DAVID S. SCHEIBE v. BECKY McNULTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4060-08T14060-08T1

DAVID S. SCHEIBE,

Plaintiff-Appellant/

Cross-Respondent,

v.

BECKY McNULTY (f/k/a Scheibe),

Defendant-Respondent/

Cross-Appellant.

_________________________________

 

Argued: March 17, 2010 - Decided:

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Family Part, Burlington County, Docket No. FM-03-430-05.

Lee M. Hymerling argued the cause for appellant/cross-respondent (Archer & Greiner, attorneys; Mr. Hymerling, on the brief).

Sarah N. Martine argued the cause for respondent/cross-appellant (Adinolfi & Goldstein, attorneys; Ms. Martine, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff David Scheibe (father) appeals from the April 3, 2009 order of the Family Part, arguing the court overstepped its bounds and misinterpreted the amount of parenting time he should be afforded under the parties' Property Settlement Agreement (PSA) and inappropriately denied him reconsideration. Defendant Becky McNulty (mother) cross-appeals the court's denial of her counsel fee applications in the January 9 and April 3, 2009 orders. We affirm on both the appeal and cross-appeal.

The parties were married on June 22, 1991. They have three children who are currently ages fifteen and one-half, fourteen and one-half, and eleven. On August 5, 2004, the parties entered into a PSA in which they agreed to share joint legal custody and engage in shared parenting, designating mother as the parent of primary residence and father as the parent of alternate residence. The specific terms of their parenting time were set forth, in pertinent part, as follows:

Husband shall enjoy reasonable and liberal parenting time with the minor children born of the marriage. Husband shall have parenting time with the children of approximately 104 overnights per year. During the school year, that parenting time shall consist of alternate weekends beginning on Friday at 6:00 p.m. with Husband taking the children to school on Monday morning if school is in session or by returning the children to Wife's home at 8:00 a.m. Also during the school year, Husband shall have mid-week, non-overnight parenting time twice each week, the designation of which days shall be arranged by the parties taking into account the children's activities and the parties' schedules. Additionally, the parties shall share the children's school vacations during the school year on an equal basis with a division being resolved annually by the parties prior to the commencement of each school year. During the summer, Husband shall also have parenting time on two mid-week overnights per week. Additionally, during the summer, each party shall be permitted up to fourteen nights of vacation parenting time. . . . The parties reserve to later discussions how they shall share parenting time for holidays. . . . In the event that the parties are unable to agree on how they shall share parenting time for holidays . . . they now hereby agree that their sharing of parenting time for holidays . . . shall be consistent with the Burlington County holiday schedule, a copy of which is attached hereto as Exhibit "A" or such other schedule as the parties might, in writing, agree. The parties agree to be flexible with regard to this schedule.

The above parenting schedules are designed to act as guidelines. The parties are free to modify the parenting times, so long as it is done with mutual consultation and consent.

The PSA also included a one page holiday, special occasion and vacation schedule providing, for example, that mother was entitled to a seven-day "February unofficial school break" which was "[o]pen to father if mother uses time in January instead" and father was entitled to Easter Day, "[a]vailable to mother by request and agreement," and to Spring Break. Mother certified that the parties followed this schedule since their separation in 2003. The PSA was incorporated into a final judgment of divorce that was entered on December 16, 2004. Both parties have since remarried.

In July 2007, father filed a motion to enforce the PSA by allowing him, in part, to have overnight parenting time on Monday nights. He certified as follows:

5. Although the PSA sets forth a general schedule, it does not include a regular schedule allowing me to exercise 104 annual overnights without Mrs. McNulty being willing to frequently allow me to exercise additional parenting time. If the PSA were to be followed literally, the children and I are only permitted approximately 94 overnights each year. Therefore, Mrs. McNulty and I agreed outside of the PSA to discuss and agree upon adding regular parenting time days to the basic PSA schedule. We agreed to act cooperatively and be flexible.

