                        NOT FOR PUBLICATION WITHOUT THE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-4120-16T4

A.O.,

        Plaintiff-Appellant,

v.

N.D.,

        Defendant-Respondent.


              Submitted May 9, 2018 – Decided July 12, 2018

              Before Judges Alvarez and Nugent.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth
              County, Docket No. FD-13-0143-15.

              Miller & Gaudio, PC, attorneys for appellant
              (David R. Cardamone, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff A.O., who by way of a consent order was designated

as the "psychological parent"1 of the biological child of defendant



1
    See V.C. v. M.J.B., 163 N.J. 200, 227, 230 (2000) (a
psychological parent is a person who with the consent of the
N.D., appeals from a May 3, 2017 Family Part order that denied her

motion to either enforce an alleged agreement, award joint legal

custody of the child, modify parenting time, or conduct a plenary

hearing.2    After   consideration of the arguments, record, and

relevant law, we affirm.

      The parties and the child lived together as a family until

2014, when the child was four.        Plaintiff's subsequent complaint

for   custody,   parenting   time,    and   to    be   named   the   child's

psychological parent was resolved by a November 18, 2014 consent

order.   The agreement required the parties to designate an expert

with the intent for him or her to produce a report and recommend

a parenting time schedule.3          A later February 19, 2015 order

modified parenting time.

      Finally, on June 15, 2015, a third, more detailed consent

order was entered.    The preamble to that order indicated that the

agreement   "eliminat[ed]    the   need   for    the   [p]lenary   [h]earing

presently scheduled for July 31, 2015."


biological parent, "live[d] in familial circumstances with a child
and [the] legal parent" and achieved "a psychological parent status
vis-a-vis a child," which may not unilaterally be terminated by
the legal parent. Such persons "stand[] in parity with the legal
parent."
2
    Defendant's answering brief was suppressed.
3
   It is not clear if the parties employed an expert for that
purpose.

                                     2                               A-4120-16T4
       Because the parties continued to have conflicts, plaintiff

filed a fourth application seeking mandatory co-parenting therapy

and    joint    legal   custody,      among   other   things.          The    parties'

attorneys were again seemingly able to negotiate an agreement.

Plaintiff      signed   a   fourth    consent      order,    which     her    attorney

forwarded to defendant's counsel for defendant's signature.                      After

some    time    passed,     defendant's       attorney      informed    plaintiff's

counsel    that      defendant   refused      to   sign     the   agreement      until

additional changes were made.             Accordingly, plaintiff filed the

application at issue seeking to enforce the unsigned consent order,

or in the alternative, seeking to be granted joint legal custody,

modification of parenting time, and requiring the parties to attend

co-parenting therapy.

       Defendant opposed plaintiff's motion to enforce, asserting

the terms of the consent order were simply never agreed upon.

Defendant acknowledged he had violated the June consent order by

making his new fianceé, instead of plaintiff, the child's secondary

emergency contact.

       When the judge conducted oral argument, he was initially

confused regarding the relief sought by plaintiff.                     He summarized

plaintiff's prayers for relief as including: "joint legal custody,

ordering       the    parties    to    attend      co-parenting,        and     three,

modification of parenting schedule . . . . It doesn't ask for an

                                          3                                    A-4120-16T4
enforcement or a finding that a consent order is or was -- was

agreed upon, or there was an agreement."          The judge likely had

this understanding because plaintiff failed to list that initial

prayer for relief——enforcement of the unsigned consent order——in

the court's boiler plate notice of motion form. However, she

clearly requested it in the notice of motion drafted by her

attorney.   Regardless of the confusion, the trial judge ultimately

considered and ruled on all of plaintiff's prayers for relief.

      The judge denied enforcement of the unsigned consent order,

or a plenary hearing on the issue, because plaintiff failed to

make a "prima facie showing that a consent or an agreement was

reached."    He denied plaintiff's request for joint legal custody

and   a   modification   in   parenting   time   because   he   found    no

"substantial change in circumstances" to warrant either.        Finally,

the judge ordered the parties to attend a second co-parenting

class, without specifically ruling on the request for co-parenting

therapy.

      Plaintiff raises two points on appeal:

            POINT I
            THE TRIAL COURT ERRED IN FAILING TO ORDER A
            PLENARY HEARING TO DETERMINE WHETHER A BINDING
            VERBAL AGREEMENT HAD BEEN REACHED BY AND
            BETWEEN THE PARTIES.
            POINT II
            THE TRIAL COURT ERRED IN FAILING TO GRANT
            APPELLANT'S REQUEST, OR TO ORDER A PLENARY


                                   4                              A-4120-16T4
          HEARING IN LIEU THEREOF, FOR JOINT LEGAL
          CUSTODY, A MODIFICATION IN PARENTING TIME AND
          MANDATORY ATTENDANCE AT CO-PARENTING THERAPY

            A. The Trial Court Erred in Failing To Grant
               Appellant Joint Legal Custody Based Upon
               the Best Interests of the Minor Child

            B. The Trial Court Erred in Failing to
               Modify the Parenting Time Schedule Based
               Upon the Best Interests of the Minor
               Child

            C. The Trial Court Erred in Failing to Order
               the Parties to Attend Co-Parenting
               Therapy

                                I.

     The scope of appellate review of a trial court's findings of

fact is limited.   Cesare v. Cesare, 154 N.J. 394, 411 (1998).

"Because of the family courts' special jurisdiction and expertise

in family matters, appellate courts should accord deference to

family court factfinding."    Id. at 413.   A reviewing court will

only disturb the findings when they are "so manifestly unsupported

by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interest of justice."       Rova

Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

(1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super.

