BRYAN KLEIN v. CATHERINE KLEIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1277-06T21277-06T2

BRYAN KLEIN,

Plaintiff-Appellant,

v.

CATHERINE KLEIN,

Defendant-Respondent.

______________________________

 

Argued May 30, 2007 - Decided August 10, 2007

Before Judges Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Family Division, Essex County, Docket No. FM-07-2659-04.

William Koy argued the cause for appellant.

Patrick T. Collins argued the cause for respondent (Franzblau Dratch, attorneys; Mr. Collins, on the brief).

PER CURIAM

Plaintiff appeals from a Family Part order dated September 22, 2006, which denied his post-judgment requests for relief. After our review, we reverse and remand, requiring that discovery be completed and a plenary hearing scheduled.

The parties were divorced on September 28, 2005, after a thirteen-year marriage. The dual final judgment of divorce incorporated the parties' negotiated property settlement agreement (PSA). The PSA included provisions for custody and a parenting time schedule with the parties' five-year-old child. Additionally, the PSA provided for plaintiff to pay alimony and child support.

We discuss only the details of those provisions of the orders that are the subject of appeal. Plaintiff's post-judgment application to enforce litigant's rights sought relief in the areas of parenting time and his financial obligations. First, plaintiff asked for defendant's compliance with the overnight parenting time schedule. Second, plaintiff moved to compel defendant to comply with his discovery requests, which addressed the commencement of her cohabitation. Plaintiff also submitted a request for payment of his counsel fees and costs.

Defendant's cross-motion sought, among other things, to restrain plaintiff from picking-up the child from day-care at 1 p.m. on those Fridays preceding his weekend parenting time.

As to parenting time, the PSA states:

The Wife shall be the parent of primary residence of the child. The Husband shall have parenting time with the child on the following schedule, effective immediately: On alternate weekends from 4:30 p.m. on Friday until 9:00 a.m. on Monday; on alternate Thursday nights from 4:30 p.m. on Thursday until 9:00 a.m. on Friday; and alternate Mondays for dinner, from 4:30 p.m. until 8:30 p.m. When the child turns four years old in May 2006, the Husband shall commence having child overnight on Mondays as well, from 4:30 p.m. until 9:00 a.m. the following morning.

Plaintiff expressed that he negotiated for parenting time every Monday overnight and settled all issues with defendant, understanding he had achieved this right. After the child reached four years of age, in May 2006, however, defendant refused plaintiff's requests and asserted plaintiff's parenting time was to be every other Monday overnight. Plaintiff explained that the parties could not reconcile their differing interpretations of the PSA's overnight provisions. As a result, he had been denied six Monday overnights by the time he filed his application.

Defendant stated the intention of the parenting agreement was to allow plaintiff to have parenting time every other weekend, Friday at 4:30 p.m. to Monday at 9 a.m., then have one weekday overnight. She suggests the parties agreed to extend the every other Monday dinner time to Monday overnight after the child turned four so the weekday overnights would be on Monday one week and on Thursday the next.

The motion judge denied plaintiff's request, stating:

the Court does find while an articulated drafted, [sic] there's no question it was drafted by plaintiff's attorney. [T]hat's a given. Right?

. . . .

[Defendant's Counsel]: Ms. Klein's version was the version that was used. What happened was, I did a draft. I emailed it to her. And she generated what was the final draft. [Plaintiff's counsel] produced the last draft.

[PLAINTIFF'S COUNSEL]: But on the record, Judge, both attorneys participated.

. . . .

THE COURT: The issue comes [to] whether or not it's every Monday. The preceding rights of parenting included alternate Mondays for dinner at the time that the agreement was entered into from 4:30 until 8:30. And the following paragraph says when the child becomes four years old, the husband shall commence having the child overnight on Mondays, as well.

The Court finds it does refer to his parenting that he had in the previous sentence, defining it as alternate, but extending it from 4:30 until nine o'clock the following Monday. So the Court finds that the language of that second sentence to be ambiguous enough and defines as well, referring to alternate Mondays for dinners. Therefore[,] the make[-]up times for any Mondays lost is denied.

The request presented in defendant's cross-motion to strictly enforce the PSA provision delineating plaintiff's Friday pick-up time was 4:30 p.m. She stated plaintiff, without advising her, was picking-up the child at 1 p.m. when he was able to leave work early. She maintained this disrupted the child's "valuable and positive" preschool experience. Plaintiff counters that defendant withdraws the child from preschool as she sees fit. He suggests the parent enjoying parenting time should be permitted to care for the child throughout that day, including if she becomes sick, or if able to spend some additional time when a work day ends early.

