JOSEPH F. CACICI v. JUDITH A. GALLAGHER CACICI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4890-07T14890-07T1

JOSEPH F. CACICI,

Plaintiff-Respondent,

v.

JUDITH A. GALLAGHER CACICI,

n/k/a JUDITH A. GALLAGHER,

Defendant-Appellant.

_______________________________

 

Submitted January 30, 2009 - Decided

Before Judges Baxter and King.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-832-97.

Judith A. Gallagher Cacici, appellant pro se.

Paula L. Crane, attorney for respondent.

PER CURIAM

This is an appeal of a May 30, 2008 post-judgment matrimonial order that denied defendant Judith Gallagher's request for two alternating weekends of visitation per month with her daughter, C. Cacici. Defendant has had an ongoing battle with a major illness since the spring of 2006. Plaintiff Joseph Cacici, is C.'s father, and has served as her primary residential custodian since February 15, 2007.

Defendant also specifically appeals from: (1) paragraph nine of the order that denied her request to take C. on a vacation scheduled for the end of June through July 2008; and (2) paragraph eight of the order that enforced provisions of the parties' Property Settlement Agreement (PSA) as they relate to the sale of the former marital home and plaintiff's one-half interest in said home.

I

The parties married on February 28, 1993. Prior to the marriage, defendant had a daughter, Ashley, from a previous relationship. The parties' daughter C. was born on August 26, 1993. The parties divorced on April 14, 1997.

The parties entered into a PSA that was incorporated into their divorce judgment. The parties agreed to joint legal custody of C., and designated defendant as her primary residential parent. The PSA also obligated the parties to "cooperate in insuring that each parent shall have as much time with [C.] as possible," and to seek to foster, encourage and refrain from alienating C.'s affection for each parent. The PSA also established plaintiff's visitation schedule, giving him parenting time on alternate weekends, holidays, Father's Day, and alternate school vacations and holidays, and provided that plaintiff's time was to increase as C. matured. The agreement also provided that the parties would make joint educational, recreational, medical and psychotherapeutic decisions, except in the case of an emergency.

As to the parties' former marital home, located in Norwood, Bergen County, the PSA, among other things, provided the following: (1) defendant would remain the sole title owner, but could not encumber the property with any "liens, mortgages, etc."; (2) plaintiff would pay off the existing mortgage and "concurrently have a first mortgage lien on the property in an amount equal to fifty (50%) of its value," with plaintiff's mortgage taking the form of a non-interest bearing balloon mortgage with an amortization date of December 31, 2011; (3) defendant had the ability to sell the home, at the best price available, at any time during the currency of plaintiff's mortgage, with the parties sharing the net proceeds equally, subject to defendant receiving a minimum of $225,000, at which time the mortgage would be extinguished; (4) defendant was given an option to purchase the house and plaintiff's mortgage if the house was still unsold 120 days prior to December 31, 2011.

The record shows that defendant, C., and defendant's daughter, Ashley, continued to live in the Norwood home. C. lived there until February 15, 2007, when plaintiff was given temporary residential custody due to C.'s difficulties in dealing with her mother's illness. Plaintiff resides in Old Bridge. The parties' homes are about one and one-half hours apart by car.

For a period of time after the divorce, the parties had a relatively amicable relationship. Plaintiff certified that after the divorce plaintiff and defendant were flexible in sharing parenting time with C. The record shows that in 2001, the parties agreed C. would spend two months of every summer with plaintiff.

In April 2006, defendant was diagnosed with stage-four cancer, and underwent extensive surgery. Defendant began aggressive chemotherapy treatment, starting in October 2006 and lasting through January 29, 2007. In her certification, defendant explained the harmful effects of the treatment, which made her "sick as a dog," caused her to lose her hair, caused her weight to drop to ninety-eight pounds, and left her in excruciating pain. At this time, defendant required full-time care. Defendant also explained that her illness caused her to become "very emotional . . . ."

