount was "arrived at by a misunderstanding and/or miscalculation." Defendant stated that when he and plaintiff entered into the PSA, he intended that the amount of child support would be established in accordance with the child support guidelines.

Defendant said that, had the guidelines been used, his support obligation would have been $198 per week.

Defendant additionally stated "[t]here was little or no negotiation" between the parties concerning the amount of child support. He insisted, however, that the parties agreed that he would pay whatever the guidelines required. Defendant said that, once the parties had agreed on that point, they had to ascertain "what the figure would be." According to defendant, plaintiff gave him a copy of the court rules and showed him the table for child support.

Defendant asserted that he looked at the table to the amount that would be payable for three children, based on his net income, which was then $715 per week. The table "moved in $10 increments" and indicated that child support for net weekly income of $720 was $289 per week. Defendant said that he and plaintiff agreed that this was the "guidelines amount" that he was required to pay.

Defendant stated that he later learned that "[t]he methodology used to establish guidelines support was completely wrong and did not adequately or accurately establish [his] actual child support obligation." He stated, "[t]he only reason the PSA said $289 per week [was] because that is the amount we thought was a guideline amount." Defendant asked the court to correct the error "since the error was a mutual mistake of fact between the parties." He sought re-calculation of his support obligation in accordance with the guidelines.

In his certification, defendant also addressed his application for a modification of the parenting schedule. Defendant noted that the children were then three, five and six years old, respectively. He asserted that, under the then-current schedule, the children were in his care after school on Mondays, Wednesdays and Fridays. Plaintiff would not allow the children to stay overnight with defendant except on Fridays.

He said that the then-current schedule was "untenable" because the children were not returned to plaintiff until after 8:00 p.m. on Mondays and Wednesdays. Defendant had asked plaintiff to permit the children to stay overnight with him on Mondays and Wednesdays "to ease the stress on the children from the custody transfers." Plaintiff refused this request. Defendant asserted that plaintiff should not be permitted to "unilaterally dictate" the parenting schedule since the PSA provides that the schedule would be negotiated.

In addition, defendant said that he believed a change in the parenting schedule would be in the best interests of the children. He stated that the children are young and did not respond well to parenting time with extended gaps between the time spent with plaintiff or defendant. Defendant said that the children responded "very well to an alternating schedule." He maintained that the change would permit the children to become acclimated to his home environment and remain acclimated to the environment in plaintiff's home. Defendant added that transportation to school was not a problem.

Plaintiff opposed defendant's motions. She asserted in a certification that when the parties entered the PSA, only defendant researched the amount of child support. Plaintiff said that she assumed that the child support amount of $289 per week was accurate. Plaintiff also saw no reason to change defendant's parenting time, pointing out that when the matter came up during the January 27, 2006 hearing, defendant did not want a change in the parenting schedule.

In a reply certification, defendant asserted that at the January 27, 2006 hearing, he had rejected a proposal that he see the children every other weekend. Defendant said that this would mean that he would have less time with the children and he "wanted to see the children more often."

The judge considered defendant's motion on August 11, 2006, and placed his decision on the record on that date. The judge found that defendant's "mutual mistake argument is a valid argument." The judge stated that he would re-calculate child support in accordance with the guidelines, and the reduction in child support would be retroactive to the date defendant filed his motion. The judge also granted defendant's application for increased parenting time. The judge stated that defendant would have the children for dinner on Mondays, overnights on every Wednesday and Friday, and weekend visits every other weekend. The court also found that the parties should share parenting time on holidays in accordance with the court's holiday schedule.

The judge entered an order on September 7, 2006 memorializing his decision. In that order, the parties were directed to cooperate on the calculation of child support pursuant to the guidelines and, if they could not agree on "a proper calculation," either party could make "a motion for the purposes of determining same." The order additionally stated, "[i]n the event that a motion should become necessary in order to calculate support, the party successful in that application will be entitled to counsel fees."

