SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6908-00T1
LISA G. ORDUKAYA,
Plaintiff-Appellant,
v.
PARIS H. BROWN,
Defendant-Respondent.
Submitted December 4, 2002 - Decided January 31, 2003
Before Judges Conley, Carchman and Parrillo.
On appeal from Superior Court of New Jersey, Chancery
Division, Family Part, Salem County, Docket No. FM-17-
290-00.
D'Arrigo & D'Arrigo, attorneys for appellant (JoAnn C.
D'Arrigo, on the brief).
Frank J. Hoerst, III, attorney for respondent.
The opinion of the court was delivered by
CARCHMAN, J.A.D.
Plaintiff Lisa G. Ordukaya appeals from orders of the Family
Part: 1) denying her motion to modify a child support award
arising from a negotiated property settlement entered into
between plaintiff and defendant Paris H. Brown; and 2) denying
her motion to set aside the property settlement agreement
incorporated in the judgment of divorce. In both instances, the
motion judge denied the respective applications without a plenary
hearing. At the original divorce hearing, the parties submitted
a property settlement agreement incorporating child support
provisions that were below child support guidelines. Neither
party nor the judge prepared a child support guidelines worksheet
nor was any "good cause" determined to support deviation from the
guidelines as required by subpart 22 of Appendix IX-A. Pressler
Current N.J. Court Rules, Appendix IX-A "Considerations in Use of
Child Support Guidelines," subpart 22 (2002). We hold that under
the facts presented here, the failure to comply with the
guidelines mandates a reversal and remand. We reverse the order
of May 4, 2001, denying a modification of child support and
remand for a plenary hearing as to this issue. As to the
property settlement agreement, we affirm the order of July 13,
2001, denying such relief.
Plaintiff filed a pro se divorce complaint in May 2000, and sought, among other things, a dissolution of the marriage, custody and a "[m]utually agreed upon" amount of $800 per month child support, as well as medical insurance for the children. When later challenging that amount, plaintiff explained that she requested $800 for child support because she "was told by [defendant] that he would pay no more than $800 in child support after the divorce and I did what I was told."
Defendant retained an attorney who, according to that attorney, filed an answer and then drafted a Final Judgement of Divorce and settlement agreement, based on "a handwritten, but sketched out, proposal for preparation of a final judgment of divorce" given to him by defendant. Defendant represented that the notes were based on discussions between the parties. The attorney, through defendant, invited plaintiff to review the agreement at the attorney's office.
Plaintiff asserted that she "was told [she] had to sign the documents prepared and . . . had no part in negotiating the settlement." She also stated that she was not able to fully review the divorce agreement as she could not leave the office with it, and she was never told that she had the right to have an attorney look at the papers. This is contradicted by a certification from the attorney's secretary who advised plaintiff that defendant's attorney could not give her any legal advice, that "she would be best served by obtaining her own counsel if she had any questions," and that "she would have more than ample opportunity to take the document to an attorney for review."
At the divorce hearing, defendant's attorney briefly reviewed the provisions of the agreement entered into between plaintiff and defendant. Plaintiff was not represented by counsel at the hearing or at the time of negotiation of the agreement. The attorney represented that both parties waived their right to alimony as they knew their "financial arrangement" and had "exchanged all of the documentation that was necessary." He further noted that because defendant was paying $800 in child support, he would be entitled to declare the children as exemptions on his federal and state income tax returns. No explanation was forthcoming as to the computations resulting in the $800 per month child support award, nor was a child support guidelines worksheet prepared. See R. 5:6A.
The judge then questioned plaintiff, under oath:
BY THE COURT:
Q. Okay. With nothing further, Mrs. Brown, you did not have an attorney review this document on your behalf?
A. No.
Q. You have just listened to [the attorney], in a rather replete fashion, go over all of the terms that are embodied in this divorce action, the custody of the children, moving to out of state, all of those issues. First, is there anything about what has been said here today, that you do not understand fully?
