SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3124- 22 IECHESKEL ABRAMSKY, Plaintiff-Appellant,

v. RUTH ABRAMSKY, Defendant-Respondent.

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Submitted June 5, 2024

– Decided August 26, 202 4 Before Judges Vernoia and Gummer. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docke t No. FM

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- 0222 -20. Tonneman & Connors, LLC, attorneys for appellant (Cheryl E. Connors, of counsel and on the briefs). Lederberger Law, attorneys for respondent (Leah Lederberger, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3124

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In this post-judgment matrimonial matter, plaintiff Iecheskel Abramsky appeals from an order denying his motion for a plen ary hearing regarding his request to modify custody and parenting time. A Family Part judge denied the motion in part, declin ing to enforce a provision in the parties' Marital Settlement Agreement (MSA) in which the parties agreed to a on e-time waiver of the obligation to establish a substantial change in cir cumstances to modify the custody or parenting-time schedule of their childre n. Given the clear language of the parties' agreement and the temporary nature of their initial custody arrangement, we reverse th at provision of the order and otherwise affirm.
I. Plaintiff and defendant Ruth Abramsky were married in 2007 and had three children who were born in 2007, 2009, and 201 4, respectively. After obtaining a religious divorce from a rabbinical cou rt in 2019, the parties were divorced by way of an April 5, 2022 dual judgment o f divorce in which the parties incorporated their MSA of the same date. In the MSA, the parties agreed to have joint legal custody of the children. In paragraph one of the MSA, the parties also agree d:

Neither party shall be designated as the Parent of Primary Residence at this time as the parties have agreed to an equal timesharing parenting agreement for a period of six months following the execution of t his3 A- 3124

- 22 agreement, with the acknowledgement that as of rece nt the two oldest children are not exercising parentin g time with the Father consistent with the schedule s et forth herein, although they are working towards reunification. In paragraph nine of the MSA, the parties agreed to retain a Parenting Coordinator, who would "assist the parties as it re lates to parenting time issues and on other child related issues, and [would] make recommendations if the parties are unable to resolve disputes." The parti es agreed to "be bound by the recommendations of the Parenting Coordinator unless either party files an application to the [c]ourt to object to the recomme ndation within 14 days of the recommendation." Paragraph sixteen of the MSA was entitled "Six-Mont h Review" and provided: After a six-month period following the execution of this Agreement, the parties shall review the custody/parenting time schedule to determine a schedule that is in the best interests of the child ren at this time. The parties shall attend at least one s ess ion with the Parenting Coordinator to mediate an appropriate parenting schedule with the costs of sa me to be shared as set forth above. In the event that mediation is unsuccessful, or one party fails to cooperate in attending the mediation session, eithe r party shall have a right to file an application wit h the [c]ourt to modify the Custody/Parenting time schedu le set forth herein without the necessity of demonstra ting a substantial change in circumstances. Each party4 A- 3124

- 22 further reserves the right to obtain a best interes ts forensic custody evaluation at that time at his or her own cost. In a September 6, 2022 letter, plaintiff's counsel asked the Parenting Coordinator to schedule "as soon as possible" the m ediation session the parties were required to attend pursuant to paragraph sixte en of the MSA. The next day, defense counsel emailed the Parenting Coordina tor, asking her to schedule the mediation sometime after the six-month period r eferenced in paragraph sixteen. In an email she sent that day, the Parent ing Coordinator advised the parties she was "professionally prohibited from eng aging with the parties both as a [parenting coordinator] and mediator" and told them it would be "more
ap propriate for the parties to meet with another prof essional" for the mediation. The parties subsequently attended a mediation sessi on before a different mediator on November 29, 2022. In a December 30, 2022 letter, plaintiff's attorney advised defense counsel that plaintiff had retained someone to perform a best-int erests evaluation, citing paragraph sixteen of the MSA, and asked that defend ant complete and execute the enclosed documents provided by him. Defendant apparently declined to participate in that evaluation.5 A- 3124

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On January 26, 2023, plaintiff moved to compel defe ndant "to cooperate with a best[-]interests evaluation by plaintiff's e xpert, . . . in accordance with Paragraph 16 of the [MSA]. " In the motion, plaintiff also sought the schedulin g of a plenary hearing, after the completion of the b est-interests evaluation, for the court "to determine the following requests": (1) "[m]odifying custody and parenting time such that plaintiff will be designat ed the parent of primary residence and defendant will be designated the pare nt [] of alternate residence"; and (2) "[m]odifying the parenting time schedule su ch that the minor children . . . will reside with plaintiff primarily with a p arenting time schedule for defendant of alternating weekends and one weeknight dinner each week." He also asked the court to order defendant to pay his counsel fees. In support of the motion, plaintiff submitted his c ertification, in which he asserted paragraph sixteen of the MSA "makes clear that [the parties] agreed that no showing of changed circumstances was necess ary to modify the custody and parenting time schedule, " the purpose of that paragraph "was to avoid unnecessary motion practice," and the parties' "intent when signing the MSA was to attend mediation and then obtain best[-]inte rests evaluations if [they] were unable to agree."6 A- 3124