Defendant explained that her illness and the chemotherapy had significant repercussions for C. who, at thirteen years of age, had a very difficult time dealing with the situation. Defendant's other daughter, Ashley, explained that C. was "crying everyday to the counselor and fighting with her friends . . . ." In a May 2, 2008 letter to plaintiff's counsel, defendant detailed C.'s situation as follows: she cried every day to her school counselor, she could not concentrate on her school work, therapy was recommended, her personality began to change, her sadness became anger, and, according to defendant, she "had a melt down." Correspondence from Judy Shedletsky, C.'s guidance counselor, dated May 19, 2008, confirms that "[b]ecause of [defendant's] illness, and [C.]'s clear emotional distress and poor academic performance," the counselor "strongly urged her parents to seek counseling and testing for her."

Plaintiff, on May 16, 2008, certified that when C. returned to defendant's home after the summer of 2006, arguments between she and defendant increased in frequency and severity, with defendant constantly yelling and picking fights. Plaintiff, in the same certification, contended that defendant "according to [C.], flung [C.] across the room on more than one occasion and also hit her." This assertion is disputed by defendant and her daughter, Ashley. Plaintiff further certified that he was contacted many times by C.'s eighth-grade guidance counselor, who shared how unhappy C. was with her home life.

Therapy was recommended by an unnamed party. Plaintiff resisted therapy sessions in Norwood, but was willing to schedule sessions in Old Bridge. Defendant asserted that she and Ashley attended therapy until they realized that C. would not be attending.

On February 15, 2007 plaintiff temporarily received residential custody of C. due to defendant's illness. Defendant's daughter, Ashley, explained that defendant "let her go live with [plaintiff] because she was so sick from the cancer and the chemo, that she couldn't take care of herself." Plaintiff certified the parties had previously discussed such a move, but that defendant always resisted until one evening in February 2007, when she called him to say that if he wanted C. he had to take her at that moment. Plaintiff tried to convince defendant to wait until the end of the school year, but defendant refused, wanting C. out of her house immediately. Within the week, C. was living with defendant in Old Bridge. Plaintiff certified that C. suffered from this traumatic experience, but made the best of it, "had very good grades in ninth grade," and was developing a group of friends in her new environment in Old Bridge.

On or about May 7, 2008 defendant, pro se, filed an order to show cause with supporting certification and exhibits, in which she sought to exercise visitation with C. on alternate weekends. Defendant alleged that plaintiff had violated the custody time-sharing provisions of the parties' PSA, was alienating C. from defendant, was not allowing C. to attend a vacation defendant had scheduled, and had unilaterally subjected C. to medical procedures.

Defendant certified plaintiff was responsible for unilaterally having a medical procedure performed on C. on February 25, 2008 that "messed her eye." Defendant further certified that plaintiff alienated C. from defendant during defendant's illness and while she was recovering from her February 2008 heart attack, and that plaintiff prevented defendant from exercising her parenting time, even though he drove past her house every weekend. Defendant also attributed the heart attack she suffered to stress caused by plaintiff and his current wife. Much of the documentation that appears to have been attached to defendant's order to show cause disparages and insults both plaintiff and his current wife.

On May 8, 2008 Judge Torack denied defendant's order to show cause, finding "no credible threat that substantial, immediate, and irreparable harm [would] occur if the injunction [did] not issue." The judge also converted defendant's application to a motion returnable May 30, 2008 and granted defendant two consecutive weekends of temporary overnight visitation pending the return date.

On May 16, 2008 plaintiff filed a cross-motion with supporting certification and exhibits, requesting that the court: (1) deny defendant's requested relief; (2) modify the PSA to provide that plaintiff shall continue to have primary residential custody of C.; (3) modify the PSA to give defendant at least one weekend per month of parenting time, with flexibility based on C.'s academic, athletic and social activities; (4) alter the PSA to provide that, aside from incidental visitation expenses, plaintiff would no longer pay child support to defendant (defendant consented to this request regarding child support); (5) restrain defendant from encumbering the former marital home by lease; (6) execute a deed to herself with a copy of the PSA and execute a non-interest bearing balloon mortgage with an amortization date of December 21, 2011 to plaintiff reflecting plaintiff's one-half interest in the house's value; and (7) compel defendant to share all information and documentation regarding all offers to purchase the former marital home.

