O.P. v. L.g-p.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0835-13T4

O.P.,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
v. April 1, 2015

L.G-P., APPELLATE DIVISION

Defendant-Appellant.
______________________________

Argued February 3, 2015 - Decided April 1, 2015

Before Judges Reisner, Koblitz and Higbee.

On appeal from Superior Court of New
Jersey, Chancery Division, Family Part,
Union County, Docket No. FM-20-380-09.

Glenn E. Gelband argued the cause for
appellant.

Respondent has not filed a brief.

The opinion of the court was delivered by

KOBLITZ, J.A.D.

L.G-P.1 appeals from many provisions in a September 6, 2013

post-judgment order resolving her pro se motion to enforce

1
We use initials to preserve the confidentiality of L.G-P., who
was the victim in a related domestic violence matter referred to
in this opinion.
child-support provisions of the property settlement agreement

(PSA), entered into when the parties were divorcing in 2009.

The parties were married in 2006 and had their only child

in 2007. They had agreed in the PSA to extensive communication

about their child, as well as mediation if they should not

agree, both of which require significant parental cooperation.

Post-judgment litigation, however, began within a few months of

their divorce judgment. A final restraining order (FRO),

pursuant to the Prevention of Domestic Violence Act (PDVA),

N.J.S.A. 2C:25-17 to -35, was subsequently entered against O.P.

Because the motion court mistakenly enforced PSA provisions

requiring mediation and frequent contact after the entry of an

FRO, we reverse and remand for a plenary hearing.

In Part I of this decision, we provide the details of the

child support provisions of the PSA and related motions between

the parties. We provide this history not only to resolve this

case, but also to illustrate how untenable constantly-changing

child support payments may become, particularly after the entry

of an FRO. In Part II, we explain why provisions of the

preexisting PSA requiring mediation and parental communication

should not be enforced after an FRO prohibiting contact between

the parties is entered.

2 A-0835-13T4
 I.

In the 2009 PSA, O.P. had agreed to pay L.G-P. child

support of $135 each week2 plus 40% of the following:

unreimbursed medical expenses; medical and dental insurance

premiums; "reasonable extraordinary" expenses, which included

school expenses and costs for sports; a yearly agency fee for

the au pair service; the au pair's weekly salary; and the au

pair's yearly education stipend. The parties agreed that child

support obligations could be modified in the event of changed

circumstances. One change of circumstances identified in the

agreement was when O.P.'s daughter from a previous marriage

became emancipated. To secure their child support obligations,

each parent agreed to maintain a $250,000 life insurance policy

naming their son as the beneficiary.

If the parties were unable to resolve future disputes, they

agreed to mediate the issues "through a mutually agreed upon

mediator before seeking court intervention." After various

motions were heard and decided by the court, an FRO was entered

on December 3, 2010.3

2
Support was subsequently ordered to be paid through the
Probation Division. R. 5:7-4(b).
3
We were not provided with the domestic violence complaint, nor
informed of the nature of the domestic violence found by the
court. The FRO, however, was provided by L.G-P. to the motion
(continued)

3 A-0835-13T4
 After the entry of the FRO, when the parties returned to

court on a fourth set of pro se motions, the court ordered them

to engage in mediation to resolve the issues underlying the

motions. When their mediator later ended her private practice,

O.P. used a friend to communicate with L.G-P. via email.

L.G-P. filed another motion on August 1, 2013, claiming

that O.P. owed her: $102 for 2011 medical bills; $330.67 for

2012 medical bills; and $783.01 for medical and dental insurance

premiums incurred from 2011 to 2013. She said that O.P. had not

paid $562.45 for swim lessons from 2011 to 2013, $228.86 for

other extracurricular expenses from 2011 to 2013, and $104.91

for a school welcome kit. She included copies of receipts and

documents with her motion, and said that she had given these

bills to O.P. "on multiple occasions" via email and during

mediation, but he refused to pay them.

With respect to au pair expenses, L.G-P. said that O.P.'s

weekly obligation was $163, but he had paid only $161.60 from

2011 through 2013, leaving a balance due of $92.40. She claimed

that he owed her $443 for the au pair education stipend from

2011 through 2013, and that he did not pay his share of the

(continued)
court. A family judge may obtain domestic violence orders
through family staff if not provided by the parties, and should
do so if the FRO's specific terms may be relevant to the
parties' application.

4 A-0835-13T4
annual au pair agency fee for 2013. She also alleged that he

owed her four missed au pair salary payments between May 2011

and October 2012 of $163 each, an additional $83 for a "missed

payment" on June 10, 2011, as well as $1150 in other child care

and au pair costs incurred in 2011. She claimed that as of June

28, 2013, O.P. stopped making the $163 weekly salary payments,

and owed her for those payments as well.

