Giangeruso v. Giangeruso

708 A.2d 1232, 310 N.J. Super. 476, 1997 N.J. Super. LEXIS 548
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 1, 1997
StatusPublished
Cited by15 cases

This text of 708 A.2d 1232 (Giangeruso v. Giangeruso) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giangeruso v. Giangeruso, 708 A.2d 1232, 310 N.J. Super. 476, 1997 N.J. Super. LEXIS 548 (N.J. Ct. App. 1997).

Opinion

GRAVES, J.S.C.

This is a post-judgment application for relief. The issue is whether the following language in a Property Settlement Agreement signed by both parties is valid and enforceable:

F. The parties agree that the children shall not have any contact with any gMMend/boyfriend or love interest of the other if the children express reluctance to do so.

For the reasons that follow, the court is satisfied that the language in question is contrary to the best interests of the children. Accordingly, paragraph F of the parties’ Settlement Agreement (Agreement) violates public policy and it is invalid and unenforceable.

The parties were married in 1988 and they have two children. William was bom on November 1, 1988 and is now nine years old. Raymond was born on April 24, 1991 and is now six years old. The Dual Judgment of Divorce entered on April 3, 1997 incorpo[478]*478rates a Property Settlement Agreement signed by both parties on March 26, 1997. Mr. Giangeruso and his present girlfriend, Laura, live together with their child. Apparently, the defendant’s girlfriend had been a neighbor prior to the divorce. In her post-judgment application, the plaintiff seeks to hold the defendant in willful violation of paragraph F of the parties’ Agreement based upon her claim that the defendant has ignored the children’s wishes with respect to visitation. In response, Mr. Giangeruso seeks an order invalidating paragraph F.

In most cases, settlement agreements benefit the parties by promoting stability and certainty. Therefore, the policy of the courts is to encourage settlements and enforce agreements whenever it is fair and equitable to do so. Lepis v. Lepis 83 N.J. 139, 148-149, 416 A.2d 45 (1980). The policy of encouraging and honoring voluntary agreements is especially important in Family Court matters. Davidson v. Davidson, 194 N.J.Super. 547, 477 A.2d 423 (N.J.Super.Ch.1984). Traditionally, agreements that are negotiated and signed by the parties are “more comprehensive and particularized than court Orders, and thus more carefully tailored to the peculiar circumstances of the parties’ lives.” Lepis, at 154, 416 A.2d 45. This notion that voluntary settlement agreements offer an advantage over judicial decrees has led the New Jersey Supreme Court to point out that “It would be shortsighted and unwise for courts to reject out of hand consensual solutions to vexatious personal matrimonial problems that have been advanced by the parties themselves.” Petersen v. Petersen, 85 N.J. 638, 645, 428 A.2d 1301 (1981). The courts recognize that two responsible parents are usually better equipped than a judge to decide what is best for their children. As noted in Tahan v. Duquette, 259 N.J.Super. 328, 336, 613 A.2d 486 (App.Div.1992), “No stranger in a judicial robe, however able and well-motivated he or she may be, is equipped to make a decision as valid as the parents working together might make.”

Nevertheless, when a court is asked to enforce or review a visitation agreement, or other agreements pertaining to the wel[479]*479fare of children, there are special considerations. In such cases “The question is always what is in the best interests of the children, no matter what the parties have agreed to.” Hallberg v. Hallberg, 113 N.J.Super. 205, 209, 273 A.2d 389 (App.Div.1971). Regardless of “the legal rights and claims of either parent, the wishes and personal desires of said parent must yield, if opposed to what the court, in the discharge of its duty, regards the welfare of the child to be.” Fiore v. Fiore, 49 N.J.Super. 219, 225, 139 A.2d 414 (App.Div.1958), certif. den. 28 N.J. 59, 145 A.2d 168 (1958).

In this case, both parties certify to post-judgment visitation disputes. Therefore, the court must exercise “supervisory jurisdiction as parens patrie.” Sheehan v. Sheehan, 38 N.J.Super. 120, 125, 118 A.2d 89 (App.Div.1955). In Hoefers v. Jones, 288 N.J.Super. 590, 607, 672 A.2d 1299 (Ch.Div.1994), affirmed 288 N.J.Super. 478, 672 A.2d 1177 (App.Div.1996) the court concluded that the parens patrie doctrine, as it relates specifically to children and children’s issues, “is the philosophical source of state law, of public policy governing their general welfare, best interests, right of protection, right to be free from harm and abuse.” In its role as parens patrie, the court must scrutinize paragraph F to determine if it is in conflict with the right of the children to be free from harm.

The parents in this case have agreed that their two young children should have the final say whenever either parent seeks to spend time with the children while in the presence of a significant other. Although paragraph F may have been intended to encourage the parents to be sensitive to their children’s feelings and considerate of their wishes, it has actually placed a heavy burden on the shoulders of two young children. For example, plaintiff certifies to an unpleasant incident that took place on July 25,1997. According to Ms. Giangeruso, Raymond did not want to visit with his father because his older brother, William, objected to the visitation taking place in the presence of the defendant’s girlfriend, Laura. Thus, it is apparent that the children are influ[480]*480enced by a variety of factors — including each other. With regard to the same incident, Mr. Giangeruso certifies that the children wanted to visit with him, but not his girlfriend, “because their mother hates my girlfriend.” Both parties certify that the police were called to plaintiffs home on July 25, 1997 to resolve the visitation problem. Apparently, the police interviewed one or both of the children in an effort to determine their wishes pursuant to paragraph F of the Property Settlement Agreement.

Ms. Giangeruso argues that defendant consistently violates paragraph F by refusing to respect the children’s wishes. However, according to Mr. Giangeruso, plaintiff manipulates the children ■ into not wanting to spend time with his girlfriend because the plaintiff dislikes defendant’s girlfriend. Defendant certifies that “My kids will tell her (plaintiff) what she wants to hear because she questions them constantly and they are afraid to say how they really feel. This is not fair to these children.” The court has been presented with conflicting certifications regarding the actions of the parents as well as the wishes of the children. Nevertheless, regardless of who is right or wrong, it is clear that the present arrangement is not in the children’s best interests. As things now stand, the children are too intimately involved in complex and personal adult matters.

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Bluebook (online)
708 A.2d 1232, 310 N.J. Super. 476, 1997 N.J. Super. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giangeruso-v-giangeruso-njsuperctappdiv-1997.