In his certification, plaintiff asserted that, prior to the immediate matter, the parties encountered no serious issues pertaining to C. Much of plaintiff's certification explains his version of the facts involving C.'s relationship with defendant, and the process through which plaintiff obtained residential custody of C. Plaintiff also certified that after C. moved into his home, she first visited defendant once a month. However, as time continued, the mother-daughter relationship deteriorated, and C. decided that she no longer wanted to visit with defendant. Plaintiff certified C. was already scheduled to spend Mother's Day 2008 with defendant, and certified that C. "insisted . . . she did not want to be forced to see [defendant] in a pre-scheduled type of arrangement."

Plaintiff also certified that he initiated therapy for C. in August-September 2007, first with Dr. Adamyourka and then with Dr. Sillup, who C. was still seeing as of May 18, 2008. Additionally, both plaintiff and his current wife were meeting with Dr. Sillup, and plaintiff recognized that, in addition to defendant's illness, part of the perceived problem was that C. was a teenager who wanted to spend time with her friends. As a result, plaintiff claimed that he and C. spent much less time with one another than they did when she was younger.

Plaintiff was not opposed to defendant's proposed additional parenting time with C., explaining his perspective on the situation as follows:

Once the former marital home is sold ([defendant's] plan is to sell the house now, as soon as possible, and move to the Old Bridge area), my former wife will be able to spend time with [C.] on a more frequent and less forced schedule. I have assured her countless times of my desire to see this happen. My concern is that [C.]'s academic, athletic and social activities need to be taken into consideration. [C.] has had significant and abrupt changes to her life, which is stressful enough as an adolescent. . . . [W]hen [C.] mentioned to [defendant] that she would be missing a birthday party/sleepover at the house of a friend . . . due to the court ordered visitation last weekend, [defendant] refused to be flexible and discuss a compromise.

Furthermore, plaintiff agreed to defendant's request that she exercise parenting time with C. on Father's Day 2008, explaining that "[t]he situation cries out for flexibility . . . ."

Plaintiff's certification ultimately requested that the court, "[g]iven the history of this matter and with [C.]'s best interest in mind, . . . enter an Order providing [defendant] with parenting time with [C.] no less than one weekend per month, which [plaintiff would] insist upon whether [C.] likes or not." Plaintiff requested that defendant be responsible for picking C. up in Old Bridge, and plaintiff would then be responsible for picking her up in Norwood. Plaintiff also certified that he was amenable to defendant's request to take C. on a vacation with herself and Ashley in the summer of 2008, as long as there was no conflict with C.'s academic, athletic and social activities.

Regarding the allegations of subjecting C. to unilateral medical procedures, plaintiff certified he was unaware that he had to advise defendant before C. underwent a minor office procedure. Once he was advised of the ramifications of joint legal custody, plaintiff understood that he had to share the information with defendant, and advised C.'s physicians to provide defendant with copies of C.'s medical information.

Plaintiff certified that defendant had recently discussed selling the former marital home and moving to Monmouth County to be closer to C. and reiterated that pursuant to the PSA, it was agreed that defendant, C., and Ashley would have the right to remain in the Norwood home until December 31, 2011. Plaintiff also certified he had paid off the Norwood home's existing mortgage and, pursuant to the PSA, held a first mortgage lien on the house in an amount equal to fifty percent of its value that was to be satisfied by December 31, 2011.

Plaintiff certified that in April of 2008, he saw a "for sale" sign outside the house. When he questioned defendant, she stated that she had a potential buyer who wanted to rent with an option to buy. Defendant then refused to provide plaintiff with information about the proposed lessee, and, after being reminded by plaintiff of the provisions in the PSA that prevented her from leasing the house, still stated she intended to enter into the lease.

