A.O. VS. N.D. (FD-13-0143-15, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-4120-16T4
A.O.,
Plaintiff-Appellant,
v.
N.D.,
Defendant-Respondent.
Submitted May 9, 2018 – Decided July 12, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FD-13-0143-15.
Miller & Gaudio, PC, attorneys for appellant
(David R. Cardamone, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff A.O., who by way of a consent order was designated
as the "psychological parent"1 of the biological child of defendant
1
See V.C. v. M.J.B., 163 N.J. 200, 227, 230 (2000) (a
psychological parent is a person who with the consent of the
N.D., appeals from a May 3, 2017 Family Part order that denied her
motion to either enforce an alleged agreement, award joint legal
custody of the child, modify parenting time, or conduct a plenary
hearing.2 After consideration of the arguments, record, and
relevant law, we affirm.
The parties and the child lived together as a family until
2014, when the child was four. Plaintiff's subsequent complaint
for custody, parenting time, and to be named the child's
psychological parent was resolved by a November 18, 2014 consent
order. The agreement required the parties to designate an expert
with the intent for him or her to produce a report and recommend
a parenting time schedule.3 A later February 19, 2015 order
modified parenting time.
Finally, on June 15, 2015, a third, more detailed consent
order was entered. The preamble to that order indicated that the
agreement "eliminat[ed] the need for the [p]lenary [h]earing
presently scheduled for July 31, 2015."
biological parent, "live[d] in familial circumstances with a child
and [the] legal parent" and achieved "a psychological parent status
vis-a-vis a child," which may not unilaterally be terminated by
the legal parent. Such persons "stand[] in parity with the legal
parent."
2
Defendant's answering brief was suppressed.
3
It is not clear if the parties employed an expert for that
purpose.
2 A-4120-16T4
Because the parties continued to have conflicts, plaintiff
filed a fourth application seeking mandatory co-parenting therapy
and joint legal custody, among other things. The parties'
attorneys were again seemingly able to negotiate an agreement.
Plaintiff signed a fourth consent order, which her attorney
forwarded to defendant's counsel for defendant's signature. After
some time passed, defendant's attorney informed plaintiff's
counsel that defendant refused to sign the agreement until
additional changes were made. Accordingly, plaintiff filed the
application at issue seeking to enforce the unsigned consent order,
or in the alternative, seeking to be granted joint legal custody,
modification of parenting time, and requiring the parties to attend
co-parenting therapy.
Defendant opposed plaintiff's motion to enforce, asserting
the terms of the consent order were simply never agreed upon.
Defendant acknowledged he had violated the June consent order by
making his new fianceé, instead of plaintiff, the child's secondary
emergency contact.
When the judge conducted oral argument, he was initially
confused regarding the relief sought by plaintiff. He summarized
plaintiff's prayers for relief as including: "joint legal custody,
ordering the parties to attend co-parenting, and three,
modification of parenting schedule . . . . It doesn't ask for an
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enforcement or a finding that a consent order is or was -- was
agreed upon, or there was an agreement." The judge likely had
this understanding because plaintiff failed to list that initial
prayer for relief——enforcement of the unsigned consent order——in
the court's boiler plate notice of motion form. However, she
clearly requested it in the notice of motion drafted by her
attorney. Regardless of the confusion, the trial judge ultimately
considered and ruled on all of plaintiff's prayers for relief.
The judge denied enforcement of the unsigned consent order,
or a plenary hearing on the issue, because plaintiff failed to
make a "prima facie showing that a consent or an agreement was
reached." He denied plaintiff's request for joint legal custody
and a modification in parenting time because he found no
"substantial change in circumstances" to warrant either. Finally,
the judge ordered the parties to attend a second co-parenting
class, without specifically ruling on the request for co-parenting
therapy.
Plaintiff raises two points on appeal:
POINT I
THE TRIAL COURT ERRED IN FAILING TO ORDER A
PLENARY HEARING TO DETERMINE WHETHER A BINDING
VERBAL AGREEMENT HAD BEEN REACHED BY AND
BETWEEN THE PARTIES.
POINT II
THE TRIAL COURT ERRED IN FAILING TO GRANT
APPELLANT'S REQUEST, OR TO ORDER A PLENARY
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HEARING IN LIEU THEREOF, FOR JOINT LEGAL
CUSTODY, A MODIFICATION IN PARENTING TIME AND
MANDATORY ATTENDANCE AT CO-PARENTING THERAPY
A. The Trial Court Erred in Failing To Grant
Appellant Joint Legal Custody Based Upon
the Best Interests of the Minor Child
B. The Trial Court Erred in Failing to
Modify the Parenting Time Schedule Based
Upon the Best Interests of the Minor
Child
C. The Trial Court Erred in Failing to Order
the Parties to Attend Co-Parenting
Therapy
I.
The scope of appellate review of a trial court's findings of
fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998).
"Because of the family courts' special jurisdiction and expertise
in family matters, appellate courts should accord deference to
family court factfinding." Id. at 413. A reviewing court will
only disturb the findings when they are "so manifestly unsupported
by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interest of justice." Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super.
154, 155 (App. Div. 1963)). However, the trial judge's legal
conclusions, and the application of those conclusions, are subject
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to plenary review. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.
