DAMARIS URDAZ CRISTIANO VS. ANTHONY CRISTIANO(FM-02-894-10, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1958-15T1

DAMARIS URDAZ CRISTIANO,

Plaintiff-Respondent,

v.

ANTHONY CRISTIANO,

Defendant-Appellant.
___________________________

Argued June 6, 2017 – Decided July 17, 2017

Before Judges Yannotti, Fasciale, and Gilson.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-894-10.

Marion B. Solomon argued the cause for
appellant (Arons & Solomon, P.A., attorneys;
Ms. Solomon and Patricia L. Burris, on the
briefs).

Damaris C. Urdaz, respondent pro se.

PER CURIAM

Defendant Anthony Cristiano appeals from a December 11, 2015

order that, among other things, denied his motion to compel his

former wife, plaintiff Damaris Urdaz Cristiano, to pay child

support based on the costs of the parties' eldest son attending
private high school. The order also denied defendant's request

to designate him as the parent with primary residential custody

and denied his request for attorney's fees. We affirm.

I.

The parties were married in October 1994, and divorced in

November 2010. They have two children, a son born in September

2000, and a second son born in August 2002.

When they divorced, the parties entered into a property

settlement agreement (PSA), which was incorporated into the final

judgment of divorce. Under the PSA, the parties agreed to share

joint legal custody of the children, plaintiff was designated the

parent of primary residential custody, and the parties enjoyed

"roughly equal" parenting time with their children. Both parties

waived their right to alimony.

With regard to child support, the PSA provided that defendant

would be responsible for the children's private grammar school

tuition and the cost of the children's health insurance. The PSA

went on to provide that in consideration of defendant paying those

costs and the parties' roughly equal parenting time, neither party

would receive child support. In that regard, the PSA provided:

The parties have specifically agreed that in
light of the roughly equal time sharing
arrangement set forth more fully in the
Parenting Plan attached hereto as Exhibit "B"
and the Husband's payment of the Children's

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 private grammar school tuition and health
insurance, neither party shall receive direct
Child Support from the other party.

The PSA also provided that if there were a change in the

grammar school tuition payment by the husband or the cost of the

children's health insurance, the parties would revisit the issue

of child support. Specifically, the PSA provided:

In the event there is a change to the tuition
payment by the Husband i.e. the Children
attend public grammar school or his payment
of the Children's health insurance, the
parties shall revisit the issue of the
potential payment of Child Support from one
party to the other. In the event the parties
cannot agree they shall return to mediation
before filing any application with the Court.

The PSA also allowed for modification of child support in the

event that there is a change in circumstances.

The PSA did not address paying the costs for the children to

attend private high school. The PSA did, however, provide that

the parties agreed that they would both contribute to the

children's college education expenses. The amount of their

respective contributions would depend on the parties' then

existing financial circumstances and abilities, including, but not

limited to, income and assets.

In July 2014, defendant filed a motion seeking to compel

plaintiff to pay a portion of the private high school tuition for

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the parties' eldest son. The court ordered mediation, but

mediation was unsuccessful.

In April 2015, plaintiff filed a motion seeking an order

stating that she was not obligated to share in the costs of the

parties' children attending private high school. Defendant failed

to respond to that motion. Accordingly, an order was entered

granting plaintiff the relief she sought.

Thereafter, defendant retained new counsel and the court

agreed to reconsider the matter. In an order entered on August

17, 2015, the court found that defendant had voluntarily and

unilaterally enrolled the eldest son in private high school and

that plaintiff had no obligation to pay for the eldest son's

private high school tuition. Defendant did not appeal that order.

In September 2015, defendant filed a motion to recalculate

the parties' respective child support obligations based on the

increased costs resulting from the parties' eldest son attending

private high school. Defendant also sought to be named as the

parent of primary residential custody for school purposes. In

filing that motion, defendant did not request a plenary hearing

concerning any issue. Plaintiff opposed the motion and cross-

moved to enforce the court's August 17, 2015 order, which had held

that she had no obligation to contribute to the children's private

high school education.

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 On December 11, 2015, after hearing oral argument, the Family

Part denied defendant's request to impose a child support

obligation upon plaintiff based on the eldest son's private high

school tuition. The court also denied defendant's request to be

named as the parent of primary residential custody. On plaintiff's

cross-motion, the Family Part granted plaintiff's request to

reaffirm the August 17, 2015 order, which found that plaintiff was

not responsible for the costs of the children's private high school

education. Finally, the Family Part denied both parties' request

for attorney's fees.

Defendant appealed the December 11, 2015 order. In accordance

with Rule 2:5-1(b), the Family Part issued a supplemental written

decision, dated January 27, 2016, amplifying the reasons for the

December 11, 2015 order.

II.

On appeal, defendant makes five principal arguments: (1) we

should apply a relaxed standard of review; (2) the Family Part

erred in interpreting the parties' PSA and finding that plaintiff

did not have to contribute to the costs of private high school

education; (3) the Family Part erred in failing to schedule an

evidentiary hearing to address the alleged ambiguities in the

parties' PSA; (4) the court erred in failing to address the factors

identified in Newburgh v. Arrigo, 88 N.J. 529 (1982), and Hoefers

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v. Jones, 288 N.J. Super. 590 (Ch. Div. 1994), aff'd, 288 N.J.

