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Superior Court of New Jersey, Appellate Division.

ALEXANDER ALEXIN, Plaintiff–Appellant, v. IRENA RAITER, Defendant–Respondent.

DOCKET NO. A–3641–12T4

    Decided: April 11, 2014

Before Judges Yannotti and Leone.Eugenie A. Voitkevich argued the cause for appellant. Matheu D. Nunn argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys;  Mr. Nunn, of counsel and on the brief).

Plaintiff Alexander Alexin (Father) and defendant Irena Raiter (Mother) entered into a civil consent agreement to resolve domestic violence, criminal and custody matters.   The Family Part denied Father's application to vacate that agreement.   Father appeals.   We affirm.


Mother and Father had been in a dating relationship, had a son in 2010, but their relationship deteriorated.   On October 7, 2012, Mother filed a domestic violence (DV) complaint against Father, and obtained a temporary restraining order (TRO).   The TRO granted Mother temporary custody of their child, and provided no parenting time for Father.   The parents filed criminal complaints against each other.

On October 23, 2012, before the scheduled final restraining order hearing, both parties and their counsel, with the aid of a Russian interpreter, negotiated a civil consent agreement.   Father and his counsel made handwritten changes to the agreement.   The agreement stated that the parties, through counsel, had resolved their issues in consideration of their mutual promises.   Mother agreed to dismiss her DV complaint, and Father agreed to civil restraints.   Each parent agreed to cooperate to resolve favorably the criminal charges pending against the other parent.   The parents also agreed that Mother “shall have full physical custody of the parties' minor son,” and that Father “shall have parenting time with the parties' minor son [ ] every Sunday from 11:00 a.m. to 6:00 p.m., which represents the status quo prior to October 7, 2012 (‘the Regular Parenting Time’), unless otherwise agreed to by the parties in writing.” 1  Both parents signed the agreement, and their counsel signed as witnesses.

That day, the parents appeared with counsel and the interpreter before the family judge.   Counsel explained they had negotiated an agreement “that we've been working on all morning” to dismiss the DV complaint and resolve other issues.   The court questioned each party under oath.   Father confirmed that he agreed “to enter into and be bound by this agreement going forward.”   He said he “absolutely” understood what he was agreeing to, even though written in English, because it had been translated by the interpreter.   Mother similarly understood and agreed to be bound by the agreement.   The court entered an order dismissing the DV complaint and TRO because the “parties have entered into a civil agreement.”

Only three months after the entry of the consent agreement, and two weeks after the criminal complaints were dismissed, Father filed under the FD docket a verified complaint dated January 30, 2013, and a request for an order to show cause seeking a preliminary injunction.   He sought joint legal and physical custody, asserting he did not need to show changed circumstances because he did not enter into the consent agreement voluntarily.

Mother filed a cross-motion asking for counsel fees.   Her counsel later submitted an affidavit of attorney's services seeking $8,389.90 in fees and costs.

On February 28, 2013, the same family judge heard arguments from counsel, and reserved decision on the merits and on the need for an evidentiary hearing.   On March 12, 2013, he issued a written opinion denying Father's “application to vacate the consent agreement.”   The court stressed that Father had been represented by counsel, had been questioned on the record under oath, and had affirmed his understanding of the agreement and his willingness to enter into it.

The court further noted that Father had received significant consideration for entering into the agreement, namely Mother's dismissal of the DV complaint, which could have had adverse consequences for Father in several respects, including custody.   The court then observed and emphasized:

In looking at the proceedings as a whole, it appears [Father] is attempting to get the benefits of an earlier negotiated agreement but vacate his concessions and considerations.   The “feel of the case” in this regard is that the judicial process is being manipulated to confer an unfair advantage to one party, and that should not be allowed․  To vacate this agreement would seriously undermine orderly court process and good faith negotiations in what are frequently difficult family matters.

Because it did not appear that Father's action had been brought in good faith, the court awarded $2,500 counsel fees to Mother.   The court confirmed that no evidentiary hearing was necessary.



Father appeals, raising four points.   First, Father argues that the trial court should have discussed and granted his request for a preliminary injunction.   However, “[a] party who seeks mandatory preliminary injunctive relief must satisfy a particularly heavy burden.”  Guaman v. Velez, 421 N.J.Super. 239, 247 (App.Div.2011)(quotation marks omitted).

A successful applicant must demonstrate by clear and convincing evidence that a stay is necessary to prevent irreparable harm, that the legal right underlying the claim is settled, that the material facts are substantially undisputed, that the applicant has a reasonable probability of success on the merits, and that a balancing of the equities and the hardships weighs in favor of granting relief.

[Id. at 247–48 (citing Crowe v. De Gioia, 90 N.J. 126, 132–34 (1982);  another citation omitted).]

Here, Father did not proffer facts showing those prerequisites.   In particular, Father failed to show a stay was necessary to prevent irreparable harm pending resolution of a custody motion.   Father's certifications merely alleged that he felt the agreement's parenting time was extremely insufficient, that on some occasions their son was very upset when Father's parenting time ended, and that more parenting time was required to avoid impairing the child's interests.   We therefore affirm the implicit denial of that request by the trial court.