366, 378 (1995).
It is equally well-established that a plenary hearing is
necessary when a genuine issue exists as to a material fact.
Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). A
plenary hearing is only necessary to resolve a genuine issue of a
material fact, as "trial judges cannot resolve material factual
disputes upon conflicting affidavits and certifications."
Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995)
(citation omitted); see Eaton v. Grau, 368 N.J. Super. 215, 222
(App. Div. 2004). A plenary hearing is usually appropriate before
the entry of an order affecting the custody of a child. See Fusco
v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982). However,
where a prior court order exists specifying the terms of
residential custody and parenting time, a parent seeking to alter
those terms has the burden of demonstrating a material change in
circumstances. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.
2007).
"Settlement of litigation ranks high in our public policy."
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citation omitted).
However, unless there is "an agreement to the essential terms" by
the parties, there is no settlement in the first place. Mosley
v. Femina Fashions, Inc., 356 N.J. Super. 118, 126 (App. Div.
6 A-4120-16T4
2002). The burden of proving that the parties entered into a
settlement agreement is on the party seeking to enforce it.
Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997).
When there is a disputed motion to enforce a settlement, "a
hearing is to be held to establish the facts unless the available
competent evidence, considered in a light most favorable to the
non-moving party, is insufficient to permit the judge, as a
rational factfinder, to resolve the disputed factual issues in
favor of the non-moving party." Id. at 474-75 (citation omitted).
"[T]o be enforceable, matrimonial agreements, as any other
agreements, need not necessarily be reduced to writing or placed
on the record." Harrington, 281 N.J. Super. at 46. "Where the
parties agree upon the essential terms of a settlement, so that
the mechanics can be 'fleshed out' in a writing to be thereafter
executed, the settlement will be enforced notwithstanding the fact
the writing does not materialize because a party later reneges."
Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div. 1993)
(citing Bistricer v. Bistricer, 231 N.J. Super. 143, 145 (App.
Div. 1987)); see also Pascarella v. Bruck, 190 N.J. Super. 118(App. Div. 1983).
Nonetheless, unless an attorney is specifically authorized
by the client to settle a case, the specific consent of the client
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is generally necessary. Jersey City v. Roosevelt Stadium Marina,
210 N.J. Super. 315, 327 (App. Div. 1986) (citation omitted).
Negotiations of an attorney are not binding
on the client unless the client has expressly
authorized the settlement or the client's
voluntary act has placed the attorney in a
situation wherein a person of ordinary
prudence would be justified in presuming that
the attorney had authority to enter into a
settlement, not just negotiations, on behalf
of the client.
[Amatuzzo, 305 N.J. Super. at 475 (citing U.S.
Plywood Corp. v. Neidlinger, 41 N.J. 66, 74
(1963)).]
A client may be bound to an agreement, in the absence of explicit
or actual assent, when his or her attorney has the apparent
authority to enter into it. Id. at 475-76. Such apparent
authority may be created by words or conduct of the client that
would lead "a person of ordinary prudence" to believe that the
attorney had such authority. Ibid. "However, the attorney's
words or acts alone are insufficient to cloak the attorney with
apparent authority." Id. at 476.
II.
We first address plaintiff's contention the trial court
should have ordered a plenary hearing in order to determine whether
a binding agreement was reached. Placing this dispute in context,
given the number of consent orders these parties have entered
into, it is clear they were familiar with the process. They knew
8 A-4120-16T4
that until the orders were signed, they were not enforceable. The
fact defendant wanted to negotiate additional terms before signing
anything makes clear he believed no binding agreement had been
reached. No matter the representations defendant's attorney may
have made to plaintiff's counsel about defendant's willingness to
sign the consent order as drafted, defendant ultimately did not
agree, did not sign the consent order, and wanted to continue to
negotiate.
Thus, this case is distinguishable from the cases plaintiff
cites. The circumstances did not signal that defendant had given
his attorney blanket final authority. Defendant's attorney never
represented to his adversary that he had the final say with regard
to the consent order, rather, he only represented that he would
participate in negotiations. The ultimate authority rested with
defendant and would be exercised only by his signature.
III.
Nor do we agree that a plenary hearing is required on the
remaining issues, plaintiff's second point. The judge applied the
appropriate standard in rendering his decision, allocating to
plaintiff the burden to demonstrate a prima facie case of
substantial changed circumstances that alone would warrant
modification of the existing custody and parenting time order. He
found, to the contrary, that plaintiff had failed to do so. All
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plaintiff had demonstrated was that defendant was noncompliant
with details of the prior consent order, and that she wished to
spend more time with the child. Thus, the record supports the
judge's determination that plaintiff did not establish material
disputes requiring a plenary hearing.
IV.
We cannot discern whether the judge formally ruled upon
plaintiff's request that the parties participate in co-parenting
therapy, as opposed to the co-parenting class he ordered. They
had previously attended such a class, and he required them to do
so again. Based on this record, it is not reasonable, however,
to remand in order for the judge to more formally explain the
ruling. By ordering the parties to enroll in a second class as
opposed to therapy, he elected a less burdensome alternative in
the hope that the conflict would resolve itself in that fashion.
Plaintiff's claims do not appear to us to require more than what
the judge ordered.
Affirmed.
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