YUBYAYNY NICUDEMUS v. DENISE NICUDEMUS

NOT FOR PUBLICATION WITHOUT THE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-3235-20

YUBYAYNY NICUDEMUS,

          Plaintiff-Respondent,

v.

DENISE NICUDEMUS,

     Defendant-Appellant.
_________________________

                   Submitted March 30, 2022 – Decided April 19, 2022

                   Before Judges Hoffman, Whipple, and Geiger.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FM-16-1024-18.

                   Gallo & Gallo, attorneys for appellant (Kenneth T.
                   Gallo, on the brief).

                   Respondent has not filed a brief.

PER CURIAM
      Defendant Denise Nicudemus appeals the July 2, 2021 Family Part order

enforcing the parties' Property Settlement Agreement (PSA) regarding parenting

time for plaintiff Yubyayny Nicudemus.

      The parties married on March 4, 2002, and had a daughter born in July

2009. They divorced on September 25, 2019, entering into a PSA, which

provided for joint legal custody with defendant as the parent of primary

residence. Plaintiff is active in the United States military and is currently

stationed in Belgium.

      On May 27, 2021, plaintiff moved to enforce portions of the PSA.

Defendant was served with the motion papers via the United States Postal

Service (USPS) on June 1, 2021, at 4:55 p.m., but asserts she did not receive the

motion until June 6 or 7. She hired counsel on Saturday, June 19, then filed an

untimely opposition. Thus, the court treated the motion as unopposed and on

July 2, the court granted plaintiff's motion without argument and without

considering defendant's opposition. The order stated that it "enforce[d] the

parties' [PSA], specifically Article II: The Child, paragraph 2.9.      Regular

Parenting Time Schedule, allowing the [p]laintiff to have summer parenting time

in Belgium beginning immediately." The PSA as enforced entitled plaintiff to

forty-two days of makeup parenting time from 2020, which would be arranged


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by agreement of the parties; to exercise holiday parenting time at his residence;

to makeup holiday parenting time for 2020 and 2021; and to FaceTime with the

child for at least three times per week. The court also ordered the parties to

comply with their Marital Settlement Agreement, and specifically with the

provisions requiring defendant to co-parent, communicate about major

decisions, and provide documents. The court ordered defendant to provide the

child's passport or renew it, to stop parent alienation, and to contribute to

plaintiff's counsel fees.

      On July 6, 2021, defendant's counsel emailed the court asking for

relaxation of court rules to consider the opposition. The same day, the court's

clerk indicated that the court was not inclined to consider opposition because

the court already entered an order when the motion was unopposed. The next

day, on July 7, defense counsel emailed the court stating that the opposition was

publicly filed before the return date and should have been considered. Counsel

requested to file a motion on short notice. The clerk responded that day stating

that the opposition was not considered because it was untimely under Rule 5:5-

4(c), and that motions on short notice are routinely denied; the clerk explained

that the judge was on vacation so the clerk would let counsel know about the

motion. The next day, on July 8, defense counsel emailed the court stating that


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defendant had not been served timely because she was served on July 6 with the

motion and requested to file a motion on short notice because of due process and

the child's well-being.

      On July 12, defense counsel submitted a letter to the court affirming that

defendant lived in a multifamily house and did not receive the motion in a timely

manner. Counsel again requested the right to file a motion on short notice.

Counsel asserted that passport offices were closed and not taking appointments;

that the child was recently sick; that plaintiff would not communicate exactly

where the child would be spending the parenting time; and that the lack of being

heard was unfair. The court denied the motion on short notice, but the parties

were free to file a new motion or an order to show cause.

      On July 14, defense counsel moved for a stay of the July 2 order with a

short notice return, and the court allowed a motion that day but without a short

return. On July 14, defense counsel also filed this appeal. The motion to stay

was returnable on August 27, 2021.

      On July 21, defense counsel filed an order to show cause (OTSC) for

emergent relief to stay the July 2 order. Defendant asserted that she received

the motion on June 6 or 7 but likely June 7 because she gets mail on Mondays.

Defendant asserted plaintiff had not had overnights with his daughter since 2019


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because he is stationed in Belgium with the military; that the Centers for Disease

Control and Prevention (CDC) advised against traveling to Belgium, especially

without a vaccination, and that the child was not vaccinated; that the child has

expressed fear, anxiety, and a lack of desire of wanting to go to a foreign place

with her father; and that the child does not want to speak to her father.

