Michelle Daponte Pinho v. Rui A. Pinho

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2023
• Docket: A-0814-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0814-22

MICHELLE DAPONTE PINHO,

Plaintiff-Respondent,

v.

RUI A. PINHO,

Defendant-Appellant. ____________________________

Argued October 25, 2023 – Decided November 21, 2023

Before Judges Vernoia and Walcott-Henderson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-0116-18.

Rui A. Pinho, appellant, argued the cause pro se.

Michelle DaPonte Pinho, respondent, argued the cause pro se.

PER CURIAM

Plaintiff Michelle DaPonte Pinho and defendant Rui A. Pinho are the

parents of triplet daughters born in 2007. In this post-judgment matrimonial matter, defendant appeals from an October 21, 2022 order denying his motion

to compel plaintiff to pay fifty percent of the cost of orthodontic care for the

children.1 Having considered the record, the parties' arguments, and the

applicable legal principles, we vacate that portion of the order denying

defendant's motion to compel plaintiff to pay fifty percent of the orthodontic

costs and remand for further proceedings.

The pertinent facts are not in dispute. The parties married in 2000 and

divorced in 2018. Their dual judgment of divorce incorporated a marital

settlement agreement (MSA) which, through incorporation of a judgment fixing

custody and parenting time, granted the parties joint legal custody of the children

and designated plaintiff the parent of primary residence and defendant the parent

of alternate residence.

Pertinent here, paragraph twenty-nine of the MSA provides that the parties

"shall share the children's dental and vision expenses 50/50." Paragraph five of

the MSA separately provides that "[t]he parties shall agree on the medical,

1 The challenged order addressed issues other than defendant's motion to compel plaintiff to pay fifty percent of the orthodontic costs. We address the order only to the extent it denied that request because defendant does not challenge any other determination reflected in the order. See generally Drinker Biddle & Reath LLP v. N.J. Dep't of L. & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining issues not briefed on appeal are deemed abandoned). A-0814-22 2 dental, and/or psychological providers for the children (with the exception of an

emergency)," and paragraph three of the MSA states the parties "shall consult

and agree with each other with respect to all major decisions concerning the

children's . . . medical care, health, welfare and other matters of similar

importance."

Paragraph nine of the agreement states that defendant is "responsible for

the $5,000 deductible for medical and prescription expenses," and the "[p]arties

shall use in-network providers except in case of an emergency." It further

provides that "[a]fter the deductible is met, unreimbursed medical expenses shall

be split evenly (50/50)."

In 2022, the parties filed cross-motions seeking enforcement of various

provisions of the MSA and prior court orders. In that exchange of motions,

defendant sought an order compelling plaintiff to contribute fifty percent of the

costs of orthodontic care for the children. The motion was founded on

defendant's claims the children required braces and related orthodontic care,

plaintiff had rejected or ignored defendant's communications explaining the care

was necessary, and defendant was required to obtain the care without plaintiff's

consent. Defendant asserted plaintiff was therefore obligated to pay her share—

A-0814-22 3 fifty percent—of the costs in accordance with paragraph twenty-nine of the

MSA.2

Plaintiff opposed defendant's motion, arguing she had conferred with a

dentist and orthodontist who opined the children did not need braces other than

for cosmetic purposes. She also argued defendant could not unilaterally obtain

the non-emergent orthodontic care under the MSA without her prior consent and

then require her to contribute to the costs of the care.

Plaintiff further claimed defendant had successfully defeated a motion she

filed earlier in 2022 to compel his contribution for medical care she obtained for

the children based on his claim plaintiff had not first sought his consent for the

care as required by the MSA. Plaintiff argued the same principle should apply

to defendant's motion to compel her to contribute to the orthodontic costs and,

for that reason, defendant's motion should be denied.

The court heard argument on the motions. The parties appeared as self-

represented litigants and testified. Defendant testified he sent emails to plaintiff

over the course of more than a year explaining, and providing information from

an orthodontist detailing, the children's need for orthodontic care and braces.

