Iecheskel Abramsky v. Ruth Abramsky

• Court: New Jersey Superior Court Appellate Division
• Decided: August 26, 2024
• Docket: A-3124-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3124-22

IECHESKEL ABRAMSKY,

Plaintiff-Appellant,

v.

RUTH ABRAMSKY,

Defendant-Respondent. ________________________

Submitted June 5, 2024 – Decided August 26, 2024

Before Judges Vernoia and Gummer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0222-20.

Tonneman & Connors, LLC, attorneys for appellant (Cheryl E. Connors, of counsel and on the briefs).

Lederberger Law, attorneys for respondent (Leah Lederberger, on the brief).

PER CURIAM In this post-judgment matrimonial matter, plaintiff Iecheskel Abramsky

appeals from an order denying his motion for a plenary hearing regarding his

request to modify custody and parenting time. A Family Part judge denied the

motion in part, declining to enforce a provision in the parties' Marital Settlement

Agreement (MSA) in which the parties agreed to a one-time waiver of the

obligation to establish a substantial change in circumstances to modify the

custody or parenting-time schedule of their children. Given the clear language

of the parties' agreement and the temporary nature of their initial custody

arrangement, we reverse that provision of the order and otherwise affirm.

I.

Plaintiff and defendant Ruth Abramsky were married in 2007 and had

three children who were born in 2007, 2009, and 2014, respectively. After

obtaining a religious divorce from a rabbinical court in 2019, the parties were

divorced by way of an April 5, 2022 dual judgment of divorce in which the

parties incorporated their MSA of the same date.

In the MSA, the parties agreed to have joint legal custody of the children.

In paragraph one of the MSA, the parties also agreed:

Neither party shall be designated as the Parent of Primary Residence at this time as the parties have agreed to an equal timesharing parenting agreement for a period of six months following the execution of this

A-3124-22 2 agreement, with the acknowledgement that as of recent the two oldest children are not exercising parenting time with the Father consistent with the schedule set forth herein, although they are working towards reunification.

In paragraph nine of the MSA, the parties agreed to retain a Parenting

Coordinator, who would "assist the parties as it relates to parenting time issues

and on other child related issues, and [would] make recommendations if the

parties are unable to resolve disputes." The parties agreed to "be bound by the

recommendations of the Parenting Coordinator unless either party files an

application to the [c]ourt to object to the recommendation within 14 days of the

recommendation."

Paragraph sixteen of the MSA was entitled "Six-Month Review" and

provided:

After a six-month period following the execution of this Agreement, the parties shall review the custody/parenting time schedule to determine a schedule that is in the best interests of the children at this time. The parties shall attend at least one session with the Parenting Coordinator to mediate an appropriate parenting schedule with the costs of same to be shared as set forth above. In the event that mediation is unsuccessful, or one party fails to cooperate in attending the mediation session, either party shall have a right to file an application with the [c]ourt to modify the Custody/Parenting time schedule set forth herein without the necessity of demonstrating a substantial change in circumstances. Each party

A-3124-22 3 further reserves the right to obtain a best interests forensic custody evaluation at that time at his or her own cost.

In a September 6, 2022 letter, plaintiff's counsel asked the Parenting

Coordinator to schedule "as soon as possible" the mediation session the parties

were required to attend pursuant to paragraph sixteen of the MSA. The next

day, defense counsel emailed the Parenting Coordinator, asking her to schedule

the mediation sometime after the six-month period referenced in paragraph

sixteen. In an email she sent that day, the Parenting Coordinator advised the

parties she was "professionally prohibited from engaging with the parties both

as a [parenting coordinator] and mediator" and told them it would be "more

appropriate for the parties to meet with another professional" for the mediation.

The parties subsequently attended a mediation session before a different

mediator on November 29, 2022.

In a December 30, 2022 letter, plaintiff's attorney advised defense counsel

that plaintiff had retained someone to perform a best-interests evaluation, citing

paragraph sixteen of the MSA, and asked that defendant complete and execute

the enclosed documents provided by him. Defendant apparently declined to

participate in that evaluation.

A-3124-22 4 On January 26, 2023, plaintiff moved to compel defendant "to cooperate

with a best[-]interests evaluation by plaintiff's expert, . . . in accordance with

Paragraph 16 of the [MSA]." In the motion, plaintiff also sought the scheduling

of a plenary hearing, after the completion of the best-interests evaluation, for

the court "to determine the following requests": (1) "[m]odifying custody and

parenting time such that plaintiff will be designated the parent of primary

residence and defendant will be designated the parent[] of alternate residence";

and (2) "[m]odifying the parenting time schedule such that the minor children

. . . will reside with plaintiff primarily with a parenting time schedule for

defendant of alternating weekends and one weeknight dinner each week." He

also asked the court to order defendant to pay his counsel fees.

