KELLY J. FOSTER v. JOHN MICHAEL MCGEE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0483-08T20483-08T2

KELLY J. FOSTER,

Plaintiff-Respondent,

v.

JOHN MICHAEL MCGEE,

Defendant-Appellant.

_______________________________________

 

Submitted September 14, 2009 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-652-05.

D'Arrigo & D'Arrigo, P.C., attorneys for appellant (Cris D'Arrigo, of counsel and on the brief).

Salvatore Principato, Jr., attorney for respondent.

PER CURIAM

Defendant John Michael McGee appeals from an order entered by the Family Part on August 22, 2008, which requires that defendant pay plaintiff Kelly J. Foster child support in the amount of $240 per week for the parties' children, as of June 5, 2006. We affirm.

The parties were married on December 5, 1998. Three children were born of the marriage in 1999, 2001 and 2002. The marriage was dissolved by a final judgment of divorce entered by the trial court on November 30, 2004. The judgment incorporated a property settlement agreement ("PSA"), which stated in pertinent part that:

[b]ased upon the Husband's current annual gross income of approximately $50,000.00, and the Wife's current annual gross income of approximately $36,000.00, the Husband shall pay to the Wife directly child support in the sum of $289.00 per week for the three unemancipated children of the marriage, which payment shall be made to the Wife every Friday on a weekly basis. Such sum has been agreed upon by and between the parties after reviewing the current child support guidelines.

The parties agreed that the PSA represented the entire understanding between them and there were no "representations, warranties, covenants or understanding other than those expressly set forth" in the PSA. Moreover, the parties acknowledged that they entered into the agreement "voluntarily and without any threat, force, coercion and/or duress being placed upon their informed consent[.]" In addition, plaintiff acknowledged that she was represented by counsel. Defendant did not have an attorney but acknowledged that he had been advised "as to his rights to seek the services of competent, independent counsel of his own choosing."

In October 2005, plaintiff filed an application with the county probation department seeking to have defendant's child support obligation paid through a wage attachment. Plaintiff also sought enforcement of the provision of the PSA requiring defendant to pay child support in the amount of $289 per week. Defendant did not object to the wage attachment; however, he opposed enforcement of the child support obligation specified in the PSA. Defendant asserted that in December 2004, the parties had verbally agreed to reduce the weekly child support payments to $240 per week and he had been paying plaintiff that amount for more than a year. On December 21, 2005, a hearing officer granted plaintiff's motions.

Thereafter, defendant filed a motion in the trial court to enforce the parties' verbal agreement. Plaintiff filed a cross-motion to compel defendant to pay $289 per week in child support, as required by the PSA. The trial court heard the motions on January 27, 2006, and placed its decision on the record on that date. The court refused to enforce the parties' alleged verbal agreement, noting that the PSA required that any modification of the PSA be in writing and signed by the party "to be charged." The court entered an order on January 27, 2006, which stated that defendant must pay child support in the amount of $289 per week, as of the date of the order.

On June 5, 2006, defendant filed a motion seeking, among other things, a reduction in child support. In a certification submitted in support of his motion, defendant asserted for the first time that the child support amount in the PSA had been "arrived at by a misunderstanding and/or miscalculation."

Defendant maintained that the parties had not intended to deviate from the child support guidelines but erred in their use of the guidelines. He said that the resulting calculation was a mutual mistake of fact. Defendant also stated that if the guidelines had been applied correctly, he would only be required to pay child support in the amount of $198 per week.

Plaintiff opposed defendant's motion. She asserted that defendant alone had researched and calculated the child support amount of $289 per week, and she had agreed to his calculation. Plaintiff said that she relied upon defendant's representation that his calculation of the amount of child support was correct.

On August 11, 2006, the trial court rendered its decision on the motions, finding that the amount of child support in the PSA was the result of a mutual mistake by the parties. The court ordered the parties to recalculate the amount of child support in accordance with the guidelines.

Because the parties could not agree upon the calculation of child support, defendant filed a motion asking the court to determine the amount of support. The court granted the motion and entered an order on November 17, 2006, finding that defendant's child support obligation was $172 per week.

Plaintiff appealed and we reversed. Foster v. McGee, No. A-2386-06 (App. Div. Jan. 16, 2008). We held that the trial court erred by determining that "the parties agreed to be bound by the guidelines and were simply mistaken in calculating the amount of support required" without first holding a plenary hearing. Id. at 13. We noted that the parties had "offered fundamentally differing views as to whether the provision of the PSA requiring payment of child support in the amount of $289 per month was a mutual mistake." Id. at 14.

We remanded the matter to the trial court for a plenary hearing. We stated that, "[i]f the court finds that the parties intended to be bound by the guidelines but were mutually mistaken in stating the amount of support, the court must determine whether the agreement should be reformed to reflect the parties' actual agreement." Ibid. We added that "if the court finds that the parties intended to deviate from the guidelines, the court must make additional findings required by Rule 5:6A." Id. at 15.

