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PROCEDURAL HISTORY AND STATEMENT OF FACTS

A hearing was held in this matter on January 22, 2007, where the parties set forth the terms of their alleged marital property settlement agreement. The parties are only in possession of an audio copy of that hearing. A Dual Final Judgment of Divorce (hereinafter "Final Judgment") was entered incorporating the terms of the alleged agreement as set forth on the record. The second page of the Final Judgment provides that no testimony or findings of fact were made regarding the alleged settlement.

The parties were awarded joint legal custody of the parties' two children, Antonia, age 15, and Nicholas, age 11. [Final Judgment at Pg. 3, Para. I(A) thereof.] Defendant, however, must pay for his own health insurance. [Final Judgment at Pgs. 5-6, Para. III(C) thereof.] Defendant is the primary parent. [Id.] Plaintiff must pay $85.00 per week in child support to defendant, commencing upon the refinance of the marital residence. [Final Judgment at Pgs. 3-4, Para. II(A) thereof.] Plaintiff is required to maintain medical and dental insurance for the children through her job and the children are permitted to only treat with doctors within the network unless the party taking the child to the doctor will bear the expense. [Final Judgment at Pg. 4, Para. II(B) and (C) thereof.]

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Notwithstanding that plaintiff has been Ordered to pay $85.00 per week to plaintiff in child support, defendant is required to pay for plaintiff's membership at the Brookside Swin Club if defendant decides to be a member. [Final Judgment at Pg. 4, Para. II(D) thereof.] Each party is entitled to claim one child as an exemption and defendant was required to waive alimony. [Final Judgment at Pg. 4, Para. II(E),  and Pg. 5, Para. III(A) thereof.] The spousal support paragraph provides that, "Husband understands said waiver is permanent and non-modifiable." [Final Judgment at Pg. 5, Para. III(A) thereof.] No mention was made regarding modification based upon inequities which, as argued below, is contrary to law. Defendant, by contrast, has been Ordered to pay $450.00 per week in spousal support to plaintiff commencing upon the refinancing or sale of the martial home. [Final Judgment at Pg. Pg. 5, Para. III(B) thereof.] 

With regard to equitable distribution, the marital home is titled in plaintiff's name and has a fair market value of $490,000.00. Defendant is required to determine whether he will buy-out plaintiff's share in the marital home, in which case he must refinance the home, pay the current mortgage in full, pay all outstanding joint credit card debt in full and pay 50% of the remainder to plaintiff. [Final Judgment at Pg. 6, Paras. IV(A)(1) and (A)(2), and Pg. 8, Para. IV(D) thereof.] If defendant cannot buy out plaintiff's share in the marital home, the property shall be listed for sale at a price to be determined by a licensed realtor, with the proceeds thereof being used to pay off the joint credit card debt in full and the remainder being split 50/50 amongst the parties. [Final Judgment at Pgs. 6-7, Para. IV(A)(3), and Pg. 8, Para. IV(D)  thereof.]

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The parties are required to cash-in and divide equally the proceeds of their mutual funds and life insurance policies. [Final Judgment at Pgs. 7-8, Paras. IV(B) and (C) thereof.]  Defendant is required to continue making plaintiff's automobile and automobile insurance payments until the refinance or sale of the marital home. [Final Judgment at Pgs. 8-9, Para. IV(E) thereof.]  Defendant is required to obtain and maintain life insurance in the amount of $250,000.00 to secure plaintiff's right to alimony, and to maintain it until the alimony obligation is terminated, while plaintiff is required to maintain life insurance for the two children in the amount of $100,000.00 until the children are emancipated. [Final Judgment at Pg. 9, Paras. V(A) and (B) thereof.] Each party is required to pay their own counsel fees. [Final Judgment at Pgs. 9-10, Para. VI thereof.]  

