On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-299-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges Cuff and Sapp-Peterson.
Plaintiff, John Scott Karolchyk, appeals from the December 18, 2009 order denying various post-judgment requests for relief related to custody and parenting time. Defendant cross-appeals from that portion of the December 18 order declining to award her the full amount of counsel fees sought. We affirm as modified and remand for further proceedings.
The parties were divorced on May 27, 2008. At the time of the divorce, the parties executed a Property Settlement Agreement (PSA), which was incorporated into the Final Judgment of Divorce (FJOD). Two children, a girl and a boy, were born of the marriage. At the time plaintiff filed the post-judgment motion in November 2009, the children were thirteen and eight years old, respectively. The PSA designated defendant as the parent of primary residential custody and plaintiff as the parent of alternate residence. The PSA also addressed other custody and visitation-related issues and contained the following key language:
1. The parties have carefully weighed and considered the question of custody of the unemancipated children of the marriage. In doing so, they have been guided by considerations touching upon the welfare of the children and their best interests. It is hereby agreed that it is in the best interests of the minor children, that the parties have joint legal custody, that the [w]ife be designated the parent of primary residence and that the [h]usband be designated the parent of alternate residence.
2. The parties agree that on all matters relating to the health, welfare, religious training and education and other issues of similar importance regarding the children, they will confer with each other with a view to adopt and follow those policies which are in the best interests of the children.
3. The parties shall promptly notify each other of illness and of other matters or problems affecting the children and their just welfare and happiness. They will also keep each other reasonably informed of the whereabouts of the children when they are with them. In addition, each party shall be entitled to full and free direct access to the children's doctors, teachers, and other professionals working with the children.
4. It is expressly understood by both parties that neither shall do anything to alienate the children's affection for the other or color the children's attitude toward the other. On the contrary, both parties shall cooperate in every way to help the children better adjust to the circumstances as they now exist and may in the future exist. Both parties shall conduct themselves in a manner that shall be best for the interest, welfare and happiness of the children, and neither party shall do anything that shall adversely affect the morals, health and welfare of the children.
6. The parties shall continue to work with Dr. Sharon RyanMontgomery as the parenting coordinator. Dr. Montgomery shall assist the parties in observing the parenting time schedule, including holidays, special events and summers.
Notwithstanding the above provisions, plaintiff filed a motion seeking a transfer of physical custody of the two minor children to him. Alternatively, plaintiff sought a plenary hearing to determine whether designating plaintiff as the parent of primary residence was in the best interest of the children. Defendant filed a cross-motion seeking an adjudication that plaintiff was in violation of litigant's rights. The cross-motion did not relate to custody and parenting issues, which was the substance of plaintiff's motion. Rather, it addressed issues related to equitable distribution. The court denied plaintiff's motion in its entirety. The court granted defendant partial relief on the cross-motion. The relief granted on the cross-motion is not the subject of this appeal.
In denying plaintiff's motion, the court acknowledged that there were issues with the parties' daughter, but concluded that that she "already is playing them against each other[,]" and that if the court were to order the evaluations, that would "enable" their daughter and allow her to continue to "play them against each other. And then we're going to have . . . real problems." The court observed further:
And if the parents really want to help her, they'll work together to help her, and present a united front, which I'm not ...