      Defense counsel included a letter brief in support of the OTSC asserting

the same facts and arguing that they satisfied the standard for preliminary

injunctive relief adopted in Crowe v. DeGoia,  90 N.J. 126, 132-34 (1986).

Counsel asserted due process violations for untimely service and for the inability

to oppose before the return date, and that it was more likely than not the court

would overturn the order after hearing the defendant. Finally, counsel argued

the hardship weighed in favor of a stay because plaintiff can visit in New Jersey

and can FaceTime without interruption, but the child would experience harm

and risk of COVID-19 by leaving the country while the order "gets decided on

the merits down the road."

      The court denied defendant's OTSC, because defendant "failed in its

burden to allege sufficient facts that would rise to the threshold of substantial,

immediate, and irreparable harm . . . to the child on the grounds stated in Crowe

. . . ." In its attached statement of reasons, the court elaborated that plaintiff's


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application was only to enforce the parenting schedule agreed to in the PSA and

that defendant's motion was only to stay the order, i.e., the PSA would still be

in effect even with a stay of the July 2 order. Defendant did not ask to suspend

or modify the PSA. Further, defendant did not include the referenced CDC

guidelines about Belgium or other evidence of increased risk of COVID-19 in

Belgium.     The court did not find evidence that plaintiff had willfully or

intentionally refused to see the child before; rather, COVID-19 and the

breakdown of communication between the parties contributed to the missed

time.

        Pursuant to Rule 2:5-1(b), on July 30, the court issued a thorough written

opinion with findings of facts and conclusions of law after defendant filed this

appeal. The court further elaborated on the procedural history. Pursuant to Rule

5:5-4(c), plaintiff's motion was returnable on June 25 with opposition or cross -

motion due on June 10, but defendant hired counsel on June 19 and filed an

opposition on June 22. The court entered an order on July 2 and emailed it to

plaintiff's counsel. On July 6, the court received a courtesy copy of defendant's

opposition, asking to be considered, which the court denied because it already

entered the unopposed motion, but that defendant could file a new motion or

OTSC. The court rejected defendant's argument that opposition should be heard


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before a motion is returnable but after the fifteen days to motion or oppose under

Rule 5:5-4(c).     Defendant requested a notice of motion on short notice to

consider the opposition, which the court denied as not provided for in the court

rules.

         The court continued with the following pertinent findings of facts as to

the PSA: the parties shall consult and discuss decisions for important matters

and have access to records regarding the same; the parties shall not act to

alienate the child or color the child's attitude to the other party; the partie s shall

have reasonable telephone contact with the child; the parties agreed to a unique

and detailed parenting schedule, which entitled plaintiff to thirty-five days of

parenting time in odd summers and forty-two days of parenting time in even

summers and to have parenting time outside of New Jersey and which included

an agreement to remain flexible overall, with holidays, and with plaintiff's duty

locations; and the parties agreed that the defaulting party shall pay necessary

and reasonable court costs to enforce said provisions.

         The court also elaborated on the following conclusions of law.

Defendant's opposition was filed after the fifteen days permitted in Rule 5:5-

4(c), thus it was untimely and the court need not consider it. Defendant's due

process rights were not violated because plaintiff's counsel certified he mailed a


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copy on May 27; defendant did not dispute the mailing address; Rule 1:5-4(b)

considers service complete on the day of mailing; and the USPS tracking number

showed delivery on June 1, 2021, at 4:55 p.m.

      Further, the court reiterated that: plaintiff applied only to enforce

provisions; neither party filed to substantially modify or suspend the PSA; and

the July 2 order only enforced specific provisions. The court found no reason

to not enforce the provisions: the parties agreed to co-parent and communicate;

one-and-a-half hours of FaceTime per week was "reasonable"; the PSA allowed

for parenting time outside of New Jersey; there was no proof of increased

COVID-19 risk in Belgium; plaintiff would arrange and pay for half the

transportation for this time outside New Jersey; the agreed-to parenting time had

not happened in the summer and holidays in 2020 due to COVID-19 with no

proof the lack of time occurred because plaintiff willfully or intentionally

refused to exercise his time; and plaintiff was entitled to makeup parenting time.

      The court noted that "[t]he specificity of their parenting time arrangement

suggests that the parties acknowledged and understood the nature of [p]laintiff's

career and the need for flexibility, which puts them, and not the [c]ourt, in the

best position to establish a mutually agreed upon plan to makeup [p]laintiff's

parenting time." The court concluded the schedule was silent as to where


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holiday parenting time should occur, so the court, sua sponte, modified the PSA

to reflect time at plaintiff's residence rather than New Jersey specifically. The

court also ordered defendant to pay $1,475.90 towards plaintiff's counsel fees.

