SHARON F. CLANCY v. DANIEL C. HOLLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0639-05T30639-05T3

SHARON F. CLANCY,

Plaintiff-Appellant,

v.

DANIEL C. HOLLEY,

Defendant-Respondent.

 

Argued: May 8, 2006 - Decided May 24, 2006

Before Judges Fall and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Number FD-02-1106-05.

Appellant Sharon F. Clancy argued her cause pro se.

Respondent did not file a brief.

PER CURIAM

Plaintiff Sharon F. Clancy appeals from an order entered in the Family Part on June 27, 2005, requiring her to pay defendant Daniel C. Holley the sum of $2,768.37 within sixty days, said sum representing the balance of reimbursement purportedly owed by plaintiff to defendant for parenting-time transportation expenses he incurred, in accordance with an order issued by the Superior Court of California. Plaintiff also appeals from an order issued on September 13, 2005, denying her motion for reconsideration. We reverse and remand.

The following factual and procedural history informs our decision. Plaintiff and defendant are the parents of Jessica Holley Clancy, born on September 3, 1999, in California, where both parties were residing at that time.

On or about November 9, 1999, defendant filed a petition against plaintiff in Superior Court of California, Los Angeles County, case number 01657, seeking an order establishing paternity, granting him joint legal and physical custody of Jessica, as well as parenting time with her. An order to show cause was issued by the court on that date, requiring the parties to attend custody mediation services on December 9, 1999. At that time, plaintiff was residing with Jessica in southern California, and defendant was residing in northern California.

On January 6, 2000, a hearing was conducted in the California Superior Court on the order to show cause. As a result of that hearing, an order was entered on January 10, 2000, vesting sole legal and physical custody of Jessica with plaintiff. By that time, plaintiff and Jessica had relocated to New Jersey to reside with her family. The order granted defendant visitation with Jessica for two hours per day during times when he was in New Jersey, and required the parties to "share the cost of [defendant's] reasonable airfare to New Jersey to visit with the parties' daughter."

The order also required defendant to pay plaintiff $1,022 per month in child support, retroactive to December 20, 1999. The support was based on defendant's base wages of $6,167 per month and plaintiff's gross monthly wages of $3,000, plus monthly dividends and interest of $1,083 for a total gross monthly income of $4,083. Additionally, defendant was to pay plaintiff, on the first day of each quarter, seventeen percent of the gross amount of any grants, financial awards or monies he received in excess of his base salary. The January 10 order was amended on February 2, 2000, to provide that "temporary" sole custody was awarded to plaintiff. A review date was scheduled for March 16, 2000.

On March 16, 2000, an order was entered in the California Superior Court granting plaintiff sole legal custody of Jessica, and requiring her to consult with defendant prior to making final decisions concerning the child's extraordinary medical care or education. The order also provided for gradual expansion of defendant's parenting time. Defendant was required to "use his best efforts to obtain [the] least expensive airfare for each visit[,]" on those occasions where he would travel to New Jersey to exercise his parenting time. Defendant was to submit to plaintiff a copy of the receipt evidencing the cost of his airline tickets, whereupon plaintiff was to reimburse him one-half of those costs within thirty days. Defendant was directed not to deduct plaintiff's share of the airfare costs from his child support payments, and he was ordered to pay plaintiff one-half of the reasonable and necessary work-related daycare costs for Jessica. The order also scheduled a review hearing for September 21, 2000.

Although the review hearing was conducted on September 21, 2000, an order memorializing the results of that hearing was not issued by the California Superior Court until March 8, 2001. That order expanded defendant's parenting time with Jessica in New Jersey. Beginning in November 2000, defendant was permitted to bring Jessica to the home of his friends in Maple Glen, Pennsylvania to exercise his parenting time, and plaintiff was required to bring Jessica to San Jose, California in December 2000 for a period of three days to permit defendant to exercise parenting time with defendant's family members for daily eight-hour visits. The order provided that "[t]he parties shall share equally the air fare for the [plaintiff's] and minor child's travel to San Jose, California." The order further stated:

5. With respect to the cost of the airline flights for the [defendant] when he visits the minor child in New Jersey, such flights shall be booked by [defendant] at least fourteen (14) days prior to [his] departure. In the event [plaintiff] can verify availability of lesser fares booked by the date of the reservation made by [defendant], which allow him to arrive in New Jersey no later than one-half hour after the flight he has booked, and allows him to leave New Jersey within one hour of his booked flight, without extending [defendant's] travel time by more than two hours in each direction, then [plaintiff's] share of [defendant's] travel expenses is limited to one-half of that cost which was available as a result of [plaintiff's] research.