Second, Father argues that the trial court erred by not holding an evidentiary hearing before ruling that the consent agreement was enforceable.   We must hew to our standard of review.   Particularly “in the Family Part, a plenary hearing is only required if there is a genuine, material and legitimate factual dispute.”  Segal v. Lynch, 211 N.J. 230, 264–65 (2012).   Otherwise, whether to hold a hearing is within the sound discretion of the family court.  Hand v. Hand, 391 N.J.Super. 102, 111–12 (App.Div.2007);  see Lepis v. Lepis, 83 N.J. 139, 159 (1980) (“Courts should be free to exercise their discretion to prevent unnecessary duplication of proofs and arguments.”).

“Furthermore, an ‘appellate court must give deference to the views of the trial judge’ on intangibles not transmitted by the record such as ․ the ‘feel of the case.’ ”  Rolnick v. Rolnick, 262 N.J.Super. 343, 359 (App.Div.1993) (quoting Dolson v. Anastasia, 55 N.J. 2, 7 (1969)).   Finally, “family court decisions are entitled to special deference ‘[b]ecause of the family courts' special jurisdiction and expertise in family matters.’ ”  In re State ex rel. A.D., 212 N.J. 200, 230 (2012) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

To support his motion to vacate the agreement, Father offered two certifications raising several claims.   He claimed that he had only ten to fifteen minutes to review the agreement's terms with his counsel.   Even if true, that does not raise a material issue.   The agreement's typewritten terms only covered slightly more than three pages.   Moreover, Father demonstrated that he was able to negotiate changes to the agreement by adding an additional handwritten page and by altering the custody provision at issue.   Most important, Father assured the trial court that he “absolutely” understood the agreement and that he agreed “to enter into and be bound by this agreement going forward.”

Despite these sworn assurances, Father next claimed that he signed the agreement believing that its provisions were temporary and could be changed after resolution of the criminal matters.   However, the agreement contained no such limitation.   Rather, the parties agreed to parenting time “each year” on the birthdays of the child and the Father, and on Father's Day “each year,” indicating that the parties intended the agreement to last for years.   Moreover, the parties expressly provided that the agreement represented “the entire understanding between the parties and shall not be further modified absent the express written consent of both parties.”   The parties specifically agreed that the custody and parenting time provision would govern “unless otherwise agreed to by the parties in writing.”

Father's claim does not raise a genuine, material issue of fact given the express terms of the agreement.   Settlement agreements in family matters are contracts, and therefore “should be enforced according to the original intent of the parties.”  J.B. v. W.B., 215 N.J. 305, 326 (2013).  “ ‘A contracting party is bound by the apparent intention he or she outwardly manifests to the other party.   It is immaterial that he or she has a different, secret intention from that outwardly manifested.’ ”  Brawer v. Brawer, 329 N.J.Super. 273, 283 (App.Div.), certif. denied, 165 N.J. 138 (2000).

Father also claimed that he never authorized his counsel to negotiate a long-term custody or visitation agreement, and cites Amatuzzo v. Kozmiuk, 305 N.J.Super.   469 (App.Div.1997).   In Amatuzzo, a proposed settlement was negotiated by the attorneys without the involvement of the defendant, who refused to sign the proposal.  Id. at 471–73.   We noted “[t]he general rule is that unless an attorney is specifically authorized by the client to settle a case, the consent of the client is necessary.”  Id. at 475.   Because the defendant denied authorizing counsel to settle and did not consent to the settlement, we remanded to the trial court for “a hearing to ascertain the intent of the parties” before enforcing the proposed settlement.  Id. at 473–75.

By contrast, Father was present when the agreement was reached, had at least ten to fifteen minutes to review the short agreement, made changes, and consented both by signing the agreement and by affirming his agreement in his sworn colloquy.   Because Father himself agreed to the custody and parenting time agreement, it is immaterial whether he originally authorized his counsel to negotiate it.   See id. at 475 (“Negotiations of an attorney are ․ binding on the client [if] the client has expressly authorized the settlement[.]”).

Lastly, Father claimed that, before signing the agreement, he expressed concern to his counsel at having only seven hours of parenting time a week.   Father claims that his counsel told him not to worry because “the Agreement was being signed only for the purposes of the Domestic Violence matter,” and “that ‘a matrimonial attorney’ would later take care of the child custody and visitation issues.” 2  The trial court accepted as true Father's understanding that the matter ultimately would be referred to a matrimonial attorney, but properly found that irrelevant because all custody arrangements are impermanent and are subject to modification.   See In re Adoption of Children by D., 61 N.J. 89, 93 (1972) (holding “a mere award of custody ․ is impermanent and subject to alteration as changing circumstances require”);  Grover v. Terlaje, 379 N.J.Super. 400, 410 (App.Div.2005).   Because the court accepted Father's claim, it too did not present a material issue of fact.

Thus, we find that Father's certifications failed to “ ‘clearly demonstrate the existence of a genuine issue as to a material fact,’ ” particularly in light of the agreement's terms and Father's colloquy.  Segal, supra, 211 N.J. at 265–66 (quoting Lepis, supra, 83 N.J. at 159).   Furthermore, the same judge had questioned Father in that colloquy, and felt that any factual dispute was not genuine or legitimate.   Rather, the judge's “feel of the case” was that Father was manipulating the judicial process to enjoy the benefits of the agreement (the dismissal of the DV and criminal complaints) while vacating the concessions he made to get the agreement (the custody and parenting time provisions).   The family judge's feel of the case is entitled to deference.   See Rolnick, supra, 262 N.J.Super. at 359;  see also Hand, supra, 391 N.J.Super. at 111.

In Barrie v. Barrie, 154 N.J.Super. 301, 305 (App.Div.1977), certif. denied, 75 N.J. 601 (1978), a matrimonial litigant filed an affidavit claiming that she was emotionally and mentally incompetent when she executed the property settlement agreement.   The judge who had watched her colloquy denied her motion to vacate the agreement without an evidentiary hearing.   Id. at 302, 307.   We affirmed, stating that “[t]he judge's observations of plaintiff's demeanor, comprehension and speech when she appeared before him at the divorce hearing are entitled to substantial weight.”  Id. at 307.  “We conclude[d] from the record that there was no genuine issue of material fact,” and that therefore the judge “did not abuse his discretion in denying an evidentiary hearing.”  Ibid. We reach the same result here.


Third, Father argues that, even if he voluntarily entered into the consent agreement, the trial court erred when it did not schedule a trial for his January 30, 2013 complaint for custody.   However, “[a] party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[ ].”  Hand, supra, 391 N.J.Super. at 105.   Here, Father did not allege a change of circumstances, but merely proffered that the agreement's parenting time was inadequate and that it sometimes upset the three-year-old child.   Father asserted he did not need to show changed circumstances because he did not consent to the agreement voluntarily.

Thus, Father did not show “a change of circumstances warranting modification.”  Beck v. Beck, 86 N.J. 480, 496 n.8 (1981).   He therefore failed to justify a plenary hearing.  Hand, supra, 391 N.J.Super. at 111–12;  see Lepis, supra, 83 N.J. at 157–59;  see also Konzelman v. Konzelman, 158 N.J. 185, 193–94 (1999) (noting “fair and definitive arrangements” in family cases “ ‘should not be unnecessarily or lightly disturbed’ ”).   Because there was no “genuine and substantial issue” concerning custody, we affirm the trial court's implicit dismissal of Father's complaint without a trial.   See R. 5:8–6.3


Finally, Father argues that the award of counsel fees must be reversed and remanded because Mother's counsel did not hand deliver the affidavit of attorney's services to Father's counsel until the day before the February 28, 2013 oral argument.   The rules provide that “all applications for the allowance of fees shall be supported by an affidavit of services.”   R. 4:42–9(b);  see R. 5:3–5(c).

Father's counsel admittedly received the affidavit the day before the hearing, but made no complaint at the hearing.   Instead, later that day, after the hearing at which the court reserved decision, Father's counsel wrote a letter objecting to the affidavit and claiming he lacked an adequate opportunity to respond.   However, the letter did not argue that the affidavit was mistaken in its reasoning or its calculation of fees and costs.   Nor did Father make any such arguments in the thirteen days before the court reached a decision.

In his appellate brief, Father “does not argue that the awarded fee in the amount of $2,500 was excessive,” instead arguing only that the late delivery of the affidavit was unfair.   Given the absence of any challenge to the substance of the affidavit or the fee award, any delay in delivering the affidavit was harmless.   R. 2:10–2.



FN1. The parties similarly agreed to support of $500 per month, “which represents the status quo prior to October 7, 2012,” as well as other provisions concerning personal property and parenting time..  FN1. The parties similarly agreed to support of $500 per month, “which represents the status quo prior to October 7, 2012,” as well as other provisions concerning personal property and parenting time.

FN2. In a supplemental certification, Father stated that his counsel in the DV matter may have lacked expertise in child custody or matrimonial matters, and that counsel did refer him to a matrimonial attorney after the agreement was signed..  FN2. In a supplemental certification, Father stated that his counsel in the DV matter may have lacked expertise in child custody or matrimonial matters, and that counsel did refer him to a matrimonial attorney after the agreement was signed.

FN3. “Of course, our decision is without prejudice to plaintiff's right to seek relief from the court in the event of subsequent [genuine change in] circumstances affecting the welfare of the child[ ].”  Hand, supra, 391 N.J.Super. at 112..  FN3. “Of course, our decision is without prejudice to plaintiff's right to seek relief from the court in the event of subsequent [genuine change in] circumstances affecting the welfare of the child[ ].”  Hand, supra, 391 N.J.Super. at 112.


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