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Foster v. McGee

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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