The March 8, 2001 order continued defendant's obligation to pay one-half of the reasonable and necessary costs for daycare, health insurance and medical expenses of Jessica, and required defendant to provide plaintiff, on a quarterly basis, all supporting documentation reflecting the income received by him in excess of his base salary. Defendant's request for joint legal custody was denied. A review hearing was scheduled for June 13, 2001.

Another order was issued by the California Superior Court on October 30, 2001, memorializing the results of a review hearing that had been conducted on June 13, 2001. That order again denied defendant's application for joint custody, and expanded defendant's parenting time with Jessica. With respect to airfare costs, the order provided, as follows:

4. The court makes no modifications to previous orders regarding the cost of transporting the minor child for visitation, and necessary and reasonable travel costs for summer and Christmas visitation shall continue to be shared equally by the parties, subject to the court's review and reallocation at time of any future hearing.

* * * *

7. The court shall reserve jurisdiction to reconsider allocation of travel expense regarding visitation at time of further hearing.

[Emphasis added.]

The October 30 order also required the parties to engage in counseling with a licensed psychologist to deal with issues of parental conflict. The matter was "continued until December 12, 2001, for a fast track evaluation." Both parties were directed to "file and serve Income & Expense Declarations within fifteen (15) days prior to that hearing."

On or about November 28, 2004, defendant filed an application for an order to show cause in the California Superior Court, seeking Christmas holiday and summer parenting time; reimbursement of $3,215.74 from plaintiff for her share of the unpaid parenting-time transportation costs; requiring plaintiff to share the parenting-time transportation burden between New Jersey where plaintiff and Jessica continued to reside and Arlington, Virginia, where defendant was then residing while on work assignment; and permitting Jessica to fly unescorted upon attaining age six.

Defendant attached to his moving papers a summary of the airfare reimbursement sought from plaintiff in the amount of $3,215.74, covering the period from January 2000, through October 2004.

On or about January 27, 2005, plaintiff filed opposition to defendant's application, and requested that jurisdiction over the custody, parenting time and financial issues be transferred to New Jersey. In her moving papers, plaintiff asserted that defendant was in arrears on his child support obligation by more than $10,000.

Plaintiff stated that she had secured employment as a coordinator of grants and communications at a New Jersey university hospital, explaining that job responsibilities at this new position precluded acceding to defendant's shared-transportation demands. She also attached a copy of defendant's 2003 federal income tax return, showing defendant's adjusted gross income for that year to be $103,751.

Plaintiff disputed defendant's contention concerning his requested airfare reimbursement, stating "I have always reimbursed him for the 50% of his airfare when he has visited flying from California[,]" noting that she had "never requested reimbursement from [defendant] for the time I have taken off work, lost income or my travel expenses to deliver Jessica to various locations." Plaintiff also asserted that defendant had refused to utilize his frequent flier miles to reduce the costs of the airfare.

Plaintiff contended that jurisdiction of all issues should be transferred from California to New Jersey, since Jessica had been residing in New Jersey for more than five years, defendant was temporarily residing in Virginia, and all information concerning Jessica's health, education and well-being was located in New Jersey.

The California Superior Court issued an order on February 23, 2005, requiring defendant pay plaintiff the sum of $987.83 in child support arrears; continuing the requirement that defendant pay plaintiff 17% of monies he received in excess of his base salary; concluding that defendant owed no additional childcare or healthcare payments to plaintiff; and reserving decision on "the issue of visitation and related travel expenses." (Emphasis added).

