Justice Cheryl Joseph

The parties entered into a separation agreement in 2014. Husband sued for a conversion divorce in 2016. An order of protection was issued against wife later in 2016 in connection with a criminal matter. She sought rescission or modification of the agreement pertaining to custody and parenting time in a plenary action, among other things. Husband moved for dismissal of the plenary action. The court dismissed wife's amended complaint as untimely, but noted despite same, her claim for rescission of the agreement would be analyzed on substantive grounds. It noted the parties have abided by the custodial and parenting access provisions of the agreement since its execution, and despite the Family Court litigation—in which the parties were involved in family offense proceedings—they continued to abide by the terms until wife was charged with criminal contempt for allegedly violating the order of protection. The court noted the timing of wife's action—within 24 hours of issuance of the protection order—implied an underlying retaliatory motive, and an attempt to implicitly control husband's time with the children. Yet, she failed to persuade the court the children's best interest would not be served under the agreement, dismissing the claim for modification.