L.G-P. also said O.P. had missed one weekly child support

payment in 2011 and had failed to provide documentation to prove

that his daughter from a prior marriage was still attending

school and was therefore not emancipated. She asked the court

to recalculate child support, and to order O.P. to reimburse her

for any $29 weekly credit that he wrongly received for child

support not paid to his daughter's mother. She requested proof

that O.P. had life insurance in accordance with the PSA.

L.G-P. also requested that O.P. be ordered to pay her

$563.79, 60% of a 2007 federal income tax refund check that she

said O.P. obtained by forging her signature on the check. She

requested reimbursement of $252.26 for transcripts that she

ordered for her use in mediation, and $240.03 for filing fees

incurred in relation to this motion. She also requested that

5 A-0835-13T4
the court find O.P. in violation of the FRO.4 Finally, L.G-P.

requested that the court eliminate the requirement that the

parties mediate their disputes because, she said, O.P. had

"released" their prior mediator and mediation had not resulted

in her receiving any payment toward the outstanding unpaid

expenses.

O.P. filed a pro se cross-motion to strike L.G-P.'s motion.

He denied terminating the mediator's services. He also said

that after their mediator ended her practice, L.G-P. refused to

cooperate in finding a new mediator. He believed that mediation

had been helpful in resolving his disputes with L.G-P. and

wished to proceed with it.

O.P. said that the mediator had resolved the issue of

unreimbursed medical expenses, and that he had paid L.G-P. for

all legitimate ones. He complained that L.G-P. "constantly"

demanded that he pay expenses without providing proof, which she

was required to do.

O.P. asked the court for relief from contributing to the

cost of the au pair because their son was about to begin first

grade and would be in school full-time. He complained that L.G-

P. had no nanny from March 8 to May 20, 2013, but failed to

4
We note that a violation of an FRO is a criminal infraction.
N.J.S.A. 2C:29-9(b).

6 A-0835-13T4
inform him of this, which resulted in his paying for services

that their son did not receive. He said that he had paid his

40% share of the au pair yearly agency fee through May 2014 and

that he had paid, in full, all weekly salaries, as well as his

contribution for the nanny's cellular phone. He attached

documents to show the various payments that he had made for

medical and au pair expenses.

With respect to swim lessons and sports costs, O.P. said

L.G-P. had not provided proof of these expenses. He claimed

that she also failed to confer with him before incurring these

expenses, contrary to the requirements of the PSA. He requested

that L.G-P. be solely responsible for their payment and that she

be found in contempt of court for failing to comply with

previous orders requiring her to provide proof of expenses

before demanding payment.

O.P. claimed that the court had already denied L.G-P.'s

request for reimbursement of the school welcome kit expense and

that he had made all of his weekly child support payments. He

sent L.G-P. proof by certified mail of his daughter's enrollment

in school and of his continued child support payments to this

child's mother. He denied that he had forged L.G-P.'s name on

an income tax refund check and complained that L.G-P. had been

7 A-0835-13T4
harassing him with this false accusation for three years. He

attached proof of life insurance to his moving papers.

O.P. did not believe that he had to pay for L.G-P.'s

transcripts or court costs, as he had paid for similar expenses

of his own. He denied violating the FRO and complained that

L.G-P.'s numerous motions were a result of her failure to

provide him with information in a timely manner and her refusal

to accept decisions rendered in his favor.

After oral argument, the motion court ordered O.P. to pay

the bills he conceded he owed. The court denied without

prejudice L.G-P.'s request for payment of swim lessons and

school expenses because, contrary to the terms of the agreement,

L.G-P. did not discuss these costs with O.P. before she incurred

them and did not provide O.P. proof of the expenses.

When L.G-P. protested that her FRO prohibited O.P. from

communicating with her, the court urged her to amend the FRO to

allow email communication regarding extracurricular activities.

L.G-P. said she did not want to do that because she believed

O.P. would send her derogatory and threatening emails.

The court found that their son still needed a live-in nanny

because of L.G-P.'s variable work schedule that sometimes

required her to work for long periods of time. L.G-P. agreed

that O.P. had paid the yearly au pair agency fee, so that issue

8 A-0835-13T4
was moot. The court did not address each au pair salary payment

that L.G-P. said O.P. had failed to make, but focused on L.G-

P.'s failure to notify O.P. in the spring of 2013 that she did

not have a nanny for approximately two months. The court found

that O.P. was owed a credit for payments he made during that

time, and denied payment for the education stipend because L.G-

P. did not provide O.P. proof that the nanny had received

education. The court said that it was "wiping the slate clean,"

and that going forward, O.P. had to pay his 40% share of the au

pair expenses. The court denied L.G-P.'s motion for child

support arrears, explaining that if O.P. owed any money, then

the probation department would correct the error.

