THOMAS OAKLEY v. AMY HONIG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2992-07T32992-07T3

THOMAS OAKLEY,

Plaintiff-Respondent,

v.

AMY HONIG,

(f/k/a) AMY OAKLEY,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 29, 2008 - Decided

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, Docket No. FM-13-1613-05-A.

Marcus, Brody, Ford, Kessler & Sahner, L.L.C., attorneys for appellant (Todd M. Sahner, on the brief).

Thomas Oakley, respondent pro se.

PER CURIAM

Defendant, Amy Honig, appeals from a February 8, 2008 order that reduced plaintiff, Thomas Oakley's, weekly child support obligation from $139 per week to $122.31 per week. On appeal, defendant contends that the trial judge erred when he, in effect, rewrote the parties' Property Settlement Agreement (PSA) and in so doing, altered the previously agreed-upon method of calculating child support. We reverse.

I.

The parties were married on October 5, 1996, and were divorced on March 22, 2006. Two children were born of the marriage, one in 1998 and the other in 2001. The judgment of divorce (JOD) incorporated the PSA, which contained detailed provisions regarding alimony and child support. Although plaintiff's alimony obligation is not an issue on appeal, we discuss the alimony provisions of the PSA in light of defendant's contention that the parties deliberately structured these two financial obligations differently, i.e. defendant's income is to be considered in connection with plaintiff's alimony obligation, but the parties intended that defendant's income be ignored in the calculation of plaintiff's child support obligation.

The portion of the PSA dealing with alimony specifically addresses the income of both parties:

ARTICLE 3 SUPPORT AND MAINTENANCE

3.1 Support.

(c) The Husband shall pay directly to the Wife limited duration alimony in the amount of $438.00 per week . . . .

3.2 Support Review. The Husband has recently started a business and is not yet deriving an income therefrom. The support obligation is based upon the Husband's being imputed $65,000 per year for 2005. The parties agree to review support on April 1, 2006, and at the end of every fiscal quarter thereafter . . . .

At each review, to the extent that Husband's income varies from $65,000 per year, the amount payable during the following period (whether it be quarterly or annually) will be determined as follows: Husband will pay to Wife, on a weekly basis, an amount equal to 34% of the difference between Husband's and Wife's incomes using the figures from the prior period. By way of example, if the figures from the prior period demonstrate that Husband is making $80,000 per year, and Wife is making $20,000 per year, the alimony will be based on 34% of %60,000 per year, or $20,400. . . . The parties will exchange pay stubs, tax returns and such other information as may be necessary to verify the income for each party. . . .

[(emphasis added).]

The section of the PSA dealing with child support mentions only plaintiff's income:

3.6 Child Support.

(a) The Husband shall pay child support for the two unemancipated children of the marriage in the amount of $139 per week. . . . This amount is in excess of the amount indicated by the Child Support Guidelines. . . . The Husband has recently started a business and is not yet deriving income therefrom. The child support obligation is based upon the Husband's being imputed $65,000 per year for 2005. The Wife is not presently earning an income, and therefore, the Guidelines reflect no income for the Wife.

3.7 Child Support Review. . . . The parties agree to review [child] support on April 1, 2006, and at the end of every fiscal quarter thereafter, until such time as the Husband has sustained four consecutive quarters of income stability, defined as income falling within plus or minus 15% of $65,000. Once the Husband's income has achieved this goal, the parties shall review support annually thereafter.

At each review, to the extent that Husband's income varies from $65,000 per year, the amount payable during the following period . . . will be determined as follows: The amount payable in the following period will be $139 per week, adjusted up or down by the percentage between Husband's current income and $65,000. By way of example, if Husband's income during the prior period is $80,000 per year, the child support in the following period will be increased by 23% or, to $170.97 per week. The revised child support amount will go into effect 30 days after the review date and will remain in place until 30 days after the next review date.

[(emphasis added).]

In January 2008, plaintiff moved to reduce his alimony obligation based upon changed circumstances: defendant's income increased from zero to $17,000 per year. At the time, plaintiff's income had increased to $80,000 per year. Defendant cross-moved for an increase in child support. Oddly enough, at the time of defendant's motion, plaintiff was earning the identical amount of income, $80,000 per year, that was used as a reference in Section 3.6 of the PSA. That section specifies that if plaintiff is earning $80,000 per year, his weekly child support obligation would be $170.97.