Because defendant provided plaintiff only with the potential lessee-buyer's first name, Elizabeth, plaintiff feared that defendant would try to enter into some type of contractual agreement that would jeopardize the sale of the marital home and plaintiff's fifty-percent interest in it. Therefore, plaintiff requested that the court enforce the provisions of the PSA. Plaintiff also requested the court to require defendant to keep him updated with information regarding the sale of the house, and permit him to have contact with prospective purchasers and brokers.

Defendant filed an answer to plaintiff's cross-motion with supporting certification and exhibits. In her answer, defendant requested: (1) that the court appoint a psychologist with experience in treating children whose parents have incurable diseases; (2) that the court require evaluations of plaintiff and his wife; (3) to modify the PSA to provide for shared residential custody; (4) that the court obligate plaintiff to drop C. off and pick C. up from defendant's house for visitation, or, alternatively, to allow C. to use a train; and (5) that the court deny all of plaintiff's requests for relief regarding the former marital house.

Defendant's reply to plaintiff's certification asserted that plaintiff perjured himself in his certification, and labeled plaintiff a controlling, manipulative, and calculating liar. Defendant certified that plaintiff falsified legal documents, alienated C. from defendant in a time of crisis, and violated every custody and parenting time order.

Much of defendant's reply certification repeats the allegations set forth in her initial order to show cause and supporting certification and exhibits. Defendant certified that plaintiff refused to drop C. off and pick her up from defendant's house, and that plaintiff manipulated defendant and C. by telling defendant to stop making disparaging comments about himself and his wife. She further certified that plaintiff violated the PSA by sending C. to his mother's house on defendant's birthday after defendant and plaintiff's current wife had a telephone argument.

Defendant also certified that C. told her, in December of 2007 and January of 2008, of her desire to move back to the Norwood house after summer camp. Finally, defendant certified that plaintiff understood the ramifications of joint custody, but still sent C. to three or four different doctors without defendant's knowledge.

On May 30, 2008 the parties appeared before Judge Torack to argue these cross-applications. The judge framed defendant's motion as an application seeking to enforce parenting time provisions, a custody evaluation, reinstatement of medical insurance, and to enforce the terms of the divorce judgment. Defendant argued that C. became distraught and had a poor reaction after plaintiff became C.'s primary residential parent. Defendant asserted that there were only about seven visits since C. moved in with plaintiff, and that her relationship with C. had deteriorated because C. mimicked and repeated plaintiff's perceptions of defendant. Defendant also stated that plaintiff's new marriage was part of the problem, and asserted that C. had asked her not to sell the house because she wanted to move back.

Plaintiff then repeated the facts pertaining to C.'s fractured relationship with defendant and the circumstances in which plaintiff was granted primary residential custody. Plaintiff reiterated that C. had adjusted to life in Old Bridge, was scheduled to serve as a counselor-in-training at a camp in Matawan for the weekdays of the upcoming summer, and was enrolled in weekly counseling sessions. Plaintiff asserted that C. enjoyed spending time with her friends, and, considering her harsh interactions with defendant, had no desire to be subjected to a visitation schedule. Plaintiff explained that C. "need[ed] time to be a kid" and settle into her life in Old Bridge, reiterating that visitation should be set at one weekend a month only until defendant could move to the Old Bridge area, at which time visitation could be reviewed. Plaintiff also stated that defendant was free to make arrangements to visit with C. by traveling to Old Bridge any time she would like.

Judge Torack ruled that plaintiff's application for primary residential custody would be granted because C. already had been living with him for over a year. The judge then ruled there was no basis to order a custody evaluation, and found no prima facie showing of any substantial change in circumstances that would warrant a plenary hearing on the change of custody. After some discussion regarding parenting time, the judge also ruled that defendant would have parenting time with C. on the second weekend of each month until such time as defendant moved closer to C.'s home in Old Bridge. Later, the parties established a pick-up time between 4 and 6 p.m. on visitation Fridays and a drop-off time at 3 p.m. on visitation Sundays, both at a department store in Paramus.

