NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-807-09.
David Perry Davis, attorney for appellant.
Irene S. Clopton argued the cause for respondent (Felsenfeld and Clopton, attorneys; Ms. Clopton, on the brief).
Before Judges Ashrafi and Guadagno.
Plaintiff-ex-husband appeals from the Family Part's order of August 31, 2012, by which the court interpreted a provision of the parties' divorce agreement affecting custody of their son. After their divorce, the parties shared approximately equal time with the child. When the child reached school age, the parties cross-moved for primary residential custody. The Family Part concluded that the terms of their property settlement agreement entitled defendant-ex-wife to become the parent of primary residence because she lived in a higher-rated school district.
We conclude that the Family Part erred in changing the custody and parenting arrangement without holding an evidentiary hearing to determine the parties' intent as to the disputed provision of their agreement, and also without permitting oral argument on the cross-motions contesting the intent of that provision. We reverse and remand for further proceedings.
The parties were married in 2005 and have one child, born in December 2005. They lived together for about fifteen months. After they separated, both parties established residences in East Windsor Township, husband in his parents' home and wife in an apartment. They informally followed a shared parenting arrangement.
Their judgment of divorce was executed and filed almost three years after the parties' separated, on December 9, 2009, and it incorporated a property settlement agreement that husband and wife had negotiated with the assistance of counsel for each party. The parties divided up their property and debts in simple terms, according to whichever party possessed the asset or had incurred the debt. Both waived any claim to alimony. The most prominent provisions of the agreement pertained to custody of and financial arrangements for the child, who was then almost four years old.
The parties agreed to joint legal custody and mutual determination of "all major issues relating to the health, education and general welfare of the child." With respect to the parenting time arrangement, the agreement stated in its paragraph 4A:
WIFE shall be entitled to parenting time on Tuesday after school until Monday before school every week. On alternating weeks, HUSBAND shall be entitled to parenting time on Monday after school until the following Tuesday before school.
This provision gave husband eight nights and wife six nights with the child every two weeks. The reference to "school" in paragraph 4A apparently meant "pre-school" or daycare because the child was not of school age yet and the next paragraph attempted to anticipate the circumstances when the child would ...