SHADIGH RAYEB v. KHADEJA Z. ABUSOOD
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4570-15T4
SHADI GHRAYEB,
Plaintiff-Appellant,
v.
KHADEJA Z. ABUSOOD,
Defendant-Respondent.
___________________________________
Submitted January 16, 2018 – Decided February 2, 2018
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2745-14.
Shadi Ghrayeb, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
This appeal pertains to the form of a marital settlement
agreement (MSA) that the trial court incorporated into a final
judgment of divorce over plaintiff's objection, and without his
signature. Plaintiff contends that the MSA did not accurately
reflect the parties' oral agreement regarding the pick-up and
drop-off of the parties' child. He also contends the court erred
in awarding fees to defendant incurred in opposing his motion that
raised this issue and others. We affirm in part and reverse in
part. We agree that the MSA does not accurately represent the
parties' agreement on the record, but affirm the award of fees.
After a short-term marriage, plaintiff sued defendant for
divorce in June 2014. Custody and parenting time arrangements
involving their young son, born in November 2012, were major
sticking points in the parties' efforts to resolve the divorce
amicably. While the divorce action was pending, plaintiff
relocated to the Washington, D.C. area. Defendant resided in the
Bronx.
After a four-way mediation in March 2015, plaintiff's counsel
wrote to defendant's counsel setting forth what he believed was
the parties' agreement as to holiday visitation, and listing
"Unresolved Issue[s]." Among the latter was "Parents to be present
during pick up and drop off." Plaintiff had opposed a requirement
that he be present for such transfers. Instead, he wanted the
option to allow his mother or another person to pick up his son
from defendant, bring the child to him, and then return the child
to defendant. Defense counsel did not respond in writing to
plaintiff's counsel's letter.
2 A-4570-15T4
On May 27, 2015, after additional negotiations, the parties
appeared before the court to lay upon the record the terms of a
reported agreement, including with respect to the "Unresolved
Issue[s]." Defense counsel stated that defendant would be the
primary residential parent. Defense counsel also described the
terms of plaintiff's frequent parenting time. Counsel explained
that the parties agreed to incorporate the holiday schedule set
forth in the March 2015 letter.
The discussion soon turned to the issue of pick-ups and drop-
offs. Defense counsel acknowledged that plaintiff would exercise
parenting time in the D.C. area, but defendant would have no
responsibility to travel there.
[DEFENSE COUNSEL]: Mom will never be required
to pick up the child from outside of New Jersey
or – she lives in New York right now, but
mom's not expected to go down to Maryland or
Virginia or Washington, D.C.
THE COURT: So it's the New York/New Jersey
Metropolitan area?
[DEFENSE COUNSEL]: Correct. If dad decides
to take the child down during his weekend to
Maryland --
THE COURT: Mom doesn't have to go down to
Maryland to pick him up.
[DEFENSE COUNSEL]: Mom's not going down to
pick him up.
THE COURT: Okay.
3 A-4570-15T4
Defense counsel then addressed who must be present at pick-
up and drop-off:
[DEFENSE COUNSEL]: Mom and dad are
responsible for pickup and drop off, unless
mutually agreed by between the parties that
somebody else can pick up or drop off.
Plaintiff's counsel immediately disagreed, stating he
understood the parents' presence was required at parenting time,
as distinct from the pick-up and drop-off:
[PLAINTIFF'S COUNSEL]: Okay. I thought that
the agreement was that they have to be present
for parenting time?
[DEFENSE COUNSEL]: Right --
The Court then interjected, without expressly distinguishing
between pick-up and drop-off, and parenting time:
THE COURT: Present for parenting time, and
if there's going to be any change, if dad for
example has to leave to get back down to
Maryland for some reason, is it then that dad
will call mom and say I've got to leave early?
Or if there's grandparents involved that call
mom, and mom's given the right of first
refusal before the grandparents; is that what
the agreement?
Plaintiff, who had been sworn, then clearly stated that he
wanted to be able to send a representative to pick up his son, to
save him multiple round-trips to New York:
[PLAINTIFF]: Your Honor it was discussed in
the context that if I ever wanted to take my
son to Washington D.C. somebody could bring
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him to me, instead of having me make four trips
in one weekend.
THE COURT: Good faith and fair dealings, that
makes sense.
[PLAINTIFF]: Yes.
THE COURT: Until he gets older, then you can
put him on a train.
Plaintiff's counsel proposed that the MSA require the
parents' presence at parenting time, not pick-up and drop-off:
[PLAINTIFF'S COUNSEL]: Your Honor I think the
best way to phrase that in the Property
Settlement Agreement is that they have to be
present for parenting time.