A. No, I understand.
Q. And you understand also that you do not have to sign this agreement, you do not have to agree to those terms, you do not have to agree, frankly, to any terms. You could have your proofs presented, and it would be my responsibility to make a decision on all of these issues.
A. Right.
Q. Does this agreement encompass, or deal with, or dispose of all of the issues of your marriage, and all of the debts, all of the property that was acquired, children's issues? Is there anything left unsaid?
A. No.
Q. Undealt with in the agreement?
A. No.
Q. All right. And are you willing to be bound by this agreement? Do you understand that this would be enforceable by you against Mr. Brown, and enforceable against you by him should you or he violate any of the terms or provisions? Do you understand that?
A. Yes, I understand that.
Q. And you agree to be bound? Is it in your judgment fair and reasonable, the stipulations or agreements that you've made?
A. Yes.
THE COURT: Anything further, Mr. _
COUNSEL: I was just going to ask my last question. Mrs. Brown, I've said it once, I'm going to say it one last time. I've told you hundreds of times that I can't provide you or give you any legal advice. Is that correct?
MRS. BROWN: That's true.
COUNSEL: And you're satisfied, and understand the reason why.
MRS. BROWN: Yes.
THE COURT: All right. Very well. Although the court makes no findings as to the fairness or the equitableness of this agreement which has been reduced to a writing, and is now spread on the record, I am satisfied, however, that Paris H. Brown, and Lisa Gaye Brown, although Mrs. Brown not having any legal representation, is satisfied with the agreement. It's fair as to her in her judgment, and she's willing to be bound, and likewise, Mr. Brown is. Accordingly, it may be included in the final judgment of divorce should one be entered.
No inquiry was made by the judge as to the specific amount of child support nor was any reference made to the child support guidelines. Plaintiff later explained that she testified that she understood she had the right to an attorney because she could not afford an attorney and was not aware of legal services for the indigent. Defendant told her, and she believed, that she could not receive child support until after the divorce, and defendant did not voluntarily support them during this time.
Defendant asserted that plaintiff was agreeable to the terms of the divorce agreement as she was anxious to marry her current husband. She did so fifteen days after the divorce was finalized. Plaintiff also insisted on moving the children to Elkton, Maryland where her boyfriend lived, and although defendant did not want the children to "leave the jurisdiction," he later agreed to do so. Plaintiff noted that Elkton, Maryland is only seventeen miles away from defendant's home, and she wanted the divorce quickly "to get away from" defendant and to receive "financial assistance in caring for the kids."
The Final Judgment provided that the parties would retain the property they had already divided "to their mutual satisfaction," would be responsible for their own medical and car insurance as well as their own bills incurred prior to the agreement, were released from all suits in which either party was involved, and would have joint custody of the children with plaintiff having residential custody in Elkton, Maryland. In addition, defendant would have "free and liberal visitation" with the children, defendant would maintain the children on his current medical insurance program, and plaintiff would resume her maiden name. Although plaintiff subsequently challenged the provisions of the agreement dealing with equitable distribution, we focus on those provisions relevant to child support.
We quote the relevant provisions of the agreement.
I. State and Federal Tax Returns _ It is agreed by and between Plaintiff and Defendant that the defendant/father shall be entitled to claim all four (4) children born of the marriage as deductionsSee footnote 11 on both the State and Federal Income Tax Returns. The plaintiff/wife agrees that she will execute any and all documents necessary and provided to her by defendant or defendant's accountant for purposes of executing same so that defendant/father shall be entitled to take all four (4) children as deductions on both State and Federal Tax returns.
. . . .
O. Child Support _ The parties have
each had the opportunity to review their
respective incomes and have agreed that
defendant/father shall pay to
plaintiff/mother $800 per month payable at
the rate of $186 per week (4.3 weeks in a
month) by way of payroll deduction.
Defendant/father is employed with Kimberly
Clark located at Front Street and Avenue of
the State, Chester, Pennsylvania.