     ARGUMENT
I. THE PROPERTY SETTLEMENT AGREEMENT AND FINAL JUDGMENT SHOULD BE MODIFIED OR VACATED AS BEING INEQUITABLE AND CONTRARY TO LAW

     A. In General.

R. 4:50-1(f) allows a final judgment to be vacated for any reason which justifies such relief.  Such motions “shall be made within a reasonable time”, R. 4:50-2, and an “exceptional circumstance” must be evidenced.  State vs. Womack, 145 N.J. 576, 586 (1996)(quoting Court Inv. vs. Perillo, 48 N.J. 334, 341 (1966)).  Such motions “should be granted sparingly”.  Johnson vs. Johnson, 320 N.J. Super. 371, 378 (1999). 

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A final judgment may be vacated, inter alia, “for any … reason justifying relief from the operation of the judgment or order.”  R. 4:50-1(d).  “‘The very essence of [subsection] (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice.’"  Housing Auth. Of Morristown vs. Little, 135 N.J. 274, 286 (1994) (quoting Court Inv. Co. vs. Perillo, 48 N.J. 334, 341 (1966)).  See also Monmouth Cty. Div. Of Social Services vs. P.A.Q., 317 N.J. Super. 187, 196-97 (App. Div. 1998)(following Little and P.A.Q.).  Whether to vacate the judgment is to be decided by the Court on a case-by-case basis.  Id. at 197; Little, supra, at 286.

A trial court is required to review all property settlement agreements for reasonableness. Gervolino v. Gervolino, 2006 WL 1510059, *7 (App. Div. 2006). The court may reconsider or vacate an inequitable property settlement agreeement even if the motion to vacate is not made for years later. Id., citing Guglielmo v. Guglielmo, 253 N.J. Super. 531, 536, 541-42 (App.Div.1992) (six years later), and Edgerton v. Edgerton, 203 N.J. Super. 160, 165-66 (App. Div.),certif. denied, 101 N.J. 293 (1985) (three years later). See also Cyr v. Cyr, 2006 WL 2986624, *2 (App. Div. 2006)(denial of motion to vacate reversed and remanded for a plenary hearing, motion made three years post-judgment). By contrast, the Appellate Divison has denied motions to vacate as being untimely when the motion was made six years later, Citibank, N.A. v. Russo, 334 N.J. Super. 346, 353 (App. Div. 2000), or twenty years later. Miller v. Cales, 1998 WL 883794, *2 (App. Div. 1998) (twenty-years later not reasonable).

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One of the leading cases on vacating an alleged settlement on the record is Seacoast Realty Co. v. West Long Branch Borough (Monmouth County), 14 N.J. Tax 197 (1994). There, a taxpayer's counsel consented to a settlement on the record, but subsequently filed a motion to vacate alleging that his client did not consent to it. Id. at 199. The trial court denied the motion. Id.

Plaintiff is correct in asserting that a settlement agreement between parties to a lawsuit is a contract. Nolan v. Lee Ho, 120 N.J. 465, 472, 577 A.2d 143 (1990). As they embody the important public policy of settling litigation, such contracts are vacated only upon a showing by clear and convincing proof of compelling circumstances. Ibid. See also Department of Public Advocate v. New Jersey Bd. of Public Utilities, 206 N.J.Super. 523, 528, 503 A.2d 331 (App.Div.1985). The policy of upholding settlements is all the stronger here where the parties have settled on the record thus bringing into play “the interest of efficient dispute resolution[,] ... management of court calendars and integrity of the litigation process.” Hallock v. State, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178, 1180 (1984).

Id. at 201.

     B. Child and Spousal Support.

 "The right to child support belongs to the child and 'cannot be waived by the custodial parent.'” Pascale v. Pascale, 140 N.J. 583, 591 (1995), quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993) (citations omitted). See also Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div. 1990)("There is no divorce between parent and child"), certif. denied, 126 N.J. 321 (1991); Blum v. Ader, 279 N.J. Super. 1, *4, 652 A.2d 176, 177 (App. Div. 1994) (New Jersey Superior Court Reports' page numbers are not provided for this case in Westlaw); Carey v. Carey, 2006 WL 700961, *3 (App. Div. 2006); Black v. Walker, 295 N.J. Super. 244, 253 (App. Div. 1996).

