NICHOLAS DeVICO v. SANDRA DeVICO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3607-08T13607-08T1

NICHOLAS DeVICO,

Plaintiff-Appellant,

v.

SANDRA DeVICO,

Defendant-Respondent.

________________________________________________________________

 

Argued March 8, 2010 - Decided

Before Judges Lisa and Baxter.

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

Marianne Zembryski argued the cause for appellant.

Victoria L. Rehrer argued the cause for respondent (Rehrer & Rehrer, attorneys; Ms. Rehrer, on the brief).

PER CURIAM

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 continuing obligation to pay the expenses of maintaining the marital home until it was sold, defendant certified:

In fact, I was struggling to meet my financial obligations during the divorce and advised the Plaintiff that I could not continue to maintain [our son's] needs without support. Since the Plaintiff was paying the mortgage, I did agree to defer the alimony commencement date until such time that the home was sold.

The motions came before Judge Franklin on March 6, 2009. He issued a tentative decision prior to oral argument, denying plaintiff's motion, based upon the following analysis:

Section 4.2 of the Marital Settlement Agreement clearly states that the child support payment "shall be effective the date of this agreement. . ." Mr. Devico contends that the aforesaid provision remained in the Agreement in error. There is no evidence to support that contention except for Mr. Devico's self-serving Certification. There is not even a Certification from Marianne Zembryski, Esq., who represented Mr. Devico at the time of the Divorce and the execution of the Marital Settlement Agreement. In fact, both Mr. and Mrs. Devico took the witness stand on September 10, 2008 and testified that they considered the Agreement, which had been marked as J-1 in evidence, to be fair and equitable. The unambiguous words of the Agreement shall be enforced.

In the tentative decision, the judge also awarded defendant $2000 in counsel fees.

At plaintiff's request, oral argument was conducted. For the first time, plaintiff's attorney made reference to the temporary support order, arguing that the blank space under "Effective Date" rendered that order in conflict with the judgment of divorce, which incorporated the PSA, which, in turn, provided for a specific commencement date of plaintiff's child support obligation. Obviously, plaintiff placed no reliance on the temporary support order in support of his position that there was a mistake in the PSA and that he had not agreed to an immediate commencement of child support. Indeed, he never saw the temporary support order until after he filed his motion.

Judge Franklin, who had recently presided over the divorce hearing and thus had personal knowledge of what transpired at that proceeding, rejected plaintiff's argument, finding (1) that the temporary support order was irrelevant, (2) that the clear and unambiguous provision in the PSA was controlling, and (3) that plaintiff failed to make a sufficient showing to warrant a plenary hearing. He said:

The Probation Order is totally, totally insignificant in terms of the understanding of the parties and the agreement that the parties made. This is a document that is completed by court staff, which does not indicate anything except that somebody forgot to put it in, somebody didn't understand what the terms were as to when the support was going to start, somebody decided that because there were two different start dates set forth in the settlement agreement between the parties, that it was not appropriate to put a date under effective date, since there were multiple effective dates, one of which was clear, the other of which would not come into being until a specific event occurred. For whatever reason, somebody in the court staff decided or failed to put a date in there. That has nothing to do with the intent of the parties.

The Property Settlement Agreement entered by the parties has everything to do with the intent of the parties. They read it. They signed it. They took the stand. They testified that they understood what they were signing. That's what they signed. There is not a thing that is presented to this Court other than Mr. DeVico's self-serving statement unsupported by anything else that there is an error in the Property Settlement Agreement between the parties. I, therefore, will enter an Order that is consistent with the tentative Order that was generated by the Court for the reasons set forth in that Order and for the reasons that I have placed upon the record here this morning.

Like any other agreement, matrimonial agreements may be reformed if based upon a mistake common to both parties or a mistake of one party accompanied by the fraudulent knowledge of the other. Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988). There was clearly no common mistake here. Nor has plaintiff made any showing, or even any allegation, that defendant possessed any fraudulent knowledge as to the intended commencement date of the child support obligation.

Judge Franklin made a factual finding that the parties had knowledge of the terms of the PSA and understood them before signing it. The finding was based in part upon the provision in the PSA stating that each party read it, reviewed it with counsel, and understood its terms. Significantly, the finding was also based on the judge's credibility assessment of the parties, who testified before him on September 10, 2008, and stated that they had read it, were aware of its terms, understood them, and deemed them fair and reasonable. We defer to a trial judge's factual findings when they are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Judge Franklin's factual finding is well supported by the record and we have no occasion to interfere with it.

We also find no basis to interfere with the judge's discretionary determination to deny plaintiff's motion and to decline ordering a plenary hearing. Plaintiff presented nothing more than his unsubstantiated self-serving statement that the disputed child support provision in the PSA was not what the parties had agreed upon. In the face of the other evidence we have discussed, that statement could not provide a basis for modifying the agreement or for requiring a plenary hearing. See Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding that in the absence of a clear demonstration as to the existence of a genuine issue of material fact, a plenary hearing is not required, because "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application"). Denial of plaintiff's motion without ordering a plenary hearing was made in accordance with the controlling legal principles, was supported by the record, and did not constitute a mistaken exercise of discretion.

Although plaintiff has included in his appeal the portion of the order awarding defendant counsel fees, he has made no specific arguments as to why the award constituted error. His only contention appears to be that if we reverse the substantive aspect of the order, reversal of the counsel fee should follow. Because we are not reversing the substantive portion of the order, and because we find no mistaken exercise of discretion in the counsel fee award, we have no basis to interfere with that aspect of the order.

 
Affirmed.

(continued)

(continued)

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A-3607-08T1

April 1, 2010