JAMES SCOTT v. LEILA SCOTT

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0213-16T2

JAMES SCOTT,

           Plaintiff-Appellant,

v.

LEILA SCOTT,

     Defendant-Respondent.
_________________________________

                    Submitted June 19, 2018 – Decided October 29, 2018

                    Before Judges Nugent and Accurso.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Middlesex County,
                    Docket No. FM-12-0751-16.

                    James Scott, appellant pro se.

                    Leila Scott, respondent pro se.

PER CURIAM

           Plaintiff, James Scott, appeals from the parties' final judgment of divorce

(FJOD). He also appeals from an order entered the following month denying
him this relief: modification of his spousal support obligation; a change of

venue; an order compelling his older daughter to resume visitation with him;

and an order nullifying the bar against his girlfriend having contact with the

parties' children during his parenting time. Defendant, Leila Scott, opposes the

appeal.   For the reasons that follow, we affirm the FJOD as well as the

subsequent order.

      The parties married in July 2008 and were divorced from bed and board

in June 2016. They have two daughters, neither of whom is emancipated.

      On June 17, 2016, the parties appeared before the court.         The court

announced the "matter had been scheduled to be put through as a judgment of

divorce from bed and board pursuant to N.J.S.A. 2A:34-3." The court stated its

understanding that all issues had been resolved, although neither party "got what

they wanted." Rather, the parties compromised.

      Plaintiff's counsel informed the court he had drafted "the potential

judgment of divorce from bed and board," and though he had hoped it was

"something that everyone could live with," plaintiff still had "a couple of issues

that he was still unhappy with."        Plaintiff was seeking "either a small

accommodation with the alimony and/or a small accommodation" concerning

parenting time. The court responded: "this is what I am going to tell you, and

you've heard what I told you in chambers . . . and I am sure you shared them

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with your client. Next - - it's just a trial and I will tell you at trial I don’t know

if the number will be the same. That's all I am going to tell you." The court

attempted to continue, but the attorney interrupted: "Yeah, let a word to the wise

be sufficient, as it were." The court responded, "yeah, and then we're talking

about, you know, assessing the counsel fees because I know where you're at at

this point."

      The court refused to vacate a prohibition against plaintiff's girlfriend

being present during his parenting time. The court said it would not reconsider

the prohibition until plaintiff was prepared to marry his girlfriend, but also said

it would rely upon the recommendation of "the therapist."

      During a recess, the parties apparently revised and approved the draft

Judgment of Divorce from Bed and Board. When the parties returned to the

courtroom, each party, under oath, in response to questions from each attorney,

acknowledged voluntarily agreeing to the terms set forth in the judgment.

Significantly, plaintiff acknowledged the document reflected his understanding

of the terms and agreements binding upon the parties in the future. Plaintiff also

said he understood that neither party got everything he or she was looking for

but the agreement they signed was one they both could live with. The court

entered the judgment the same day.



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      Two months later, the parties returned to "convert" the Judgment of

Divorce from Bed and Board to a FJOD. The FJOD was entered that day.

During the proceeding, plaintiff testified the FJOD represented his

understanding of the parties' mutual obligations. Plaintiff also acknowledged

that during the negotiations of the FJOD's terms, he had to give some, and . . .

had to get some," but "[a]t the end of the day, [he was] willing to be found [sic]"

by the FJOD. Defendant stated specifically, "I didn't get anything but, yeah, I'm

bound by the document."

      The FJOD provided, among other things, that plaintiff was to pay alimony

to defendant at the rate of $340 weekly for a period of four years. Plaintiff's

parenting time with the children was every other weekend from 5:00 p.m. Friday

until 5:00 Sunday, and on alternating weeks, Wednesday evening dinner. The

Wednesday parenting time changed slightly during summer months. The FJOD

also provided for summer and holiday parenting time. The FJOD precluded

plaintiff's girlfriend from having any contact with the children during plaintiff's

parenting time absent further court order.

      The FJOD also memorialized the court's finding that both parties had

voluntarily entered into the agreement reflected in the FJOD and accepted the

terms thereof as fair, reasonable, and equitable. The FJOD provided for child

support, a matter not at issue on this appeal.

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      The FJOD was entered on August 1, 2016. A month later, on September

2, plaintiff filed a motion seeking a reduction in spousal support, a change of

venue, an order requiring the parties' older daughter to resume visitation with

plaintiff because the daughter had refused to do so, and an order vacating the

prohibition against plaintiff's girlfriend having any contact with the children.

      The court denied the motion. The court determined plaintiff had not

demonstrated a significant change in circumstances warranting a modification

of spousal support. The court found no basis for changing venue. The court

rejected plaintiff's argument that he had been treated unfairly.      Concerning

visiting time with plaintiff's older daughter, the court noted the daughter was

"refusing to go on visits with [p]laintiff." The court declined to force the

daughter to do so, but granted defendant's request that the daughter continue

counselling as required by the FJOD. The court directed the parties to follow

all recommendations of the child's therapist. Last, the court denied plaintiff's

application to have the court vacate the prohibition against his girlfriend having

contact with the children.

