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Foster v. McGee

September 28, 2009

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



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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2009

Before Judges Reisner and Yannotti.

Defendant John Michael McGee appeals from an order entered by the Family Part on August 22, 2008, which requires that defendant pay plaintiff Kelly J. Foster child support in the amount of $240 per week for the parties' children, as of June 5, 2006. We affirm.

The parties were married on December 5, 1998. Three children were born of the marriage in 1999, 2001 and 2002. The marriage was dissolved by a final judgment of divorce entered by the trial court on November 30, 2004. The judgment incorporated a property settlement agreement ("PSA"), which stated in pertinent part that:

[b]ased 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.

The parties agreed that the PSA represented the entire understanding between them and there were no "representations, warranties, covenants or understanding other than those expressly set forth" in the PSA. Moreover, the parties acknowledged that they entered into the agreement "voluntarily and without any threat, force, coercion and/or duress being placed upon their informed consent[.]" In addition, plaintiff acknowledged that she was represented by counsel. Defendant did not have an attorney but acknowledged that he had been advised "as to his rights to seek the services of competent, independent counsel of his own choosing."

In October 2005, plaintiff filed an application with the county probation department seeking to have defendant's child support obligation paid through a wage attachment. Plaintiff also sought enforcement of the provision of the PSA requiring defendant to pay child support in the amount of $289 per week. Defendant did not object to the wage attachment; however, he opposed enforcement of the child support obligation specified in the PSA. Defendant asserted that in December 2004, the parties had verbally agreed to reduce the weekly child support payments to $240 per week and he had been paying plaintiff that amount for more than a year. On December 21, 2005, a hearing officer granted plaintiff's motions.

Thereafter, defendant filed a motion in the trial court to enforce the parties' verbal agreement. Plaintiff filed a cross-motion to compel defendant to pay $289 per week in child support, as required by the PSA. The trial court heard the motions on January 27, 2006, and placed its decision on the record on that date. The court refused to enforce the parties' alleged verbal agreement, noting that the PSA required that any modification of the PSA be in writing and signed by the party "to be charged." The court entered an order on January 27, 2006, which stated that defendant must pay child support in the amount of $289 per week, as of the date of the order.

On June 5, 2006, defendant filed a motion seeking, among other things, a reduction in child support. In a certification submitted in support of his motion, defendant asserted for the first time that the child support amount in the PSA had been "arrived at by a misunderstanding and/or miscalculation."

Defendant maintained that the parties had not intended to deviate from the child support guidelines but erred in their use of the guidelines. He said that the resulting calculation was a mutual mistake of fact. Defendant also stated that if the guidelines had been applied correctly, he would only be required to pay child support in the amount of $198 per week.

Plaintiff opposed defendant's motion. She asserted that defendant alone had researched and calculated the child support amount of $289 per week, and she had agreed to his calculation. Plaintiff said that she relied upon defendant's representation that his calculation of the amount of child support was correct.

On August 11, 2006, the trial court rendered its decision on the motions, finding that the amount of child support in the PSA was the result of a mutual mistake by the parties. The court ordered the parties to recalculate the ...


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