Addressing counseling, the judge ruled that "both parents and the child will participate in counseling for the purpose of bringing about reunification between mother and daughter." The judge clarified that if defendant participates in counseling, then "the counselor may recommend . . . in August or September [to change visitation] to twice a month." At this point, the judge explained that "the reports in the file seem to indicate there is a strained relationship between mother and daughter." The judge also stated that the goal was to "increase the parenting time."

Judge Torack also vacated the portion of the PSA obligating plaintiff to pay defendant $1500 a month in child support and denied defendant's now moot request to compel C. to participate in the cruise scheduled from June 21 through July 3, 2008, ruling that reunification between defendant and C. shall be done "gradually," and that there could be a vacation in August if recommended by the family therapist. Prior to this ruling, plaintiff explained that the vacation would conflict with the first two weeks of C.'s counselor-in-training experience.

Regarding defendant's allegation that plaintiff's mother subjected C. to medical procedures without plaintiff's authorization, the judge explained that plaintiff was C.'s new primary residential caretaker, and reiterated that as joint custodians the parties must communicate, clarifying that the parties should consult with one another in addressing C.'s health, education and welfare. The judge also ruled that plaintiff may designate his mother to take C. to a doctor in order to avoid canceling the appointment.

The defendant then told the judge that she wanted to sell the former marital home. Judge Torack ruled that defendant had until June 30, 2008 to sell the house privately; if the house was not sold by that time and the parties could not agree upon a multiple listing broker in the Norwood area, then the property would be listed for sale through the closest Weichert office by July 15, 2008. The judge clarified that the listing price was to be dictated by the broker and reduced if necessary per the broker's recommendation. The judge also ruled that defendant was restrained from leasing the property, and, to protect plaintiff's interest, ordered defendant to execute a deed to herself with a copy of the divorce judgment attached. The judge memorialized these oral decisions in a May 30, 2008 order.

II

On appeal, defendant argues:

I. THE TRIAL COURT MADE DECISIONS WITHOUT ANY EVIDENCE FROM THE RESPONDENT OR HIS ATTORNEY PAULA CRANE. THE APPELLANT HAS HAD ALL DOCUMENTATION TO SUPPORT ALL OF HER STATEMENTS FROM THE SCHOOL, THE AGENCY, MY OLDEST DAUGHTER.

Defendant also asserted in her table of contents that, immediately prior to the May 30, 2008 hearing, Judge Torack and plaintiff's counsel had a half-hour ex parte proceeding where they "directed the entire case."

While considering this appeal, this court's review of the facts is a limited one. Generally, this court will not disturb the factual findings of the trial court. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Those findings will be upheld when they are supported by adequate, substantial and credible evidence. G.L., supra, 191 N.J. at 605.

The findings will be set aside only if they are so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (citation omitted). However, this court owes no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts . . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

III

Defendant asserts that she "didn't have a chance when [she] saw Paula Crane come out of the Judge's chambers after being in there for half an hour before the hearing to discuss the case." Defendant argues that the judge's denial of the vacation she proposed for herself and her daughters, scheduled for June of 2008, proves there was an unethical ex parte proceeding before the court, because defendant claims that she failed to advise the court of the vacation in her motion papers. Defendant also argues that the "trial court made decisions without any evidence from the respondent or his attorney Paula Crane."

Contrary to defendant's assertions, a review of her motion papers shows that her initial order to show cause, filed on or about May 9, 2008, clearly raised the vacation issue. Similarly, a review of the transcript also shows that, at the hearing, defendant was the individual who raised the vacation issue. In addition, although not present in the record, plaintiff asserts that the June 12, 2008 letter brief to this court confirms that plaintiff's attorney did not speak with Judge Torack prior to the May 30, 2008 hearing, and offered to submit a formal certification confirming as such if requested by this court.