2 As noted, paragraph twenty-nine of the MSA provides that "[t]he parties agree that they shall share the children's dental and vision expenses 50/50." A-0814-22 4 According to defendant, in each instance, plaintiff took the position the care was

unnecessary other than for cosmetic reasons. Defendant explained that he

decided to proceed with the orthodontic care because the children were at an age

where the braces had become a necessity and further delay would exacerbate the

conditions that required braces in the first instance. In response to the court's

questioning, defendant acknowledged he had not obtained plaintiff's consent to

use the orthodontist he selected as required under the MSA. Defendant testified

he did so because plaintiff had not provided proper reasons for her refusal to

provide her consent.

Plaintiff testified she conferred with a dentist and orthodontist who opined

the children did not require braces. She also explained that based on those

opinions, the braces and orthodontic care defendant had decided were necessary,

and for which he sought her contribution, were not covered under the dental

insurance plan she had obtained for the children. Plaintiff testified defendant

failed to comply with the MSA because he unilaterally incurred the orthodontic

expenses without her consent in the absence of any emergency and he used the

services of an orthodontist who was not in the insurance carrier's network of

providers.

A-0814-22 5 During the hearing on the motion, the court found there was a genuine

dispute between the parties concerning their respective obligations under the

MSA and the need for the orthodontic care. In a written statement of reasons

issued following the hearing, the court denied defendant's motion.

In its statement of reasons, the court noted that under the plain language

of paragraph twenty-nine of the MSA, plaintiff is required to reimburse

defendant for fifty percent of the costs of orthodontic care. The court further

reasoned that paragraph twenty-nine must be read in conjunction with

paragraphs three and five of the MSA, but the court did not explain the manner

in which those paragraphs tempered what it otherwise found was paragraph

twenty-nine's plain language.

The court also found defendant's argument—his failure to obtain

plaintiff's prior consent to select the orthodontist and authorize the orthodontic

care did not require the denial of his motion—to be "borderline disingenuous."

The court based that finding on its determination defendant "previously sought

the protection of the [MSA] to prohibit the type of unilateral medical decision

he admittedly made" in obtaining the orthodontic care and, as a result, he was

barred from taking an inconsistent position on his claim for reimbursement from

plaintiff.

A-0814-22 6 The court noted that "[u]nder different circumstances" it "might consider

appointing an independent orthodontist to examine the children in accordance

with Rule 5:3-3(a)," but the court explained it would not do so because a "'best

interests' analysis" was unnecessary since the children already had the braces.

The court took "judicial notice of the general benefits of orthodontic care at a

younger age[,]" and that, given the age of the children, "now is likely the best

time to complete" the care.

The court determined defendant was not entitled to reimbursement from

plaintiff because he "fail[ed] to follow a process that he negotiated" in the MSA

and had "sought to have enforced in earlier motion practice." Thus, the court

concluded that because "[p]laintiff wishes to adhere to her seemingly

intemperate position that such care is not necessary, . . . [d]efendant [was]

without the authority to unilaterally make the decision to proceed" with the

orthodontic care.

The court entered an order denying defendant's motion. This appeal

followed.

Defendant argues the court's order should be reversed because paragraph

three of the MSA plainly requires that the parties equally share the costs of

dental care for the children. Defendant contends the evidence submitted to the

A-0814-22 7 motion court established he communicated with plaintiff for over a year to gain

her consent to the orthodontic care that two orthodontists advised him was

required, and plaintiff was either unresponsive to his communications or without

a proper basis to reject the orthodontists' opinions. He further asserts he did not

decide to proceed with the care until it became necessary to do so by the

worsening of the conditions that required orthodontic care in the first instance.

In response, plaintiff argues we should affirm the court's order because

the record shows she responded to defendant's communications concerning the

orthodontic care, advising defendant that a dentist and orthodontist she had

consulted opined that the children did not require braces other than for cosmetic

reasons. Plaintiff further argues defendant violated the MSA by failing to first

obtain her consent to the care and by selecting a dental provider outside the

network of the dental insurance carrier with which she had obtained dental

coverage for the children.

