                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0835-13T4



O.P.,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
v.                                              April 1, 2015

L.G-P.,                                     APPELLATE DIVISION


     Defendant-Appellant.
______________________________

          Argued February 3, 2015 - Decided April 1, 2015

          Before Judges Reisner, Koblitz and Higbee.

          On appeal from Superior Court of New
          Jersey, Chancery Division, Family Part,
          Union County, Docket No. FM-20-380-09.

          Glenn E. Gelband argued the cause for
          appellant.

          Respondent has not filed a brief.

     The opinion of the court was delivered by

KOBLITZ, J.A.D.

     L.G-P.1 appeals from many provisions in a September 6, 2013

post-judgment   order   resolving   her   pro   se   motion     to   enforce




1
  We use initials to preserve the confidentiality of L.G-P., who
was the victim in a related domestic violence matter referred to
in this opinion.
child-support provisions of the property settlement agreement

(PSA), entered into when the parties were divorcing in 2009.

      The parties were married in 2006 and had their only child

in 2007.     They had agreed in the PSA to extensive communication

about     their   child,   as   well       as    mediation       if   they    should     not

agree, both of which require significant parental cooperation.

Post-judgment litigation, however, began within a few months of

their     divorce    judgment.         A    final    restraining         order      (FRO),

pursuant     to   the    Prevention    of       Domestic     Violence        Act   (PDVA),

N.J.S.A. 2C:25-17 to -35, was subsequently entered against O.P.

Because     the   motion    court     mistakenly          enforced     PSA    provisions

requiring mediation and frequent contact after the entry of an

FRO, we reverse and remand for a plenary hearing.

      In Part I of this decision, we provide the details of the

child support provisions of the PSA and related motions between

the parties.        We provide this history not only to resolve this

case, but also to illustrate how untenable constantly-changing

child support payments may become, particularly after the entry

of   an   FRO.      In   Part   II,    we       explain    why    provisions       of    the

preexisting PSA requiring mediation and parental communication

should not be enforced after an FRO prohibiting contact between

the parties is entered.




                                            2                                      A-0835-13T4
                                           I.

     In    the   2009    PSA,     O.P.   had     agreed      to        pay    L.G-P.    child

support     of   $135      each    week2       plus    40%        of     the    following:

unreimbursed       medical    expenses;         medical      and       dental    insurance

premiums;    "reasonable        extraordinary"        expenses,          which       included

school expenses and costs for sports; a yearly agency fee for

the au pair service; the au pair's weekly salary; and the au

pair's yearly education stipend.                 The parties agreed that child

support obligations could be modified in the event of changed

circumstances.       One change of circumstances identified in the

agreement    was    when     O.P.'s   daughter        from    a    previous          marriage

became emancipated.          To secure their child support obligations,

each parent agreed to maintain a $250,000 life insurance policy

naming their son as the beneficiary.

     If the parties were unable to resolve future disputes, they

agreed to mediate the issues "through a mutually agreed upon

mediator    before      seeking    court       intervention."                After    various

motions were heard and decided by the court, an FRO was entered

on December 3, 2010.3


2
  Support was subsequently ordered                    to     be    paid        through     the
Probation Division. R. 5:7-4(b).
3
  We were not provided with the domestic violence complaint, nor
informed of the nature of the domestic violence found by the
court.   The FRO, however, was provided by L.G-P. to the motion
                                                     (continued)


                                           3                                         A-0835-13T4
    After the entry of the FRO, when the parties returned to

court on a fourth set of pro se motions, the court ordered them

to engage in mediation to resolve the issues underlying the

motions.     When their mediator later ended her private practice,

O.P. used a friend to communicate with L.G-P. via email.

    L.G-P. filed another motion on August 1, 2013, claiming

that O.P. owed her:        $102 for 2011 medical bills; $330.67 for

2012 medical bills; and $783.01 for medical and dental insurance

premiums incurred from 2011 to 2013.        She said that O.P. had not

paid $562.45 for swim lessons from 2011 to 2013, $228.86 for

other extracurricular expenses from 2011 to 2013, and $104.91

for a school welcome kit.        She included copies of receipts and

documents with her motion, and said that she had given these

bills   to   O.P.   "on   multiple   occasions"   via   email   and     during

mediation, but he refused to pay them.