The motion judge stated the pick-up and drop-off would be at the times stated in the PSA, "except for special . . . circumstances, as opposed to special events. And I'm asking you to define it and come back [and] I'll write it in the order." At oral argument before us, we were told that no agreement was reached. The order as filed states plaintiff shall not pick-up the child prior to the time set forth in the PSA "except for special circumstances," which remains undefined.

The other issues relate to the financial obligations listed in the PSA. The parties filed a consent order on April 18, 2006, which terminated plaintiff's obligation to pay alimony to defendant as a result of her cohabitation. The effective date of termination was set as March 18, 2006. The order also reserved to plaintiff the right to conduct discovery designed to determine when the cohabitation commenced. Plaintiff explains his prior counsel failed to issue discovery requests. He engaged new counsel who transmitted interrogatories and a document request to defendant on July 5, 2006. Defendant declined to respond; she maintained the issue was closed due to plaintiff's delay in acting. The motion judge stated "rights need to be executed within a reasonable time," and found plaintiff had waited too long.

Finally, plaintiff had overpaid alimony. The April 18, 2006 consent order determined the overpayment would be applied to child support. The parties agreed that a credit was due to plaintiff, but disagreed on the amount of the credit. Further, the county probation department declined to credit plaintiff's account unless an order was presented. For reasons that are not explained, the motion judge completely denied the credit request.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

"Marital agreements are essentially consensual and voluntary, and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). A court must discern the intention of the parties from the terms as written and enforce the contract as intended. See Pacifico v. Pacifico, 190 N.J. 257, 266 (2007). Judges are granted greater discretion when interpreting agreements made in the domestic arena. Id. at 266. Additionally, when addressing issues of custody and parenting time, the "question is always what is in the best interests of the child[], no matter what the parties have agreed to." P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)); see also Kinsella v. Kinsella, 150 N.J. 276, 317 (1997).

Because almost all matrimonial matters involve factual disputes of some nature, a plenary hearing is required when the parties' submissions show there is a genuine and substantial factual dispute, see Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976); see also Lepis v. Lepis, 83 N.J. 139, 159 (1980), especially where the welfare of the children is involved. It is against these principles that we consider plaintiff's appeal.

The wording of the Monday overnight parenting time provision in the PSA was not limited, as suggested by defendant, to every other weekend. Additionally, the rules of statutory construction do not aid the resolution of this dispute as defendant contends a drafting error occurred. The Family Part judge failed to recognize that defendant, who was seeking to obtain judicial approval of what she asserted was a mistake, bears the burden of establishing the intent of the parties. As there were material facts in dispute, regarding the parties' intent, resolution could be achieved only through the trial judge's evaluation of the parties' actual intentions and credibility presented in a plenary hearing. See Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). We, therefore, reverse and remand for a plenary hearing on this issue.
With regard to plaintiff's early parenting time pick-up request, it appears unlikely any dispute would have arisen had the daycare facility not informed defendant of plaintiff's practice. There was no evidence presented regarding any negative impact of plaintiff's actions on the child. By pointing this out, we in no way sanction plaintiff's unilateral actions that abrogated his responsibilities as a joint custodial parent. There is, however, no context attached to defendant's objection, except that plaintiff had not previously sought her permission. While matrimonial disputes are highly contentions, family judges must remain steadfast to their affirmative obligation to view parenting time disagreements through a best-interest lens. On remand, this matter should also be presented and resolved taking into account the child's needs, happiness, and welfare. Tahan v. Duquette, 259 N.J. Super. 328, 336 (App. Div. 1992).

We are also satisfied that the motion judge improvidently rejected defendant's request for credit against arrearages for alimony paid to plaintiff after the agreed termination date of March 18, 2006. Neither party disputes that a credit is due plaintiff. The trial court must determine the amount of that credit.

Finally, we agree with plaintiff that the motion judge misapplied his discretion by denying plaintiff's discovery requests as untimely. "[O]ur courts constantly grapple with the problem of attempting to reconcile the strong interests in the finality of litigation and judicial economy with the equitable notion that justice should be done in every case." Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App. Div. 1985). Plaintiff and his current counsel provided detailed certifications explaining the cause of the delay in issuing discovery requests. Also, defendant demonstrated no prejudice occasioned by the passage of approximately ninety days from the date of the consent order. We determine that plaintiff has presented his requests in good faith; invocation of the ultimate sanction of dismissal was not warranted. See Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 346 (1984); Crews v. Garmoney, 141 N.J. Super. 93, 96 (App. Div. 1976). On remand, the motion judge, as necessary, may issue a discovery schedule, as well as a case management order to address any other scheduling matters so that this matter may reach final conclusion.

 
Reversed and remanded for proceedings consistent with this opinion.

(continued)

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A-1277-06T2

August 10, 2007