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Defendant opposed the motion and cross-moved to "[r ]ecogniz[e] and enforc[e]" the parties' "share[d] legal custody and equal timesharing" of the children set forth in paragraph one of the MSA and to modify paragraph thirtyfive of the MSA to provide that both parties would "share in the ability to schedule and attend medical appointments of their c hildren." She also asked the court to order plaintiff to pay her legal fees. On May 5, 2023, the Family Part judge heard argumen t and issued an order denying plaintiff's motion, granting defendant's cross-m otion, and denying both fee applications. In paragraph one of the order, the judge denied the aspect of plaintiff's motion seeking to compel defendant's co operation with his expert's best-interests evaluation. The judge found that while the MSA gave the parties the right to obtain a custody evaluation at their o wn cost, nothing in the MSA compelled the parties to "cooperate [in] or facilit ate such an evaluation." In paragraph two of the order, the judge denied the aspect of plaintiff's motion seeking a plenary hearing regarding his requ ests to modify custody and parenting time without first demonstrating a substa ntial change in circumstances. The judge found the MSA did "not have any weight in overturning the caselaw which governs the [c]ourt i n determining whether to entertain the parties' application." Noting the court wa s not a party to the MSA,7 A- 3124

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the judge explained on the record that "parties can negotiate their alimony, they can negotiate the parameters of their child support , they can negotiate many things," but they cannot "negotiate the standards b y which a [c]ourt will act." He held "[a] judge must consider a request for modi fication in accordance with the procedural framework established by the New Jer sey Supreme Court in . . . . Lepis v. Lepis, 83 N.J. 139, 157-59 (1980), " which requires the party seeking modification to make a prima facie showing of a change in circumstances. The judge concluded "there is no ju stification on the present record to find that a change in custody at this tim e is in the children's best interests ." Plaintiff appeals from paragraphs one and two of th e order, arguing the judge erred in declining to be bound by the MSA pro vision permitting the parties to file a custody or parenting-time modification mo tion " without the necessity of demonstrating a substantial change in circumstan ces" and "erroneously denied plaintiff the right to his best[-]interests expert ." Following the unambiguous language of the parties' MSA, we affirm paragraph one and reverse paragraph two of the order.8 A- 3124

- 22 II. Our review of a Family Part judge's findings is lim ited. "[W]e 'review . . . [a] Family Part judge's findings in accordance with a deferential standard of review, recognizing the court's special jurisdictio n and expertise in family matters.'" S.B.B. v. L.B.B., 476 N.J. Super. 575, 594 (App. Div. 2023) (quoting Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016 )), certif. denied, 256 N.J. 434 (2024). We review de novo questions of law, such as the int erpretation and construction of a contract. Amzler v. Amzler, 463 N.J. Super. 187, 197 (App. Div. 2020) ; see also Steele v. Steele, 467 N.J. Super. 414, 440 (App. Di v. 2021)

. The settlement of family disputes is "encouraged an d highly valued in our system." Quinn v. Quinn, 225 N.J. 34, 44 (2016). Settlement agreements in matrimonial matters, "being 'essentially consensual and voluntary in character[,] . . . [are] entitled to considerable weight with re spect to their validity and enforceability ' in eq uity, as long as they are fair and just." N.H. v. H.H., 418 N.J. Super. 262, 279 (App. Div. 2011) (alterations in the original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 ( 1981) ). "[I]t is 'shortsighted and unwise for courts to reject out of hand consensual solutio ns to vexatious personal matrimonial problems that have been advanced by the parties themselves. '"9 A- 3124

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Quinn , 225 N.J. at 44 (quoting Petersen, 85 N.J. at 645)

. "Therefore, 'fair and definitive arrangements arrived at by mutual consen t should not be unnecessarily or lightly disturbed.'" Id. at 44-45 (quoting Smith v. Smith , 72 N.J. 350, 358 (1977)). A settlement agreement resolving a matrimonial disp ute is a contract and "is governed by basic contract principles." Id. at 45. Guided by those principles a court "should discern and implement the intentions of the parties" and "should not rewrite a contract or grant a better deal than that for which the parties expressly bargained." I bid. "Thus, when the intent of the parties is plain and the language is clear and unambiguous, a court must enforce the agreement as written, unless doing so would lead to an absurd re sult." Ibid. "[S]ettlements

