LIDIA MONGAY SOLER VS. JEFFREY G. STARK (FM-20-1855-16, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2156-18T2

LIDIA MONGAY SOLER,

Plaintiff-Respondent,

v.

JEFFREY G. STARK,

Defendant-Appellant.
_________________________

Submitted September 23, 2019 – Decided November 6, 2019

Before Judges Ostrer, Vernoia and Susswein.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-1855-16.

Donahue, Hagan, Klein & Weisberg, LLC, attorneys
for appellant (Debra Susan Weisberg, of counsel and on
the briefs; Sandra H. Starr Uretsky, on the briefs).

Williams Law Group, LLC, attorneys for respondent
(Allison C. Williams, of counsel and on the brief;
Victoria Danielle Miranda, on the brief).

PER CURIAM
 Defendant Jeffrey G. Stark appeals from a Family Part order granting his

former wife, plaintiff Lidia Mongay Soler, parenting time with their three

children on Easter Sundays commencing in 2020 and permitting plaintiff to

"educate the children with her religious and moral values during her parenting

time." Based on our review of the record in light of the applicable law, we

affirm in part and reverse in part.

I.

Plaintiff and defendant married in 2007, and have three children: twins

born in 2009, and their youngest child, born in 2013. Plaintiff and defendant

divorced in 2016. Their dual judgment of divorce incorporates a marital

settlement agreement (MSA) and a co-parenting agreement. The MSA provides

that the agreement represents "the entire understanding of the parties and [that]

there are no representations, warranties, covenants or undertakings other than

those expressly set forth" in the agreement. It further declares that "[t]he parties

have different cultural and religious backgrounds," and "any unresolved issues

regarding the cultural and religious upbringing of the children" will first be

submitted for resolution in mediation and, if mediation is not successful, the

parties may "seek court intervention."

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 The co-parenting agreement designates plaintiff as the parent of primary

residence and defendant as the parent of alternative residence but provides the

"designation[s] [are] not intended to confer on one parent any additional legal

rights" beyond authorizing plaintiff to determine the schools the children will

attend. The agreement grants the parties "equal input and decision making rights

as to all matters of importance concerning the health, education and welfare of

the children" and states that "[n]either party shall have the right to make a

unilateral decision as to such matters." The co-parenting agreement provides

that the parties shall submit unresolved disputes concerning "substantive

issue[s] concerning the children" to a mediator, then to legal counsel and, if the

issue[s] remain unresolved, to the courts.

Following their divorce, the parties disagreed about the religious

upbringing of their children. Plaintiff is Catholic and defendant is Jewish.

Defendant argues that plaintiff agreed to raise the children in a Jewish home and

in the Jewish faith. He asserts plaintiff took a course on Judaism prior to their

marriage, attended synagogue services with the children during the marriage,

allowed the children to participate in the rituals required for their conversion to

the Jewish faith, and signed a "Declaration of Commitment" following the birth

of the twins to raise them in the Jewish faith. Defendant further asserts that

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prior to the parties' separation in 2014, their youngest child was circumcised

during a Jewish ceremony and given his Hebrew name, but he had not yet

completed his conversion to the Jewish faith.

Plaintiff claims she "never agreed to having a strictly Jewish home or

raising [the] children in only the Jewish faith," "did not agree to send them to

Hebrew school," and "always maintained [her] Catholic faith and beliefs."

Plaintiff asserts she "attempted to learn and understand Judaism" based on her

respect for defendant's culture and religion, and that she acceded to the children's

involvement in Jewish religious rituals during the marriage due to pressure from

defendant. Plaintiff certified that she "always assumed [the] children would be

brought up to learn both sides of their faith—Catholicism and [Judaism], and

never intended that they would only be brought up in the Jewish faith." Plaintiff

claims defendant interfered with her efforts to expose the children to her

religious beliefs, practices and rituals during the marriage, and continued to do

so following the parties' separation and divorce.

In 2018, defendant moved in part for an order permitting the youngest

child's final conversion to the Jewish faith, allowing the enrollment of the twins1

1
Defendant's notice of motion stated he moved for an order permitting one of
the twins and the youngest child's enrollment in Hebrew school and allowing the

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in Hebrew school, permitting the youngest child's enrollment in Hebrew school

"when he is of age," requiring plaintiff to transport the children to Hebrew

school during her weekend parenting time, and restraining plaintiff from making

any derogatory statements concerning "the religious beliefs or practices of

Judaism." Plaintiff opposed the motion and filed a cross-motion seeking an

order for "[e]nforce[ment of] the MSA reflecting that the children should be

exposed to both cultures and religions of both parties."

