November 4, 2009
FARA DAWN HASKOOR, PLAINTIFF-RESPONDENT,
GEORGE J. HASKOOR, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2316-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Cuff and Waugh.
Defendant George J. Haskoor, Jr., appeals the order of the Family Part denying his motion to reduce his child support obligation. We affirm.
Haskoor and plaintiff Fara Dawn Friedman, formerly Haskoor, were married on December 27, 1998. They had two children, a daughter born in 2000 and a son born in 2002. They were divorced on October 30, 2006. The child custody and financial terms of their divorce were resolved by a property settlement agreement (PSA) of the same date. The parties were to have joint custody of their children, with Friedman being the parent of primary residence. Haskoor was to have "liberal and reasonable" parenting time, including "the equivalent of three (3) overnights per week which may be divided between the children unevenly." The PSA called for Haskoor to pay weekly child support in the amount of $310, as well as weekly alimony of $115 for three years.
In June 2008, Friedman filed a motion seeking to reduce Haskoor's parenting time and increase his child support obligation. Haskoor opposed the motion, which was denied. Haskoor contends that, in connection with the disposition of that motion, he learned for the first time that the sole parenting worksheet, rather than the shared parenting worksheet, had been used to calculate the child support amount established by the PSA.
On October 31, 2008, Haskoor filed a motion seeking a reduction in child support. He asserted that he had been told by his prior attorney that he would receive a reduction in child support on the basis of his extended parenting time.
Consequently, he argued that the shared parenting worksheet, which would have resulted in weekly child support of $207, should have been used to calculate child support for the PSA. In addition, Haskoor pointed out that the sole parenting worksheet that had apparently been in the file of one of the attorneys used $200 per week for alimony, as opposed to the $115 per week set forth in the PSA.*fn1 Friedman opposed the motion and filed a cross-motion seeking an increase in child support, in addition to other relief. Judge Alexander H. Carver, III, denied both applications to change the amount of child support. This appeal followed.
Before turning to the specific issues raised on appeal, we briefly address our standard of review. We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, in this case, there were no findings of fact based upon an evidentiary hearing. A judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
In denying Haskoor's motion, Judge Carver relied on legal principles related to the settlement of litigated issues, as do we. "An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)), certif. denied, 94 N.J. 600 (1983). "Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just."
Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960).
Separation agreements "'are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.'" Dolce, supra, 383 N.J. Super. at 20 (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). "And while incorporation of a PSA into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).
The judge relied on the fact that Haskoor had agreed to the amount of child support as part of an overall settlement of the parties' parenting and financial relationships. The PSA did not state that support had been calculated according to the child support guidelines, nor did it refer to a particular type of worksheet. Indeed, no worksheet was attached. The only reference to the guidelines related to future cost-of-living increases.
Under the terms of the agreement, both parties acknowledged that the PSA was "fair, equitable and reasonable," that they had the advice of independent counsel, and that the document represented their entire agreement. The PSA was clearly the result of negotiation, as is evidenced by the fact that its terms, including financial terms such as the amount of alimony and the allocation of tax exemptions for the children, were changed by hand and initialed by each party at signing.
Even if this case had involved the type of unilateral mistake that would warrant judicial relief, the appropriate remedy would be rescission of the entire agreement. Villanueva v. Amica Mut. Ins. Co., 374 N.J. Super. 283, 289-90 (App. Div. 2005). Here, Haskoor sought to decrease his child support obligation while maintaining the remaining provisions of the PSA. Such a result would not be equitable.
Haskoor's reliance on Ordukaya v. Brown, 357 N.J. Super. 231 (App. Div. 2003), is misplaced because there is no question here of an impermissible waiver or compromise of child support by the supported parent. Our primary concern in Ordukaya was that the parties had deviated below the guideline amount for child support, thereby prejudicing the children. Id. at 241 ("The most critical issue is the children's interests. Where such interests are compromised, courts must insure that they are protected."). In this case, the PSA set forth a specific amount of child support that Haskoor agreed to pay at the time, but now argues is too high. The concerns we expressed in Ordukaya are not implicated under those circumstances.
Consequently, we affirm the order denying Haskoor's motion to reduce his child support obligation for the reasons expressed by Judge Carver, as supplemented in this opinion.