Our scope of review of Family Part orders is narrow. Cesare v. Cesare,

154 N.J. 394, 412 (1998). 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. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J.

at 412), and we will not overturn the Family Part's findings of fact when they

A-0814-22 8 are "supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at

411-12. A reviewing court will also not disturb the Family Part's factual

findings and legal conclusions that flow from them unless they are "so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Ricci v. Ricci,

448 N.J. Super. 546, 564 (App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J.

Super. 424, 433 (App. Div. 2015)). We review a Family Part's legal

determinations de novo. Id. at 565.

Defendant's challenge to the Family Part's order rests on his claim the

court erred in interpreting the MSA. We recognize that the settlement of the

parties' marital disputes, as reflected in the MSA, "is encouraged and highly

valued in our system," Satz v. Satz, 476 N.J. Super. 536, 550 (App. Div. 2023)

(quoting Quinn v. Quinn, 225 N.J. 34, 44 (2016)), and "'there is a "strong public

policy favoring stability of arrangements in matrimonial actions,"'" ibid.

(quoting Quinn, 225 N.J. at 44). However, our interpretation of a marital

settlement agreement is "governed by basic contract principles and, as such,

[we] should discern and implement the parties' intentions." Ibid.

The parties' MSA "is no less a contract than an agreement to resolve a

business dispute." Ibid. (quoting J.B. v. W.B., 215 N.J. 305, 326 (2013)). In

A-0814-22 9 our interpretation of the MSA, it is not our role to "rewrite or revise [the]

agreement [if] the intent of the parties is clear." Ibid. (quoting Quinn, 225 N.J.

at 45). We are required "to 'discern and implement "the common intention of

the parties[,]" and "enforce [the mutual agreement] as written."'" Ibid.

(alteration in original) (quoting Quinn, 225 N.J. at 46). "To the extent that there

is any ambiguity in the expression of the terms of a settlement agreement, a

hearing may be necessary to discern the intent of the parties at the time the

agreement was entered and to implement that intent." Quinn, 225 N.J. at 45.

Here, as the motion court correctly recognized, paragraph twenty-nine of

the MSA plainly and unambiguously states the parties shall share the costs of

the children's dental care evenly. The court, however, reasoned that other

provisions in the MSA modified paragraph twenty-nine's plainly stated

obligations and imposed conditions—such as plaintiff's prior approval and

consent—on defendant's entitlement to a contribution from plaintiff for her

equal share of the costs of orthodontic care for the children. For example, the

court generally referred to paragraphs three and five of the MSA and suggested

they—in some undescribed manner—modified what the court otherwise found

was paragraph twenty-nine's "wholly dispositive" language requiring an even

split of the cost of the children's dental care.

A-0814-22 10 We agree with the court that those paragraphs provide conditions pertinent

to one party's entitlement under paragraph twenty-nine to reimbursement for the

children's dental expenses from the other party. For example, paragraph three

requires that the parties "consult and agree with each other with respect to all

major decisions concerning" the medical care and health of the children , and

neither party disputes that whether the children should get the orthodontic care

at issue constitutes a "major decision" subject to the consult-and-agree

requirement.

Similarly, paragraph five requires that the parties "agree on the medical

[and] dental . . . providers for the children" except in the case of emergencies.

Indeed, during defendant's testimony at the hearing, he admitted he did not

obtain plaintiff's consent for either the orthodontic care or for the dental provider

as required under the MSA.3

3 Plaintiff also argued defendant violated the MSA by using a dental care provider that is not in her dental insurance network as required under paragraph nine, which provides in pertinent part that the parties agree defendant "shall be responsible for the $5,000 deductible for medical and prescription expenses[,]" and the "[p]arties shall use in-network providers except in case of an emergency." It is unclear if paragraph nine applies to dental benefits or whether the costs of orthodontic care fall within the "medical and prescription expenses" referenced. We need not address this provision, or offer any opinion on it, in our determination of defendant's appeal other than to note that on remand the parties shall be permitted to make whatever arguments they deem appropriate

A-0814-22 11 However, neither paragraph twenty-nine's plain language nor the

requirements in paragraphs three and five, make clear what is to occur where,

as here, the parties cannot agree on the provision of the dental care or the

provider. That is, the MSA does not prescribe the manner in which the parties

are to resolve what the court correctly recognized was a genuine dispute

concerning an issue for which the agreement otherwise requires that the parties

agree.