On remand, the matter was assigned to a different judge. The court held hearings on May 20, 21, 27 and 28, 2008 and rendered a written opinion dated July 9, 2008, in which it concluded that the amount of child support in the PSA was not the result of a mutual mistake. The court found that the parties intended to follow the guidelines when they fixed the amount of child support at $289 per week.

The court concluded, however, that the calculation was erroneous but it was due to a mistake on defendant's part, not a mutual mistake by both parties. The court further found the parties subsequently intended to deviate from the guidelines when they orally agreed to reduce defendant's child support obligation to $240 per week.

The court held another hearing on August 13, 2008, to permit the parties to present additional evidence with regard to the additional findings required by Rule 5:6A. The parties chose to rely upon the evidence submitted at the earlier hearings. The court issued a supplemental opinion on August 22, 2008, in which it found that there was good cause for the deviation from the guidelines. The judge further found that the deviation was in the best interests of the children.

On August 22, 2008, the court entered an order memorializing its decisions. The order required defendant to pay child support in the amount of $240.00 per week, effective as of June 5, 2006. This appeal followed.

Defendant raises the following points for our consideration:

I. THE JUDGE ERRED IN HER DECISION REGARDING THE LEGAL APPLICATION OF MUTUAL MISTAKE UPON CHILD SUPPORT CALCULATIONS EXPRESSED IN THE PROPERTY SETTLEMENT AGREEMENT

II. THE TRIAL COURT ERRED WHEN IT PREVENTED DEFENDANT FROM PRESENTING EVIDENCE OF FRAUD OR EQUITABLE FRAUD WHILE PERMITTING THE PLAINTIFF TO ARGUE UNILATERAL MISTAKE

III. THE TRIAL COURT'S ORDER TO DEVIATE FROM THE GUIDELINES IS UNSUPPORTED BY SPECIFIC FINDINGS OF FACT CONSISTENT WITH THE REQUIREMENTS OF R. 5:6A, APPENDIX IX-A AND N.J.S.A. 2A:34-23

IV. THE COURT[']S ORDER OF AUGUST 2008 MUST BE REVERSED WHERE THE COURT SPECIFICALLY FOUND NO INTENT TO DEVIATE FROM GUIDELINES AT THE TIME OF THE PROPERTY SETTLEMENT AGREEMENT AND FINAL JUDGMENT OF DIVORCE

A. The Trial Judge Erred When She Relied upon a Subsequent Attempt to Orally Modify the [PSA] as Evidence of the Parties['] Intent to Deviate from the Guidelines

V. THE TRIAL JUDGE ERRED WHEN SHE MODIFIED THE CHILD SUPPORT AWARD CONSISTENT WITH AN ORAL MODIFICATION WHERE THE PSA PROHIBITED ORAL MODIFICATION

VI. THE TRIAL COURT FAILED TO CONSIDER THE SUBSTANTIAL CHANGED CIRCUMSTANCES WHEN ENTERING THE ORDER REGARDING CHILD SUPPORT

We are convinced from our review of the record that defendant's contentions are without merit. We accordingly affirm the trial court's August 22, 2008 order substantially for the reasons stated by the trial court in its written opinions dated July 9, 2008, and August 22, 2008. R. 2:11-3(e)(1)(A) and (E). We add the following comments.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). As a general matter, a trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, deference to the findings of fact by the Family Part is warranted because of its "special expertise in the field of domestic relations." Ibid. (citing Brennan v. Orban, Jr., 145 N.J. 282, 300-01 (1996)).

Defendant argues that the trial judge erred by finding that the amount of his child support obligation in the PSA was not the result of a mutual mistake. We disagree. The mutual mistake doctrine applies "when a 'mistake was mutual in that both parties were laboring under the same misapprehension as to [a] particular, essential fact.'" Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 608 (1989) (quoting Beachcomber Coins, Inc. v. Boskett, 166 N.J. Super. 442, 446 (App. Div. 1979)).

Here, the trial court determined that, in initially agreeing that defendant would pay child support of $289 per week, the parties had not been laboring under the same misapprehension. As the court pointed out in its opinion of July 9, 2008, at the time the initial support amount was established, the parties intended to follow the child support guidelines. The court determined, however, that the amount of support set forth in the PSA was not the result of a mutual mistake. We are satisfied that there is sufficient credible evidence in the record to support the court's conclusion.

The testimony of the parties in the remand proceedings established that, contrary to defendant's prior sworn statements, defendant had alone consulted the guidelines and erroneously calculated the amount of child support that he would be required to pay. Plaintiff testified that she accepted defendant's assertion that his calculation was correct. Based on this evidence, the trial court correctly concluded that the doctrine of mutual mistake does not apply.

