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Elgart v. Elgart

Superior Court of New Jersey, Appellate Division

August 8, 2013

IRINA B. ELGART, Plaintiff-Appellant,
v.
MICHAEL ELGART, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2097-09.

Irina B. Elgart, appellant pro se.

Michael Elgart, respondent pro se.

Before Judges Sabatino and Maven.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Irina Elgart (Irina) appeals the March 19, 2012 Family Part order, which, among other things, denied amending the parties' Property Settlement Agreement (PSA). We affirm.

I.

The relevant facts are as follows. Irina and Michael Elgart were married on August 17, 1997, and divorced on October 20, 2010. The parties have two children: a son, born in June 2001, and a daughter, born in June 2005.

A complaint for divorce was filed on March 20, 2009. In the months leading up to the divorce, the parties sold the marital home and Irina filed a motion to relocate to Pennsylvania with the children. The parties agreed to the relocation pursuant to a pendente lite consent order on June 19, 2009. This order set forth the parenting time schedule. In August 2009, Irina relocated to Pennsylvania with their children.

The parties attended court-ordered mediation and a parenting education program in July 2009. Also during this time, the parties and their respective counsel attempted to negotiate the PSA. The court held three case management conferences with the Honorable Thomas Zampino, J.S.C., between October 2009 and January 2010 to discuss the status of the PSA.[1]

On March 8, 2010, the judge held a fourth case management conference to discuss the status of negotiations and to establish the factual basis for the dissolution of the marriage.[2]The parties could not agree on several equitable distribution issues, and Michael alleged that Irina had committed fraud with respect to their joint investments. After hearing argument from the parties' counsel, Judge Zampino made the following determinations: the escrow and joint bank account monies would be divided equally between the parties; Michael would attempt to refinance the Harrison[3] property in order to remove Irina's name from the mortgage; Michael would pay Irina alimony in the amount of $1000 monthly for six years; Michael would pay Irina $1350 per month in child support; and Irina had not committed fraud. The judge dissolved the marriage on the record.

Defendant's counsel was directed to draft the final judgment of divorce incorporating the orders set forth on the record by the judge. On April 5, 2010, the parties submitted a consent order drafted by the parties in furtherance of the judge's directives, which only included the provisions pertaining to the Harrison property and child support. Over the next several months, the parties continued their negotiations on the additional issues exchanging numerous drafts of the PSA that incorporated various proposed revisions.

Irina next filed a pro se motion regarding the summer parenting schedule, for which Judge Zampino entered an order on August 19, 2010.

On October 20, 2010, a hearing was held before Judge Zampino on Irina's motion to amend the April 2010 consent agreement, and for the judge to receive from counsel the final judgment of divorce (FJD) and the final PSA. Michael's attorney expressed that the parties could not agree on several provisions in the proposed PSA. In response to counsel, Judge Zampino informed the parties that given their inability to produce a consent PSA, he would resolve their impasse by striking from the proposed PSA any provision that the parties did not agree upon. Over Irina's objections, Judge Zampino struck paragraphs 1.3 (cost of living adjustments), 1.17[4] (unemancipation during child's post-high school education), 1.18[5] (unemanicipation due to child's disability), and 2.8 (alimony). Judge Zampino modified the language in paragraphs 2.5 to delete the reference to any cohabitation by Irina with an unrelated male as a basis for modifying alimony, and 1.4[6] to exclude the list of extraordinary expenses. Irina also requested that paragraph 1.14 be stricken but the clause remained in the PSA. Paragraphs 2.9 and 2.10 were merely renumbered to 2.11 and 2.12.

Irina initially expressed reservations with executing the PSA based on these changes and stated that she had proof that the parties agreed to certain provisions and that other provisions were negotiated as contingent upon the stricken language, but she did not have all of the draft agreements in court. Judge Zampino informed Irina: "If you can provide in the future a copy of that draft[, ] you can attach it and make it a motion, that's [sic] something that represented an agreement of the part[ies]." Judge Zampino also stated:

You can tell me you refuse to sign and that's perfectly acceptable to me, but that now represents the agreement as agreed upon with both of you preserving your rights under the law for all the applications concerning college, alimony, [and] child support that are [appealable] to you[.] [N]o one's lost any rights here.

Irina eventually agreed to sign the PSA. At that time, the final judgment of divorce incorporating the PSA[7] was entered.

On July 7, 2011, Irina moved to amend the October 2010 PSA to include the provisions that had been redacted by Judge Zampino, particularly those portions of paragraph 1.4 enumerating certain extraordinary expenses, and paragraphs 1.17 and 1.18. She maintained that she was entitled to the relief requested based on Judge Zampino's directive, to attach prior drafts of the agreement that indicated an agreement. The court denied the motion without prejudice in order for Irina to submit a transcript from the October 2010 hearing.

