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DOCKET NO. A-00121-12T1







January 28, 2015


Argued January 13, 2015 Decided

Before Judges Yannotti, Fasciale, and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-436-05.

Patricia Garity Smits argued the cause for the appellant.

Respondent has not filed a brief.


Plaintiff appeals from an order of the Family Part entered on May 10, 2012, which granted in part and denied in part relief sought by plaintiff and modified the parties' Property Settlement Agreement (the "Agreement"), as well as an order entered on August 21, 2012, which denied plaintiff's motion for reconsideration. We affirm in part, reverse in part and remand to the trial court for further proceedings.

We discern the following facts from the record. The parties married on November 11, 1986. They had two daughters. The parties negotiated the Agreement which was incorporated into the dual judgment of divorce entered on December 6, 2005. The Agreement gave the parents joint custody, with plaintiff as parent of primary residence. It postponed the negotiation of defendant's child support obligation until the sale of the marital residence. The Agreement also provided, in addition to child support, the parties would share equally all expenses for the children's activities, lessons, camps, sports, equipment, after-school care and other childcare expenses.

The Agreement does not indicate the amount of such additional expenses or how they would be determined. The Agreement acknowledged that the parties would utilize a nanny who would be paid from rental income or proceeds. The parties also anticipated that plaintiff and defendant would minimize childcare expenses by alternating responsibility for childcare in the mornings and after school. The Agreement specifically recognized that these responsibilities were subject to change based upon the parties' respective work schedules. Both parties agreed to equally share the cost of a full-time, live-in nanny if necessary. The parties agreed to discuss these costs. The Agreement also provided

In the event that the parties are unable in the future to reach an agreement regarding time-sharing arrangements or other issues regarding [the children], they agree to utilize the services of a mediator and participate in mediation and make a bona fide attempt to resolve the issues before litigating any issues. If the parties are unable to agree upon a mediator to reach an agreement, they each agree that the mediator shall be selected by the Essex County Probation Department.

On May 7, 2010, the trial court entered an order requiring defendant to have supervised visits and reimburse plaintiff for delinquent weekly child support payments; the children to undergo a risk assessment; and the parties to equally share the costs of childcare expenses. On October 21, 2011, defendant moved to waive all visitation rights with his two daughters until they reached the age of eighteen and alter the Agreement to allow unlimited phone contact. Defendant did not seek any modification of childcare expenses or support. Plaintiff did not oppose defendant's request to waive visitation rights and cross-moved, seeking sole legal and physical custody of the parties' children. Plaintiff also sought payment of child support arrears and garnishment of defendant's wages to pay childcare expenses and reimbursements, including $1,352.17, which represented defendant's share of the cost of the older daughter's birthday party. Plaintiff additionally requested various other modifications of the Agreement, concerning parenting as well as attorney's fees.

After several adjournments, defendant filed an "Amended Notice of Motion" (the "Amended Motion") requesting the withdrawal of his prior motion and seeking reinstatement of unsupervised visits and an order preventing plaintiff from incurring after-school care expenses without his written consent. In his certification, defendant asserted that plaintiff hired a nanny for the girls, ages 14 and 16, without his consent or approval. Defendant said that the parties no longer needed to drive the children to school and could purchase them monthly bus passes and share the expense.

Defendant also sought an order prohibiting plaintiff from questioning the children about what transpired during their visits and telephone contact with defendant. Defendant was advised by court staff that he would have to file a new motion if he wanted to have the issues raised in the Amended Motion heard, and that the certification submitted in support of it would only be considered a reply certification.

Defendant filed another motion seeking the same relief requested in the Amended Motion. At oral argument on May 10, 2012, defendant clarified that he no longer wanted to give up visitation rights and argued in support of the relief sought in the Amended Motion. The motion judge advised him that court rules do not provide for amended motions and considered defendant's first motion as withdrawn.

The motion judge then considered plaintiff's cross motion. The court denied plaintiff's request for sole legal and physical custody, but ordered defendant to pay child support arrearages. Plaintiff had requested that an extra $125 per week be garnished from defendant's wages to pay for his share of childcare expenses, without documentation to support that amount. The motion judge directed that $100 per week in childcare costs be garnished through probation, in addition to child support. Plaintiff argued that the Agreement provided that defendant had to pay half of whatever the actual expenses were, but the motion judge indicated that $100 per week was a cap of childcare costs and was an amendment of the Agreement.