In support of the motion, plaintiff submitted his certification, in which he

asserted paragraph sixteen of the MSA "makes clear that [the parties] agreed

that no showing of changed circumstances was necessary to modify the custody

and parenting time schedule," the purpose of that paragraph "was to avoid

unnecessary motion practice," and the parties' "intent when signing the MSA

was to attend mediation and then obtain best[-]interests evaluations if [they]

were unable to agree."

A-3124-22 5 Defendant opposed the motion and cross-moved to "[r]ecogniz[e] and

enforc[e]" the parties' "share[d] legal custody and equal timesharing" of the

children set forth in paragraph one of the MSA and to modify paragraph thirty -

five of the MSA to provide that both parties would "share in the ability to

schedule and attend medical appointments of their children." She also asked the

court to order plaintiff to pay her legal fees.

On May 5, 2023, the Family Part judge heard argument and issued an order

denying plaintiff's motion, granting defendant's cross-motion, and denying both

fee applications. In paragraph one of the order, the judge denied the aspect of

plaintiff's motion seeking to compel defendant's cooperation with his expert's

best-interests evaluation. The judge found that while the MSA gave the parties

the right to obtain a custody evaluation at their own cost, nothing in the MSA

compelled the parties to "cooperate [in] or facilitate such an evaluation."

In paragraph two of the order, the judge denied the aspect of plaintiff's

motion seeking a plenary hearing regarding his requests to modify custody and

parenting time without first demonstrating a substantial change in

circumstances. The judge found the MSA did "not have any weight in

overturning the caselaw which governs the [c]ourt in determining whether to

entertain the parties' application." Noting the court was not a party to the MSA,

A-3124-22 6 the judge explained on the record that "parties can negotiate their alimony, they

can negotiate the parameters of their child support, they can negotiate many

things," but they cannot "negotiate the standards by which a [c]ourt will act."

He held "[a] judge must consider a request for modification in accordance with

the procedural framework established by the New Jersey Supreme Court in

. . . . Lepis v. Lepis, 83 N.J. 139, 157-59 (1980)," which requires the party

seeking modification to make a prima facie showing of a change in

circumstances. The judge concluded "there is no justification on the present

record to find that a change in custody at this time is in the children's best

interests."

Plaintiff appeals from paragraphs one and two of the order, arguing the

judge erred in declining to be bound by the MSA provision permitting the parties

to file a custody or parenting-time modification motion "without the necessity

of demonstrating a substantial change in circumstances" and "erroneously

denied plaintiff the right to his best[-]interests expert." Following the

unambiguous language of the parties' MSA, we affirm paragraph one and reverse

paragraph two of the order.

A-3124-22 7 II.

Our review of a Family Part judge's findings is limited. "[W]e 'review

. . . [a] Family Part judge's findings in accordance with a deferential standard of

review, recognizing the court's special jurisdiction and expertise in family

matters.'" S.B.B. v. L.B.B., 476 N.J. Super. 575, 594 (App. Div. 2023) (quoting

Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016)), certif. denied, 256

N.J. 434 (2024). We review de novo questions of law, such as the interpretation

and construction of a contract. Amzler v. Amzler, 463 N.J. Super. 187, 197

(App. Div. 2020); see also Steele v. Steele, 467 N.J. Super. 414, 440 (App. Div.

2021).

The settlement of family disputes is "encouraged and highly valued in our

system." Quinn v. Quinn, 225 N.J. 34, 44 (2016). Settlement agreements in

matrimonial matters, "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 the original) (quoting

Petersen v. Petersen, 85 N.J. 638, 642 (1981)). "[I]t is '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.'"

A-3124-22 8 Quinn, 225 N.J. at 44 (quoting Petersen, 85 N.J. at 645). "Therefore, 'fair and

definitive arrangements arrived at by mutual consent should not be

unnecessarily or lightly disturbed.'" Id. at 44-45 (quoting Smith v. Smith, 72

N.J. 350, 358 (1977)).

A settlement agreement resolving a matrimonial dispute is a contract and

"is governed by basic contract principles." Id. at 45. Guided by those principles

a court "should discern and implement the intentions of the parties" and "should

not rewrite a contract or grant a better deal than that for which the parties

expressly bargained." Ibid. "Thus, when the intent of the parties is plain and

the language is clear and unambiguous, a court must enforce the agreement as

written, unless doing so would lead to an absurd result." Ibid.

