S.I. VS. M.I. (FM-14-0735-17. MORRIS COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0435-19T4
S.I.,
Plaintiff-Respondent,
v.
M.I.,
Defendant-Appellant.
_______________________
Submitted December 9, 2020 – Decided January 27, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0735-17.
M.I., pro se appellant.
S.I., pro se respondent.
PER CURIAM
This appeal requires us to determine whether the Family Part erred in
granting plaintiff's1 motion to amend the custody and parenting time agreement
("CPTA" or "agreement") regarding custody of their disabled daughter, M.I.
(Mindy). The fully executed agreement was submitted to the court by
defendant's attorney and incorporated into the June 4, 2019 final judgment of
divorce (FJOD). Judge Noah Franzblau decided that a CPTA provision stating
plaintiff would care for Mindy every other weekend was left in the agreement
by clerical error and should be removed. Thus, plaintiff would have no visitation
with Mindy and defendant would have full-time physical custody of her. We
affirm substantially for the reasons expressed by the judge in his cogent written
decision.
It is well-recognized that "Family Part judges are frequently called upon
to make difficult and sensitive decisions regarding the safety and well -being of
children." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Thus, our
review of a judge's determination in custody and parenting-time matters is
limited. We "defer to the [family judge's ] determinations 'when supported by
adequate, substantial, credible evidence.'" N.J. Div. of Child Prot. &
1
We use initials and a pseudonym to protect the identity of the parties' child.
R. 1:38-3(d)(17).
A-0435-19T4
2
Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014) (citing N.J. Div.
of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)
(quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998))). To determine whether
the parties reached an agreement, this court must consider "whether there was
sufficient credible evidence to support the trial [judge's] finding." N.J. Div. of
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). A plenary hearing
"is required when the submissions show there is a genuine and substantial
factual dispute regarding the welfare of the children, and the trial judge
determines that a plenary hearing is necessary to resolve the factual dispute."
Hand v. Hand, 391 N.J. Super. at 105 (citing Shaw v. Shaw, 138 N.J. Super.
436, 440 (App. Div. 1976)). See also Lepis v Lepis, 83 N.J. 139, 159 (1980)
(holding that "a party must clearly demonstrate the existence of a genuine issue
as to a material fact before a hearing is necessary," and noting that "[w]ithout
such a standard, courts would be obligated to hold hearings on every
modification application"). We owe no special deference for the judge's legal
determinations. Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div. 2016).
There is no merit in defendant's argument that Judge Franzblau erred in
changing the parties' custody arrangement for Mindy that was set forth in the
CPTA incorporated into the FJOD. He argues the CPTA is binding because it
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was signed by the parties and there was no "fraud, duress, other invalidating
factors[]" involved in its submission. Noting the CPTA states the parties have
read it, defendant argues plaintiff has not proven "either mutual mistake or
unilateral mistake induced by the other amounting to fraud[.]"
Judge Franzblau's decision to amend the CPTA was based upon credible
evidence: emails between the parties' attorneys showing that a redlined version
of the agreement would include no parenting time of the daughter for plaintiff;
defense counsel's submission to the court on May 15, 2019 of a signed and
executed agreement reflecting the changes discussed in the email; and his prior
experience with the parties that gave him insight regarding the plan that
defendant maintain sole physical custody of Mindy. Prior to the parties' entry
into the CPTA, the judge wrote, plaintiff had no parenting time because she
admittedly was unable to care for her daughter.
The judge dismissed defendant's contentions stating
. . . he generally just seeks to enforce the language of
the CPTA attached to the June 4, 2019 FJOD, so as to
require . . . [p]laintiff take [Mindy] to provide him with
a respite from [Mindy's] care. Defendant provides no
explanation and does not deny that the executed
agreement provided by his attorney to the court on May
15, 2019 was the final negotiated document. He
provides no evidence that the CPTA was renegotiated
between May 15 and May 21, 2019[,] at which time the
parties' entered into the [memorandum of
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4
understanding] MOU settling the remaining terms of
their divorce, which was adopted within the parties'
June 4, 2019 FJOD. He provides no certification from
his prior attorney confirming that the May 15, 2019
CPTA that was submitted to the court was renegotiated
subsequent thereto.
The judge reasoned:
In this case, the final executed CPTA was submitted to
the court by [d]efendant’s own counsel on May 15,
2019, which version contains no parenting time for
[p]laintiff. There is material and uncontroverted
evidence that the parties exchanged redline drafts of the
CPTA a few days before signing the May 15, 2019
document that removed [p]laintiff’s parenting time.
Defendant provides not a scintilla of evidence to
demonstrate that the parties renegotiated the CPTA
between May 15 and May 21, 2019 when the parties
entered into the MOU that settled the remainder of the
divorce or prior to June 4, 2019[,] when the parties
finalized their divorce and submitted the original CPTA
to the court. The court therefore declines to hold a
plenary hearing, as there is no material issue of fact
presented as to what the parties intended or that the
submission of the CPTA version on May 15 was the
correct version and the June 4 version was an incorrect
(prior) version. The FJOD is hereby amended to
include the executed version of the CPTA that was
provided to the court by [d]efendant’s counsel on May
15, 2019.
The question before us is not one of contract interpretation, as defendant
contends. Rather, we must determine which of the two different CPTAs
submitted to the judge should be enforced. Nonetheless, while defendant is
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correct that there needs to be a mutual mistake for contract rescission, the motion
proofs suggest that there was. The parties negotiated and signed a CPTA, stating
plaintiff had no custody arrangements with Mindy, which defense counsel
presented as the purported final version to the judge on May 15, 2019. Another
CPTA signed by the parties, stating plaintiff had custody of Mindy every other
weekend, was later submitted by defense counsel to the judge with a proposed
FJOD. With no evidence that defendant repudiated the CPTA his counsel
initially submitted or renegotiated its terms before the submission of a second
CPTA for the May 21, 2019 hearing, we can only conclude the later submission
was a mutual mistake.
In sum, both parties were given an opportunity at the motion hearing to
present evidence regarding which of the two CPTAs represented the final
agreement. There was no need for a plenary hearing because defendant
presented no genuine issue of material fact in support of his position. Hand v.
Hand, 391 N.J. Super. at 105. The judge's reasoning in granting plaintiff's
motion was sound. Defendant cannot compel plaintiff to take custody of their
daughter.
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To the extent that any arguments raised by defendant have not been
explicitly addressed in this opinion, it is because we are satisfied they lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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