TRACY KEMPSKI v. JAMES KEMPSKI

NOT FOR PUBLICATION WITHOUT THE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-1300-17T2


TRACY KEMPSKI, n/k/a TRACY SCHWAGO,

           Plaintiff-Respondent,

     v.

JAMES KEMPSKI,

          Defendant-Appellant.
__________________________________

           Submitted May 1, 2018 – Decided May 11, 2018

           Before Judges Fisher and Moynihan.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Family Part, Morris County,
           Docket No. FM-14-1290-13.

           The DeTommaso Law Group, LLC, attorneys for
           appellant (John J. Hays II, on the brief).

           Donahue, Hagan, Klein & Weisberg, LLC,
           attorneys for respondent (Alyssa Engleberg, on
           the brief).

PER CURIAM

     The parties' 2009 marriage, which produced one child, was

dissolved by a 2016 judgment that incorporated a parenting-time

schedule incorporated in their marital settlement agreement (MSA).
During the marriage, the family resided in Morris County. Following

the divorce, plaintiff Tracy Kempski moved to Parsippany, also in

Morris County, and defendant James Kempski moved to Springfield,

in Union County.

       In April 2017, Tracy advised James that she would be moving

to    her   fiancé's     Randolph   home,   which    is    in   Morris   County,

approximately twelve miles from Tracy's Parsippany residence, and

only seven miles from the former marital residence. She sought

James's agreement to enroll their child in the Randolph school

system; James did not consent. Believing Tracy's move to Randolph

constituted a change in circumstances of sufficient significance

to impact their parenting-time schedule, the parties engaged a

parenting coordinator as called for by their MSA. While the parties

engaged in mediation, James moved from Springfield to Mt. Laurel,

approximately      eighty-seven     miles    south    of     Tracy's     Randolph

residence.

       In July 2017, the parenting coordinator reported to the family

court that the parties had resolved their differences. Tracy,

however, contested that assertion and, as the family judge later

recognized, there was evidence to support Tracy's claim that no

agreement was reached. James disputed Tracy's position and moved

for   enforcement      and   implementation   of     the    alleged    agreement

described     by   the    parenting    coordinator.        Tracy   cross-moved,

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claiming no agreement was reached, urging the modification of

their MSA to allow for the child's enrollment in kindergarten in

Randolph, and requesting additional adjustments to the parenting-

time schedule in light of the distance between the parties'

residences.

      After hearing the argument of counsel, the family judge denied

in part James's motion for enforcement of the alleged agreement;

he enforced only the undisputed parts and declined the invitation

to conduct an evidentiary hearing as to whether a settlement had

been reached. The judge also modified the parenting-time schedule

but   with   the   understanding   that   the   parties   would,    as    he

memorialized in paragraph eight of his October 3, 2017 order,

"agree upon a new parenting coordinator."

      James appeals and argues:

             I. THE TRIAL COURT ERRED IN REFUSING TO HOLD
             A PLENARY HEARING OVER WHETHER AN AGREEMENT
             WAS REACHED BETWEEN THE PARTIES IN PARENTING
             COORDINATION.

             II. THE TRIAL COURT ERRED IN FAILING TO HOLD
             A PLENARY HEARING, OR TO RENDER FINDINGS OF
             FACT AND CONCLUSIONS OF LAW AS TO THE
             STATUTORY CUSTODY FACTORS ADDRESSING WHY IT
             MODIFIED [JAMES'S] PARENTING TIME (Not Raised
             Below).

We find insufficient merit in these arguments to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only

the following few comments.

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     We reject the argument in Point I because the parenting

coordinator's written description of what she claimed was the

parties' agreement was not signed by the parties and, therefore,

was unenforceable. Willingboro Mall, Ltd. v. 240/242 Franklin

Ave., LLC, 
215 N.J. 242, 262-63 (2013).

     And we reject the argument in Point II – that the judge was

required to conduct an evidentiary hearing in order to ascertain

what schedule would be in the child's best interests – not only

because   it   was   not   raised   in   the   family   court,1   as     James

acknowledges, but also because it presupposes that a family judge

must conduct an evidentiary hearing every time facts are disputed

or whenever the circumstances are convoluted. While the parties

may have had disagreements, the circumstances were relatively

simple and the basic facts regarding the child's enrollment, the

parties' daily schedules, and the locations of their residences

were not disputed. As observed, Tracy moved only a short distance:

from Parsippany to Randolph, both in Morris County and both within

a short distance from the former marital home. James moved from

Springfield to Mt. Laurel, thereby creating the relatively greater



1
  We discern from the motion papers and from the argument on the
motion's return date that James urged an evidentiary hearing only
as to whether the parties settled the parenting-time dispute and
not on how the parenting-time schedule should have been modified
absent a settlement in light of the new circumstances.

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distance   between    the   parties     that   generated   the   difficulties

encountered when the judge ruled on the parties' cross-motions.

     These    concerns      and   disagreements     did    not   require   the

conducting of an evidentiary hearing. While the resolution of such

disputes often generate hard feelings, the question before the

judge – how to adjust the parenting-time schedule and the logistics

surrounding the increased distance between the parties' residences

– wasn't rocket science. The judge was entitled to resolve the

dispute by employing common sense and his life experiences in

ascertaining how the parties' parenting-time schedule might be

adjusted     to   accommodate     the   existing    circumstances     without

unreasonably burdening the child. We defer to such discretionary

determinations, absent an abuse of that discretion, because family

judges possess great expertise in such matters. Cesare v. Cesare,


154 N.J. 394, 412 (1998). We believe the judge did not abuse his

discretion. To the contrary, he fairly and reasonably accomplished

the task before him and properly declined to expend further scarce

judicial resources by conducting an evidentiary hearing in this

simple matter. See Fischer v. Fischer, 
375 N.J. Super. 278, 290-

91 (App. Div. 2005); Kozak v. Kozak, 
280 N.J. Super. 272, 278 (Ch.

Div. 1994).

     We lastly note that the judge directed the parties to agree

on a new parenting coordinator, and he further held that if they

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failed to agree he would appoint a new coordinator. That order was

entered approximately seven months ago and we assume that by now

the parties have engaged this new parenting coordinator and that

the judge's solution to the parties' impasse either has already

been or soon will be in the hands of a coordinator who might

further refine the schedule to the extent still warranted – yet

another reason why we should not intervene or compel the family

judge to conduct an evidentiary hearing to deal with this minor

squabble.

     Affirmed.




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