Plaintiff claims, and the court implicitly found, that the parties' inability

to reach an agreement on the necessity of the orthodontic care and the selection

of the dental provider bars defendant from seeking reimbursement under the

MSA for the dental care he claims is a necessity and therefore is in the best

interests of the children. Defendant's arguments are founded on the implicit

contention that plaintiff unreasonably failed to provide consent to the

orthodontic care and the provider and therefore breached an implied covenant

in the MSA and became obligated to pay her share of the costs of orthodontic

care under paragraph twenty-nine.

concerning the application of paragraph nine to defendant's motion to compel plaintiff's contribution to the costs of the orthodontic care provided to the children. A-0814-22 12 We cannot resolve the parties' dispute over the nature and extent of

plaintiff's obligation, if any, to have consented to the orthodontic care defendant

claims was necessary and therefore in the children's best interests, and whether

plaintiff violated any contractual obligations under the MSA such that she is

obligated to contribute to the dental expenses under paragraph twenty-nine even

based on a claim defendant did not comply with the requirements of paragraphs

three and five. The record presented on appeal permits only the conclusion that

the MSA is ambiguous as to those issues and, as a result, the trial court should

have conducted a plenary hearing to determine the parties' obligations under the

MSA based on their intentions at the time they entered into the agreement, see

Quinn, 225 N.J. at 45, whether either party breached their contractual

obligations, and, if there was a breach, what the appropriate remedy should be

as it pertains to defendant's motion to compel plaintiff's contribution to the costs

of the orthodontic care.

Additionally, the record presented on appeal does not permit a review of

the court's determination that defendant's motion should be denied because he

had previously obtained a favorable determination of a prior motion made by

plaintiff based on an interpretation of the MSA inconsistent with the one on

which her relied in support of his current motion to compel plaintiff to contribute

A-0814-22 13 to the orthodontic care costs. The court appears to have applied the doctrine of

judicial estoppel, see Adams v. Yang, 475 N.J. Super. 1, 8-9 (App. Div. 2023)

(explaining the doctrine of judicial estoppel), but its determination is untethered

to any record evidence and is unsupported by the requisite findings of fact and

conclusions of law, R. 1:7-4. Thus, we are unable to determine whether the

doctrine of judicial estoppel, which is "not a favored remedy, because of its

draconian consequences," Adams, 475 N.J. Super. at 9, was correctly applied by

the motion court.

We therefore vacate the court's order denying defendant's motion to

compel plaintiff to pay fifty percent of the costs of the children's orthodontic

care and remand for the court to reconsider the motion anew. The court shall

conduct a hearing to: resolve the MSA's ambiguities concerning the nature and

scope of plaintiff's obligation, if any, to provide consent to the orthodontic care;

determine the effect of any breach of that obligation on the resolution of

defendant's motion; and to conduct such other proceedings required to address

and decide any other factual and legal issues—including application of the

doctrine of judicial estoppel—presented by the parties in support of their

respective positions.

A-0814-22 14 We do not preclude the parties from raising any and all issues or

arguments pertinent to a determination of defendant's motion, and the court shall

conduct such proceedings it deems appropriate to develop the record required to

decide the motion. Our decision to vacate the order and remand for further

proceedings does not constitute an expression of an opinion on the merits of

defendant's motion or plaintiff's opposition. The remand court shall make

appropriate findings of fact and conclusions of law supporting its final

determination. R. 1:7-4.

Vacated and remanded for further proceedings. We do not retain

jurisdiction.

A-0814-22 15