NOT FOR PUBLICATION WITHOUT THE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-4983-17T2
JENNY R. CIULLA, f/k/a
JENNY R. OTT,
Plaintiff-Respondent,
v.
RAYMOND T. OTT,
Defendant-Appellant.
______________________________
Argued May 29, 2019 – Decided July 9, 2019
Before Judges Rothstadt and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0608-15.
James Clark Jensen argued the cause for appellant
(Laufer Dalena, Jensen & Bradley LLC, attorneys;
James Clark Jensen, of counsel and on the brief; Kory
A. Crichton, on the briefs).
Daniel Pelic argued the cause for respondent
(Townsend Tomaio Newmark LLC, attorneys; Daniel
Pelic, of counsel and on the brief).
PER CURIAM
In this post-divorce-judgment matter, defendant Raymond Ott appeals
from a May 14, 2018 order denying his motion to reconsider a March 27, 2018
order that compelled him to pay child support and other child care expenses, and
denied his request to require plaintiff to attend mediation before filing a motion
in court. The only order on appeal is the order denying reconsideration. We
discern no abuse of discretion in that order and, therefore, we affirm.
I.
The parties were married in October 2010. They have two children: a son
born in January 2012, and a second son born in February 2013. Less than five
years after their marriage, the parties were divorced in May 2015.
At the time of the divorce, the parties negotiated and entered into a
property settlement agreement (PSA), which was incorporated into their dual
final judgment of divorce. In the PSA, the parties agreed that defendant would
pay $93 per week in child support, he would pay thirty-five percent of agreed-
upon child-related expenses not covered by child support, and he would
maintain medical, dental, and prescription insurance for the children. The PSA
also contained a provision concerning mediation. That provision stated:
The parties agree that in the event there is a need to
resolve certain issues, they will first attempt mediation,
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prior to filing a court application. Any and all
mediation costs incurred shall be split between the
parties equally.
In January 2018, plaintiff filed a motion seeking (1) to find defendant in
violation of litigant's rights for failing to pay child support, failing to contribute
thirty-five percent of the children's preschool tuition and aftercare expenses, and
failing to maintain medical, dental, and prescription insurance for the children;
(2) compelling defendant to satisfy his child support arrears; (3) requiring
defendant to report his income to probation to allow income withholding; (4)
compelling defendant to purchase bunkbeds for the children so that they had a
place to sleep when they were spending time with him; (5) sanctioning
defendant; and (6) compelling defendant to pay plaintiff's counsel fees.
Defendant opposed that motion and argued that plaintiff should be compelled to
go to mediation before the motion was heard.
On March 27, 2018, the family court entered an order ruling on the motion
and issued a written statement of reasons explaining the rulings. In the March
27, 2018 order, the court (1) held defendant in violation of litigant's rights for
failing to pay child support; (2) compelled him to pay his child support arrears
and report his income to probation; (3) compelled him to make timely insurance
premium payments and to provide proof of those payments; (4) compelled him
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3
to purchase bunkbeds for the children; and (5) ordered him to pay $3336 for
plaintiff's counsel fees. The court denied without prejudice plaintiff's request to
compel defendant to reimburse her for his thirty-five percent share of the
children's preschool tuition and aftercare expenses finding that plaintiff had
submitted insufficient proof to establish whether the PSA required defendant to
pay such expenses.
In the accompanying statement of reasons, the family court explained that
although the parties had agreed to submit certain issues to mediation prior to
filing an application in court, here there was no need for mediation because there
were no disputed issues. In that regard, the court found that defendant had
agreed to pay child support, but he was simply not paying what he had agreed
to pay. With regard to the bunkbeds, the family court reasoned that there was
nothing to mediate since defendant had an obligation to provide adequate
sleeping arrangements for his children. With regard to attorney's fees, the court
found that defendant had acted in bad faith and, therefore, plaintiff was entitled
to an award of attorney's fees.
Both parties filed motions for reconsideration. Plaintiff sought
reconsideration of her request for reimbursement of thirty-five percent of the
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children's preschool and aftercare expenses. Defendant sought reconsideration
of the court's denial of his request to compel mediation.