On or around December 10, 2011, Irina resubmitted her motion and included her prior certifications, as well as documentation purportedly containing PSA drafts that included the stricken provisions. Irina also sought enforcement of litigant's rights on several issues. In particular, she sought an order of reimbursement towards work-related childcare expenses incurred for the 2010-2011 and 2011-2012 school years, and reimbursement towards particular expenses for the children's activities. She also sought contribution towards the cost for a second computer and a full-time live-in babysitter. Further, she requested an order directing Michael to take the children to Hebrew School during his Sunday parenting time as well as directing him to meet her at an alternate location along the Garden State Parkway.

In his opposing certification, Michael again denied that the parties agreed to certain language in paragraphs 1.4, 1.17 and 1.18. With respect to paragraph 1.4., he stated the Irina's extraordinary expenses list only showed examples and was not an exhaustive list. He also disagreed with Irina's request for childcare reimbursement.

Following the fractious March 2, 2012 hearing in which both parties appeared pro se, the Honorable Michael Casale, J.S.C., rendered an oral decision, and entered an order on March 19, 2012. Regarding her request to modify and incorporate paragraphs 1.4, 1.17 and 1.18, Judge Casale had a colloquy with Irina attempting to understand how she believed the proffered drafts of the agreements established that the parties had a meeting of the minds on certain provisions. The discussion was as follows:

[IRINA]: Because I've attached [PSAs] that were provided to me by either [Michael] and his counsel, which incorporated, particularly, [p]aragraphs 1.4, 1.18 and 1.17 as they were crossed out. And that's what Judge Zampino had said that if I can provide those agreements that were sent to me, then, he would incorporate them back in.
THE COURT: Yes, but then there's always give and take. In other words, there's no meeting of the minds on those particular issues as far as I can see. Otherwise, it would have been agreed to at the time of the divorce. There are proposals which were going back and forth, but they were never agreed to as far as I can see.
[IRINA]: Well, as far as Judge Zampino had said that in order for there to be a meeting of the minds I'd have to provide him a draft, which was, particularly, the September draft that predated the October one that we came to court with that did incorporate -- these drafts were from [Michael] himself or his attorney. So these were already -- these provisions were already agreed upon. And, then, on October 20th was the first time that there was an objection to that.
THE COURT: Then there's -- then they're not agreed upon as far as I'm concerned. As far as I'm concerned, there was no meeting of the minds, and . . . I've lived with this case as much as Judge Zampino did. But as far as I'm concerned there was no meeting of the minds on [p]aragraphs 1.4., 1.17 and 1.18. They were proposals. And they were never solidly agreed to. Proposals go back and forth. And sometimes there's [sic] proposals and, then, things have changed. . . .
[IRINA]: Well, that's not -- there wasn't a back and forth particularly with regard to [paragraph] 1.4. And, I mean, I can just go back to the transcripts where Judge Zampino said that any drafts from [Michael] that incorporated that language he was going to put back in. I mean that's all I can say. Obviously, he's not on the bench anymore, but that's what the transcript says.
THE COURT: Well, I mean, when I reviewed the matter I did not see any meeting of the minds on [p]aragraph 1.4, [p]aragraph 1.17 and [p]aragraph 1.18. And I understand that it would be nice if we could delineate everything that could be an extra[-]curricular activity, or an extra cost. We have the child support guidelines we know and we have case law. And as far as I was concerned in reviewing all of this entire matter I didn't see where there was a meeting of the minds on those -- on those paragraphs. So I'm not going to amend the judgment of divorce as to those paragraphs.

The judge ultimately determined that neither party had agreed to the proffered provisions and denied Irina's motion to modify and incorporate paragraphs 1.4, 1.17 and 1.18.

The judge then addressed several other requests raised in the motion and determined that Michael must reimburse Irina for work-related childcare expenses incurred between the hours of 7:00 a.m. and 6:00 p.m., and expenses for particular activities. Michael was ordered to take the children to Hebrew School during his parenting time and receive make-up time in return. The judge ordered the parties to communicate and attempt to agree upon the children's activities. Lastly, the order provides that any relief not specifically stated in the order is denied.

Irina filed this appeal contending that the court erred in failing to include the deleted paragraphs, by not requiring that Michael be responsible for all of her requested expenses for their children, and for not changing the meeting location on the Garden State Parkway. We reject those contentions.

II.

The scope of our review of a trial court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 9 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We accord particular deference to the judge's fact-finding "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Id. at 413; see also Crespo v. Crespo, 395 N.J.Super. 190, 193-94 (App. Div. 2007). Reversal is warranted only when a mistake must have been made because the trial court's factual findings are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

PSAs are essentially contracts between divorcing spouses and should not be "'unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). When matters in dispute in a post-judgment matrimonial motion are addressed in a PSA, the agreement is "'entitled to considerable weight with respect to [its] validity and enforceability' in equity, provided [it is] fair and just." Dolce v. Dolce, 383 N.J.Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). "As a general rule, courts should enforce contracts as the parties intended." Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). If the meaning of the agreement is in dispute, "[t]he court's role is to consider what is written in the context of the circumstances at the time of the drafting and to apply a rational meaning in keeping with the 'expressed general purpose.'" Ibid. (quoting Atl. N. Airlines v. Schwimmer, 12 N.J. 293, 302 (1953)).