154, 155 (App. Div. 1963)).     However, the trial judge's legal

conclusions, and the application of those conclusions, are subject




                                 5                         A-4120-16T4
to plenary review. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.

366, 378 (1995).

     It is equally well-established that a plenary hearing is

necessary when a genuine issue exists as to a material fact.

Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006).               A

plenary hearing is only necessary to resolve a genuine issue of a

material fact, as "trial judges cannot resolve material factual

disputes     upon     conflicting    affidavits   and   certifications."

Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995)

(citation omitted); see Eaton v. Grau, 368 N.J. Super. 215, 222

(App. Div. 2004).      A plenary hearing is usually appropriate before

the entry of an order affecting the custody of a child.          See Fusco

v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982).          However,

where    a   prior   court   order   exists   specifying   the   terms    of

residential custody and parenting time, a parent seeking to alter

those terms has the burden of demonstrating a material change in

circumstances.       Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.

2007).

     "Settlement of litigation ranks high in our public policy."

Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citation omitted).

However, unless there is "an agreement to the essential terms" by

the parties, there is no settlement in the first place.             Mosley

v. Femina Fashions, Inc., 356 N.J. Super. 118, 126 (App. Div.

                                      6                            A-4120-16T4
2002).    The burden of proving that the parties entered into a

settlement    agreement   is    on   the   party   seeking to    enforce     it.

Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997).

     When there is a disputed motion to enforce a settlement, "a

hearing is to be held to establish the facts unless the available

competent evidence, considered in a light most favorable to the

non-moving party, is insufficient to permit the judge, as a

rational factfinder, to resolve the disputed factual issues in

favor of the non-moving party."        Id. at 474-75 (citation omitted).

"[T]o    be   enforceable,     matrimonial    agreements,   as    any     other

agreements, need not necessarily be reduced to writing or placed

on the record."     Harrington, 281 N.J. Super. at 46.            "Where the

parties agree upon the essential terms of a settlement, so that

the mechanics can be 'fleshed out' in a writing to be thereafter

executed, the settlement will be enforced notwithstanding the fact

the writing does not materialize because a party later reneges."

Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div. 1993)

(citing Bistricer v. Bistricer, 231 N.J. Super. 143, 145 (App.

Div. 1987)); see also Pascarella v. Bruck, 190 N.J. Super. 118

(App. Div. 1983).

     Nonetheless, unless an attorney is specifically authorized

by the client to settle a case, the specific consent of the client



                                       7                                A-4120-16T4
is generally necessary.     Jersey City v. Roosevelt Stadium Marina,

210 N.J. Super. 315, 327 (App. Div. 1986) (citation omitted).

           Negotiations of an attorney are not binding
           on the client unless the client has expressly
           authorized the settlement or the client's
           voluntary act has placed the attorney in a
           situation wherein a person of ordinary
           prudence would be justified in presuming that
           the attorney had authority to enter into a
           settlement, not just negotiations, on behalf
           of the client.

           [Amatuzzo, 305 N.J. Super. at 475 (citing U.S.
           Plywood Corp. v. Neidlinger, 41 N.J. 66, 74
           (1963)).]

A client may be bound to an agreement, in the absence of explicit

or actual assent, when his or her attorney has the apparent

authority to enter into it.         Id. at 475-76.       Such apparent

authority may be created by words or conduct of the client that

would lead "a person of ordinary prudence" to believe that the

attorney had such authority.        Ibid.    "However, the attorney's

words or acts alone are insufficient to cloak the attorney with

apparent authority."    Id. at 476.

                                  II.

     We   first   address   plaintiff's   contention   the   trial   court

should have ordered a plenary hearing in order to determine whether

a binding agreement was reached.       Placing this dispute in context,

given the number of consent orders these parties have entered

into, it is clear they were familiar with the process.         They knew

                                   8                             A-4120-16T4
that until the orders were signed, they were not enforceable.               The

fact defendant wanted to negotiate additional terms before signing

anything makes clear he believed no binding agreement had been

reached.     No matter the representations defendant's attorney may

have made to plaintiff's counsel about defendant's willingness to

sign the consent order as drafted, defendant ultimately did not

agree, did not sign the consent order, and wanted to continue to

negotiate.

     Thus, this case is distinguishable from the cases plaintiff

cites.   The circumstances did not signal that defendant had given

his attorney blanket final authority.           Defendant's attorney never

represented to his adversary that he had the final say with regard

to the consent order, rather, he only represented that he would

participate in negotiations.        The ultimate authority rested with

defendant and would be exercised only by his signature.

                                    III.

     Nor do we agree that a plenary hearing is required on the

remaining issues, plaintiff's second point.           The judge applied the

appropriate standard in rendering his decision, allocating to

plaintiff    the   burden    to   demonstrate    a   prima   facie   case    of

substantial    changed      circumstances   that     alone   would   warrant

modification of the existing custody and parenting time order.               He

found, to the contrary, that plaintiff had failed to do so.                 All

                                      9                               A-4120-16T4
plaintiff had demonstrated was that defendant was noncompliant

with details of the prior consent order, and that she wished to

spend more time with the child.        Thus, the record supports the

judge's determination that plaintiff did not establish material

disputes requiring a plenary hearing.

                                 IV.

    We cannot discern whether the judge formally ruled upon

plaintiff's request that the parties participate in co-parenting

therapy, as opposed to the co-parenting class he ordered.        They

had previously attended such a class, and he required them to do

so again.     Based on this record, it is not reasonable, however,

to remand in order for the judge to more formally explain the

ruling.     By ordering the parties to enroll in a second class as

opposed to therapy, he elected a less burdensome alternative in

the hope that the conflict would resolve itself in that fashion.

Plaintiff's claims do not appear to us to require more than what

the judge ordered.

    Affirmed.




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