The court next asked L.G-P. how O.P. was supposed to

provide proof of his daughter's attendance in school if the FRO

prohibited O.P. from communicating with L.G-P. L.G-P. said that

they had been in mediation for two years, implying that O.P.

should have given her proof then. The court said: "Well, then

I'm ordering you to go to a mediator and resolve all the rest of

your issues."

L.G-P. protested that mediation did not work and that the

agreement clearly addressed O.P.'s obligations. The court

responded by asking how O.P. could provide proof with an FRO in

place. L.G-P. suggested an attorney forward her the documents

9 A-0835-13T4
or a police officer give them to her during parenting-time

transfers. The court rejected these suggestions and told her to

mediate any disputes.

At oral argument before us, L.G-P.'s counsel was unable to

inform us of the total sum of money sought by his client on

appeal. L.G-P.'s appellate brief sets forth sixteen points,

several of which were withdrawn due to developments subsequent

to filing the appeal.5

We have set forth this level of detail to illustrate the

ongoing, repetitive nature of the parties' disputes, most of

which involved no more than a few hundred dollars. The PSA set

the parties upon this course because, instead of including the

children's extracurricular expenses in the monthly child support

amount, it required constantly changing payments, sensitive to

many factors such as the particular au pair's expenses and the

seasonal sport their son currently played. See Elrom v. Elrom,

____ N.J. Super. ____, ___ (App. Div. 2015) (slip op. at 23).

This arrangement required constant contact between the parties

and a level of cooperation seldom found in a divorced couple.

5
L.G-P. withdrew her appeal as to the provisions 1) requiring
her to cooperate and sign necessary documents to provide O.P.
access to the au pair's records and bills, 2) denying her
request to find O.P. in violation of the FRO, and 3) ordering
O.P. to provide proof through mediation that he has the required
life insurance and that his daughter is attending school.

10 A-0835-13T4
In fact, the level of animosity between these parties ultimately

led to an FRO.

II.

The PDVA was enacted in furtherance of New Jersey's "strong

policy against domestic violence." Cesare v. Cesare, 154 N.J.

394, 400 (1998). If a predicate offense is proven, the court

must then assess "'whether a restraining order is necessary,

upon an evaluation of the fact[or]s set forth in N.J.S.A. 2C:25-

29(a)(1) to -(6), to protect the victim from an immediate danger

or to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458,

475-76 (2011) (quoting Silver v. Silver, 387 N.J. Super. 112,

127 (App. Div. 2006)). Thus, the plaintiff in a domestic

violence complaint must prove not only that the defendant

committed one of the enumerated acts of domestic violence, but

also that an FRO is necessary for the plaintiff's protection.

If an FRO contains a prohibition against contact between

the parties, and the domestic violence victim does not seek such

contact, a judge in a future proceeding should not suggest that

the victim amend the no-contact provision. As our Supreme Court

has stated, a judge in a domestic violence action will "grant

any relief necessary to prevent further abuse." J.D., supra,

207 N.J. at 476 (quoting Silver, supra, 387 N.J. Super. at

127)(quoting N.J.S.A. 2C:25-29(b)). The judge in this post-

11 A-0835-13T4
judgement matrimonial matter should have assumed that the judge

who ordered the FRO no-contact provision did so pursuant to the

appropriate legal standards, and should not have encouraged the

domestic violence victim to lessen the protective language of

the FRO.

The motion court did not enter the FRO and may not have

been familiar with the underlying basis for the entry of the

domestic violence order. The specific factual basis for the FRO

is not significant, however, because prior to entering such an

order, a finding must have been made that the order and the

specific relief entered were needed for L.G-P.'s protection.

Knowing that she would be in danger without such a protective

order, the motion court should not have urged L.G-P. to allow

O.P. greater contact with her.