He requested the court to "enforce our Property Settlement Agreement by ordering a schedule allowing me to exercise at least 104 scheduled overnights per year by modifying the current regular parenting time schedule to accomplish this goal" and modify the future exercise of summer vacation parenting time. Father also sought for the court to order that the Burlington County holiday schedule, which the parties had established as a default schedule, supersede the parties' holiday schedule. He claimed the parties' schedule was becoming problematic based upon its lack of specificity, and mother's ability to take the children out of school for an extra week for an unofficial school break in February was becoming at odds with the children's academic best interests.

In response, mother certified that father actually had the children for 108 overnights per year and supplied a chart detailing his overnight visits during the school year and summer weekends, summer week days, and summer and winter vacation time. She also presented a chart detailing father's requested parenting time schedule, which she claimed would total approximately 133 overnights. Mother explained that the parties had determined the holiday schedule set forth in their PSA based upon their work demands and available holiday time and requested they continue to follow that schedule.

By order of September 14, 2007, the court denied father's request for additional parenting time and noted that "[t]he parties shall continue observing the parenting time schedule provided in their PSA." The court further denied father's motion to have the Burlington County holiday schedule supersede the parties' holiday schedule and noted that "[t]he parties shall continue to split holidays as provided by the schedule in their PSA. Defendant may continue her practice of taking a February vacation with the children, provided that, if the vacation deprives Plaintiff of any parenting time, such time may be made up by Plaintiff within three months of their return."

In November 2008, father filed another motion seeking appointment of a parenting time coordinator to assist the parties in resolving their continuing disputes concerning parenting time issues. The motion requested that in the event the parties were unable to resolve their disputes after five sessions, the coordinator would issue a report to the court setting forth recommendations concerning how the parties' shared parenting plan set forth in their PSA "should be implemented, whether it should be modified, [and] her recommendations about how to avoid ongoing conflict between the parents prospectively. . . ." Father certified, in contrast to his prior certification, that "[t]here have been numerous misunderstandings and disagreements" about the language of the PSA respecting parenting time and that "[a] basic disagreement still exists as to whether [father] should be permitted to exercise overnight parenting of 104 overnights per year without including vacation and holiday time." Father elaborated as follows:

5. The PSA sets forth I can exercise approximately 104 overnights, but it also states I can additionally exercise certain other times for certain school vacations, summer vacations, holidays and the like. This tension between the words "approximately" and "additionally" has created a long standing dispute about whether the 104 overnights refers to "regular overnights" or whether "extended parenting times" are to be counted in that total.

. . . .

28. I am hopeful that [the parenting coordinator] can help us come to an agreement for an explicit schedule for 2008/2009 and beyond which will include the approximately 104 regularly scheduled overnights in addition to the holiday and vacation schedule.

Mother filed a cross-motion in opposition in late December 2008, certifying that father would receive 110 overnights in 2008, and providing a chart indicating his overnight parenting time for the year. She opposed the request for a parenting time coordinator, which she claimed was a self-serving attempt by father to rewrite the parties' PSA. Mother requested counsel fees and costs in the amount of $1,920, asserting that father had acted in bad faith in filing what she considered to be a motion for reconsideration fourteen months after the September 14, 2007 order was entered denying father additional parenting time. As is typical in matrimonial matters, father filed a responsive certification.

Following oral argument on January 9, 2009, the court denied both parties' requests for relief. By order of that date the court stated, in pertinent part:

The Court does not find that a parenting coordinator is necessary in this matter at this time. The parties have entered into a detailed Property Settlement Agreement that specifically addresses the issue of parenting time. Plaintiff has not met his burden of showing that equity requires the agreement to be modified at this time. See Schwartzman v. Schwartzman, 248 N.J. [Super] 73 (App. Div. 1991). As such, the parties shall continue to abide by the terms of the Property Settlement Agreement. Article V, paragraph 1 of the Property Settlement Agreement sets forth the parties' parenting time schedule, indicating that Plaintiff is to be afforded approximately 104 overnights per year. By way of clarification, the Court finds this number of overnights includes regularly scheduled parenting time, holidays, vacation, and other nights agreed upon by mutual consent of the parties.

On January 28, 2009, father filed a motion for reconsideration, specifically to have the court delete the sentence, "[b]y way of clarification, the Court finds this number of overnights includes regularly scheduled parenting time, holidays, vacation, and other nights agreed upon by mutual consent of the parties" from its January 9, 2009 order. He alternatively requested relief pursuant to Rule 4:50-1 or a plenary hearing. In his certification, father urged that the clarification was unnecessary because neither party had requested it and that the court's ruling "elevated the 104 overnight estimate to almost an absolute."

