Opinion
DOCKET NO. A-3224-12T3
06-02-2014
ALLYSON A. HENNESSY, Plaintiff-Appellant, v. BRETT A. GIAMMANCO, Defendant-Respondent.
Margolin & Neuner, attorneys for appellant (Mona F. Ressaissi, on the brief). Daniel A. Colfax, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FD-19-287-12.
Margolin & Neuner, attorneys for appellant (Mona F. Ressaissi, on the brief).
Daniel A. Colfax, attorney for respondent. PER CURIAM
Plaintiff Allyson A. Hennessy appeals from a January 29, 2013 child support order that permitted defendant Brett A. Giammanco to continue paying child support at a reduced rate to which the parties had agreed, rather than increasing it to the amount determined under the Child Support Guidelines. We affirm.
Hennessy and Giammanco lived together when their daughter was born in November 2011. They separated soon after the child's birth. On May 31, 2012, while each had a domestic violence complaint pending against the other, they agreed to dismiss those complaints and substitute voluntary civil restraints, and they also agreed to a custody and visitation arrangement and to certain financial terms of their separation. Among other terms, the agreement stated that Giammanco would retain possession of the home they had shared, that Hennessy had made an $8,000 down payment on that lease-to-buy residence, that the down payment amount would be returned to her although the parties had not reached agreement on the timing of the return, that Hennessy owned most of the furniture in the residence, and that she would have access to remove her belongings. A Family Part judge signed the parties' handwritten agreement, converting it to a consent order.
Several months later, Hennessy filed a motion to enforce the May 31, 2012 order. In court, a child support worksheet was prepared pursuant to the court rules. See R. 5:6A; Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to Rule 5:6A, 2603-21 (2014). Based on the parties' incomes and other factors, the worksheet determined that Giammanco should pay $310 per week to Hennessy as child support. However, the parties again negotiated an agreement and presented it orally to a judge. The judge prepared and issued an order dated September 25, 2012, to recite the terms of the agreement.
The September 25 order permitted a deviation from the child support calculation to $225 per week, provided, however, that Giammanco paid $3,0 00 to Hennessy on that day, paid another $3,000 when he received "his vacation check," which was estimated to arrive in about four weeks, and made four additional payments of $500 per month, thus totaling the return of the $8,000 down payment. The order also required Giammanco to give reasonable access to Hennessy and her movers to take her belongings. Regarding enforcement, the order stated: "In the event that the above conditions are not met by the defendant, upon certification of plaintiff's counsel, child support in the amount of $310.00 per week will be enforced."
In December 2012, Hennessy filed another motion to enforce, this time the terms of the September 25, 2012 order. She alleged that Giammanco had made only the first $3,000 payment and no other payments, and that he had not cooperated in giving her and her movers access to the home. She sought a judgment against Giammanco in the amount of $5,000 and imposition of $310 per week child support retroactive to May 31, 2012.
Giammanco retained an attorney and filed opposition and a cross-motion. He blamed Hennessy for failure to remove her belongings and sought credit on his monetary obligations for her failure to do so. He and his attorney represented to the court that Giammanco had deposited $4,000 with the attorney, as the portion of the $8,0 00 then due and owing, to be held in escrow pending the outcome of the motions.
The court heard argument on January 29, 2013. Hennessy's attorney argued that, because of Giammanco's defaults, the court should order the straightforward remedy stated in the September 25 order and increase child support to $310 per week. Giammanco's attorney argued that his client had set aside the amount he owed because Hennessy still had not removed her belongings, and also because he believed Hennessy was responsible for a portion of the rent payments on the residence back to May 2012.
In response, the court gave the parties specific directives to complete the move and the payments by a clear deadline. It then entered a child support enforcement order on January 29, 2013, that stated:
[F]or reasons stated on the record the plaintiff is to remove her property from theSubsequently, the court entered another order granting Hennessy reimbursement of attorney's fees for her motion to enforce. Neither that later order nor the amount of the attorney's fee award is revealed in our record.
joint home. Defendant is to cooperate. The move is to take place on or before March 16, 2013; $3,000.00 is to be transferred immediately and on or about March 16, 2013 an additional $2,000 is to be transferred from the Defendant to the Plaintiff. If monies are not transferred by March 16, 2013, and the move is not completed, child support will increase to $310.00 retroactive to May 21 [sic], 2012, otherwise it will remain at $225.00 with an arrears payment of $30.00. Counsel are able to submit certifications for counsel fees on the enforcement Motion by February 15, 2013.
