On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-229-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Rodriguez and Chambers.
Defendant Louise Mary Andreaci, appeals from the October 29, 2008 order, modifying the marital agreement set forth in the Judgment of Divorce dated March 7, 2008. The trial court set aside the amount of the child support payments provided in the agreement because these were "unjust, oppressive and inequitable" and imposed child support payments in accordance with the Child Support Guidelines set forth in Pressler, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A (2010). The trial court also required plaintiff Christopher Andreaci to contribute $750 per month toward the portion of the mortgage of the marital home attributable to the debt of a business venture of the parties. We affirm.
The record indicates that the parties were married in 1991 and that they had two sons, one born in 1992 and the other born in 1997. Plaintiff filed a complaint for divorce in 2007. The parties reached a settlement containing the following pertinent provisions. Defendant obtained custody of the two children and ownership of the marital home. The second home owned by the parties was to be sold, and the proceeds held for the education of the children. Plaintiff was required to pay $800 per week in child support; that sum was designed to cover the cost of the monthly mortgage payment of approximately $3000 for the marital home. Agreement was also reached with respect to parenting time, medical expenses, and some household repairs. Plaintiff was pro se when he negotiated the agreement, and defendant was represented by counsel on a pro bono basis. The agreement was included in the judgment of divorce entered on March 7, 2008.
Plaintiff was unable to make the weekly payments and quickly fell into arrears. In less than six weeks from the date of the Judgment of Divorce, plaintiff was incarcerated on a bench warrant for nonsupport, and he borrowed approximately $5,000 to obtain his release from jail. He thereafter filed a motion seeking to reduce his support payments among other relief. On June 6, 2008, the trial court set the matter down for a plenary hearing and in the interim reduced plaintiff's support payments to $225 a week.
The trial court thereafter conducted a plenary hearing and issued a written decision. The trial court found that, under the terms of the agreement, ninety-one percent of the parties' combined income went to defendant, leaving plaintiff only $667 on which to live. The court found that under these circumstances, enforcing the agreement would be "unjust, oppressive and inequitable." Applying a Rule 4:50(f) analysis, it set aside the child support payment provisions. The court calculated plaintiff's child support in accordance with the Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A, to be $240 per week. In this calculation, the court imputed to plaintiff the income that he would earn from a second job. It also required that he pay $120 a week toward arrears.
The court observed that in reaching their agreement, the parties had treated payments designed to meet the mortgage as part of the child support payments. While the parties were married, the mortgage payments had doubled, going to approximately $3000 per month, after the parties took out a loan for a business that failed. Accordingly, the court regarded $1500 of the mortgage payments as a joint debt. It directed that plaintiff pay defendant $750 per month, representing his share of that joint debt, until he "has paid one half of the mortgage debt and interest attributable to the parties failed business."
Defendant appeals these rulings contending that the agreement between the parties should be enforced, that no exceptional or compelling circumstances are present to justify the reduction in child support, and that no changed circumstances are present to warrant a reduction in the child support payments.
After a careful review of the record, arguments of counsel and the party appearing pro se, and in light of the applicable law, we affirm for the reasons set forth by Judge Middlesworth in his sensible and cogent opinion. We note that in his papers to this court, plaintiff contends that he did not withdraw his request for personal property as stated in the order of October 29, 2008. Since he did not file a cross appeal, this issue is not before us. See R. 2:24-2 (permitting cross appeals). Plaintiff also contends that an adjustment should be made to the $750 monthly equitable distribution payments and that defendant should be required to reimburse him for damages she caused to his truck. These issues also are not before us and must first be raised before the trial court.
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