We conclude defendant's allegation that there was an ex parte meeting between plaintiff's counsel and Judge Torack about the case is without merit in the record. We conclude that the decision the judge reached here is sensible and beyond reproach.

Aside from the above assertions, defendant's brief fails to specify the particular provisions of the order that defendant is appealing. However, in her June 4, 2008 notice of appeal, defendant requested relief from paragraph two (visitation), nine (summer vacation), and eight (sale of the house) of the May 30, 2008 order. Therefore, we will address those three specific paragraphs and any paragraphs related to those provisions and will then address the remaining provisions of the May 30, 2008 order.

IV

Paragraph one of the May 30, 2008 order modified the parties' PSA to provide that plaintiff shall have primary residential custody of C.. This was the situation in fact, because C. had already been living with plaintiff for over a year before the entry of the order. However, at the trial level, defendant requested: (1) that the parties have shared residential custody of C.; and (2) that the court require an evaluation of plaintiff and his wife. In addition, defendant, on the one hand, admitted that she wanted and was trying to sell the Norwood house, while, on the other hand, alleged that C. wanted to move back into the Norwood house in a shared residential and custodial relationship with defendant.

The judge resolved these issues by ruling that there was no basis to order a custody evaluation, and concluded there was no prima facie showing of any substantial change in circumstances that would warrant a plenary hearing on a change in residential custody. This conclusion stemmed from the judge's finding that "there is a strained relationship between mother and daughter." We owe deference to that finding as it is supported by substantial, credible evidence. We affirm the judge's conclusion that plaintiff is C.'s primary residential custodian.

In addition to the undisputed and well-detailed "melt down" that C. suffered in 2006 and 2007 while living with defendant, plaintiff's certification and arguments at the May 30, 2008 motion hearing explained that, since C.'s move, interactions between C. and defendant often have led to arguments, and that C. neither wanted to visit defendant in Norwood nor wanted a firm visitation schedule while her mother continued to reside there. There is substantial and credible evidence in the record which supports the judge's finding in this regard.

As to the need for a plenary hearing, a party seeking to modify custody must show that "due to a substantial change in circumstances from the time that the current custody arrangement was established, the best interests of the child would be better served by a transfer in custody." Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000). In determining whether a party has met her burden, the primary consideration of the court is the best interests of the child. Ibid. Moreover, "the decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.]" Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001).

When a party seeks to modify custody, "[a] plenary hearing is required [if] the [parties'] submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Similarly, Rule 5:8-6, addressing trial of custody issues, provides that a court shall set a hearing on the issue of custody when it "finds that the custody of the children is a genuine and substantial issue . . . ." As noted in Hand, "in many cases . . . where the need for a plenary hearing is not so obvious, the threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary." 391 N.J. Super. at 106.

Here, we conclude that Judge Torack acted within his sound discretion in finding no change in circumstance that would warrant a change in custody or a plenary hearing, especially when we consider the circumstances surrounding plaintiff becoming the parent of primary residence, the judge's finding that defendant and C. still had a strained relationship, the distance between defendant's and plaintiff's homes, and the fact that defendant was seeking to sell the Norwood house. With these considerations, we find that Judge Torack acted well within his discretion when he concluded: (1) there was no change in circumstances that would warrant shared residential custody; and (2) that defendant had failed to make a prima facie showing that a plenary hearing was necessary. Judge Torack's ruling in that regard is affirmed.

In addition, because the judge acted well within his discretion in declaring plaintiff the parent of primary residence, the paragraph of the order, which vacated plaintiff's child support obligations to defendant, is also affirmed, especially since defendant consented.

Paragraph two of the May 30, 2008 order modified the parties' PSA to provide that defendant and C. would have one weekend per month of visitation, until defendant moves her residence closer to Old Bridge. The judge also ordered that "[b]oth parties [would] participate with Dr. Sillup in counseling with [C.] for the purpose of bringing about reunification between mother and daughter." In light of defendant's illness, and the severely strained relationship between mother and daughter, such counseling should be pursued quickly and intensively. Because defendant failed to show a change in circumstances, paragraph two of the May 30, 2008 order was not an abuse of discretion.