The court also ordered defendant to pay $750 toward his share of the older daughter's birthday party expenses, finding that while defendant had agreed to pay half, the party "started to run into more money than he thought it was going to cost." The court awarded counsel fees to plaintiff in the amount of $3,500. The court also ordered that defendant's new motion for unsupervised visitation should proceed to mediation as contemplated by the Agreement. All other relief requested but not specifically addressed was denied.

Defendant and plaintiff both moved for reconsideration. On August 21, 2012, the motion judge heard argument and denied defendant's application because he did not file a certification in support of his motion for reconsideration. The motion judge also indicated that the parties should have proceeded to mediation based upon the order of May 10, 2012. The judge explained that he placed a cap on childcare-related expenses and modified the Agreement because the children no longer needed to be driven to school, and ordered the parties to proceed to mediation on all other relief requested. The court denied plaintiff's motion for reconsideration as untimely. The judge also denied plaintiff's motion as time barred, and also denied the relief sought on the merits, on the ground that plaintiff was seeking the same relief that she had previously sought. Plaintiff appealed and defendant cross-appealed.1

On appeal, plaintiff asserts that all of the provisions of the Agreement should have been enforced without modification and she is entitled to enforcement of the Agreement notwithstanding the provision that the parties participate in mediation on child-related issues. We conclude that the court erred in ruling on defendant's application to cap his childcare expenses and in addressing plaintiff's application for reimbursement of the costs of the birthday party, since these issues and all other issues related to the children should have been referred to mediation.

It is well-established that appellate review is particularly deferential to family courts' findings of fact because of their unique jurisdiction and expertise. Cesare v. Cesare, 154 N.J.394, 413 (1998). Additionally, settlement of litigation ranks high in the pantheon of public policy. Puder v. Buechel, 183 N.J.428, 437 (2005) (citing Nolan ex rel. Nolan v. Lee Ho, 120 N.J.465, 472 (1990)). This is particularly true in matrimonial matters, where settlement agreements, being "essentially consensual and voluntary in character[,] . . . [are] entitled to considerable weight with respect to their validity and enforceability" so long as they are fair [23] and just. Petersen v. Petersen, 85 N.J.638, 642 (1981) (citing Carlsen v. Carlsen, 72 N.J.363, 370-71 (1977); Berkowitz v. Berkowitz, 55 N.J.564, 569 (1970); Schlemm v. Schlemm, 31 N.J.557, 581-82 (1960)).

Here, the parties executed a comprehensive Agreement which included a provision to utilize the services of a mediator prior to litigation to address disagreements regarding time-sharing and any other issues regarding their children. Our review of the Agreement leads us to conclude that any calculation of childcare expenses, such as "lessons, sports, camps, equipment, after school care and other child care related expenses such as work related child care," is inextricably intertwined with a determination of custody and parenting time. This is particularly true in light of the fact that the Agreement recognizes that these expenses are subject to certain contingencies and changes, but fails to identify any other method of calculating these costs.

The Family Part judge imposed a weekly childcare expense cap and limited defendant's obligation to pay for the birthday party expenses, notwithstanding the fact that these childcare costs were subject to the requirements of equal payment and mediation. The judge should not have ruled on these issues, and should have referred them to mediation, along with any other issues related to the children. These portions of the order are reversed.2

Plaintiff argues that her requests for relief should not be referred to mediation because she is merely seeking enforcement of the terms of the Agreement. However, most of the additional relief sought is not specifically reflected in the Agreement and should be deferred to the mediation provision therein. The court correctly determined that the relief sought by plaintiff in her cross motion involved issues relating to the children, which must be submitted to mediation, after which each would be required to document the necessity of enforcement or demonstrate a substantial change warranting any modification of the Agreement.

Plaintiff's remaining arguments concerning a plenary hearing, her motion for reconsideration, and her motion for attorney's fees based on defendant's motion for reconsideration are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). The court exercised appropriate discretion under the rules to deny plaintiff's motion for reconsideration because it was filed out of time.

The portions of the Family Part order of May 10, 2012 imposing a weekly $100 childcare expense cap and limiting defendant's obligation to pay for birthday party expenses are reversed and remanded, with instructions that the Family Part order the parties to comply with the mediation provision of the Agreement.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 On May 1, 2014, defendant's cross appeal was dismissed due to his failure to file a timely brief in support thereof.

2 At oral argument on the motion for reconsideration, the judge recognized that he "made a mistake by even considering the [May 10, 2012] motion" and that he "should have just sent the motion to mediation. Because the [Agreement] talks about what the first step was."