Defendant/father agrees that he shall pay the
$186 per week directly to the plaintiff/wife
until such time as the wage execution becomes
effective. This payment shall commence with
Friday, August 4, 2000.
. . . .
T. Stipulations - These stipulations
contain the entire understanding of the
parties, and there are no representations,
warranties, covenants or undertakings other
than those expressly set forth herein.
In addition to these provisions, plaintiff waived any claim for
support and agreed to an "anti-Lepis" provision precluding any
claim for change in circumstances supporting a claim for alimony.
No such language was agreed to regarding child support.
Approximately eight months after the entry of judgment,
plaintiff filed a pro se motion to amend the judgment claiming
that she could not support her children on $800 per month and
someone in the probation office, who was "shocked at the meager
amount" of child support she received, told her about the Child
Support Guidelines. She also sought relief regarding the tax
exemptions.
In response to plaintiff's motion, defendant filed a cross-
motion seeking custody of the children "[i]f the court would
modify the child support." He asserted that the child support
amount should not be increased as plaintiff had insisted on the
amount so that she could obtain the divorce and remarry, and his
annual salary had decreased from $63,000 to $52,000, due to his
employer; he was running a deficit in spending.
At the argument on the motion, defendant conceded that $800
per month does not conform to the guidelines. The judge noted
that "there would be a high likelihood that a court would have
approved [plaintiff's] move during a HolderSee footnote 22 hearing;" but the
judge denied plaintiff's request stating:
I acknowledge that if we run a child support
guidelines calculation, that child support
would be up substantially higher than the
parties negotiated. I do not have the
benefit of the transcript as to what was
discussed with [the trial judge], and I
acknowledge that there is a violation of the
rules, and that there is no guidelines
calculation attached.
However, this is a negotiated agreement.
It's been eight months since the parties
negotiated it, and I find that there are, as
I've indicated, competing interests. It
seems to me that there's nothing to suggest,
other than that the plaintiff was pro se,
that there was any fraud or misrepresentation
here, and that she didn't know what she was
doing when she was negotiating. I recognize
that there are many reasons people negotiate
particular points in either separation
agreements, or uncontested final judgments of
divorce, and I acknowledge that it's pretty
clear that she was married shortly after this
divorce, and relocated with the consent of
the defendant, to Maryland.
When I look to the competing interests
of _ best interest of the child, and the
parties' negotiations, frankly, I take the
position, usually, and I believe it's law,
that once the parties negotiate an issue, and
absent a finding of fraud or
misrepresentation, or the like, that the
parties should be bound by that agreement,
recognizing that there is a difference in
child support in that it isn't forever. But
it is for some period of time, and I think
the parties have the right to be able to rely
on what they've negotiated, and I find that
what is appropriate is that with regards to
child support, it's reviewable once there is
a material change in circumstances, or when
we get to the three-year review.
In this case, we don't have a three-year
review because it's only been eight months
since these parties were divorced; but I also
find that there is no material change in
circumstances in the eight months. And I
think it would be inequitable to permit the
plaintiff to come in and open up a portion of
a final judgment of divorce that she
negotiated eight months ago, absent some
showing of either a change of circumstances,
or fraud, misrepresentation, or the like.
Accordingly, I'm going to deny her
application with regards to an increase in
child support at this time, and I think that
_ would suggest that the same results should
occur with regards to the tax deductions.
There's nothing to suggest that the parties
didn't negotiate it. There's nothing in the
final judgment that would suggest that it was
for one year. Accordingly, I find no basis
in the request to modify the tax exemptions.
Plaintiff sought reconsideration of the denial of her
application for an increase in child support and in the
alternative, sought to vacate the entire settlement pursuant to
R. 4:50-1.
Both plaintiff and defendant submitted financial information
and documentation on reconsideration. Defendant submitted a Case
Information Statement, his 2000 State and Federal W-2 wage
statements, his 2000 Federal Income Tax Return, and several
earnings statements. Defendant's 2000 Federal Income Tax Return
indicated he earned $52,400, claimed all four children as
exemptions, and itemized deductions of $14,800. According to
plaintiff's Federal Income Tax Return, she earned $6,444 in 2000.
