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Grace v. Grace

September 22, 2010


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Sussex County, Docket No. FM-19-91-07.

Per curiam.


Argued: February 24, 2010

Before Judges Cuff and C.L. Miniman.

In this post-judgment matrimonial matter, we review several orders enforcing the terms of a property settlement agreement (PSA) entered by the parties and certain other post-judgment orders. Essentially, plaintiff argues that changed circumstances warranted modification of financial obligations assumed by him in the PSA, and the transformation of his obligation to pay the monthly mortgage payment on the former marital home to a monthly alimony obligation was wholly unwarranted. We affirm.

Plaintiff Michael Grace and defendant Laura Grace were married for eighteen years before they divorced on September 6, 2006. The parties have three children born in 1990, 1992, and 1994. The final judgment of divorce (FJOD) incorporated a PSA dated August 12, 2006. Plaintiff agreed to pay $2200 monthly for child support and to pay the $4000 monthly mortgage payment. Article 2, paragraph 2.1 of the PSA addresses plaintiff's support obligation as follows:

[Defendant] is presently employed as a full time administrative assistant earning an annual salary of $27,300. [Plaintiff] is a financial broker dealer in an investment training company in which he is a partner and has been so employed for the last two years. [Plaintiff's] income fluctuates, however he represents that he takes a draw of $8,000.00 net per month. It is agreed that [plaintiff] shall continue to pay the monthly mortgage payment on the house of approximately $4000.00,*fn1 which the parties approximate to be a reasonable and fair alimony payment. [Plaintiff] shall also pay to [defendant] additional support in the amount of $2,200.00*fn2 monthly, payable directly through personal check on or before the 15th of each month which shall continue until the youngest child graduates high school. [Emphasis supplied.]

The parties also agreed that plaintiff would continue to pay the mortgage, taxes, and insurance on the house until the mortgage was fully paid, the house was sold, or defendant remarried. They also agreed that "[n]either the mortgage payment nor the monthly support payment shall be taxable income to [defendant]." Defendant was to be responsible for all other household expenses and her transportation expenses. The parties contemplated that the child support paid by plaintiff and the income earned by defendant would cover these expenses.

The parties agreed to joint custody of the children with "liberal and reasonable parenting time." They also agreed that neither would cohabit with another, except in the case of remarriage, while the children resided with them and before the last child reached eighteen years of age.

The PSA also addressed equitable distribution. Defendant received the former marital home. If the house sold after the youngest child reached eighteen years of age, defendant would receive the entire net proceeds of the sale. If the house sold before the youngest child reached eighteen years of age, the parties would equally divide the net proceeds. They also agreed to refinance the first mortgage to create a $40,000 fund to allow certain improvements on the house and to satisfy automobile loans.

Following a hearing on September 6, 2006, Judge Edward Gannon entered the FJOD. Both parties appeared at this hearing. Plaintiff's counsel asked plaintiff several questions about the PSA, including whether he understood the agreement and whether the agreement was a product of extensive negotiations. Plaintiff answered these questions affirmatively, and further agreed that the parties were able to reach an agreement on all issues through mediation. Plaintiff also affirmed he "had a large input in the preparation of this [PSA]," and that it "is fair and equitable under the circumstances."

Plaintiff's counsel next noted "what appears to be a fairly generous support and alimony amount" for defendant. Plaintiff responded he was willing and able to meet the obligation. Plaintiff's counsel asked him "but you're satisfied with that and you're willing to -- you're going to abide by that, is that correct?" Plaintiff responded, "Yes, I am." Plaintiff emphasized his interest in and the importance of keeping the children in the marital home.

Plaintiff further represented to the court that he had entered the PSA voluntarily, without coercion, and in the absence of any influence of drugs or alcohol. Finally, plaintiff's counsel ensured that plaintiff was satisfied with the decision to mediate and forgo trial, and that he wished to incorporate the PSA into an FJOD.

The judge directly examined defendant, who appeared pro se. Defendant stated she had reviewed the PSA with a different attorney prior to the proceeding. Then, in response to several questions, defendant assured the court she entered the PSA voluntarily and freely, she was satisfied with the mediator's services, and she found the PSA fair and reasonable. Defendant also agreed she could abide by the terms of the PSA.

Defendant filed her first motion to enforce the terms of the PSA on May 29, 2007. This was the first of four motions and two cross-motions that she eventually filed. We recount most of these efforts to enforce the terms of the PSA, plaintiff's opposition to these motions, and his motions to eliminate or modify his support obligations in order to place in context his varying responses to defendant's efforts to gain compliance.

In her certification in support of her May 29, 2007 motion, defendant stated that plaintiff made one mortgage payment as required by the PSA on September 1, 2006, had paid no other monthly installment, and the mortgagee had filed a complaint to foreclose the mortgage. Defendant also advised the court that recently plaintiff had failed to pay the entire amount of child support, accumulating $500 in arrears. Defendant also asserted that plaintiff had failed to pay the additional automobile ...

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