Opinion
DOCKET NO. A-3897-12T3
08-25-2014
BRIAN PISCOPO, Plaintiff-Appellant, v. MICHELLE PISCOPO, Defendant-Respondent.
Goldstein, Bachman & Newman, LLP, attorneys for appellant (Howard A. Bachman, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Carroll. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-431-12. Goldstein, Bachman & Newman, LLP, attorneys for appellant (Howard A. Bachman, of counsel and on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff Brian Piscopo appeals from a March 20, 2013 Family Part order that denied without prejudice his application to restrain defendant Michelle Piscopo from (1) moving to Holmdel, New Jersey with the parties' children, and (2) modifying the parties' existing custody and parenting time arrangement. Based on the limited record before us, we affirm.
The parties were married in 2007 and have two children, presently ages seven and five. After the divorce complaint was filed, the parties attended custody/parenting time mediation. The mediation was successful, and as a result they entered into a consent order on March 13, 2012 (the consent order), which resolved all custody and parenting issues. Under the consent order, the parties share joint legal custody of the children. Defendant is the parent of primary residence and plaintiff is the parent of alternate residence. Pertinent to this appeal, the consent order provides:
The parties shall continue to work out mutually agreeable parenting time schedules between them that are consistent with their work and activity schedules and attentive to [the children's] schedules as well.Importantly, the consent order contains a provision entitled "Dispute Resolution," that reads: "Both parties agree that should a dispute arise as to the issues of custody or parenting time, which is not of an emergent nature, they shall first attempt to resolve their differences through communication with one another with counsel and/or through mediation before litigating through the Court."
A. Plaintiff shall have parenting time with the children every other weekend.
B. Plaintiff shall have parenting time with the children every Monday and Thursday overnight.
C. Plaintiff is responsible for the pick up and drop off for his parenting time.
On December 21, 2012, plaintiff and defendant entered into a Property Settlement Agreement (PSA), which was incorporated into their Dual Judgment of Divorce (JOD), filed the same day. The PSA recited that, with respect to custody and parenting time, they intended to continue to be bound by the consent order.
At the time of their divorce, both parties resided in Somerset County. Plaintiff continued to reside in the former marital home in Green Brook, which was listed for sale, while defendant resided in Bridgewater. Both the consent order and PSA are silent with respect to their future residences, although the PSA expressly provided for the sale of the Green Brook home. Additionally, in the PSA the parties agreed to "cooperate with each other in effectuating the rights of each to custody and parenting time." They also agreed that in the event of any dispute arising out of the PSA, "all attempts should be made between them to settle the dispute by [a]greement before using the courts for any determination."
Apparently, in late January 2013, defendant announced her intention to purchase a home in Holmdel, which is located in Monmouth County. Plaintiff objected, and filed an application with the court to restrain defendant from moving with the children to Holmdel or any other location in Monmouth County. He argues in his brief that under the consent order and the parties' verbal modification thereto, he enjoys nearly equal parenting time with defendant. He contends that defendant's move to Holmdel would essentially eviscerate this shared parenting arrangement, and involve a longer commute to his work in New York City were he to similarly move to the Holmdel area. Defendant cross-moved, seeking to temporarily modify the parties' custody and parenting time arrangement pending plaintiff's move from the Green Brook residence.
Following oral argument, the motion judge denied both parties' applications without prejudice. Citing the parties' agreements to attempt to first resolve future disputes without court intervention, and the public policy favoring the settlement of disputes, the court directed the parties to attend mediation to address their parenting time concerns, consistent with the dispute resolution provision in their consent order.
Plaintiff appeals, raising the following arguments for our consideration:
POINT I:
The Court erred in allowing the unilateral relocation by the defendant which thereby modified the parties [sic] parenting plan without a Baures v. Lewis Review
POINT II:
The Defendant's unilateral move effectively terminated the shared custody arrangement agreed to by the parties
POINT III:
The Defendant should be compelled to comply with and effectuate the parenting plan pending a custody hearing
First, we address a serious deficiency in plaintiff's appendix. The appendix must include "the pleadings" and "such other parts of the record . . . as are essential to the proper consideration of the issues[.]" R. 2:6-1(a)(1)(A) and (I). Here, our review of plaintiff's arguments is fatally hampered by plaintiff's failure to include essential documents in his appendix. Plaintiff's motion, defendant's cross-motion, and the various supporting certifications and exhibits referenced in the judge's written decision were not made part of the record before us. While plaintiff in his brief advances various factual assertions in support of his position, these lack any reference to the record. R. 2:6-2(a)(4).
Plaintiff's appendix only contains two isolated pages of what purports to be defendant's certification.
We have been provided with the consent order, the JOD, and the PSA. As the motion judge correctly noted, the consent order, incorporated in the PSA and JOD, expressly provides for dispute resolution, including mediation, prior to litigating custody or parenting time disputes. Also, as the judge aptly recognized, marital settlement agreements "'are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.'" Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Konzelman v. Konzelman, 158 N.J. 185, 194 (1999)); see also Weishaus v. Weishaus, 180 N.J. 131, 143-44 (2004). While incorporation of a marital settlement agreement into a divorce decree "does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).
On this record, we find no abuse of discretion by the motion judge in enforcing the parties' dispute resolution agreement. Mediation had proved successful in the past, and had resulted in the consent order which they agreed to be bound by when they were later able to settle the remaining aspects of their divorce. On appeal, plaintiff does not argue that the parties' dispute is emergent, nor, from what we gather, has plaintiff sought a stay of the trial court's order in the year plus period that this appeal has been pending. Also, should mediation prove unsuccessful, nothing in the trial court's order precludes either party from promptly returning to court to adjudicate their dispute.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION