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DeVico v. DeVico

April 1, 2010

NICHOLAS DEVICO, PLAINTIFF-APPELLANT,
v.
SANDRA DEVICO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1307-07-C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 8, 2010

Before Judges Lisa and Baxter.

Plaintiff, Nicholas DeVico, appeals from the March 6, 2009 post-judgment order denying his Rule 4:50-1 motion to modify a provision in the September 10, 2008 property settlement agreement (PSA) that was incorporated in the judgment of divorce entered on that date. In particular, plaintiff contended that the express and unambiguous provision in the PSA requiring the immediate commencement of plaintiff's child support obligation was mistaken, and the parties intended that the commencement date would be upon the sale of the marital home. Judge Franklin found plaintiff's argument meritless, and he also found that plaintiff did not make a sufficient prima facie showing to warrant a plenary hearing. He therefore denied the motion. Plaintiff argues on appeal that the denial of his motion without further factfinding constituted a mistaken exercise of discretion. We disagree with plaintiff and affirm.

The parties married in 1994. One child was born of the marriage. They divorced on September 10, 2008. On that date, both parties and their attorneys came to the courthouse for the scheduled divorce hearing. A comprehensive PSA had been prepared in advance. The parties and their attorneys spent most of the day at the courthouse negotiating various provisions in the proposed PSA. A number of changes were made, which were handwritten into the prepared document. Each party initialed each change. Both parties and their attorneys signed the final form of the agreement, which included among its provisions the following:

Each party acknowledges that he or she has read this Agreement in its entirety prior to signing. Each party further acknowledges being fully informed by counsel as to his or her legal rights and obligations. Each party further acknowledges that he or she believes that this Agreement is fair, equitable and appropriate under all of the circumstances of this case.

The parties then appeared with their attorneys before Judge Franklin, who presided over the divorce hearing. The divorce judgment contained the following provision:

IT IS FURTHER ORDERED that the written Property Settlement Agreement entered into between the parties and marked as J-1 in evidence in Court on this date, and which is annexed hereto in final form, shall be incorporated into this Judgment but shall not merge with same and it is expressly understood that the Court did not pass on the merits of the Agreement but has taken testimony of the Plaintiff and the Defendant and does find that the parties freely and voluntarily entered into said Agreement, understand the terms thereof, and believe same to be fair and equitable to each of them. [Emphasis added.]

Although we have not been furnished with a transcript of the September 10, 2008 proceeding, both parties acknowledge that the above provision in the divorce judgment accurately reflects what transpired at that proceeding with respect to the PSA.

Among the handwritten changes made to the PSA were provisions relating to plaintiff's alimony obligations, and one of those changes provided that alimony would commence upon the sale of the marital home. Although one minor change was made to the child support provisions, the commencement date of plaintiff's $158 per week obligation remained unchanged, as follows: "This payment shall be effective the date of this agreement and payment made through Ocean County Probation via wage garnishment."

A Temporary Support Order was prepared for internal use by the probation department. Under the heading "Child Support Amount" $158 was written in; under the heading "Spousal Support Amount" $615 was written in. The block captioned "Effective Date" was left blank. Judge Franklin signed the order on September 10, 2008. Plaintiff acknowledges that he was not furnished with a copy of this order, and did not see it until after he filed the motion to modify the PSA.

After several weeks passed and defendant had not yet begun receiving her child support payments, she contacted the probation department and learned that plaintiff was not making the payments. Communication between the parties revealed plaintiff's position that he was not required to make the child support payments until the marital home was sold. Plaintiff then filed his motion asking to reform the PSA to delay the start date for child support payments, contending that the contrary provision in the PSA was a mistake. In his certification in support of the motion, he stated: "Our agreement was that upon the closing of the marital residence which has been listed for sale, my alimony and child support obligation would begin." He further certified that, after the dispute arose, he looked at the PSA and "realized that an error occurred when the final draft was revised in accordance with our final agreement. Specifically, the language as to the start date of the child support should have been modified to remove the start date as the date of the Agreement similar to the alimony provision."

Defendant filed a cross-motion seeking to enforce litigant's rights, to compel plaintiff to pay the child support (including arrears that had accrued), and for counsel fees. Defendant certified that "there was never any agreement to defer the commencement of the Plaintiff's child support obligation." In response to plaintiff's argument that the consideration for delaying commencement of the child support obligation was his ...


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