February 18, 2011
JOHN SCOTT KAROLCHYK, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
DOREEN LOIS KAROLCHYK, N/K/A DOREEN LOIS BEDELL, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 optimistic will happen in this case.
But I don't see where it warrants, especially where they almost have 50/50 parenting time now, just short of it, that the courts should be fooling around, and changing custody.
The present appeal followed.
On appeal, plaintiff raises the following points for our consideration:
[POINT I] THE TRIAL COURT ERRED BY DENYING THAT PLAINTIFF ESTABLISHED A PRIMA FACIE SHOWING OF SUBSTANTIAL CHANGED CIRCUMSTANCES.
[POINT II] THE TRIAL COURT MISAPPLIED THE LAW BY FAILING TO ORDER A PLENARY HEARING TO RESOLVE CONTESTED ISSUES OF FACT.
[POINT III] THE TRIAL COURT ERRED BY FAILING TO MAKE APPROPRIATE FINDINGS OF FACT WITH RESPECT TO PLAINTIFF'S APPLICATION FOR A CHANGE OF CUSTODY.
We first reiterate the strong public policy in this state favoring enforcement of marital settlement agreements. Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995); see also Dworkin v. Dworkin, 217 N.J. Super. 518, 524 (App. Div. 1987). Nonetheless, such agreements are not immutable and "[c]courts have continuing power to oversee divorce agreements and the discretion to modify them on a showing of changed circumstances that render their continued enforcement unfair, unjust, and inequitable."
Konzelman, supra, 158 N.J. at 194 (citations and quotations omitted). Moreover, in the context of custody and parenting issues, notwithstanding a settlement agreement that addresses those issues, disputes may "trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children." Parish v Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010) (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75, 973 (2009)).
Here, plaintiff's certification submitted in support of his application for a change in custody or, alternatively, a plenary hearing, for the most part, consisted of hearsay statements. Rule 1:6-6 provides that "[i]f a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify[.]" Therefore, the court did not abuse its discretion in declining to order a change in custody or a plenary hearing based upon plaintiff's submissions. However, defendant, in her opposition to the motion, acknowledged that their daughter "has had behavioral problems since the divorce." Further, although defendant puts a different spin on the events involving their daughter that occurred in April, May, June and September, 2009, there is no dispute that the incidents occurred. Under these circumstances, we are of the view that the court mistakenly exercised its discretion in denying all relief to plaintiff. At the very least, the undisputed facts surrounding the behavior of the parties' daughter and the conflicts arising out of parenting time, which both parties also acknowledge, warranted an order from the court directing the parent coordinator to submit a report to the court addressing parenting and co-parenting issues.
"Orders respecting custody and visitation are subject to modification at any time upon a showing of a material change in circumstances." Hoy v. Willis, 165 N.J. Super. 265, 275 (App. Div. 1978) (citing Mimkon v. Ford, 66 N.J. 426, 438 (1975); Scanlon v. Scanlon, 29 N.J. Super. 317, 327 (App. Div. 1954)). On this record we discern no basis to set aside the court's order denying plaintiff's application to be deemed the parent of primary residence for the two minor children, altering the parenting schedule the parties set forth in their PSA or ordering a plenary hearing. However, for the reasons expressed above, we remand to the Family Part for an order directing a report from the parent coordinator, Dr. Sharon Ryan Montgomery and, based upon that report, additional proceedings if deemed warranted by the court. O'Donnell v. Singleton, 384 N.J. Super. 141, 143 (App. Div. 2006).
Finally, defendant, in her cross-appeal, claims that the trial court erred in awarding fees in an amount too low. Her brief, however, does not address this issue. We, therefore, deem this issue abandoned for appeal purposes. Vassallo v. Bell, 221 N.J. Super. 347, 355 n.2 (App. Div. 1987).
Affirmed as modified. We do not retain jurisdiction.
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