On March 7, 2005, plaintiff filed a non-dissolution complaint against defendant in the Family Part, Bergen County, seeking registration of the California orders in New Jersey and requesting New Jersey to assume jurisdiction. On April 29, 2005, plaintiff filed a motion in the Family Part, seeking a hearing on the issue of defendant's parenting time schedule with Jessica.

Meanwhile, an order was issued by the California Superior Court on May 26, 2005, memorializing rulings by that court on May 3, 2005. The order provided for specific parenting time for defendant with Jessica in May, July and August 2005; denied defendant's request that Jessica be permitted to fly unaccompanied; continued the requirement that plaintiff reimburse defendant "for one-half of all transportation expenses for himself and the minor child for visitation subject to the requirement that [defendant] utilize his Frequent Flyer Air Miles if available[;]" found that plaintiff owed defendant $3,215.47 in reimbursement for defendant's visitation expenses, without prejudice to plaintiff's right to show that the claimed reimbursement was not for airfare expense; and relinquished jurisdiction over all issues to New Jersey. (Emphasis added).

On May 20, 2005, plaintiff filed a second motion in the Family Part, seeking an order relieving her of the burden of reimbursing defendant one-half of the parenting-time airfare costs, and requiring defendant to reimburse her the sum of $447, constituting his unpaid portion of certain parenting-time airfare costs advanced by her.

In her supporting certification, plaintiff asserted that she had fully complied with the California order concerning reimbursement to defendant of one-half of parenting-time airfare transportation costs between California and New Jersey. Plaintiff submitted a "Visitation Reimbursement" spreadsheet, explaining:

Costs that I (Mother) have personally incurred related to visitation, plus those reimbursed to [defendant] since year 2000 total more than $12,000. The total airfare I have reimbursed to [defendant] is $6,024. Evidence of these payments in the form of a financial spreadsheet documenting payments is (EXHIBIT C). This total, I wish to also note for the court, does not include my trips to [California] to deliver Jessica to her father's former residence. My additional costs incurred for these trips is more than $3000, as I have taken time from work without pay and incurred airfare, hotel and rental car costs etc. For one of these visits, the court ordered [defendant] to reimburse [plaintiff] 50% of airfare (Order filed March 8, 2001). After I purchased the ticket and made the trip (taking time from work without pay to do so) [defendant] refused to reimburse [plaintiff] for his court ordered half. This total is still owed to [plaintiff] per Order from year 2000 = $447.

In her supporting certification, plaintiff further explained that defendant did not dispute that she had paid these sums, but rather

does not seem to understand the fact that I am only to pay him of the reasonable airfare and that when I am able to research and obtain bids for similarly scheduled flights (given the specific [parameters] of the Order) that my researched lesser airfare become the airfare for which I am responsible for half.

Plaintiff further asserted that the reimbursement requirement contained in the California Superior Court orders was applicable "to airfare to and from California only[,]" noting that defendant's claimed reimbursement amount had improperly included "travel expenses such as those for a vacation he made with our daughter from his Virginia home to Florida and another vacation in California."

Plaintiff further argued that due to the large disparity in their respective incomes, the orders requiring airfare reimbursement should be modified. She claimed that between 2001 and 2004, defendant's annual income had increased from $78,771 gross to $138,608 gross, while during that same period her gross annual income had increased from approximately $31,984 to $43,390. She also noted that defendant was no longer paying for any of Jessica's health insurance or daycare costs.

On June 9, 2005, defendant filed a cross-motion, seeking an order denying plaintiff's application; awarding him joint legal custody; setting a fixed parenting time schedule; and requiring plaintiff to continue the obligation to reimburse him one-half of the airfare costs incurred to effectuate his parenting time with Jessica. Defendant attached his own spreadsheet of parenting-time travel expenses in support of his contention that plaintiff owed him $3,215.74. We note, however, that a significant portion of that claimed reimbursement encompassed vehicle transportation and hotel costs between Virginia and New Jersey, and between Virginia and Boston, Massachusetts, expenses that were not specifically authorized as reimbursable by the California orders. Defendant stated that his temporary assignment in Virginia would be ending in August 2005, whereupon he would be returning to California.