    With respect to au pair expenses, L.G-P. said that O.P.'s

weekly obligation was $163, but he had paid only $161.60 from

2011 through 2013, leaving a balance due of $92.40.             She claimed

that he owed her $443 for the au pair education stipend from

2011 through 2013, and that he did not pay his share of the


(continued)
court.    A family judge may obtain domestic violence orders
through family staff if not provided by the parties, and should
do so if the FRO's specific terms may be relevant to the
parties' application.



                                      4                               A-0835-13T4
annual au pair agency fee for 2013.            She also alleged that he

owed her four missed au pair salary payments between May 2011

and October 2012 of $163 each, an additional $83 for a "missed

payment" on June 10, 2011, as well as $1150 in other child care

and au pair costs incurred in 2011.        She claimed that as of June

28, 2013, O.P. stopped making the $163 weekly salary payments,

and owed her for those payments as well.

    L.G-P. also said O.P. had missed one weekly child support

payment in 2011 and had failed to provide documentation to prove

that his daughter from a prior marriage               was still attending

school and was therefore not emancipated.             She asked the court

to recalculate child support, and to order O.P. to reimburse her

for any $29 weekly credit that he wrongly received for child

support not paid to his daughter's mother.             She requested proof

that O.P. had life insurance in accordance with the PSA.

    L.G-P.   also   requested    that   O.P.    be    ordered   to    pay   her

$563.79, 60% of a 2007 federal income tax refund check that she

said O.P. obtained by forging her signature on the check.                   She

requested   reimbursement   of   $252.26   for       transcripts     that   she

ordered for her use in mediation, and $240.03 for filing fees

incurred in relation to this motion.            She also requested that




                                   5                                  A-0835-13T4
the court find O.P. in violation of the FRO.4                           Finally, L.G-P.

requested     that     the    court    eliminate        the   requirement      that    the

parties      mediate    their       disputes       because,      she   said,   O.P.    had

"released" their prior mediator and mediation had not resulted

in    her   receiving        any    payment       toward   the    outstanding     unpaid

expenses.

       O.P. filed a pro se cross-motion to strike L.G-P.'s motion.

He denied terminating the mediator's services.                            He also said

that after their mediator ended her practice, L.G-P. refused to

cooperate in finding a new mediator.                    He believed that mediation

had   been    helpful    in        resolving      his   disputes       with   L.G-P.   and

wished to proceed with it.

       O.P.   said     that    the    mediator       had   resolved      the   issue    of

unreimbursed medical expenses, and that he had paid L.G-P. for

all legitimate ones.                He complained that L.G-P. "constantly"

demanded that he pay expenses without providing proof, which she

was required to do.

       O.P. asked the court for relief from contributing to the

cost of the au pair because their son was about to begin first

grade and would be in school full-time.                    He complained that L.G-

P. had no nanny from March 8 to May 20, 2013, but failed to


4
  We note that a violation of an FRO is a criminal infraction.
N.J.S.A. 2C:29-9(b).



                                              6                                  A-0835-13T4
inform him of this, which resulted in his paying for services

that their son did not receive.                He said that he had paid his

40% share of the au pair yearly agency fee through May 2014 and

that he had paid, in full, all weekly salaries, as well as his

contribution      for    the   nanny's    cellular      phone.        He   attached

documents to show the various payments that he had made for

medical and au pair expenses.

      With respect to swim lessons and sports costs, O.P. said

L.G-P. had not provided proof of these expenses.                       He claimed

that she also failed to confer with him before incurring these

expenses, contrary to the requirements of the PSA. He requested

that L.G-P. be solely responsible for their payment and that she

be   found   in   contempt     of   court      for   failing     to   comply    with

previous     orders     requiring   her       to   provide   proof    of   expenses

before demanding payment.