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The childrens' unwaivable right to support appears to have been negotiated away or otherwise overlooked by the court. Plaintiff has been Ordered to pay $85.00 per week to defendant (the primary custodial parent) in child support, but there is no indication in the record that the court applied the Child Support Guidelines as mandated by R. 5:6A or made a finding of fact that good cause was shown for a deviation from the Guidelines.

The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that an injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.

A completed child support guidelines worksheet in the form prescribed in Appendix IX of these Rules shall be filed with any order or judgment that includes child support that is submitted for the approval of the court. If a proposed child support award differs from the award calculated under the child support guidelines, the worksheet shall state the reason for the deviation and the amount of the award calculated under the child support guidelines.

R. 5:6A.

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It is well-established that, "Unless a contrary meaning is justified by the character of a legislative enactment, the use of the term 'shall' conveys a mandatory meaning." Dugan v. Camden County Clerk's Office, 376 N.J. Super. 271, 276 (App. Div. 2005), citing Cryan v. Klein, 148 N.J. Super. 27, 30-31 (App. Div. 1977).

Under the current Child Support Guidelines set forth at Appendix IX-F to the New Jersey Rules of Court, the parties' combined net weekly income would be $230.00 if only $85.00 per week is required for the support for two children. Defendant alone has been Ordered to pay plaintiff $450.00 per week in spousal support. [Final Judgment at Pg. Pg. 5, Para. III(B) thereof.] The court has provided no reason for this deviation.

The last Case Information Statements filed by the parties provide that their net weekly income was approximately $_________ [Left Blank for Counsel to Complete]. As such, under the Child Support Guidelines, the proper award of child support is $_________ [Left Blank for Counsel to Complete] per week. Plaintiff is entitled under the Final Judgment to four days of parenting time per month. [Final Judgment at Pg. 3, Para. I(B).] Apportioning the percentage of allowed parenting time, the proper award of child support is $_________ [Left Blank for Counsel to Complete] per month paid to defendant and $_________ [Left Blank for Counsel to Complete ] per month paid to plaintiff. The court has provided no explanation for this deviation and the parties are not permitted to negotiate away the children's rights in this regard. Pascale, supra, at 591. No child support worksheets have been submitted by the parties either, contrary to R. 5:6A. See also Kravchenko v. Kravchenko, 2006 WL 1749638, *2, fn. 1 (App. Div. 2006) ("No child support worksheet with corresponding calculations was attached to the final judgment, notwithstanding the requirement for one under R. 5:6A").

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The court's findings of fact for child support must be specific. Schwarz v. Schwarz, 328 N.J. Super. 275, 284-85 (App. Div. 2000); Stires v. Stires, 2007 WL 701905, *5 (App. Div. 2007); R. 1:7-4(a). Attaching a Child Support Worksheet to an Order for child support, for example, would be insufficient. Schwarz, supra, at 284-85 ("The attachment of the completed child support worksheet to the order did not otherwise abrogate the judge's obligation to make sufficient findings of fact"), citing Elkin v. Sabo, 310 N.J. Super. 462, 470-71 (App. Div. 1998).

“Failure to perform that duty ‘constitutes a disservice to the litigants, the attorneys and the appellate court.’" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J.Super. 1, 4 (App.Div.1976)). “Naked conclusions do not satisfy the purpose of [the rule].” Id. at 570. Factual findings correlated to relevant legal conclusions are required so that the parties and appellate court can have a full understanding of the rationale underlying the conclusions reached by the court. Esposito v. Esposito, 158 N.J.Super. 285, 291 (App.Div.1978). That requirement is particularly applicable to matrimonial cases. See Harmon v. Harmon, 161 N.J.Super. 206, 211 (App.Div.1978); Wertlake v. Wertlake, 137 N.J.Super. 476, 485 (App.Div.1975).

Stires, supra, at *5.

The court is asked to enter a Order modifying the Final Judgment to reflect the proper amount of child support.