The trial court also determined that after the parties entered into the PSA, defendant had proposed and plaintiff agreed to accept $240 per week in child support. The court found that when the parties made this agreement they understood that the child support amount was a deviation from the guidelines. There is sufficient credible evidence in the record to support the court's finding.

Defendant testified at the May 21, 2008 hearing that within a few months of the divorce, he realized that there was a "problem" with the amount of child support in the PSA. Defendant said that he spoke with plaintiff and told her that he believed a mistake had been made when the child support was "figured out[.]" Defendant also told plaintiff that the amount of support should be "around" $230 per week and he asked whether they could "round it off to an even $240 [per week]." According to defendant, plaintiff "said okay." Defendant paid plaintiff child support in that amount for approximately a year.

Because the parties agreed to deviate from the guidelines, the trial court was required to make the additional findings required by Rule 5:6A. The rule provides in pertinent part that a court may not approve a deviation from the guidelines unless

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.

[Ibid.]

In addition, paragraph 21 of Appendix IX-A to Rule 5:6A states that "the decision to deviate from the guidelines shall be based on the best interests of the child." Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX to R. 5:6A at 2335 (2009).

Here, the trial court noted that both parties claimed that they made various concessions with regard to equitable distribution at the time they made their initial agreement regarding child support. The court found that, while these concessions may have had some relevancy to the parties' agreement fixing the initial child support amount, the concessions had no bearing upon whether there was good cause for the subsequent agreement to depart from the guidelines. The court determined that neither party had established good cause or the absence of good cause for the agreed-upon deviation.

The court also determined that the parties' agreement to $240 per week in child support had continued for about a year, without objection by either party. The court stated that it could not find that "defendant would have offered that amount or that the plaintiff would have accepted that amount, particularly for that length of time, if it were not economically feasible for both to do so."

The court added that "the deviation was undertaken by both parties with full knowledge of the terms of the previously negotiated PSA and the parties' respective financial situation." In our view, there is sufficient credible evidence in the record to support the court's finding that "good cause exists" for the deviation from the guidelines.

The record also supports the trial court's conclusion that the deviation is in the best interests of the children. Defendant had argued that, because he had to pay more than the guidelines require, he had to "settle" for a less expensive home which adversely affected his parenting time with the children, particularly overnight visits. However, as the trial court pointed out in its August 22, 2008 opinion, defendant did not present any credible evidence to support these assertions. Thus, the record fully supports the court's finding that the deviation from the guidelines is in the children's best interests.

Defendant argues, however, that the trial court erred by refusing to permit him to raise issues of fraud or equitable fraud in the remand proceedings. Defendant contends that, although plaintiff asserted that she relied upon his child support calculation when they entered into the PSA, plaintiff's attorney had written her a letter dated September 7, 2004, in which he stated that $235 was "a 'rough' estimate" of defendant's child support obligation. Defendant maintains that the letter shows that plaintiff was attempting "to knowingly capitalize" upon his erroneous calculation of support.

Again, we disagree. In the remand proceedings, the trial court refused to permit defendant to assert an independent fraud claim because it was outside the scope of our remand order. Nevertheless, the court permitted defendant to present all evidence relevant to the application of the doctrine of mutual mistake, including the September 7, 2004 letter to plaintiff from her attorney. Furthermore, the attorney's letter does not establish that plaintiff knew that defendant's initial child support calculation was erroneous. The attorney only provided what he said was a "'rough' estimate" of the child support amount. Plaintiff testified that, when defendant told her that the amount was $289 per week, she believed it to be accurate.

Defendant additionally argues that the trial court erred by relying upon the parties' verbal agreement to modify the PSA. We are not persuaded by this argument. The PSA does, in fact, state that a modification of the agreement shall not be valid unless it is in writing and signed by the party "to be charged." However, a provision of a contract can be modified orally or by conduct even if the agreement requires that all modifications be in writing. McGrath v. Poppleton, 550 F. Supp. 2d 564, 571 (D.N.J. 2008). Here, the record shows that defendant initiated and secured plaintiff's verbal agreement to reduce the amount of child support stated in the PSA. In light of that evidence, defendant should not be heard to complain that the verbal modification to the PSA was not in writing.

Defendant further contends that the court erred by failing to consider changed circumstances when it ordered that child support be re-calculated at $240 per week as of June 5, 2006, which was the date when defendant filed his motion for a reduction of child support. Defendant argues that the court failed to take into account the modification of parenting time that the court ordered in September 2006. This argument was not, however, raised in the trial court and we decline to consider it as part of this appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

 

Plaintiff was known as Kelly Jean McGee during her marriage to defendant.

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A-0483-08T2

September 28, 2009