      O.P. claimed that the court had already denied L.G-P.'s

request for reimbursement of the school welcome kit expense and

that he had made all of his weekly child support payments.                        He

sent L.G-P. proof by certified mail of his daughter's enrollment

in school and of his continued child support payments to this

child's mother.         He denied that he had forged L.G-P.'s name on

an income tax refund check and complained that L.G-P. had been




                                          7                                A-0835-13T4
harassing him with this false accusation for three years.                               He

attached proof of life insurance to his moving papers.

      O.P.    did      not   believe   that     he    had     to    pay   for   L.G-P.'s

transcripts or court costs, as he had paid for similar expenses

of his own.            He denied violating the FRO and complained that

L.G-P.'s     numerous        motions   were    a     result    of    her     failure    to

provide him with information in a timely manner and her refusal

to accept decisions rendered in his favor.

      After oral argument, the motion court ordered O.P. to pay

the   bills       he   conceded   he   owed.          The   court     denied      without

prejudice     L.G-P.'s       request   for     payment      of     swim    lessons     and

school expenses because, contrary to the terms of the agreement,

L.G-P. did not discuss these costs with O.P. before she incurred

them and did not provide O.P. proof of the expenses.

      When L.G-P. protested that her FRO prohibited O.P. from

communicating with her, the court urged her to amend the FRO to

allow email communication regarding extracurricular activities.

L.G-P. said she did not want to do that because she believed

O.P. would send her derogatory and threatening emails.

      The court found that their son still needed a live-in nanny

because      of    L.G-P.'s     variable       work    schedule       that      sometimes

required her to work for long periods of time.                            L.G-P. agreed

that O.P. had paid the yearly au pair agency fee, so that issue




                                           8                                     A-0835-13T4
was moot.      The court did not address each au pair salary payment

that L.G-P. said O.P. had failed to make, but focused on L.G-

P.'s failure to notify O.P. in the spring of 2013 that she did

not have a nanny for approximately two months.                     The court found

that O.P. was owed a credit for payments he made during that

time, and denied payment for the education stipend because L.G-

P.   did     not    provide    O.P.    proof   that      the   nanny   had    received

education.         The court said that it was "wiping the slate clean,"

and that going forward, O.P. had to pay his 40% share of the au

pair   expenses.         The   court    denied     L.G-P.'s      motion      for   child

support arrears, explaining that if O.P. owed any money, then

the probation department would correct the error.

       The    court    next    asked    L.G-P.     how    O.P.   was   supposed       to

provide proof of his daughter's attendance in school if the FRO

prohibited O.P. from communicating with L.G-P.                    L.G-P. said that

they had been in mediation for two years, implying that O.P.

should have given her proof then.                The court said:          "Well, then

I'm ordering you to go to a mediator and resolve all the rest of

your issues."

       L.G-P. protested that mediation did not work and that the

agreement      clearly    addressed       O.P.'s      obligations.         The     court

responded by asking how O.P. could provide proof with an FRO in

place.       L.G-P. suggested an attorney forward her the documents




                                           9                                   A-0835-13T4
or   a    police   officer   give   them   to   her   during   parenting-time

transfers.     The court rejected these suggestions and told her to

mediate any disputes.

         At oral argument before us, L.G-P.'s counsel was unable to

inform us of the total sum of money sought by his client on

appeal.       L.G-P.'s appellate brief sets forth sixteen points,

several of which were withdrawn due to developments subsequent

to filing the appeal.5

         We have set forth this level of detail to illustrate the

ongoing, repetitive nature of the parties' disputes, most of

which involved no more than a few hundred dollars.               The PSA set

the parties upon this course because, instead of including the

children's extracurricular expenses in the monthly child support

amount, it required constantly changing payments, sensitive to

many factors such as the particular au pair's expenses and the

seasonal sport their son currently played.              See Elrom v. Elrom,

____ N.J. Super. ____, ___ (App. Div. 2015) (slip op. at 23).

This arrangement required constant contact between the parties

and a level of cooperation seldom found in a divorced couple.


5
  L.G-P. withdrew her appeal as to the provisions 1) requiring
her to cooperate and sign necessary documents to provide O.P.
access to the au pair's records and bills, 2) denying her
request to find O.P. in violation of the FRO, and 3) ordering
O.P. to provide proof through mediation that he has the required
life insurance and that his daughter is attending school.