[At the request of the court, the facts relevant to and
discussion of the issues of equitable distribution have been
deleted from the published opinion. The court affirmed denial of
plaintiff's motion to set aside the equitable distribution.]
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 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 (emphasis added).]See footnote 33
Appendix IX-A(2) provides that the guidelines "must be used as a
rebuttable presumption to establish and modify all child support
orders" in both contested and uncontested matters. Pressler,
supra, Appendix IX-A, "Considerations In Use of Child Support
Guidelines," subpart 2 (emphasis added). A rebuttable
presumption means that:
an award based on the guidelines is assumed
to be the correct amount of child support
unless a party proves to the court that
circumstances exist that make a guidelines-
based award inappropriate in a specific case.
The guidelines may be disregarded or a
guidelines-based award adjusted if a party
shows, and the court finds, that such action
is appropriate due to conflict with one of
the factors set forth in sections 4, 7, 10,
13, 14, 15, or 20 of Appendix IX-A, or due to
the fact that an injustice would result due
to the application of the guidelines in a
specific case. The determination of whether
good cause exists to disregard or adjust a
guidelines-based award in a particular case
shall be decided by the court.
[Id.]
Subpart 21 of Appendix IX-A provides that "[i]n all cases, the
decision to deviate from the guidelines shall be based on the
best interests of the child. All deviations from the guidelines-
based award and the amount of the guidelines-based award must be
stated in writing in the support order or on the guidelines
worksheet." Pressler, supra, Appendix IX-A, "Considerations In
The Use Of Child Support Guidelines," subpart 21; see Capaccio v.
Capaccio,
321 N.J. Super. 46, 56-57 (App. Div. 1999) (upholding
child support award calculated under guidelines despite that the
award disregarded the federal poverty guidelines). Most
significantly, subpart 22 of Appendix IX-A requires:
In accordance with R. 5:6A, if a child
support amount in a stipulated or consent
agreement differs from an award calculated
using the support guidelines, the parties or
their representatives shall state on a child
support guidelines worksheet: (a) the amount
of support that would have been awarded if
calculated using the guidelines and (b) the
reason that the stipulated amount differs
from the guidelines-based award.
The parties did not comply with this provision, and the judge did
not include such statement in the judgment. The Court's mandate
requiring this statement insures that the guidelines become the
starting point for any analysis of child support. Deviations
must be accounted for, a failing here requiring further action.
We have commented on a failure to consider the guidelines in
Winterberg v. Lupo,
300 N.J. Super. 125, 132 (App. Div. 1997),
and said:
the judge did not make specific findings that
would explain why the Guidelines were
disregarded. See R. 5:6A. Nor did he
consider and apply N.J.S.A. 2A:34-23. The
bare statement in paragraph 5 of the order
that "plaintiff's austere budget and her
obligation to pay substantial transportation
expenses" warranted a deviation from the
Guidelines is conclusory. The motion judge
was required to resolve the gross and net
income dispute, determine the appropriate
support level based on the Guidelines and the
statutory factors enumerated in N.J.S.A.
2A:34-23, and then, based on those findings,
explain why the order deviated from the
Guidelines. Even if the judge had good
reasons for exercising his discretion in
deviating from the Guidelines, we have no
indication of what those reasons were. This
is an unacceptable practice.
[Id. (emphasis added).]
While Winterberg was a contested child support case, other courts
have mandated such findings especially where a custodial parent
appears to have "waived" or compromised child support in the
agreement between the parties.
In Monmouth County Division of Social Services for D.M. v.