[DEFENSE COUNSEL]: Correct.
[PLAINTIFF'S COUNSEL]: And not really the
language that --
[PLAINTIFF]: Pick up and drop off.
[PLAINTIFF'S COUNSEL]: -- that they have to
do the drop off.
Defense counsel then agreed, emphasizing that the pick-up and
drop-off would, in any event, occur locally:
[DEFENSE COUNSEL]: That's fine. Well pickup
and drop off --
THE COURT: Whatever you work out. The idea
is this is --
[DEFENSE COUNSEL]: -- local is going to be
pickup and drop off.
[PLAINTIFF'S COUNSEL]: Yeah.
5 A-4570-15T4
[DEFENSE COUNSEL]: That's fine. That's fine.
THE COURT: -- this is parenting time.
[DEFENSE COUNSEL]: That's fine.
THE COURT: Parenting time is for each of the
parents to have an opportunity to know and
love their child. If they are not going to
be there to exercise those rights, then it
creates its own problems in the long run. So
I -- Am I correct that both of you want that
when you have parenting time it's your time
with the child? If something comes up you're
going to speak with each other and explain
what came up, and then you'll handle it as
adults. Fair?
[PLAINTIFF]: Umhmm.
THE COURT: Yes?
[DEFENDANT]: Yes.
THE COURT: Okay.
Counsel reviewed other MSA terms, including the payment of
limited duration alimony and child support. The parties testified
under oath that they accepted the recited terms, which would be
incorporated in the final judgment of divorce. After establishing
the cause of action, the court entered a judgment of divorce that
contemplated a written memorialization of the parties' agreement,
which counsel were required to submit by June 24.
That deadline came and went. The parties engaged in an off-
the-record meeting in the courthouse in September. They appeared
on the record in October. A new issue arose as to the winter and
6 A-4570-15T4
Christmas visitation schedule. After listening to the recording
of the May hearing, the judge decided that the parties accepted
the March letter's terms.
According to plaintiff's subsequent certification, defense
counsel then produced a version of the MSA for the parties'
signature. Plaintiff noted that the version required his presence
at pick-up and drop-off. It stated, "[T]he child shall be picked
up from Wife's residence in the Bronx by the Husband." Plaintiff
contended this violated the parties' May 27 agreement. He refused
to sign the MSA.
Nonetheless, the trial court entered an amended judgment of
divorce, incorporating the MSA with the contested provision. The
court did so after finding, apparently based on an off-the-record
proceeding, that plaintiff, not defense counsel, had attempted to
alter the parties' agreement, and defense counsel's version of the
MSA accurately embodied the parties' agreement.1
Plaintiff filed a motion twenty days later seeking
reconsideration of the court's determination. Plaintiff also
1
The court referred to proceedings that were evidently off-the-
record, involving counsel and the court, noting that "[t]he
attorneys for the parties and the [c]ourt having together listened
to the essential terms . . . placed on the record on May 27, 2015;
and [c]ounsel agreed that the plaintiff has, without advising
defendant's counsel, unilaterally made a significant change to an
essential term . . . ."
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sought termination of alimony, recalculation of child support,
other modifications to the MSA, and attorney's fees. Defendant
opposed the motion and sought fees.
In a March 1, 2016 order, the court denied plaintiff's motion
to alter the pick-up and drop-off provision. Viewing plaintiff's
application as a motion under Rule 4:50-1, the court held that
plaintiff had not established sufficient inequity or unfairness
to disturb a final judgment. The court ordered plenary hearings
on the alimony and child support issues. The court also awarded
defendant fees of $4170 in connection with defending the motion,
relying mainly on the disparity of the parties' income, finding
that "there had been a lack of good faith and fair dealings all
around." Thereafter, plaintiff withdrew his motion to modify
alimony and child support, which was memorialized in a May 16,
2016 order.
This appeal followed. Plaintiff argues the court erred in
entering the MSA with the provision requiring his presence at
pick-up and drop-off, and in awarding defendant fees. We consider
those issues in turn.
First, as a procedural matter, we believe the court should
have considered the motion as one for reconsideration, under Rule
4:49-2, as opposed to a motion to vacate a final judgment under
Rule 4:50-1, which presented a significantly higher hurdle for
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plaintiff to overcome. The motion was filed within time for
reconsideration. Although the notice of motion did not identify
either Rule, defense counsel in opposition understandably deemed
the motion one for reconsideration. Viewed in that light, we
conclude that the court overlooked the clear import of the colloquy
on May 27 regarding pick-up and drop-off.