In the meantime, through correspondence between counsel, the parties debated the parenting time each would enjoy over the children's Spring Break. According to the Moorestown school calendar, the children were off from school from Friday, April 10 (Good Friday) through Friday, April 17, 2009. Since the weekend of April 17-19, 2009 was father's normally-scheduled weekend, it was his intention to exercise parenting time for the "full Spring Break" from the close of school on Thursday, April 9 until the reopening of school on Monday, April 20. Mother, however, took the position that for the past five years, with the exception of 2008, father had the children for the five days that they were off from school in addition to whichever weekend was his normal parenting time weekend, but he never had the children for both the weekend prior to Spring Break and the weekend afterwards.

In response, on February 6, 2009, father filed another motion and certification for additional parenting time requesting the entire Spring Break. Mother filed cross-motions and certifications in opposition to each of father's motions, and included a request for counsel fees and costs in the amount of $480, as a deterrent to father pursuing "frivolous and harassing" motions. Of course, father filed a reply certification.

Following oral argument on April 3, 2009, the court entered an order, for the most part denying relief to both parties. Specifically, the court denied father's motion to reconsider paragraph one of the January 9, 2009 order and delete the last sentence, finding father failed to show a basis upon which to modify the order or to justify relief from the order pursuant to Rule 4:50-1. The court further found that father had not met his burden for reconsideration under D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), that the court "expressed its decision based upon a palpably incorrect or irrational basis" or "failed to appreciate the significance of probative, competent evidence." The court elaborated:

At the time of the underlying motion, the Court gave extensive consideration to each party's certification and exhibits, as well as the oral arguments of counsel at the hearing. The Court further reviewed, with considerable specificity, the language of the parties' Property Settlement Agreement. As such, the Court does not find any basis for a finding that the Court failed to consider the significance of the evidence. In addition, the Court finds no support for a finding that the decision was made on an irrational basis. Based upon the history of litigation in this matter, the Court found clarification of the Property Settlement Agreement was required. The Court does not find persuasive Plaintiff's argument that the effect of the Order is to decrease the parenting time to which he is entitled. In fact, the same paragraph specifically provides that the parties are to continue to abide by the terms of the Property Settlement Agreement, including the language to which Plaintiff has specifically referred in his certification.

The court further found that a plenary hearing was not warranted as there was no genuine issue as to a material fact for which a hearing would be helpful, citing Shaw v. Shaw, 138 N.J. Super. 436 (App. Div. 1976).

Regarding Spring Break, the court found the PSA provided that when the parties disagreed on parenting time for holidays, they would defer to the Burlington County holiday schedule. The court recognized that mother did not contest that father was entitled to the children during Spring Break but that the parties were unable to agree as to when it began. Therefore, the court referred to the court-approved schedule and found that father's Spring Break visitation would begin after Easter on Sunday, April 12, and continue until the children returned to school on the following Monday, April 20, 2009.

The court denied counsel fees to both parties, finding father was not entitled to them "under an analysis of the factors set forth in R. 5:3-5 and Williams v. Williams, 59 N.J. 229, 233 (1971)." With respect to mother, the court merely stated that her motion was denied, as in the prior order. This appeal and cross-appeal ensued.

On appeal, father contends the court erred in interpreting and reforming the PSA agreement without an application to do so and without notice to him that the court was going to take such action. Father emphasizes that the motion that led to the January 9, 2009 order simply sought a parenting time coordinator. Father further argues the court improperly added a paragraph and changed the meaning of the PSA, ignoring the words "additionally" that were used twice in the provision regarding parenting time and engrafting upon the document limiting language inconsistent with the PSA's expressed intent to accord him liberal parenting time. He also contends the court erred in denying his motion for reconsideration/relief from judgment and further erred by basing its order on an interpretation of disputed language without conducting a plenary hearing according the parties the opportunity to explain the PSA's intent. Father requests we delete the last sentence in the January 9, 2009 order that was gratuitously added by the court or, alternatively, remand for a plenary hearing.