      Defendant's motion to stay the order was still returnable on August 27.

Plaintiff filed a cross-motion at some point thereafter. The court substantively

denied the motion to stay the July 2 order for the same reason it denied the OTSC

because defendant provided the same reasons, and the court procedurally denied

the motion to stay because defendant already filed an appeal of the July 2 order,

and the appeal was still pending. The court further denied plaintiff's cross -

motion without prejudice pending the outcome of the appeal and denied all other

requested relief.

      On appeal, defendant argues that the court erred by not considering her

opposition, not speaking to the child, not considering the strained parental

relationship, and not considering the dangers of traveling to Belgium.        She

asserts a plain error standard of review under Rule 2:10-2 for the court's failure

to consider the opposition and the best interests of the child.

      "The general rule is that findings by the trial court are binding on appeal

when supported by adequate, substantial, credible evidence." Cesare v. Cesare,

 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Invs. Ins. Co. of


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Am.,  65 N.J. 474, 484 (1974)). Consequently, we "should not disturb the factual

findings and legal conclusions of the trial judge unless . . . [we are] convinced

that they are so manifestly unsupported by or inconsistent with th e competent,

relevant and reasonably credible evidence as to offend the interests of justice "

or when we determine the court has palpably abused its discretion. Id. at 412

(internal quotations omitted); see also Parish v. Parish,  412 N.J. Super. 39, 47

(App. Div. 2010).

      Defendant's arguments miss the mark. First, because defendant did not

timely oppose the July 2 order, defendant is effectively raising an issue not

presented to the trial court. Generally, we cannot consider issues not presented

to the trial judge. See Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs.,  347 N.J.

Super. 163, 177-78 (App. Div. 2002).

      Second, defendant cannot show a due process violation for lack of notice

or opportunity to be heard.     "Fundamental to due process is providing a

defendant with notice of a lawsuit and an opportunity to be heard." Franzblau

Dratch, PC v. Martin,  452 N.J. Super. 486, 492 (App. Div. 2017). The court

was exceedingly clear throughout its correspondence and in its amplification of

reasons that defendant failed to oppose plaintiff's motion within fifteen days

pursuant to Rule 5:5-4(c) and that the court relied on the service of process to


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determine defendant's time of notice.      Moreover, defendant was ultimately

"heard" on the issues through the court's subsequent consideration of her motion

to stay and OTSC.

      Regardless of defendant's arguments, the court's written opinion from July

30 raised concern about the child's best interests under the PSA, so we exercise

our parens patriae jurisdiction. See Impink ex rel. Baldi v. Reynes,  396 N.J.

Super. 553, 562 (App. Div. 2007) (discussing parens patraie powers over a

minor's estate). The court engaged in the following sua sponte analysis:

            Paragraph 2.10 established the parties' holiday
            parenting time schedule; however, it is silent as to
            where said parenting time shall occur. Accordingly, the
            [c]ourt modified this paragraph to allow [p]laintiff the
            opportunity to spend his holiday parenting time with his
            child at his residence, rather than being forced to spend
            holidays in New Jersey. The phrase 'at his residence'
            also accounts for any of [p]laintiff's future duty
            stations/residences and allows for flexibility that the
            parties' agreed to attempt to maintain with respect to
            holidays and birthdays with their child.

            [(emphasis added).]

      Neither party asked for the trial court to modify the PSA nor appealed the

court's modification without a best interests analysis. "Settlement agreements

in matrimonial matters, being 'essentially consensual and voluntary in character,

. . . [are] entitled to considerable weight with respect to their validity and


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enforceability' in equity, provided they are fair and just." Dolce v. Dolce,  383 N.J. Super. 11, 20 (App. Div. 2006) (alterations in original) (quoting Petersen

v. Petersen,  85 N.J. 638, 642 (1981)). As such, a parent seeking to modify

parenting time must show changed circumstances and that the modification is in

the best interests of the child. Finamore v. Aronson,  382 N.J. Super. 514, 522-

23 (App. Div. 2006).

      Although the court asserted this was an order enforcing the PSA, the sua

sponte modification takes it beyond enforcement under the circumstances

presented. Even though raised sua sponte, the court made no finding that this

was in the best interest of the child. While the record may not ultimately support

a modification, we exercise our parens patriae jurisdiction to remand for an

evidentiary hearing, which should include an interview with the child and a

discussion of the child's best interests in light of current circumstances .

      Reversed and remanded. We do not retain jurisdiction.




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