                                      10                             A-0835-13T4
In fact, the level of animosity between these parties ultimately

led to an FRO.

                                             II.

      The PDVA was enacted in furtherance of New Jersey's "strong

policy against domestic violence."                  Cesare v. Cesare, 154 N.J.

394, 400 (1998).           If a predicate offense is proven, the court

must then assess "'whether a restraining order is necessary,

upon an evaluation of the fact[or]s set forth in N.J.S.A. 2C:25-

29(a)(1) to -(6), to protect the victim from an immediate danger

or to prevent further abuse.'"                J.D. v. M.D.F., 207 N.J. 458,

475-76 (2011) (quoting Silver v. Silver, 387 N.J. Super. 112,

127   (App.    Div.      2006)).     Thus,    the     plaintiff     in     a    domestic

violence      complaint     must     prove    not    only    that    the       defendant

committed one of the enumerated acts of domestic violence, but

also that an FRO is necessary for the plaintiff's protection.

      If an FRO contains a prohibition against contact between

the parties, and the domestic violence victim does not seek such

contact, a judge in a future proceeding should not suggest that

the victim amend the no-contact provision.                   As our Supreme Court

has stated, a judge in a domestic violence action will "grant

any relief necessary to prevent further abuse."                          J.D., supra,

207   N.J.    at   476    (quoting    Silver,       supra,   387    N.J.       Super.    at

127)(quoting N.J.S.A. 2C:25-29(b)).                   The judge in this post-




                                         11                                      A-0835-13T4
judgement matrimonial matter should have assumed that the judge

who ordered the FRO no-contact provision did so pursuant to the

appropriate legal standards, and should not have encouraged the

domestic violence victim to lessen the protective language of

the FRO.

     The motion court did not enter the FRO and may not have

been familiar with the underlying basis for the entry of the

domestic violence order.           The specific factual basis for the FRO

is not significant, however, because prior to entering such an

order, a finding must have been made that the order and the

specific    relief      entered    were    needed    for    L.G-P.'s   protection.

Knowing that she would be in danger without such a protective

order, the motion court should not have urged L.G-P. to allow

O.P. greater contact with her.

     Neither should the court have ordered the parties to work

out contested issues through mediation.                    Although a court rule

and directive preclude mediation of certain issues when an FRO

is   in    place,    they     do   not     address    the    situation   where     a

preexisting       PSA    requires        both   parental      communication      and

mediation.     Rule 1:40-5 covers complementary dispute resolution

programs in Family Part matters, and requires court staff to

refer appropriate cases to such programs.                     Rule 1:40-5(a)(1),

Mediation    of     Custody    and   Parenting       Time    Actions,    precludes




                                           12                             A-0835-13T4
mediation "if there is in effect a preliminary or final order of

domestic violence entered . . . ." Rule 1:40-5(b)(1), Mediation of

Economic Aspects of Dissolution Actions, states: "[N]o matter shall

be referred to mediation if a temporary or final restraining order

is in effect in the matter pursuant to the [PDVA.]"          See New Jersey

Family Division, Directive #11-09 (Nov. 6, 2009), available at

https://www.judiciary.state.nj.us/directive/2009/dir_11-09.pdf

(instructing   staff   that     mediation   in    child   welfare    cases    is

never appropriate if one party has an active temporary or final

restraining order).       In Lerner v. Laufer, 359 N.J. Super. 201,

216 (App. Div.), certif. denied, 177 N.J. 223 (2003), we stated

in the context of a dismissal of a legal malpractice case where

the attorney limited his representation of a matrimonial client

to the review of a mediated PSA, "Mediation is now an accepted

process in the resolution of family disputes except where an

order has been entered under the [PDVA]."           (emphasis added).

     Parties may contract to disregard settled law in a divorce

settlement, including the New Jersey Child Support Guidelines

(Guidelines)   pursuant    to    Rule   5:6A     (adopting   Guidelines      set

forth in Appendix IX-A to the Court Rules).                  See Musico v.

