Is It Hard To Vacate A Consent Order In A N.J. Family Court?
Yes. First, if a judge of the Superior Court of New Jersey finds that both parties voluntarily entered into the consent order, the court shall uphold the order. Second, unless the attorneys in the case can provide new evidence that was accessible to both parties at the time that the that their client signed the consent order, then a motion to vacate the consent order will be denied by a New Jersey family court judge. In a recent New Jersey Appellate Division decision, the Court found that all financial documents that were available in the when the consent order was signed. Following is this lawyer’s take on the case.
In S.S. v. N.S., the parties married in 1995 and had two children together. The parties divorced in 2009 and incorporated a Marital Settlement Agreement (“MSA”) into their final judgment of divorce. As part of the MSA, the Husband was required to pay the Wife alimony of $12,000 per month for eight years, $8,000 per month for four years, and $3,000 per month for child support. The child support payment was calculated based off of the Husband’s average earnings as a partner in an anesthesiology practice of around $517,000 per year and the Wife’s imputed income of $35,000 per year.
The MSA also ordered the Husband to cover medical expenses for the children, and to pay two-thirds of their “extracurricular lessons, sports activities, summer camps, and SAT preparatory classes.” As part of its enforcement guidelines, the MSA also stated that the child support payments would be reviewed and recalculated every three years.
In 2014, four years after the execution of the MSA, the Husband notified the Wife that his income had significantly decreased in the last few years from over $500,000 to $98,547.99. Because of their contentious relationship and difficulty in reaching agreements about their financial obligations, the parties sought mediation to determine the Husband’s payments moving forward. A consent order was executed, which provided that the child support payment would decrease from $3,000 to $2,500, and the Wife would now be solely responsible for the children’s extracurricular activities. The consent order also clearly stated that these adjustments would not be permanent, and that the payments would continue to be reassessed every three years.
In 2017, three years after the execution of the consent order, the Wife requested mediation to reassess their financial circumstances. The Husband provided his Wife with his Schedule K-1 for 2014, 2015, and 2016. The Wife did not have an accountant evaluate the documents, but concluded from her review that the Husband’s income was $607,986 in 2014, $573,492 in 2015, and $631,196 in 2016. In response, the Husband argued that the Wife had incorrectly interpreted the financial documents.
The parties’ attempt at mediation was unsuccessful. The Wife filed a motion to vacate the consent order, arguing that in 2014 when the order was executed, the Husband had fraudulently misrepresented his income in order to pay lower child support fees. She also sought an increase in child support payments to $9,315 per month. At this point, the Wife’s annual income had increased to $96,000.
The judge denied the Wife’s motion to vacate the consent order. He stated that the Wife voluntarily entered the agreement in 2014, having access to all of the Husband’s financial records and documents and with the ability to refuse to enter the agreement if she felt that it was not fair. The Wife argued that the Husband had decreased his income through deductions, but the judge found no merit in this argument. The judge stated that the deductions were permissible, and that both parties had knowingly and voluntarily accepted the terms of the 2014 consent order, and that there was no valid reason to terminate it.
The judge also denied the Wife’s motion to increase child support, and granted the Husband’s request to decrease child support to $2,221.20. The Wife had argued that the children’s needs had increased significantly since the creation of the consent order, and that she was facing financial hardship and a monthly deficit. After careful review of the parties’ past and present earnings and financial disclosures, the judge found no evidence that the Wife was facing financial hardship. He stated that her income had significantly increased since the divorce, and that her lifestyle was comparable to the parties’ former marital lifestyle. The judge determined that the increase in child support the Wife was seeking was likely in response to the scheduled decrease in the Husband’s alimony payments that would soon decrease from $12,000 to $8,000, as determined in the original MSA. The judge stated that child support is intended to benefit the real needs of the children, not to cushion the lifestyle of the parent as a result of a decrease in alimony.
The Wife argued in her appeal that the trial judge erred in upholding the consent order, and that his factual findings were incorrect. The Appellate Division, however, affirmed the trial court in upholding the consent order. The court stated that the trial court’s factual findings were supported by substantial evidence in the record, and that any evidence did not support the Wife’s arguments.
The Wife was facing no financial hardship, and her annual income had significantly and constantly increased over the past 5 years. Because her primary motive in vacating the consent order and increasing the child support payments appeared to be a response to the scheduled decrease in her alimony payments, the Appellate Division determined that the trial court was correct in upholding the consent order.