On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-529-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
In this post-judgment matrimonial matter, defendant Roger Zenn appeals from the September 4, 2007 order of the Family Part that: (1) required him to contribute $7,525 as his share of the parties' daughter's summer camp expenses for 2005 through 2007, and $1,200 towards the child's violin lessons through June 11, 2007, and to continue pay fifty percent of the child's ongoing violin lessons; (2) modified defendant's parenting time with the child; and (3) awarded plaintiff $2,000 in counsel fees.*fn1
Because we conclude that the trial judge's decision is inconsistent with the specific terms of the parties' property settlement agreement (PSA) incorporated into their judgment of divorce, we reverse.
The pertinent factual background may be briefly summarized as follows. The parties were divorced on July 20, 2004. At a prior hearing on June 21, 2004, the parties placed the terms of their agreement on the record before the trial judge. At that time, defendant expressed his specific concern about being consulted regarding expenses incurred on behalf of the parties' child, stating that he had encountered problems in this regard in his previous divorce. At that hearing, defendant told the trial judge, "It boils down to in my previous marriage I had no say at all and I was just given a bill. And I had no input at all." In response, the trial judge stated that "both parties shall be consulted. Put in the language [in the PSA] both parties shall be consulted prior to the child making any determination, any decision."
The child's attendance at summer camp and the allocation of those expenses were also addressed at that hearing. Plaintiff's counsel stated:
As to summer camp, defendant will pay to plaintiff the sum of [$]1900 as a contribution toward the cost of this year's summer camp. As to future years, the parties will confer in advance of a decision being made with respect to [the child's] attendance at summer camp and upon their agreement they will each be responsible for 50 percent of what is incurred.
The parties' PSA contained the following provisions pertinent to these particular concerns:
2. The parties will have equal decision making and input as to all decisions affecting [the child's] health, education, activities and general welfare. Plaintiff shall make all day to day decisions regarding [the child], except during those times when she is in the defendant's care, when he will make such decisions. Except in cases of emergency, neither party shall make any unilateral decision with respect to any major decisions without first obtaining the other parent's consent. All communication may be in person or by the telephone, but must also be in writing via either e-mail or registered mail, and shall be made within seven days of the receipt of the information, unless the timing makes this impractical, in which event the communication shall be made within a reasonable time.
37. Defendant shall pay to plaintiff the sum of $1,900 which represents one [-]half of the cost of [the child's] summer camp for the 2004 year. In future years, the parties will discuss proposals for [the child's] summer camp attendance and shall share the cost upon reaching an agreement. Defendant shall not be responsible for contributing to the costs of a camp program to which he does not agree, but his agreement may not be unreasonably withheld.
38. The parties shall consult regarding extracurricular activities which have a cost component in which [the child] seeks to participate, and shall share those costs on a 50/50 basis, subject to defendant's consent to [the child's] participation, which consent may not be unreasonably withheld. Defendant shall not be require[d] to contribute to the cost of any activities for which he is not consulted or to which he does not agree, subject to the for[e]going. [Emphasis added.]
On June 20, 2007, plaintiff filed a motion to compel defendant to reimburse her fifty percent of the child's summer camp expenses for 2005 through 2007, in the amount of $7,525, and fifty percent of the child's violin lessons, in the amount of $1,200. She also sought counsel fees. Regarding the camp cost, plaintiff certified that the parties' daughter attended the same camp in 2005 and 2006 that she had attended in 2004, "which defendant had reluctantly agreed to contribute to the cost [of] in 2004. . . . Each time I brought up with defendant the subject of [the child's] camp attendance and his obligation to contribute to it, he failed to respond to me in any way." Plaintiff further certified that the child would be attending a different camp in the summer of 2007, at a cost of $7,100. She certified that defendant "simply refused to respond to me when I raised the subject with him." Plaintiff also certified ...