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Klein v. Klein

August 10, 2007

BRYAN KLEIN, PLAINTIFF-APPELLANT,
v.
CATHERINE KLEIN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Family Division, Essex County, Docket No. FM-07-2659-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 30, 2007

Before Judges Graves and Lihotz.

Plaintiff appeals from a Family Part order dated September 22, 2006, which denied his post-judgment requests for relief. After our review, we reverse and remand, requiring that discovery be completed and a plenary hearing scheduled.

The parties were divorced on September 28, 2005, after a thirteen-year marriage. The dual final judgment of divorce incorporated the parties' negotiated property settlement agreement (PSA). The PSA included provisions for custody and a parenting time schedule with the parties' five-year-old child. Additionally, the PSA provided for plaintiff to pay alimony and child support.

We discuss only the details of those provisions of the orders that are the subject of appeal. Plaintiff's post-judgment application to enforce litigant's rights sought relief in the areas of parenting time and his financial obligations. First, plaintiff asked for defendant's compliance with the overnight parenting time schedule. Second, plaintiff moved to compel defendant to comply with his discovery requests, which addressed the commencement of her cohabitation. Plaintiff also submitted a request for payment of his counsel fees and costs.

Defendant's cross-motion sought, among other things, to restrain plaintiff from picking-up the child from day-care at 1 p.m. on those Fridays preceding his weekend parenting time.

As to parenting time, the PSA states:

The Wife shall be the parent of primary residence of the child. The Husband shall have parenting time with the child on the following schedule, effective immediately: On alternate weekends from 4:30 p.m. on Friday until 9:00 a.m. on Monday; on alternate Thursday nights from 4:30 p.m. on Thursday until 9:00 a.m. on Friday; and alternate Mondays for dinner, from 4:30 p.m. until 8:30 p.m. When the child turns four years old in May 2006, the Husband shall commence having child overnight on Mondays as well, from 4:30 p.m. until 9:00 a.m. the following morning.

Plaintiff expressed that he negotiated for parenting time every Monday overnight and settled all issues with defendant, understanding he had achieved this right. After the child reached four years of age, in May 2006, however, defendant refused plaintiff's requests and asserted plaintiff's parenting time was to be every other Monday overnight. Plaintiff explained that the parties could not reconcile their differing interpretations of the PSA's overnight provisions. As a result, he had been denied six Monday overnights by the time he filed his application.

Defendant stated the intention of the parenting agreement was to allow plaintiff to have parenting time every other weekend, Friday at 4:30 p.m. to Monday at 9 a.m., then have one weekday overnight. She suggests the parties agreed to extend the every other Monday dinner time to Monday overnight after the child turned four so the weekday overnights would be on Monday one week and on Thursday the next.

The motion judge denied plaintiff's request, stating:

the Court does find while an articulated drafted, [sic] there's no question it was drafted by plaintiff's ...


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