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II. THE FINAL JUDGMENT IMPROPERLY STARTS THE OBLIGATION TO PAY CHILD SUPPORT UPON DEFENDANT'S BUY-OUT OF PLAINTIFF'S INTEREST IN THE MARITAL PROPERLY OR ITS SALE

The Final Judgment provides that plaintiff's obligation to pay child support is contingent upon the refinance or sale of the marital home. No mention is made as to whether child support arrears would accrue during the interim.

As stated above, "The right to child support belongs to the child and 'cannot be waived by the custodial parent.'” Pascale v. Pascale, 140 N.J. 583, 591 (1995), quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993) (citations omitted). Similarily, the right to child support may not be conditioned upon the satisfactory completion of an obligation by a party. The only exception to this, which is no longer good law, was that under extreme circumstances, our courts were permitted to reduce or temporarily terminate child support for interference with the non-custodial parent's visitation rights. Brennan v. Brennan, 187 N.J. Super. 351, 356-57 (App. Div. 1982). Since 1982 when that case was decided, R. 5:3-7 was amended to provide more appropriate remedies for noncompliance with court orders in family law cases. Bullwinkel v. Bullwinkel, 2006 WL 3511435, *2 (App. Div. 2006).

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The reasoning in Brennan was that interference with visitation rights violates the child's best interests, Id. at 357, a factor not under consideration in this case where child support has been made dependent upon the sale or refinancing of the martial home. That is unprecedented. In addition, there is no consistent noncompliance with a court order in this case, especially one that concerns the children’s welfare. "Rule 5:3-7(a) ... does not authorize the termination of the legal obligation to pay support for an unemancipated child, which is generally against public policy."  Bullwinkel, supra, at *2, citing Ridley v. Ridley, 290 N.J. Super. 152, 159-60 (Ch. Div.1996). As such, there are currently no recognized exceptions under New Jersey law for the withholding of child support.

III. DEFENDANT WAS COERCED INTO SETTLEMENT BY THE COURT AND THE COURT SHOULD HAVE RECUSED ITSELF FOR CAUSE

 “If a settlement agreement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto, the settlement agreement must be set aside.” Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div. 1994). See also Lindsley v. Lindsley, 2006 WL 157316, *5 (App. Div. 2006), and cases cited therin.

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The audio proceedings in this case reveal, by the Judge's admission, that he has had a long-term business relationship with defendant. The audio proceedings also reveal the judge's dismay with defendant's request for the court to recuse itself for cause, this all being done when a settlement was expected to be put on the record. As set forth in defendant's Certification submitted in support of this motion, he felt that he was under undue pressure from the court to enter into a settlement.

In Perskin, supra, the husband alleged that he was coerced into making a settlement agreement by the court. The transcript showed that the court demanded an answer immediately upon the settlement being proposed and that the husband was rushed. Id. at 267-69. He finally accepted the settlement but moved to dismiss.  The motion to dismiss was denied and he appealed.  On appeal, the Appellate Division in was clear that trial courts are prohibited from doing anything that may coerce a settlement.

Courts play an important role in effecting settlement. However, that role must always be exercised appropriately and with full recognition that the court must remain fair and impartial in order to ensure that the settlement [is] wrought by the parties, not by [the court] … [C]ourts should never work to coerce or compel a litigant to make a settlement … Courts should not use the threat of sanctions to force the settlement of a case … In sum, the law simply does not countenance attempts by courts to coerce settlements and, therefore, courts must avoid the appearance (as well as the reality) of coercion of settlements from unwilling litigants.

Id. at 275-76. (citations and inner quotation marks omitted)

The marital settlement agreement should be voided for these reasons.

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CONCLUSION

The court should grant defendant’s motion to vacate or modify the parties' marital settlement agreement and the court's Dual Final Judgment of Divorce.

Respectfully Submitted,

LAW OFFICES OF XXXXXX & XXXX, P.C.

______________________________________
XXXXXXXXXXXXXXXXXXXX, Esq.
Attorney for Defendant,

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