Father also contends that the law of the case regarding Spring Break is the court's September 14, 2007 order, which stated that the parties were to use the holiday schedule provided in their PSA. He argues the court acted inconsistently in referencing the court-approved holiday schedule to determine when Spring Break began. According to father, the practical effect of the court's ruling was that he was denied access to the children for the full Spring Break, which should have been from Thursday night, April 9 through Monday morning, April 20. Father requests that we exercise our original jurisdiction and conclude that holidays and school vacations should be governed by the parties' schedule, which he apparently interprets as encompassing the weekends before and after the five-day break following Easter Sunday.

We are not persuaded by father's argument and affirm substantially for the reasons articulated by the motion judge. It is clear from the parties' course of conduct and father's certification submitted in support of his September 2007 motion that the parties did not disagree that under the terms of the PSA father was to be afforded approximately 104 overnights per year, inclusive of regularly scheduled parenting time, holidays, vacations, and other nights agreed upon by mutual consent of the parties. It is also clear that after being unsuccessful in obtaining additional Monday overnight parenting time in September 2007, father's motion fourteen months later seeking the appointment of a parenting time coordinator was a veiled attempt to increase his parenting time above the approximately l04 overnights set forth in the PSA. His numerous certifications indicated that he was dissatisfied with the amount of time he was being given with the children and expressed that it would be in his and the children's best interests to have more parenting time.

Mother's cross-motion returnable on January 9, 2009, did not request reformation or modification of the PSA but did include the catch-all phrase of requesting "such further relief as the Court deems equitable and just." Based on its review of the plain language of the PSA and extensive certifications, the court discerned and implemented the common intention of the parties and applied a meaning within the expressed general purpose of the agreement. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007); Tessmar v. Grosner, 23 N.J. 193, 201 (1957). We are satisfied the court properly exercised its discretion in interpreting and clarifying the parties' PSA consistent with its language and the parties' conduct, and properly applied basic principles of fairness and equity to resolve any ambiguities. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992). We are also certain the court was sensitive to both parties' complaints of significant counsel fees and sought to obviate the cost of a parenting time coordinator when the circumstances did not warrant the appointment of one.

We are further convinced that father failed to demonstrate the existence of a genuine issue as to a material fact warranting a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 159 (1980). We are confident the court properly relied on the supporting documents and extensive certifications of the parties and exercised its discretion to prevent unnecessary duplication of proofs and arguments, particularly considering the high volume of post-judgment family court litigation. Ibid.

The September 14, 2007 order provided that the parties would continue to split holidays as provided by the schedule in their PSA. That provision was entered in connection with father's request for mother to discontinue her practice of taking a February vacation with the children as was provided for in the parties' holiday schedule. We discern no abuse of discretion by the court in its reference to the court-approved holiday schedule and ruling respecting the duration of father's parenting time with the children during the 2009 Spring Break. We note that the parties' holiday schedule does not address the issue of the weekends attached to either end of the five weekdays following Easter, other than to note that, unless otherwise agreed, father has parenting time on Easter. We trust the parties will be able to resolve future Spring Break schedules, as they have for the majority of the time since their separation, in a mature and amicable manner.

Turning to wife's cross-motion, in matrimonial cases, awarding counsel fees is in the sound discretion of the trial judge. Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). Just as a Family Part judge has the authority to award counsel fees, so does she have the discretion to refuse to award them. Ibid. Although it would have been preferable for the court to have provided a detailed explanation of the reason for its denial of counsel fees to mother in connection with both motions, as it had in its September 14, 2007 order and April 3, 2009 order respecting father, we are satisfied the court performed an analysis of the appropriate factors even though it failed to reference them. The court implicitly determined that although father's relief for appointment of a parenting time coordinator and additional parenting time during Spring Break was not granted, he had not acted in bad faith under the circumstances. We discern no abuse of discretion by the court in declining to award counsel fees to mother under the circumstances of this case.

 
Affirmed.

In her certification, mother further explained that in 2008, father had the children for both weekends without her consent because he refused to return the children to her and that time was then applied to father's makeup time for her February vacation.

(continued)

(continued)

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A-4060-08T1

April 16, 2010