Plaintiff filed responsive papers, and an additional motion on June 14, 2005. Specifically, she sought an order eliminating the requirement that she be responsible for one-half of defendant's reasonable airfare costs incurred in connection with his parenting time; relieving her of any responsibility to reimburse defendant the requested $3,214.47 on the basis that said amount represented transportation costs that were not within the scope of the prior court orders; requiring the parties to implement plaintiff's proposed parenting-time schedule; and denying defendant's request for joint custody.

On June 27, 2005, the Family Part entered an order denying plaintiff's application to eliminate her obligation to reimburse defendant $3,215.37, but permitted plaintiff to reduce said amount by the costs she incurred in the amount of $447 to transport Jessica to California, and required her to pay defendant $2,768.37 within sixty days; denying plaintiff's application to eliminate or modify her obligation to pay one-half of defendant's visitation airfare costs; denying defendant's motion for joint custody without prejudice; directing that the issue of the parenting schedule be resolved through mediation; and stating that the matter would be closed until further application.

The reasons cited by the court in the June 27, 2005 order for denying plaintiff's application to eliminate any obligation to reimburse defendant the sum of $3,215.37 were: "per California Superior Court Orders of May 26, 2005 and December 10, 2004." The June 27 order also denied plaintiff's request to modify the parenting time shared airfare arrangement, stating "[t]his Court declines to find that plaintiff has demonstrated a change in circumstances sufficient to modify her obligation of 50% at this time."

On July 8, 2005, plaintiff filed a motion seeking reconsideration of the June 27, 2005 order. Defendant filed opposition.

Meanwhile, as a result of mediation, the parties agreed to entry of a consent order, issued on August 3, 2005, which memorialized a settlement of certain parenting time and transportation issues. Pursuant to their agreement, defendant was to have overnight parenting time with Jessica on the third weekend in the months of January, May, September and October, plus the second weekend in the months of February, March and June. They also agreed to a holiday, spring recess, and summer recess parenting time schedule.

With respect to transportation, the parties agreed that, at age ten, Jessica could begin traveling to defendant's home in California, escorted by airlines' personnel for holiday, spring recess and summer recess parenting-time sessions. Until that time, "regarding holiday, spring [and] summer recess visits," "the parties will share the transportation cost with the [plaintiff] chaperoning the child on 3 one-way flights and the [defendant] chaperoning the child on 5 one-way flights[,] and that "[f]or these flights, child's airfare will be shared equally, [plaintiff] will pay for her own [and defendant] for his."

On September 6, 2005, plaintiff filed another motion seeking reconsideration of the portion of the June 27, 2005 order requiring her to reimburse defendant visitation airfare costs. Plaintiff requested oral argument of this motion.

The court elected to consider the motion on the papers submitted, and entered an order on September 13, 2005, denying plaintiff's motion, stating that "all facets [were] considered by [the] Court on initial motion."

On appeal, plaintiff presents the following arguments for our consideration:

DUE TO SIGNIFICANT CHANGE IN CIRCUMSTANCES, EVIDENCE SUBMITTED, MISREPRESENTATION OF FACTS BY DEFENDANT AND THE LOWER COURT NOT FOLLOWING N.J.S.A. REQUIREMENTS AND RULES GOVERNING THE COURTS OF NEW JERSEY, APPELLANT'S TWO REQUESTS SHOULD BE GRANTED:

1) ELIMINATION OF APPELLANT'S OBLIGATION TO REIMBURSE FUTURE 50% AIRFARE TO DEFENDANT, AND

2) ELIMINATE APPELLANT'S OBLIGATION TO REIMBURSE DEFENDANT ANY OF THE $2,768 OF WHAT DEFENDANT CLAIMS WERE AIRFARE OBLIGATIONS.

After analyzing the record in the light of the arguments advanced by plaintiff, we conclude that the Family Part misapplied its discretion in entering the June 27, 2005 order, and in denying plaintiff's motion for reconsideration.

The January 10, 2000 order entered by the California Superior Court required the parties to share the cost of defendant's "reasonable airfare to New Jersey" to allow him to visit with Jessica. The May 26, 2005 order of the California court found that plaintiff owed defendant $3,215.47 in reimbursement for defendant's parenting time expenses, but was entered without prejudice to her right to show that the claimed reimbursement was not for airfare expenses. That order also memorialized that court's May 3, 2005 ruling relinquishing jurisdiction to New Jersey.