We begin by recognizing the practical difficulties facing Family Part judges who preside over emotionally-charged cases involving self-represented litigants. Oral argument in post-judgment litigation is often fact laden and contentious making it difficult for the court to sort through the issues and discern the true motivation and position of the parties. In this case, the parties' apparent inability to reach consensus was evident even when represented by counsel before Judge Zampino in 2010. Remarking on his impression that Irina's desire for absolute specificity in an agreement was not realistic, Judge Zampino advised Irina that

[I]f you want to ever in the future make motions to modify, amend or whatever, you can do that but we [cannot] be expected to get everything for the rest of our lives to be put into the [FJD] as much as we would like to foresee the future. So, the thing that's [going to] get accomplished today is a formal judgment from things that you had already agreed to.

After striking the proposed list of covered extraordinary expenses language from paragraph 1.4, Judge Zampino stated:

And there's nothing that I deleted from there as prefatory language that would impact the amount of support received or the exemption itself.
All it did was lead things to be defined. You seem to have a desire to define things with such specificity that there's no event in the remainder of anyone's life that would be unaddressed in this agreement. . . .

Judge Casale likewise noted that the motion sought an extraneous level of specificity, and stated, "[I] understand that it would be nice if we could delineate everything that could be an extracurricular activity, or an extra cost [but] [w]e have the child support guidelines . . . and we have case law."

The common experience in family court is that many couples only communicate when they are in front of judges, who do their best to marshal the discussion in such a way to extract the necessary facts so they can render a competent opinion. In the process, judges are often compelled to act as referees in these discussions as the parties lob invectives and broadsides at one another. We glean from the transcripts of the proceedings before Judge Casale, that the parties continued to vociferously disagree before the court. The judge, however, was able to cull from the discussions a sufficient basis to support the decision he made.

From our review of the record, we are satisfied that the judge did not abuse his discretion in rendering his decision. He aptly concluded, as Judge Zampino did, that there was no basis to incorporate the language proposed for paragraphs 1.4, 1.17 and 1.18.

As for paragraph 1.4, it provided for the shared responsibility toward expenses for the children. Pursuant to that provision, the court considered the requests for reimbursement and then granted or denied certain expenses, accordingly. Additionally as the court noted, the parties are free to submit an application to the court if other issues or requests for reimbursement arise in the future.

The judge ordered:

IT IS FURTHER ORDERED that the parties must discuss often as to extracurricular activities, extraordinary expenses, schooling, camps, etc., and attempt a mutually agreed[-]upon solution. Once that decision is reached, the parties should adhere to their agreement. If they agree to pay an item together, the other should not rescind permission or cooperation. . . .

Here, the parties have demonstrated repeatedly that they are unable to agree on their own. When presented with Irina's request for contribution, the judge resolved the particularized issue as anticipated by the PSA and Judge Zampino proviso. The judge's actions and decision were quite reasonable and appropriate under the circumstances. We discern no reason to disturb that decision.

With respect to Paragraphs 1.17. and 1.18, the parties disagreed on the number of years the child(ren) would be considered unemancipated in the event of sickness or disability. These provisions, relate to the children's circumstances that have not occurred yet. In Dolce, supra, 383 N.J.Super. at 18-19, this court stated:

[G]iven the inherent equitable powers of the Family Part, support orders, including those setting emancipation events, "may be revised and altered by the court from time to time as circumstances may require, " including an order resulting from an agreement. N.J.S.A. 2A:34-23; see also Lepis, [supra, ] 83 N.J. [at] 1146 . . .; W.S. v. X.Y., 290 N.J.Super. 534, 541 (App. Div. 1996); Dunne v. Dunne, 209 N.J.Super. 559, 565 (App. Div. 1986). Thus, "[i]f circumstances have changed in such a way that [the support provision] would no longer be equitable and fair, the court also remains free to alter the prior arrangement." Lepis, supra, 83 N.J. at 161 n.12 (citing Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971) and Rufner v. Rufner, 131 N.J. Eq. 193, 196 (E. & A. 1942)). The duty of support is "always subject to review and modification on a showing of 'changed circumstances.'" Lepis, supra, 83 N.J. at 146 (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)).

[(Emphasis added).]

In light of Dolce, it is clear that whether or not these provisions are included in the PSA, the family court can modify them upon a party's "changed circumstances." Lepis, supra, 83 N.J. at 152. Therefore, the situations Irina wanted to address arising from the emancipation of the children, who are both currently under the age of twelve, could be resolved upon occurrence. We discern no reason to disturb Judge Casale's decision on this issue.

The judge did not address the request to alter the drop-off location on the Garden State Parkway. According to the order, any matters not addressed in the order were to be deemed denied. Here, Irina argues that the judge erred in denying her request that the parties meet at Garden State Parkway Exit 100 during the summer months. Although Irina included this issue in her certification, we decline to address this issue as it was not considered in the trial court. R. 2:6-2. Irina is not prejudiced by that this determination. As with other matters of concern that may occur in the future, if necessary, Irina may file another motion request seeking the court's determination on this issue.

Affirmed.


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