Plaintiff also cross-moved for an order requiring that the children spend

Easter Sunday with her each year. The MSA provides that "[t]he children shall

spend the entire Easter break with" defendant, but that plaintiff "shall have

parenting time with the children on Easter Sunday" if defendant "does not travel"

on that day. In support of her cross-motion, plaintiff alleged defendant violated

the MSA by taking the children to a local amusement park on Easter Sunday in

2018 and denied her right to parenting time by claiming he was "traveling" with

the children on that day.

other twin's enrollment "when he is of age." Based on defendant's supporting
certification, we conclude the first reference to the youngest child in the notice
of motion is in error, and that defendant moved for an order permitting the twins'
enrollment in 2018 and the youngest child's enrollment later, "when he is of
age."
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 The court heard argument on the motions and entered an order granting

defendant's request to allow the youngest child's conversion to the Jewish faith

and allowing defendant to take the children to Hebrew school during his

parenting time. The court denied defendant's motion to require that plaintiff

take the children to Hebrew school during her parenting time. The order granted

plaintiff's requests for parenting time each Easter Sunday commencing in 2020

and that she may educate the children with her religious and moral values during

her parenting time.

Defendant appealed from the court's order and plaintiff cross-appealed.

Plaintiff subsequently withdrew her cross-appeal and thus does not contest the

court's order permitting the youngest child to complete his conversion to

Judaism and allowing defendant to take the children to Hebrew school during

his parenting time. We therefore limit our discussion to defendant's appeal of

the court's order granting plaintiff parenting time on each Easter Sunday

commencing in 2020 and allowing plaintiff to educate the children regarding her

religious and moral values during her parenting time.

II.

We "accord particular deference to the Family Part because of its 'special

jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super.

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457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

Therefore, a Family Part judge's findings are binding so long as his or her

determinations are "supported by adequate, substantial, credible evidence."

Cesare, 154 N.J. at 412. We reverse only if there is "'a denial of justice' because

the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'"

Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of

Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). "However, when

reviewing legal conclusions, our obligation is different; '[t]o the extent that the

trial court's decision constitutes a legal determination, we review it de novo.'"

Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (alteration in

original) (quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).

We first address defendant's challenge to the court's order permitting

plaintiff to educate the children concerning "her religious and moral values

during her parenting" time. Defendant contends plaintiff agreed during the

marriage to raise the children in the Jewish faith and refrain from practicing

other religions, and the court erred by failing to give effect to that agreement by

entering an order allowing plaintiff to educate the children about her religious

and moral values during her parenting time. Plaintiff disputes there was any

agreement during the marriage to raise the children solely in the Jewish religion

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and asserts the MSA and co-parenting agreement left open the issue of the

children's religious upbringing. Plaintiff claims the court cannot prop erly

interfere with her parental and constitutional rights to educate the children about

her religious beliefs.

Where divorced parents disagree over the religious upbringing of their

children, the courts may neither "choose between religions" nor "prevent

exposure to competing and pulling religious ideas and rituals." Asch v. Asch,

164 N.J. Super. 499, 505 (App. Div. 1978). Children are entitled to "have the

opportunity to participate in the cultural household routine and religious

practices of both parents," "may be well served by a broadening multi-cultural

experience[, and] can only be hurt by a fractious inter-cultural contest."

McCown v. McCown, 277 N.J. Super. 213, 219-20 (App. Div. 1994).

"[T]he court[s] should seek to advance the best interests of the child[ren]

where [their] parents are unable to agree on the course to be followed." Asch,

164 N.J. Super. at 505. To achieve that result, our courts have "establish[ed]

secular rules to minimize the conflicting pressures placed on the children and

permit them to steer a course between the conflicting views and beliefs of their

parents." McCown, 277 N.J. Super. at 219. The rules ensure that court decisions

governing the religious upbringing of divorced parents' children neither violate

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the "children's constitutional right to religious freedom nor permit the

imposition" of conditions upon the parents violating their "constitutional right

of freedom of religion." Brown v. Szakal, 212 N.J. Super. 136, 139-40 (Ch. Div.

1986).

Where parents lack a contractual agreement to the contrary, the custodial

parent has the authority to control the children's religious upbringing. Feldman

v. Feldman, 378 N.J. Super. 83, 91 (App. Div. 2005); see also Esposito v.

Esposito, 41 N.J. 143, 146 (1963); Brown, 212 N.J. Super. at 140; Wojnarowicz

v. Wojnarowicz, 48 N.J. Super. 349, 354 (Ch. Div. 1958). However, although

the custodial parent's right to control the religious upbringing of his or her

children takes precedence, a court cannot issue an order that unduly limits the

secondary caretaker's religious freedom. Brown, 212 N.J. Super. at 139-40.