Hennessy appeals, arguing that the court erred in failing to enforce the September 25, 2012 order according to its terms. She contends that voluntary agreements of the parties should be enforced and that child support of $310 per week should have been ordered from the time of the initial agreement on May 31, 2012. In addition, she argues it is a violation of public policy to deprive a child of financial support as a means of enforcing an agreement between the parents.
Our cases that pertain to the enforcement of matrimonial settlement agreements apply here although the parties were not married. "New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)); see Weishaus v. Weishaus, 180 N.J. 131, 143 (2004); Petersen v. Petersen, 85 N.J. 638, 645 (1981); Smith v. Smith, 72 N.J. 350, 360 (1977). "The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistently with their post-marital responsibilities." Konzelman, supra, 158 N.J. at 193.
Settlement agreements in family court matters are enforceable "to the extent that they are just and equitable." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)). As in other contexts involving contracts, a court must enforce such an agreement as the parties intended, so long as it is not inequitable to do so. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).
These general principles were reiterated in Sachau v. Sachau, 206 N.J. 1, 5 (2011). At the same time, the Court stated in Sachau that "'[t]he law grants particular leniency to agreements made in the domestic arena' thus allowing 'judges greater discretion when interpreting such agreements.'" Ibid. (quoting Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)). In other words, family court judges are granted some equitable leeway in interpreting and enforcing the agreements of the parties, especially when the interests of a child are involved.
In this case, the parties and the court strived on September 25, 2012, to resolve the disputes by means of specific directives to the parties to complete their separation. They crafted a settlement agreement that required Giammanco to return the $8,000 investment Hennessy had made in the parties' joint residence over approximately five months. It also required the parties to cooperate in removing her belongings from the residence.
When the move was not accomplished over the next several months, each party blamed the other for the delay. Furthermore, Giammanco claimed that Hennessy had additional responsibility for rent payments on the residence until she completed the move. While Giammanco's positions were not supported by the prior agreements or the factual record, the court did not find that he had maintained those positions in bad faith.
At the January 29, 2013 hearing, the court's objective was to take greater control over the dispute and to compel the performance of the parties' prior agreement. This time the court set a specific deadline for performance of the two main tasks of the agreement, the moving of Hennessy's belongings and the return of her deposit money. The court also pre-set the enforcement mechanism of reinstating the higher child support amount should its deadline be missed. Furthermore, as a sanction against Giammanco, the court ordered him to reimburse Hennessy for her attorney's fees because she had to file a motion again to enforce the agreement. We have been informed that the moving of Hennessy's belongings and the payments of the remaining $5,000 were in fact completed by the March 16, 2013 deadline.
Those events may very well have been delayed further and the dispute prolonged, with yet additional attorney's fees expended, had the court followed the letter of the September 25 enforcement paragraph and ordered retroactive additional child support. The court's order by itself would not have transferred money from Giammanco to Hennessy. It would instead have given Hennessy a right to seek further enforcement and collection, perhaps requiring additional litigation. The court's manner of enforcing the parties' agreement was efficient, effective, and cost-saving. It was not an abuse of the court's equitable authority.
Finally, we reject Hennessy's argument that the court violated the policy of this State regarding child support by allowing the lower amount to continue. The parties' agreement included transfer of $8,000 to Hennessy within a matter of months in exchange for her waiving the full guidelines amount of child support. Her agreement to take the lump sum payments rather than an additional $85 per week in child support was no doubt a result of her assessment of the needs and best interests of her child as well as herself. We see no basis to quarrel with that assessment.
As the Family Part judge stated in his written amplification decision filed on May 6, 2013, pursuant to Rule 2:5-1(b), "the spirit of the Consent Order [of September 25, 2012] was substantially complied with." With the court's compulsion and an award of attorney's fees to Hennessy, the requirements of the parties' agreement were completed, although a few months late. We see no legal error in the court's manner of accomplishing that result.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION