NOT FOR PUBLICATION WITHOUT THE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
O.P. v. L.g-p.
Combined Opinion