Thus, a court cannot require that a parent of secondary residence "affirmatively

participate in a religion, not their own," Feldman, 378 N.J. Super. at 97, or

"prohibit [that parent] from taking [his or] her children to religious services of

[his or] her choice during [his or] her" parenting time, id. at 96. A court may

protect "the primary caretaker's right to raise and educate his [or her] children

in his [or her] chosen religion" by "prevent[ing] others from simultaneously

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educating the same children in an alternate religion," provided that prevention

of simultaneous education is in "the best interests of the children." Ibid.

Here, the MSA and co-parenting agreement do not make provision for the

religious upbringing of their children. They include only an acknowledgement

"[t]he parties have different cultural and religious backgrounds," and an

agreement that "any unresolved issues regarding the cultural and religious

upbringing of the children" shall be resolved through a defined procedure. The

co-parenting agreement designates plaintiff as the parent of primary residence,

but the parties expressly agreed the designation does not grant plaintiff any

authority beyond the ability to identify the schools the children will attend.

Based on the co-parenting agreement's terms, we do not find its

designation of plaintiff as the parent of primary residence alone vests her with

the authority to decide the religious upbringing of the children, see Feldman,

378 N.J. Super. at 91, and the record is otherwise bereft of evidence permitting

a determination that plaintiff qualifies as the custodial parent entitled to make

that decision, see, e.g., Holst-Knudsen v. Mikisch, 424 N.J. Super. 590, 596-97

(App. Div. 2012) (explaining our Supreme Court has "defined the term 'custodial

parent' as 'the parent primarily charged with making custodial decisions in the

child's best interest,' or alternatively, as the parent 'who exercises physical

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custody or sole legal custody'" (citations omitted)). In addition, plaintiff does

not challenge the court's order permitting the completion of the youngest child's

conversion to Judaism and allowing the children to attend Hebrew school. Thus,

plaintiff does not object to the children's religious education in Judaism, does

not claim the education is inimical to the children's best interests, and does not

seek, as the putative custodial parent, to prevent their continuing education in

Judaism. See Feldman, 378 N.J. Super. at 96.

Defendant does not contend he is entitled to control the religious

upbringing of the children based on any claim he is the custodial parent. Rather,

he concedes that "neither [p]laintiff nor [d]efendant is afforded greater authority

over the other respecting the religious upbringing of the children." Defendant

argues that because the parties made clear plaintiff's designation as the parent

of primary residence does not vest her with any authority beyond selecting the

children's schools, the court was required to consider "evidence reflecting the

parties' agreement and expectation as to the religious upbringing of the

children." Defendant claims the evidence, which plaintiff disputes, establishes

the parties agreed the children would be raised in the Jewish faith and that

plaintiff is bound by the agreement.

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 The record does not permit a resolution of the parties' conflicting factual

assertions concerning the purported agreement, and the court did not conduct a

plenary hearing or make any factual findings concerning defendant's claim the

parties agreed to raise the children in the Jewish faith. As such, we cannot

determine whether the parties had an agreement and, if so, what were its terms.

See, e.g., J.G. v. J.H., 457 N.J. Super. 365, 372 (App. Div. 2019) (finding a

plenary hearing is required where parents "make materially conflicting

representations of fact"). Nor can we determine if the putative agreement is

unenforceable based on plaintiff's claim she was pressured into allowing the

children to participate in Jewish rituals or based on any other legal or factual

defenses. It is not our role to make factual determinations in the first instance.

See Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)

(explaining "appellate court[s] should exercise . . . original fact finding

jurisdiction sparingly and in none but a clear case where there is no doubt about

the matter").

In any event, for purposes of our consideration of that portion of the order

allowing plaintiff to educate the children with her religious and moral values

during her parenting time, it is unnecessary to determine if the parties agreed to

raise the children in the Jewish faith. Plaintiff was at all times free to exercise

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her own religious beliefs, and defendant does not argue otherwise. As such,

regardless of any purported agreement to raise the children in the Jewish faith,

the court could not bar plaintiff from exercising her religious beliefs by

prohibiting her from educating the children concerning her religious and moral

values during her parenting time. See Feldman, 378 N.J. Super. at 96. If the

court had ruled otherwise, it would have impermissibly and unconstitutionally

violated plaintiff's constitutional right to freedom of religion. Brown, 212 N.J.