Neither should the court have ordered the parties to work

out contested issues through mediation. Although a court rule

and directive preclude mediation of certain issues when an FRO

is in place, they do not address the situation where a

preexisting PSA requires both parental communication and

mediation. Rule 1:40-5 covers complementary dispute resolution

programs in Family Part matters, and requires court staff to

refer appropriate cases to such programs. Rule 1:40-5(a)(1),

Mediation of Custody and Parenting Time Actions, precludes

12 A-0835-13T4
mediation "if there is in effect a preliminary or final order of

domestic violence entered . . . ." Rule 1:40-5(b)(1), Mediation of

Economic Aspects of Dissolution Actions, states: "[N]o matter shall

be referred to mediation if a temporary or final restraining order

is in effect in the matter pursuant to the [PDVA.]" See New Jersey

Family Division, Directive #11-09 (Nov. 6, 2009), available at

https://www.judiciary.state.nj.us/directive/2009/dir_11-09.pdf

(instructing staff that mediation in child welfare cases is

never appropriate if one party has an active temporary or final

restraining order). In Lerner v. Laufer, 359 N.J. Super. 201,

216 (App. Div.), certif. denied, 177 N.J. 223 (2003), we stated

in the context of a dismissal of a legal malpractice case where

the attorney limited his representation of a matrimonial client

to the review of a mediated PSA, "Mediation is now an accepted

process in the resolution of family disputes except where an

order has been entered under the [PDVA]." (emphasis added).

Parties may contract to disregard settled law in a divorce

settlement, including the New Jersey Child Support Guidelines

(Guidelines) pursuant to Rule 5:6A (adopting Guidelines set

forth in Appendix IX-A to the Court Rules). See Musico v.

Musico, 426 N.J. Super. 276, 293 (Ch. Div. 2012) (rejecting

husband's argument that above-Guideline child support expressly

agreed to automatically decreases to the Guideline level once

13 A-0835-13T4
there is a change of circumstances); Konzelman v. Konzelman, 158

N.J. 185, 197 (1999) (deferring to the parties' consensual

agreement that cohabitation in itself constituted a material

change of circumstance terminating alimony, which did not

require the normal inquiry into its effect on the dependent

spouse's financial status). A court generally should enforce

the provisions of a PSA. New Jersey "has a strong public policy

favoring enforcement of agreements[]" in divorce cases. Massar

v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). "Marital

agreements are essentially consensual and voluntary and as a

result, they are approached with a predisposition in favor of

their validity and enforceability." Ibid. So long as the terms

of the agreement are fair and equitable, the court will require

the parties to abide by them. Ibid.

Provisions in a PSA that were reasonable at the time of the

agreement, however, may well become unreasonable upon the entry

of an FRO. Extracurricular expenses are generally included in

the Guidelines calculation. Elrom, supra, slip op. at 2. An

average amount of extracurricular activities are contained

within the Guidelines. Child Support Guidelines, Pressler &

Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at

2631-32 (2015). Extraordinary expenses, such as those expended

here on the au pair, may be added when child support is

14 A-0835-13T4
calculated. Id. at 2632. When child support is calculated

pursuant to the Guidelines and paid through probation, contact

between the parties can be minimized. When circumstances

change, the parties may then return to court for a

recalculation. Although returning to court may be inconvenient

and costly, alternate dispute resolution methods are not safe

when an FRO has been entered.

"Our courts have recognized that those who commit acts of

domestic violence have an unhealthy need to control and dominate

their partners and frequently do not stop their abusive behavior

despite a court order." Zappaunbulso v. Zappaunbulso, 367 N.J.

Super. 216, 225 (App. Div. 2004) (citing State v. Hoffman, 149

N.J. 564, 585 (1997)). Thus, even if mediation could be

conducted in a safe environment, or the parties kept in separate

rooms, and the parties are represented by counsel, the

bargaining position of the parties could well be distorted by

past violence. Mediation is entirely prohibited by statute in

domestic violence matters, N.J.S.A. 2C:25-29(a). Mediation is

entirely prohibited in child welfare cases, where the parties

are usually represented by counsel, after a domestic violence

restraining order has been entered, Directive #11-09, supra,

and also in pre-trial divorce and non-dissolution actions, R.

1:40-5. When parties agree to mediation at the time of divorce,

15 A-0835-13T4
they do not anticipate the subsequent entry of an FRO. For

reasons of safety, and to conform with the strong public policy

of this State, mediation should not be ordered after a

subsequent FRO has been entered, even in an effort to conform

with the provisions of a PSA.

With regard to the decisions made on this motion that

remain the subject of this appeal, we reverse and remand for a

plenary hearing. After the hearing, assuming the FRO remains in

effect, the court should craft a child support order that

encompasses the payment responsibilities set forth in the PSA,

without the communication required in the PSA. See New Jersey

Domestic Violence Procedures Manual, §4.14.9 (2008), available at

https://www.judiciary.state.nj.us/family/dvprcman.pdf (stating

that when a court is asked to enter an FRO, and a child support

order is already in place, the court should reconsider the issue

of support in accordance with the Guidelines to avoid conflicting

orders and to avoid the need for communication between the

parties). We therefore reverse all of the various procedural and

monetary decisions and remand for an evidentiary hearing.

Reversed and remanded for proceedings consistent with this

opinion. We do not retain jurisdiction.

16 A-0835-13T4