      On appeal, plaintiff claims he never agreed to the terms of the divorce,

"especially the Visitation, Alimony, Past Debts Owed," and the provision

concerning his girlfriend. He claims the trial judge told his lawyer "off the



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record" to let plaintiff know that if plaintiff went to trial the judge would make

him pay his wife's attorney's fees.

       Plaintiff asks that we revise the custody order in many ways. He asks for

more visitation with his daughters, including resumption of visitation with his

older daughter. He also asks that the bar against his girlfriend having contact

with his children be lifted. Last, he asks that we enforce the terms of the FJOD

permitting him to speak to his children on holidays.

       Plaintiff also contends he cannot afford the alimony and is thus "[l]ooking

for a review of Alimony." Next, plaintiff argues that the allocation between him

and defendant for responsibility for certain debts be changed to terms more

favorable to him. Last, plaintiff asks that his matter be returned to another judge

for trial.

       It is important for the parties to understand the limited scope of our review

of the trial court's orders. We do not conduct a de novo review, that is, we do

not begin anew and revisit each and every term of the parties' agreement. When

conducting our review of trial court orders, we give considerable deference to the

discretionary decisions of Family Part judges. Donnelly v. Donnelly,  405 N.J.

Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig,  384 N.J. Super. 17, 21

(App. Div. 2006)). This is so because the Family Part judge is familiar with the case,

has had an opportunity to make credibility judgments based on live testimony, and

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has expertise in family matters. See Cesare v. Cesare,  154 N.J. 394, 411–13 (1998).

We will not interfere with a family court's decision that is supported by “adequate,

substantial, credible evidence.” Id. at 412.

      The issues in the case before us involve a marital agreement. Marital

agreements are contractual by nature. See Massar v. Massar,  279 N.J. Super.
 89, 93 (App. Div. 1995). As is the case with other contracts, our courts value

the settlement of family disputes, particularly in view of "the interpersonal strife

and myriad factual issues that complicate judicial resolution" of such matters.

Slawinski v. Nicholas,  448 N.J. Super. 25, 32 (App. Div. 2016). For that reason,

as with any other contract, we will generally enforce marital agreements absent

fraud or unconscionability. Ibid. (citing Pacifico v. Pacifico,  190 N.J. 258, 266

(2007).   Here, the record does not demonstrate the elements of fraud or

unconscionability. To the contrary, the record demonstrates plaintiff voluntarily

entered into terms incorporated into the FJOD.          Although he would have

preferred a better result, he attested that he could live with the settlement terms.

      During the proceeding resulting in the judgment of divorce from bed and

board, plaintiff acknowledged that he had voluntarily entered into the terms set

forth in the judgment.      He also acknowledged the judgment reflected his

understanding of the terms and agreements that would bind the parties in the

future. Additionally, he said under oath that he understood neither party got

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everything they were looking for, but the agreement they signed was one they

could both live with. Two months later, during the proceeding resulting in the

FJOD, plaintiff again testified under oath the terms of the FJOD represented his

understanding of the parties' mutual obligations. He affirmed that "[a]t the end

of the day," he was willing to be bound by the terms of the FJOD.

      Plaintiff contends he was coerced into signing the agreement by the trial

court's "off-the-record" discussion with his attorney. According to plaintiff, the

trial judge threatened to assess counsel fees against him if he did not agree to

the terms of the divorce. Although there is some evidence to support plaintiff's

argument, namely, the court's comment on the record to plaintiff's attorney about

their in-chambers discussion concerning counsel fees, plaintiff did not raise the

issue at that time. By failing to raise the issue before the trial court, he has not

properly preserved it for appeal. Nieder v. Royal Indemnity Ins. Co.,  62 N.J.
 229, 234 (1973) (citing Reynolds Offset Co., Inc. v. Somer,  58 N.J. Super. 542,

548 (App. Div. 1959) (explaining the "well-settled principle that our appellate

courts will decline to consider questions or issues not properly presented to the

trial court when an opportunity for such a presentation is available 'unless the

questions so raised on appeal go to the jurisdiction of the trial court or concern

matters of great public interest'")).



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      Having voluntarily entered into a marital settlement agreement that was

not unconscionable, plaintiff had the right to ask for a modification of its terms

upon a change of circumstances. "A 'trial court has the discretion to modify the

agreement upon a showing of changed circumstances.'" Quinn,  225 N.J. at 49

(citing Berkowitz v. Berkowitz,  55 N.J. 564, 569 (1970)). In Quinn, the court

explained that "[c]hanged circumstances include 'an increase in the cost of

living, an increase or decrease in the income of the supporting or supported

spouse, cohabitation of the dependent spouse, illness or disability arising after

the entry of the judgment, and changes in federal tax law.'" Ibid. (citing J.B. v.

W.B.,  215 N.J. 305, 327 (2013)).

      Here, the month after the divorce, when the court denied plaintiff's motion

seeking a reduction in spousal support and other relief, the court determined

plaintiff had not "provide[d] proof of any significant change in circumstances to

warrant a modification." The trial court's finding is amply supported by the

record. Absent such a change in circumstances, the trial court did not err by

denying the relief.

      We have considered plaintiff's remaining arguments and found them to be

without sufficient merit to warrant further discussion in a written opinion. R.

2:11-3(e)(1)(E).

      Affirmed.

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