Super. at 139-40. We therefore affirm the court's order allowing plaintiff to

educate her children about her religious and moral values during her parenting

time.2

Defendant also claims the court erred by ordering that plaintiff shall have

parenting time with the children on each Easter Sunday commencing in 2020.

Defendant argues the court impermissibly modified the parties' co-parenting

2
We do not address issues that were not before the court and for which there is
an inadequate record. For example, and as noted, we do not address or decide
whether the parties agreed to raise the children in the Jewish faith and, if so,
how that purported agreement might affect the nature and scope of plaintiff's
and defendant's respective authority to decide the religious upbringing of th e
children. We also do not decide whether either party enjoys the "right to raise
and educate [the] children in his [or her] chosen religion [and] prevent others
from simultaneously educating the same children in an alternate religion."
Feldman, 378 N.J. Super. at 96. We address only the order challenged on
appeal, which is limited in scope and properly permits plaintiff to share her
religious and moral values with her children during her parenting time.
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agreement without requiring that plaintiff demonstrate any changed

circumstances warranting such relief. Plaintiff contends the court properly

ordered that she have parenting time with the children each Easter Sunday

because defendant violated the terms of the co-parenting agreement by denying

her parenting time on Easter Sunday in 2018.

The parties do not dispute that the co-parenting agreement addresses

Easter Sunday parenting time. More particularly, the parties agreed "[t]he

children shall spend the entire Easter break with" defendant and that plaintiff

"shall have parenting time . . . on Easter Sunday" only if defendant "does not

travel" with the children on that day. Plaintiff requested that the court award

her parenting time each Easter Sunday based on a singular claim that defendant

violated the co-parenting agreement on Easter Sunday in 2018.

"[I]n matrimonial matters . . . settlement agreements, being 'essentially

consensual and voluntary in character[,] . . . [are] entitled to considerable weight

with respect to their validity and enforceability' in equity, as long as they are

fair and just." N.H. v. H.H., 418 N.J. Super. 262, 279 (App. Div. 2011)

(alterations in original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)).

Absent fraud or coercion, a court is obligated to enforce the terms of the

settlement agreement when entered into by "fully informed" parties. Avelino-

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Catabran v. Catabran, 445 N.J. Super. 574, 590 (App. Div. 2016); see also Quinn

v. Quinn, 225 N.J. 34, 55 (2016).

A party seeking modification of an existing custody or parenting time

order must demonstrate changed circumstances and that the arrangement is no

longer in the best interests of the child. Finamore v. Aronson, 382 N.J. Super.

514, 522-23 (App. Div. 2006). The issue is "two-fold and sequential." Faucett

v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009). A party seeking

modification must show a change in circumstances that affects the welfare of

the children, and if the party makes such a showing, "the party is 'entitled to a

plenary hearing as to disputed material facts regarding the child's b est interests,

and whether those best interests are served by modification of the existing

custody order.'" Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015) (quoting

R.K. v. F.K., 437 N.J. Super. 58, 62-63 (App. Div. 2014) (citation omitted)).

Here, the court modified the parties' Easter Sunday parenting time

agreement by granting plaintiff's request for parenting time on each Easter

Sunday commencing in 2020. The court did so without finding that any changed

circumstances supported plaintiff's request, without conducting a hearing to

determine if the modification requested by plaintiff was in the children's best

interests, and without making any findings of fact or conclusions of law. We do

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not find, however, that plaintiff's allegation defendant violated the co-parenting

agreement by denying her parenting time on Easter Sunday on a single occasion

in 2018 constitutes a sufficient change in circumstances affecting the children's

best interests warranting either a plenary hearing or a modification of the co-

parenting agreement.

Plaintiff failed to establish the alleged single violation of the co-parenting

agreement constitutes a change in circumstances that renders the continued

enforcement of the agreed upon Easter break parenting time arrangement unfair,

unjust, or inequitable, or not in the children's best interest. See Konzelman v.

Konzelman, 158 N.J. 185, 194 (1999). Plaintiff failed to sustain her burden of

demonstrating changed circumstances permitting a modification of the parties'

co-parenting agreement. We therefore reverse that portion of the court's order

directing that plaintiff have parenting time with the children every Easter

Sunday commencing in 2020. Parenting time on Easter Sunday shall continue

under the terms to which the parties mutually consented in the co-parenting

agreement.3

3
However, the trial court retains the authority to grant plaintiff compensatory
time with the children, among other remedies, for a violation of the parenting
time order by defendant. R. 5:3-7(a)(1). That might include granting plaintiff
parenting time on another Easter Sunday, regardless of defendant's travel plans.
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Affirmed in part and reversed in part.

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