Cases involving children, specifically child custody or child support cases, can often be contentious. The contentious nature of these proceedings is exacerbated when one parent has a restraining order against the other. This was the case in the New Jersey Appellate Division case of O.P. v. L.G.-P., which was recently released for publication.
The parties divorced in 2009, at which time they entered into a Property Settlement Agreement (PSA). They had one child and agreed in their PSA that plaintiff would pay $135 per week in child support as well as some additional expenses, such as school, medical and nanny expenses. The parties also agreed in their PSA to mediate any future disputes. In 2010, after the entry of the PSA, a Final Restraining Order (FRO) was entered against plaintiff and in favor of defendant.
After the FRO was entered, the parties continued to dispute child support issues. Defendant filed motions requesting reimbursement and asking that the mediation provision of their PSA be vacated. Plaintiff, in contrast, alleged that he had made most payments owed and that defendant consistently incurred child-related costs without conferring with him or providing proof before requesting payment. The trial court suggested to defendant that she should modify the FRO to permit limited contact with plaintiff. The trial court further enforced the PSA and ordered mediation in order for the parties to settle their disputes.
On appeal, the New Jersey Appellate Division stated that the motion judge should not have suggested that defendant lessen the no-contact provisions of the FRO. Similarly, the judge should not have ordered mediation for resolution of the parties’ disputes. The court pointed out that Rule 1:40-5(a)(1) prohibits mediation when an FRO is in place, as have cases, such as Lerner v. Laufer, 359 N.J. Super. 201, 216 (App. Div.), certify. denied, 177 N.J. 223 (2003). Though the Appellate Division acknowledged that in general courts should try to enforce all provisions of a PSA, this may not be applicable in a case where an FRO is obtained after the entry of the PSA. See Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). In addition, the court pointed out that domestic violence situations often involve dominance and control by one party over the other, which could impact mediation of disputes, even in a controlled environment.
Ultimately, the court remanded the case for further consideration and specifically advised that the lower court attempt to comply with the PSA, but not at the expense of the parties and the FRO between them. This case provides guidance to trial courts about how to handle family law disputes where an FRO has been obtained after the entry of a PSA.
If you are currently going through a divorce or custody dispute and there is an FRO involved, call Sarno da Costa D’Aniello Maceri LLC to have your case handled by experienced matrimonial attorneys. Contact us today at (973) 274-5200.