A party seeking to modify a judgment that incorporates "a PSA regarding . . . visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003). For the reasons we have set forth, Judge Torack was correct in finding no change in circumstances since February of 2007 as to parenting time. The dual purposes of ordering defendant, plaintiff and C. into counseling with Dr. Sillup was to bring about reunification between defendant and C. and to increase defendant's parenting time. In addition, defendant requested only alternate visitation weekends, and never sought mid-week visitation before the Family Part. We affirm the order as to parenting time.

Paragraph nine of the order is moot because the vacation that was denied was scheduled for June 21 through July 3, 2008. That time has passed. As such, the case is moot because "the issue which was the subject of the initial litigation has been resolved, at least as it relates to the original parties who were responsible for initiating the litigation." Fiderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 160 (App. Div. 2007).

Considering the strained relationship, C.'s plan to serve as a counselor-in-training during the time period of the proposed vacation, the difficult time C. had adjusting to her new environment in Old Bridge, and the judge's statement that there could be a vacation in August if recommended by Dr. Sillup, we do not find that Judge Torack abused his discretion in entering paragraph nine of the May 30, 2008 order.

Paragraphs four through eight of the order were entered pursuant to the provisions of the parties' PSA, as it relates to the parties' interest in the former marital home, located in Norwood, and the restraints on defendant's ability to lease the home. We conclude that Judge Torack fairly interpreted the relevant provisions of the PSA in light of the developments regarding defendant's attempt to lease or sell the home. We affirm paragraphs four through eight of the order.

Courts of this State have long recognized the contractual nature of matrimonial agreements. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). Although judges have greater discretion in interpreting such agreements, they should still seek to enforce the agreements as the parties commonly intended. Id. at 266. Therefore, it is the court's role "to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the [parties'] 'expressed general purpose.'" Ibid. These agreements are accorded "prominence and weight," Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (citing Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999)), and will be reformed if the agreement is "plagued by 'unconscionability, fraud, or overreaching in the negotiations of the settlement.'" Id. at 143-44.

In this case, Judge Torack reasonably interpreted the provisions of the parties' PSA as it relates to the former marital house and the parties common intentions. First, defendant was attempting to sell the property without recording plaintiff's interest and without giving plaintiff any information. Second, both plaintiff and defendant consented to the proposed sale of the house. By deciding to move, defendant waived her ability to stay in the house until 2011, pursuant to the PSA.

In addition, defendant was concerned because she may have had a difficult time selling the house quickly. For that reason, defendant wanted to encumber the house with a lease that included an option to buy. However, the PSA did not permit defendant to enter into a lease. Judge Torack ordered that defendant could not enter into a lease, gave defendant a month to privately sell the house, and further ordered that if the house was not sold by that time, it would be multiple-listed by July 15, 2008 with the nearest Weichert broker. Pursuant to plaintiff's one-half interest in the house, as set forth in the PSA, the judge also required that both plaintiff and defendant sign the contract of sale, and obligated defendant to provide plaintiff with all relevant information relating to a potential sale.

This was a reasonable interpretation of the PSA, giving its provisions prominence and weight, id. at 143, while also applying a rational meaning. Pacifico, supra, 190 N.J. at 265. For these reasons, we affirm paragraphs four through eight of the May 30, 2008 order.

In conclusion, we add that the May 30, 2008 order must be modified in one respect. We modify the order to provide that if defendant relocates within reasonably close proximity of plaintiff and C., defendant may move for increased visitation without having to demonstrate any change of circumstances other than her move further south. This increase, if allowed, would help to re-establish a better relationship with the daughter. Such a motion should be generously entertained by the motion judge with this goal in mind.

Affirmed, as modified.

 

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A-4890-07T1

February 25, 2009