The parties could not agree on the calculation of the support obligation. On October 23, 2006, defendant filed a motion seeking an order: calculating his support obligation in accordance with the guidelines; requiring plaintiff to furnish complete financial information regarding her earnings; and an award of counsel fees. The motion was heard on November 17, 2006. The judge determined that defendant's support obligation was $172 per week. The judge entered an order that date memorializing his decision. This appeal followed.

Plaintiff argues that the judge erred by setting aside the provision of the PSA fixing the amount of child support without a plenary hearing. Plaintiff contends that the doctrine of mutual mistake does not apply and the court erred by ordering a re-calculation of child support without a hearing as to the parties' intentions and the impact of a change on the entire agreement. Plaintiff also challenges the increase in parenting time ordered by the trial judge. She maintains that the judge erred by ordering the change without mediation and without a hearing to determine whether the change would be in the children's best interests.

II.

We first consider defendant's contention that plaintiff's appeal is untimely. Plaintiff filed a notice of appeal on January 2, 2007. It states that plaintiff is appealing the order entered in this matter on November 17, 2006. However, the case information statement that was filed with the notice of appeal states that plaintiff is appealing from the orders entered on September 7, 2006 and November 17, 2006.

Defendant maintains that the appeal is, in essence, a challenge to the determinations memorialized by the September 7, 2006 order and the appeal is untimely because it was not filed within forty-five days of the entry of that order, as required by Rule 2:4-1(a). We disagree.

As we pointed out previously, the September 7, 2006 order granted defendant's motion to have his child support obligation re-calculated in accordance with the guidelines and made the reduction retroactive. The order also granted defendant's motion for increased parenting time. However, because the parties could not reach an agreement concerning the calculation of defendant's support obligation, defendant filed a motion with the court to resolve that dispute, as he was permitted to do under the terms of the September 7, 2006 order. The November 17, 2006 order addressed that motion and finally established the amount of defendant's support obligation.

Therefore, defendant's motion for a reduction of his child support obligation was not finally adjudicated until the November 17, 2006 order was entered. Furthermore, although change in the parenting schedule was only addressed in the September 7, 2006 order, plaintiff could fairly assume that all issues that had been decided by that order were not finally resolved until the November 17, 2006 order was entered. We therefore conclude that plaintiff's appeal is timely.

III.

We turn to plaintiff's challenge to the orders reducing defendant's child support obligation from $289 per week, as provided in the PSA, to $172 per week, as determined in accordance with the child support guidelines. Plaintiff argues that the judge erred by applying the doctrine of mutual mistake. Plaintiff additionally argues that the judge erred by failing to hold a plenary hearing on this dispute.

"The doctrine of mutual mistake applies when a 'mistake was mutual in that both parties were laboring under the same misapprehension as to [a] particular, essential fact.'" Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 608 (1989) (quoting Beachcomber Coins, Inc. v. Boskett, 166 N.J. Super. 442, 446 (App. Div. 1979)). If the parties' mutual mistake has a material effect upon the agreement, the contract is voidable by the party adversely affected. Ibid. Alternatively, a mutual mistake by the parties may warrant reformation of the agreement, if the parties had a meeting of the minds that "the written document fails to express." Ibid. (citing St. Pius X House of Retreats v. The Diocese of Camden, 88 N.J. 571, 579 (1982)). Here, the judge concluded that defendant's "mutual mistake argument [was] a valid argument." The judge made this finding based on the certifications of the parties.

In his certification, defendant asserted that the parties intended to be bound by the child support guidelines and they were both mistaken in thinking that $289 per week was the amount of child support required by the guidelines. In her certification, plaintiff stated that she did not agree to have child support determined in accordance with the child support guidelines. She maintained that she never consulted the guidelines and was only concerned with the amount of child support that she would receive, regardless of how that amount was calculated.