Super. 478 (App. Div. 1996); and (5) the Family Part erred in

denying defendant's request for attorney's fees.

A. Child Support for Private High School

The fundamental issue on this appeal is whether the parties'

PSA required plaintiff, either directly or through child support,

to contribute to the costs of private high school for the children.

That question was directly addressed by the Family Part in its

order of August 17, 2015, where it held that there was no such

obligation.

As noted, defendant did not appeal the August 17, 2015 order.

Instead, defendant filed a new motion seeking child support based

solely on the changed circumstances that the eldest son had

enrolled in a private high school. Thus, as the Family Court

correctly recognized, defendant was essentially seeking to require

plaintiff to contribute to the costs of the eldest son's private

high school tuition through child support.

The only order on appeal before us is the December 11, 2015

order, which denied defendant's request to establish child support

based on the increased costs of the son's private high school

tuition. Therefore, the question presented is whether defendant

showed a change of circumstances warranting the imposition of a

child support obligation on plaintiff. Defendant candidly

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acknowledges that the only change in circumstances he relies on

is the increase in tuition from paying for private grammar school

to paying for private high school.

Settlement agreements in matrimonial cases are contracts that

should be enforced so long as they are fair and just. Petersen

v. Petersen, 85 N.J. 638, 642 (1981). Our courts recognize a

"strong public policy favoring stability of arrangements in

matrimonial matters." Quinn v. Quinn, 225 N.J. 34, 44 (2016)

(quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)).

"[F]air and definitive arrangements arrived at by mutual consent

should not be unnecessarily or lightly disturbed." Ibid. (quoting

Konzelman, supra, 158 N.J. at 193-94). Moreover, "courts [may

not] remake a better contract for the parties than they themselves

have seen fit to enter into, or to alter it for the benefit of one

party and to the detriment of the other." Karl's Sales & Servs.

v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div.), certif.

denied, 127 N.J. 548 (1991).

Here, a plain reading of the parties' PSA does not allow

defendant to seek child support based on the costs of private high

school tuition for the children. The PSA expressly addressed the

costs of private grammar school. The PSA also expressly addressed

the costs of the children's college expenses. The PSA was silent

on the costs of private high school.

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 Read in full context, however, the silence concerning private

high school tuition does not allow defendant to seek those costs

either directly or as child support. In that regard, the PSA

stated "neither party shall receive direct Child Support from the

other party." The PSA then provided that child support could be

"revisit[ed]" under four circumstances: (1) a change in

defendant's payment of private grammar school tuition, (2) a change

in defendant's payment for the children's healthcare insurance,

(3) "a modification to the parenting time," or (4) "a substantial

change in circumstances as defined by Lepis v. Lepis," [83 N.J.

139 (1980)].

The first three circumstances do not apply. As to the fourth,

defendant failed to establish a change in circumstances warranting

the imposition of child support. Our review of the Family Part's

determination regarding child support is limited. "[W]e do 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 the competent, relevant and

reasonably credible evidence as to offend the interests of

justice[.]" Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974) (quoting Fagliarone v. Township of North

Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40

N.J. 221 (1963)). Moreover, "[b]ecause of the family courts'

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special jurisdiction and expertise in family matters, appellate

courts should accord deference to family court factfinding."

Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Here, we discern no basis to disturb the Family Part's finding

that there was no showing of a change of circumstances. We also

discern no basis to disagree with the Family Part that defendant

made no showing warranting a change in the designation of plaintiff

as the parent of primary residential custody. It was undisputed

that the parties continued to share essentially equal parenting

time with both children. That the eldest son was attending a

private high school, while the younger son continued to attend

private grammar school, did not constitute grounds for making a

change in the parties' original parenting time arrangement.

B. Defendant's Other Arguments

The other arguments presented by defendant lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)

(1)(E). We add only a few brief comments. As already discussed,

our standard of review is well-established. Moreover, the

application of the correct standard of review warrants an

affirmance.

We find no error in the Family Part failing to schedule an

evidentiary hearing. Defendant did not move for an evidentiary

hearing in filing his motions nor did he request one in a manner

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that would cause the court to grant such a request. Just as

significantly, defendant did not identify what disputed issues or

material facts needed to be resolved at an evidentiary hearing.

We also need not resolve the parties' arguments over whether

defendant voluntarily enrolled his eldest son in private high

school. The record is clear that when the eldest son began private

high school, defendant knew that the Family Part had denied his

request to compel plaintiff to contribute to the costs of private

high school. Nothing compels defendant to send his son to private

high school. Thus, the material undisputed fact is that defendant

decided to voluntarily enroll his son in a private high school

after he knew he would have to pay the tuition.

We also find no error in the Family Part failing to address

the factors identified in Newburgh, supra, 88 N.J. 529, or Hoefers,

supra, 288 N.J. Super. 590. Newburgh addresses factors to be

considered for the costs of college. Supra, 88 N.J. at 545.

Hoefers addressed a PSA, which expressly provided that the father

would be responsible for private school. Supra, 288 N.J. Super.

at 596-97.

Finally, we discern no abuse of discretion in the Family

Part's decision to deny defendant's request for attorney's fees.

See R. 4:42-8; R. 4:42-9(a)(1); see also Platt v. Platt, 384 N.J.

Super. 418, 429 (App. Div. 2006).

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Affirmed.

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