G.D.M.,
308 N.J. Super. 83, 95 (Ch. Div. 1997), the parties
entered into a consent order relieving a father of child support
in exchange for termination of his parental rights. The Family
Part judge vacated the order and said:
It is a fundamental principal of the
Family Division that the right to child
support belongs to the child or children, not
to the custodial parent. Kopack, supra, at
117,
68 A.2d 484, aff'd,
4 N.J. 327,
72 A.2d 869 (1950); Martinetti, supra, at 512,
619 A.2d 599. Therefore, the actions and
circumstances of the child, and not those of
the parent, are to be evaluated in
determining support obligations. Ibid. The
right to collect arrears for child-related
expenses may belong to the custodial parent.
Stanton v. Stanton,
421 U.S. 7, 12,
95 S. Ct. 1373, 1376, 43 L. Ed.2d 688 (1975) (citing
Anderson v. Anderson,
110 Utah 300, 306,
172 P.2d 132, 135 (1946)). However, it is clear
that present child support rights lie
exclusively with the child for whom they are
ordered. The conscience of equity will not
permit the present needs of children to be
limited by the agreements of their parents.
Wertlake v. Wertlake,
127 N.J.Super. 595,
318 A.2d 446 (Ch. Div.1974), rev'd on other
grounds
137 N.J.Super. 476,
349 A.2d 552
(App. Div. 1975). As noted above, the
obligation of all parents to provide, to the
degree possible, for their children is
fundamental, and can not therefore be
destroyed by the errant, capricious, or
uninformed actions of the other parent.
In keeping with these concepts, it is
clear that regardless of the unenforceable
termination of the defendant's rights in this
case, plaintiff, as custodial parent, lacked
standing to effectively waive her right to
child support, as that support right belongs
to the child, and not to that parent.
[Id. at 95-96 (emphasis added).]
While plaintiff here did not "waive" child support, she
apparently compromised support for her children as a basis for
relief from a challenge to her moving with the children to
Maryland, a challenge that appears to be questionable, at best.
The need for an inquiry into the quantity of support and the
failure to adhere to R. 5:6A is most apparent here given the
disputes in income and the number of children involved.
In sum, the parties failed to comply with the rule, the
judge did not consider the guidelines nor whether the best
interests of the children were served by deviating from the
guidelines. The judge observed that "people have the right to
make bad deals," but "bad deals" do not extend to child support.
The "deal" was not simply an agreement affecting two independent
parties. The most critical issue is the children's interests.
Where such interests are compromised, courts must insure that
they are protected. Cf. Bengis v. Bengis,
227 N.J. Super. 351
(App. Div. 1987) (permitting waiver of child support by a natural
parent where the obligation may be imposed on a responsible
third-party). No such inquiry was made here and a remand is
mandated.
Finally, we briefly note that the exemptions for the
children have an economic impact on the parties as well. In
paragraph I of the agreement, the exemptions (incorrectly
denominated as "deductions") were given to defendant. On remand,
the issue of entitlement to the exemptions must also be
considered.
We conclude that a hearing is required to consider the
enforceabilty of paragraph O of the parties' settlement
agreement. We remand this matter to the Family Part for such a
hearing and consideration of the quantum of support and
application of the guidelines. If a determination is made that
support does not comply with the guidelines, appropriate findings
shall be made consistent with R. 5:6A, and Appendix IX-A,
subparts 21 and 22. The judge shall further consider the
allocation of the exemptions consistent with the award of child
support.
Affirmed in part; reversed and remanded in part. We do not
retain jurisdiction.
Footnote: 1 1 Although referred to as "deductions," these are properly denominated as "exemptions." 26 U.S.C.A. §152(e). Footnote: 2 2 Holder v. Polanski, 111 N.J. 344 (1988). Footnote: 3 3 The guidelines are not strictly applicable when a family's combined net weekly income exceeds $2,900. Pressler, supra, comment on R. 5:6A. In this situation, the court should consider the factors set forth in N.J.S.A. 2A:34-23, setting forth ten factors. Id. This does not apply here as the parties' combined net income did not appear to exceed $2900 per week.