During the February 8, 2008 argument on defendant's cross-motion for an increase in child support, the parties sharply disagreed on the question of whether defendant's income was to be forever excluded in the calculation of plaintiff's child support obligation, or whether it was excluded during that first year only because she earned no income that year. In particular, plaintiff pointed to the language in Section 3.6 that provides, "the Wife is not presently earning an income, and therefore, the Guidelines reflect no income for the Wife" (emphasis added). He argued that the phrase "not presently" demonstrates the parties' intention that defendant's income be included at such time as she began to earn an income. Defendant, in turn, specifically directed the judge's attention to the language in the PSA that specified that "if Husband's income during the prior period is $80,000 per year, the child support in the following period will be . . . $170.97 per week." She also pointed to the divergent treatment of the annual review of alimony and child support in Sections 3.2 and 3.6. The former makes specific reference to "the Wife's" income, whereas the latter is silent. From this different treatment, defendant argued that the parties deliberately structured the PSA to exclude her income from the child support calculation but to include it for purposes of calculating alimony.

In a written opinion, the judge discussed this difference in the treatment of defendant's income. The judge commented, "whether this was merely an oversight, or was intentional, is controversial. Wife's counsel indicated at oral argument that it is her position that the parties intended to completely ignore her earnings for purposes of child support and intensely negotiated for same." The judge wrote that the "[h]usband's recollection of the negotiations differed and he does not believe it was anyone's intention that Wife's income was to be ignored in the future." The judge never resolved that controversey. Instead, relying on Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993), the judge held that "[w]hether it was the parties' intentions to completely ignore Wife's income in relation to child support is actually irrelevant [because] Martinetti . . . made it clear that the parental duty to support a child may not be waived or terminated by a property settlement agreement." The judge reasoned that because the right of support belongs to the child, not the custodial parent, any property settlement agreement that ignores one parent's income in the calculation of child support is void. Defendant appealed.

II.

On appeal, the findings of a Family Part judge are entitled to considerable deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 412. Moreover, "matrimonial courts possess special expertise in the field of domestic relations[;]" therefore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 412-13. But this deference is predicated on either a record with undisputed facts or the facts found by the trier of fact following a plenary hearing. Having found there was an ambiguity and faced with divergent contentions regarding the parties' intent, the motion judge was required to conduct a plenary hearing. Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968).

In particular, each party was entitled to a plenary hearing at which he or she would have the opportunity to present witnesses on the question of the parties' intent, i.e. whether the parties agree that plaintiff's child support obligation should be calculated without regard to defendant's income. We remand for that purpose. If, after such hearing, the judge determines that the parties intended the result that defendant urges, then the judge should order the amount of child support that is specified in the PSA itself, $170.97 per week. If, after the hearing, he concludes the parties intended to include defendant's income, then he shall enter an order setting plaintiff's weekly obligation at the amount set forth in the February 8, 2008 order, $122.31.

We now address the judge's conclusion that Section 3.6 of the PSA violates public policy because it can be construed as a waiver of the parental duty of support. It was upon this basis that the judge avoided a plenary hearing. We agree with the judge's observation, supported by Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003), that "the right of support belongs to the child, not the custodial parent." We agree that a parent may not--by entering into a property settlement agreement--waive a child's right to receive support form the non-custodial parent. As we held in Patetta, "[t]he public policy of this State as derived from its parens patriae interest in the welfare of children prohibits parents from bargaining away the essential rights of their sons and daughters, including the right to be properly supported." 358 N.J. Super. at 94.

That, however, is not what occurred in the PSA here. Defendant did not bargain away her children's right to receive child support. Indeed, she negotiated an agreement in which the children are entitled to receive child support based upon a floor of $65,000 per year imputed to their father, even if he earns not a dime. Moreover, the PSA specifically set plaintiff's child support obligation at a level in excess of the Guidelines amount. Consequently, we do not view the agreement defendant negotiated here as in any way implicating the concerns we addressed in Patetta. Unlike Patetta, the agreement at issue in this case does not violate the public policy of this State because it insures a steady stream of child support for these two children.

We thus conclude that the trial judge's interpretation of the PSA was based upon an erroneous application of the principles of Patetta to the facts here. That being so, the judge erred when he relied upon Patetta to essentially rewrite the terms of the PSA by recalculating plaintiff's child support obligation to include the income now earned by defendant.

We reverse the order of February 8, 2008, and remand for an evidentiary hearing to determine whether, when the parties signed the PSA, they intended to calculate plaintiff's child support obligation without regard to any income earned by defendant. If so, the judge shall enter an order requiring plaintiff to pay the $170.07 specified by Section 3.6 of the PSA. If not, the judge shall reinstate the order requiring plaintiff to pay $122.31 per week.

Reversed and remanded. We do not retain jurisdiction.

 

The order of February 8, 2008, also reduced plaintiff's alimony obligation; however, defendant does not appeal from that determination. Her claims on appeal are confined to the issue of child support.

(continued)

(continued)

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A-2992-07T3

December 2, 2008