Musico, 426 N.J. Super. 276, 293 (Ch. Div. 2012)                    (rejecting

husband's argument that above-Guideline child support expressly

agreed to automatically decreases to the Guideline level once




                                     13                               A-0835-13T4
there is a change of circumstances); Konzelman v. Konzelman, 158

N.J.   185,       197   (1999)    (deferring     to     the   parties'     consensual

agreement        that   cohabitation     in    itself    constituted      a    material

change      of    circumstance     terminating         alimony,    which      did    not

require the normal inquiry into its effect on                       the dependent

spouse's financial status).              A court generally should enforce

the provisions of a PSA.           New Jersey "has a strong public policy

favoring enforcement of agreements[]" in divorce cases.                          Massar

v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995).                            "Marital

agreements are essentially consensual and voluntary and as a

result, they are approached with a predisposition in favor of

their validity and enforceability."               Ibid.       So long as the terms

of the agreement are fair and equitable, the court will require

the parties to abide by them.            Ibid.

       Provisions in a PSA that were reasonable at the time of the

agreement, however, may well become unreasonable upon the entry

of an FRO.         Extracurricular expenses are generally included in

the Guidelines calculation.              Elrom, supra, slip op. at 2.                  An

average      amount      of   extracurricular         activities    are       contained

within the Guidelines.             Child Support Guidelines, Pressler &

Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at

2631-32 (2015).          Extraordinary expenses, such as those expended

here   on    the    au    pair,    may   be    added     when   child     support     is




                                          14                                   A-0835-13T4
calculated.      Id.    at   2632.      When        child   support     is   calculated

pursuant to the Guidelines and paid through probation, contact

between   the     parties       can    be     minimized.         When    circumstances

change,    the        parties     may       then      return     to     court     for     a

recalculation.         Although returning to court may be inconvenient

and costly, alternate dispute resolution methods are not safe

when an FRO has been entered.

       "Our courts have recognized that those who commit acts of

domestic violence have an unhealthy need to control and dominate

their partners and frequently do not stop their abusive behavior

despite a court order."               Zappaunbulso v. Zappaunbulso, 367 N.J.

Super. 216, 225 (App. Div. 2004) (citing State v. Hoffman, 149

N.J.   564,     585    (1997)).         Thus,       even    if   mediation      could   be

conducted in a safe environment, or the parties kept in separate

rooms,    and    the     parties        are        represented     by   counsel,        the

bargaining position of the parties could well be distorted by

past violence.         Mediation is entirely prohibited by statute in

domestic violence matters, N.J.S.A. 2C:25-29(a).                         Mediation is

entirely prohibited in child welfare cases, where the parties

are usually represented by counsel, after a domestic violence

restraining order has been entered,                        Directive #11-09, supra,

and also in pre-trial divorce and non-dissolution actions, R.

1:40-5.   When parties agree to mediation at the time of divorce,




                                              15                                 A-0835-13T4
they do not anticipate the subsequent entry of an FRO.                               For

reasons of safety, and to conform with the strong public policy

of   this    State,      mediation       should       not    be    ordered   after     a

subsequent FRO has been entered, even in an effort to conform

with the provisions of a PSA.

     With    regard      to    the     decisions      made    on   this   motion    that

remain the subject of this appeal, we reverse and remand for a

plenary hearing.        After the hearing, assuming the FRO remains in

effect,     the    court      should    craft    a    child    support    order     that

encompasses the payment responsibilities set forth in the PSA,

without the communication required in the PSA.                       See New Jersey

Domestic Violence Procedures Manual, §4.14.9 (2008), available at

https://www.judiciary.state.nj.us/family/dvprcman.pdf                        (stating

that when a court is asked to enter an FRO, and a child support

order is already in place, the court should reconsider the issue

of support in accordance with the Guidelines to avoid conflicting

orders    and     to   avoid    the    need     for   communication       between    the

parties). We therefore reverse all of the various procedural and

monetary decisions and remand for an evidentiary hearing.

     Reversed and remanded for proceedings consistent with this

opinion.     We do not retain jurisdiction.




                                           16                                 A-0835-13T4