We are guided by well-settled principles. "Settlement of
disputes, including matrimonial disputes, is encouraged and highly
valued in our system." Quinn v. Quinn,
225 N.J. 34, 44 (2016).
We apply basic contract principles, though tempered by principles
of equity. Id. at 45; see also Pacifico v. Pacifico,
190 N.J.
258, 265-66 (2007) (applying to property settlement agreement the
"basic rule of contractual interpretation that a court must discern
and implement the common intention of the parties"). Consequently,
as with other contracts, we review de novo the trial court's
interpretation of a settlement agreement. Kieffer v. Best Buy,
205 N.J. 213, 222-23 (2011); Fastenberg v. Prudential Ins. Co. of
Am.,
309 N.J. Super. 415, 420 (App. Div. 1998). Our de novo review
extends to legal issues of contract formation. See Jaworski v.
Ernst & Young U.S. LLP,
441 N.J. Super. 464, 472 (App. Div. 2015);
NAACP of Camden Cty. E. v. Foulke Mgt. Corp.,
421 N.J. Super. 404,
430-34 (App. Div. 2011).
9 A-4570-15T4
In this case, we look to the parties' oral recitation of the
contractual terms. See Harrington v. Harrington,
281 N.J. Super.
39, 46 (App. Div. 1995) (stating that an enforceable agreement
"need not necessarily be reduced to writing"). We look to whether
there was a meeting of the minds, in other words, mutual assent
and common understanding of terms. See Morgan v. Sanford Brown
Inst.,
225 N.J. 289, 308 (2016).
Having carefully reviewed the colloquy of May 27, 2015, we
are satisfied that counsel, along with plaintiff, set forth the
parties' agreement that plaintiff's presence would be required at
parenting time, but not at pick-up and drop-off. As set forth
above, defense counsel initially asserted that plaintiff needed
to be present at pick-up and drop-off. Both plaintiff and his
attorney objected and drew a distinction between parenting time –
at which he would agree to be present – and pick-up and drop-off
– at which he wanted the flexibility to send a representative.
Plaintiff's counsel proposed that "the best way to phrase that in
the Property Settlement Agreement is that they have to be present
for parenting time . . . [a]nd not really the language that . . .
they have to do the drop off." Defense counsel interjected,
"Correct," in the middle of counsel's sentence, and stated "That's
fine," at the end. The parties then affirmed they agreed with the
terms set forth on the record.
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We discern no ambiguity in the parties' agreement. We
therefore reverse the trial court's order and amend the MSA
incorporated in the amended judgment of divorce by deleting "by
the Husband" in the second line of Art. II(2)(A)(IV) and deleting
"by the Wife" on the fourth line, and by adding, "The Husband and
Wife shall be present for their respective parenting time, as
distinct from pick-up and drop-off."
Although we reverse the court's determination on the pick-up
and drop-off issue, plaintiff has presented an insufficient basis
to disturb the court's award of fees. The award of counsel fees
is discretionary, and should be disturbed "only on the rarest
occasions, and then only because of a clear abuse of discretion."
Packard-Bamberger & Co. v. Collier,
167 N.J. 427, 444 (2001); see
also Barr v. Barr,
418 N.J. Super 18, 46 (App. Div. 2011). We
also accord deference to the Family Court. Cesare v. Cesare,
154 N.J. 394, 411-12 (1998).
The trial judge presided over extended and contentious
proceedings involving these parties. On the basis of his
familiarity with the case and the parties, he determined that both
sides were equally responsible for the necessity to incur fees.
Thus, this is not a case where one party's bad faith disqualifies
that party from the award of counsel fees. Cf. Yueh v. Yueh,
329 N.J. Super. 447, 461 (App. Div. 2000). Also, success in the
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litigation, while a factor, is also not "a prerequisite for an
award of counsel fees." J.E.V. v. K.V.,
426 N.J. Super. 475, 492
(App. Div. 2012). Yet, plaintiff was not entirely successful with
respect to other aspects of his motion.
The fundamental basis for the court's award of fees was the
striking disparity in the parties' financial status. "Fees in
family actions are normally awarded to permit parties with unequal
financial positions to litigate (in good faith) and on an equal
footing." Id. at 493 (quoting Kelly v. Kelly,
262 N.J. Super.
303, 307 (Ch. Div. 1992)). Plaintiff was employed as a
professional with the Nuclear Regulatory Commission, and defendant
was an unemployed college student. The quantum of the award was
reasonable in view of the motion record and effort expended. In
sum, we affirm the award of attorney's fees.
Reversed in part and affirmed in part.
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