On May 14, 2018, the same judge denied defendant's motion for
reconsideration and granted, in part, plaintiff's motion for reconsideration and
compelled defendant to pay his share of the children's preschool tuition and
aftercare costs. The court also found that defendant had failed to comply with
the March 27, 2018 order and directed defendant to comply with his obligations.
Again, the court explained the reasons for its ruling in a written statement of
reasons.
In addressing defendant's motion for reconsideration, the family court
reasoned that defendant had not demonstrated that the March 27, 2018 order was
decided on a palpably incorrect basis. Instead, the court found that defendan t
was simply iterating the arguments that he had previously made. For the first
time on reconsideration, defendant also argued that he was not able to pay child
support. The family court rejected that argument finding that defendant had
provided no financial information to support his contention.
On July 3, 2018, defendant filed a motion for leave to appeal as within
time. We entered an order denying the motion as to the March 27, 2018 order,
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but granting the motion as to the May 14, 2018 order. Accordingly, the only
order on appeal before us is the May 14, 2018 order.
II.
On appeal, defendant makes one argument. He contends that the family
court erred in denying reconsideration because the court should have enforced
the parties' mediation clause. Given the issues that were ruled upon in the March
27, 2018 order, we discern no abuse of discretion in the family court's decision
to deny reconsideration.
On appeal from a denial of a motion to reconsider, our review is limited,
but the denial "will be set aside if its entry is based on a mistaken exercise of
discretion." Brunt v. Bd. of Trs., Police & Firemen's Ret. Sys., 455 N.J. Super.
357, 362 (App. Div. 2018). A trial court abuses its discretion "when a decision
is 'made without a rational explanation, inexplicably depart[s] from established
policies, or rest[s] on an impermissible basis.'" Ibid. (quoting Pitney Bowes
Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.
2015)).
Reconsideration should only be used in those rare cases that fit into a
narrow category where "either 1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt
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either did not consider, or failed to appreciate the significance of probative,
competent evidence." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div.
2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Here, the question is whether plaintiff should have been compelled to
mediate before bringing a court application. That question, in turn, requires an
interpretation of the mediation provision in the parties' PSA as applied to the
issues raised in plaintiff's motion.
New Jersey favors the use of consensual agreements to resolve marital
controversies, treating them as binding contracts that should be enforced.
Pacifico v. Pacifico, 190 N.J. 258, 265-66 (2007); Konzelman v. Konzelman,
158 N.J. 185, 193-94 (1999). "It is not the function of the court to rewrite or
revise an agreement when the intent of the parties is clear." Quinn v. Quinn,
225 N.J. 34, 45 (2016) (citing J.B. v. W.B., 215 N.J. 305, 326 (2013)).
"[M]atrimonial agreements between spouses relating to . . . support, which are
fair and just, fall within the category of contracts enforceable in equity."
Peterson v. Peterson, 85 N.J. 638, 642 (1981). Nevertheless, "[t]he law grants
particular leniency to agreements made in the domestic arena, and likewise
allows judges greater discretion when interpreting such agreements." Guglielmo
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v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992); accord Pacifico, 190
N.J. at 266.
Here, plaintiff sought to enforce child support obligations and agreed -
upon child care expenses that were not covered by child support. Significantly,
defendant did not dispute that he owed these obligations. The mediation
provision in the parties' PSA did not require all issues to go to mediation.
Instead, it expressly stated that "in the event there is a need to resolve certain
issues," the parties would first mediate such issues. There was nothing to
resolve with regard to defendant's obligation to pay child support, the agreed -
upon preschool tuition and aftercare expenses, and his obligation to maintain
health insurance. Moreover, defendant did not dispute that he was in arrears on
his child support obligations, had failed to pay his share of the other childcare
expenses, and was not maintaining the health insurance. Under those
circumstances, there was nothing to mediate. Instead, as the family court
correctly found, plaintiff was seeking to enforce agreed-upon obligations.
Defendant contends that certain of the obligations had not been agreed
upon. In that regard, he points to the provision of the order that compelled him
to purchase bunkbeds. Had defendant raised a factual dispute concerning that
issue, he may well have been entitled to mediate that issue. Defendant, however,
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did not dispute that when the children were staying with him, they did not have
their own beds. Because this issue only comes to us on a motion for
reconsideration, we discern no abuse of discretion that would require the matter
to first go to mediation.
Affirmed.
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