"[S]ettlements – the parties' choice of the least unfavorable alternatives –

occur for many reasons other than certainty of result. Settlements are made to

obviate the pressures of litigation, to avoid the expense of counsel fees, and to

avoid the cost and delay of appeals." N.H., 418 N.J. Super. at 280. In a clear

attempt to "obviate the pressures of litigation" and "to avoid the expense of

counsel fees," the parties chose a six-month review period instead of proceeding

immediately to a trial to resolve their disputes concerning custody and parenting

time. We know that from the unambiguous language of their MSA.

A-3124-22 9 In paragraph one, the parties agreed "[n]either party shall be designated

as the Parent of Primary Residence at this time as the parties have agreed to an

equal timesharing parenting agreement for a period of six months following the

execution of this agreement . . . ." As set forth in paragraph sixteen, they agreed

that after the six-month period, they would "review the custody/parenting time

schedule to determine a schedule that is in the best interests of the children at

this time"; they would "attend at least one [mediation] session with the Parenting

Coordinator"; and, if the mediation was unsuccessful, either party had "a right

to file an application with the [c]ourt to modify the Custody/Parenting time

schedule set forth herein without the necessity of demonstrating a substantial

change in circumstances." We see nothing unfair or unjust about those agreed-

upon procedures nor any reason to think they would lead to an absurd result.

Focusing on the last sentence of paragraph sixteen – "Each party further

reserves the right to obtain a best interests forensic custody evaluation at that

time at his or her own cost" – in isolation, defendant contends the phrase "at that

time" is somehow ambiguous and would enable plaintiff to "wake up after two,

three or five years after entry into the MSA, invoke this contractual right, and

change the custodial status quo on a dime." Nonsense. Looking as we must at

the language of paragraph sixteen and the MSA as a whole, the parties clearly

A-3124-22 10 agreed to a one-time waiver of the change-in-circumstances obligation,

occurring only after the initial six-month review period and an unsuccessful

mediation. It does not provide a carte blanche waiver to be invoked at any time

on the whim of a party.

The Family Part judge declined to enforce paragraph sixteen, believing,

despite its clear language, plaintiff had to establish a change in circumstances

pursuant to the "procedural framework" outlined in Lepis, 83 N.J. at 157-59. In

so holding, the judge failed to appreciate the temporary nature of the parties'

initial six-month custody and parenting-time arrangement and the

reasonableness of their mutual decision to attempt to resolve their initial custody

and parenting-time disputes by first participating in a six-month review and

mediation before proceeding to a best-interests evaluation and trial. For these

reasons, we reverse paragraph two of the order, in which the judge denied the

aspect of plaintiff's motion seeking a plenary hearing regarding his requests to

modify custody and parenting time without first demonstrating a substantial

change in circumstances.

The judge also denied the aspect of plaintiff's motion seeking to compel

defendant "to cooperate with a best[-]interests evaluation by plaintiff's expert."

The judge found that "[w]hile the terms of the MSA reserve each parties' rights

A-3124-22 11 to obtain a custody evaluation at their own cost, there is nothing in the terms of

the MSA that compels the other party to cooperate or facilitate such an

evaluation" and that plaintiff had "not presented any compelling justification for

why such an evaluation is needed at this time . . . [and] to justify the [c]ourt's

intervention to require [d]efendant's compliance with the [p]laintiff's cus tody

evaluation at this time." Because the clear language of the MSA supports the

first conclusion and the record supports the latter, we agree and, thus, affirm

paragraph one of the order.

Plaintiff cited the language of paragraph sixteen in support of his motion

to compel defendant's cooperation. But paragraph sixteen provides only that

each party "reserve[d] the right to obtain a best interests forensic custody

evaluation"; it says nothing about requiring the other party's cooperation with or

participation in that evaluation. In denying plaintiff's motion to compel, the

judge did not, as plaintiff argues, deny plaintiff his right to obtain a best-interests

evaluation; the judge simply and correctly refused to impose an obligation to

cooperate that did not exist in the MSA. Accordingly, we affirm paragraph one

of the order, in which the judge denied the aspect of plaintiff's motion seeking

to compel defendant to cooperate with his expert's best-interests evaluation.

A-3124-22 12 Affirmed in part; reversed in part; and remanded for proceedings

consistent with this opinion. We do not retain jurisdiction.

A-3124-22 13