Thus, the parties offered fundamentally differing views as to whether the provision of the PSA requiring payment of child support in the amount of $289 per month was a mutual mistake. Even so, the judge essentially found that the parties agreed to be bound by the guidelines and were simply mistaken in calculating the amount of support required. In our view, the judge erred by reaching those conclusions without conducting a hearing. We therefore reverse the order reducing defendant's support obligation and remand to the trial court for a plenary hearing. At the hearing, the court should consider all evidence that may bear upon the parties in their agreement respecting child support, including the fact that the provision of the PSA pertaining to child support is one of many provisions of the agreement in which the parties resolved economic issues.

If the court finds that the parties intended to be bound by the guidelines but were mutually mistaken in stating the amount of support, the court must determine whether the agreement should be reformed to reflect the parties' actual agreement. Furthermore, as stated previously, the PSA provides that if a court determines that any provision of the agreement is unenforceable, "all other provisions [of the PSA] shall nonetheless continue in full force and effect to the extent that the remaining provisions are fair, equitable and just." Therefore, if the court orders reformation of the agreement, the court must determine whether in light of that change the remaining provisions of the PSA remain "fair, equitable and just."

Alternatively, if the court finds that the parties intended to deviate from the guidelines, the court must make additional findings required by Rule 5:6A. The rule provides that:

The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.

A completed child support guidelines worksheet in the form prescribed in Appendix IX of these Rules shall be filed with any order or judgment that includes child support that is submitted for the approval of the court. If a proposed child support award differs from the award calculated under the child support guidelines, the worksheet shall state the reason for the deviation and the amount of the award calculated under the child support guidelines. [Ibid.]

Therefore, if the judge finds that the parties intended to deviate from the guidelines, the judge must determine whether there is good cause for the deviation. In addition, the court must determine whether any deviation from the guidelines is in the children's best interests. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2303 (2008).

We note that in this matter, the parties did not submit a child support guidelines worksheet when they asked that the court incorporate the PSA into the final judgment. Had the guidelines worksheet been completed at that time, it would have been readily apparent that either an error had been made in calculating defendant's support obligation or that the parties intended to deviate from the guidelines. The court erred by entering the final judgment incorporating the PSA without mandating that the party's comply with R. 5:6A and the guidelines.

IV.

We turn to plaintiff's challenge to the provisions of the September 7, 2006 order that increased defendant's parenting time. Plaintiff argues that the parenting schedule that was in place was working well for the children. She asserts that the change ordered is "drastic" and was made even though there was no change in circumstances. Plaintiff contends that the judge should have ordered mediation and conducted a hearing before ordering a change in the parenting schedule.

Matters affecting the time that divorced parents may spend with their children are committed to the sound discretion of the judges of the Family Part. O'Donnell v. Singleton, 384 N.J. Super. 141, 144 (App. Div. 2006). We will not reverse a determination resolving a dispute over parenting time unless the trial judge's decision "was so wide of the mark as to constitute an improper exercise of his discretion." Ibid.

We are convinced from our review of the record that the judge's decision to grant defendant additional parenting time was not an abuse of discretion. As stated previously, the PSA designated plaintiff as primary residential parent and states that defendant would be afforded "liberal and reasonable rights of visitation with the children." The PSA also states that if the parties cannot agree or if there is a dispute about visitation, either party may submit the issue to the court for a decision.

The record shows that previously, the children had been in defendant's care after school on Mondays, Wednesdays and Fridays. Plaintiff only allowed the children to stay overnight with defendant on Fridays. The order entered September 7, 2006 provides that the children could remain with defendant on Mondays from 4:00 p.m. to 8:00 p.m., and overnight on Wednesdays and Fridays. In addition, on alternate weekends, the children may remain with defendant until 4:00 p.m. on Sunday.

We are satisfied that the record before the trial court provided a sufficient basis for the order granting defendant additional parenting time. In his certification dated June 2, 2006, defendant said that the purpose of the change was to reduce the stress on the children from the custody transfers. Defendant also stated that the children respond well to an alternating schedule and that the change would foster a good relationship with both parents. In our view, the judge did not abuse his discretion by increasing defendant's parenting time. Accordingly, we affirm the provisions of the September 7, 2006 order granting defendant's motion for increased parenting time.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.


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