– the parties' choice of the least unfavorable alter natives

– occur for many reasons other than certainty of resu lt. Settlements are made to obviate the pressures of litigation, to av oi d the expense of counsel fees, and to

av oid the cost and delay of appeals." N.H., 418 N.J. Super. at 280. In a clear attempt to "obviate the pressures of litigation" an d "to avoid the expense of counsel fees," the parties chose a six-month review period instead of proceeding immediately to a trial to resolve their disputes co ncerning custody and parenting time. We know that from the unambiguous language of their MSA.10 A- 3124

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In paragraph one, the parties agreed "[n]either par ty shall be designated as the Parent of Primary Residence at this time as the parties have agreed to an equal timesharing parenting agreement for a period of six months following the execution of this agreement . . . ." As set forth in paragraph sixteen, they agreed that after the six-month period, they would "review the custody/parenting time schedule to determine a schedule that is in the bes t interests of the children at this time"; they would "attend at least one [mediat ion] session with the Parenting Coordinator"; and, if the mediation was unsuccessfu l, either party had "a right to file an application with the [c]ourt to modify t he Custody/Parenting time schedule set forth herein without the necessity of demonstrating a substantial change in circumstances." We see nothing unfair or unjust about those agreedup on procedures nor any reason to think they would le ad to an absurd result.
Focus ing on the last sentence of paragraph sixteen

– "Each party further reserves the right to obtain a best interests foren sic custody evaluation at that time at his or her own cost"

– in isolation, defendant contends the phrase "at th at time" is somehow ambiguous and would enable plainti ff to "wake up after two, three or five years after entry into the MSA, invok e this contractual right, and change the custodial status quo on a dime." Nonsen se. Looking as we must at the language of paragraph sixteen and the MSA as a whole, the parties clearly11 A- 3124

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agreed to a one-time waiver of the change- in -circumstances obligation, occurring only after the initial six -month review period and an unsuccessful mediation. It does not provide a carte blanche wai ver to be invoked at any time on the whim of a party. The Family Part judge declined to enforce paragraph sixteen, believing , despite its clear language, plaintiff had to establ ish a change in circumstances pursuant to the "procedural framework" outlined in Lepi s, 83 N.J. at 157-59. In so holding, the judge failed to appreciate the temp orary nature of the parties' initial six -month custody and parenting-time arrangement and t he reasonableness of their mutual decision to attempt to resolve their initial custody and parenting-time disputes by first participating in a six-month review and mediation before proceeding to a best-interests eva luation and trial. For these reasons, we reverse paragraph two of the order , in which the judge denied the aspect of plaintiff's motion seeking a plenary hear ing regarding his requests to modify custody and parenting time without first dem onstrating a substantial change in circumstances. The judge also denied the aspect of plaintiff's mot ion seeking to compel defendant "to cooperate with a best[-]interests eva luation by plaintiff's expert." The judge found that "[w]hile the terms of the MSA reserve each parties' rights12 A- 3124

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to obtain a custody evaluation at their own cost, t here is nothing in the terms of the MSA that compels the other party to cooperate o r facilitate such an evaluation " and that plaintiff had "not presented any compellin g justification for why such an evaluation is needed at this t im e . . . [and] to justify the [c]ourt's intervention to require [d]efendant's compliance wi th the [p]laintiff's custody evaluation at this time." Because the clear language of the MSA supports the first conclusion and the record supports the latter , we agree and, thus, affirm paragraph one of the order. Plaintiff cited the language of paragraph sixteen i n support of his motion to compel defendant's cooperation. But paragraph s ixteen provides only that each party "reserve[d] the right to obtain a best i nterests forensic custody evaluation"; it says nothing about requiring the ot her party's co operation with or participation in that evaluation. In denying plaintiff's motion to compel, the judge did not, as plaintiff argues, deny plaintiff his right to obtain a best-interests evaluation ; the judge simply and correctly refused to impose an obligation to cooperate that did not exist in the MSA. Accordingly, we affirm paragraph one of the order, in which the judge denied the aspect of plaintiff's motion seeking to compel defendant to cooperate with his expert's best-interests evaluation.13 A- 3124

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Affirmed in part; reversed in part; and remanded fo r proceedings consistent with this opinion. We do not retain jur isdiction.