Pursuant to the right given to her by the May 26, 2005 California order, plaintiff promptly filed a motion in the Family Part, seeking to demonstrate that defendant's reimbursement request was not for airfare incurred by him in traveling from California to New Jersey to effectuate his parenting time with Jessica, as required by the January 10, 2000 order. Indeed, plaintiff's supporting papers, as well as the opposing papers filed by defendant, clearly demonstrated that the basis for a substantial portion of the reimbursement requested by defendant was not "the cost of [defendant's] reasonable airfare to New Jersey to visit with the parties' daughter." Rather, in accordance with the "Summary of Dan Holley's visitation with daughter Jessica" spreadsheet attached to defendant's papers in support of his cross-motion, filed in the Family Part on or about June 9, 2005, all of the parenting- time transportation reimbursement sought after September 2003 was based on costs incurred while defendant was residing in Virginia, not California, and most were not for airfare costs, but for land transportation expenses and lodging costs.

The Family Part's sole reason for denying plaintiff's request, as expressed in the June 27, 2005 order, was "per California Superior Court Orders of May 26, 2005 and December 10, 2004." It is apparent that the Family Part had concluded that the issue of plaintiff's responsibility for reimbursing defendant parenting time transportation expenses in the amount of $3,215.47 had already been adjudicated. First, as we have already noted, the May 26, 2005 order expressly permitted plaintiff an opportunity to demonstrate that reimbursement request of $3,215.74 "was not for airfare expense[.]" Second, in contrast to the referenced summary submitted by defendant in support of his June 2005 cross motion, the summary of travel reimbursement that had been requested filed in the California Superior Court on or about November 28, 2004, in support of his order to show cause, did not specify that reimbursement was being sought for land transportation or lodging costs. Finally, there was no December 10, 2004 order, and the February 23, 2005 order specifically reserved decision on the reimbursement request.

Given this information, it is clear that the Family Part should have conducted a hearing to determine what amounts comprising the ordered $3,215.74 travel reimbursement, if any, were attributable to the sharing by the parties "of [defendant's] reasonable airfare to New Jersey to visit with the parties' daughter." (Emphasis added). Accordingly, we vacate that portion of the June 27, 2005 order denying plaintiff's application to eliminate her obligation to reimburse defendant the sum of $3,215.74, and remand the matter to the Family Part to conduct a hearing and make that determination.

We are also satisfied that plaintiff had presented a prima facie case of changed financial circumstances that warranted consideration of her application to modify the requirement that the parties equally share the cost of defendant's reasonable airfare to New Jersey to visit with Jessica. When the shared-transportation and child support obligations were imposed, the January 10, 2000 order specifically stated that those determinations were based on defendant's base gross monthly income of $6,167 ($74,004 per year), and plaintiff's gross monthly income of $4,083 ($48,996 per year). The financial information submitted by plaintiff in support of her modification application demonstrated, on at least a prima facie basis, that defendant's gross yearly income had increased to $138,608, while plaintiff's gross yearly income had decreased to approximately $43,390. Additionally, plaintiff contends that defendant's obligations for Jessica's health care expenses and work-related child care have also been significantly reduced or eliminated. These facts constituted a prima facie showing of changed circumstances warranting modification consideration. See Pascale v. Pascale, 140 N.J. 583, 592-93 (1995); Lepis v. Lepis, 83 N.J. 139, 152-53 (1980); Platt v. Platt, 384 N.J. Super. 418 (App. Div. 2006), slip op. at 13; Dolce v. Dolce, 383 N.J. Super. 11, 19 (App. Div. 2006); Caplan v. Caplan, 364 N.J. Super. 68, 83-85 (App. Div. 2003), aff'd, 182 N.J. 250 (2005).

We also note that the parties have reached an agreement through mediation, as memorialized in the August 3, 2005 consent order, under which they have agreed to share parenting-time transportation costs with respect to the agreed-upon holiday, spring recess and summer recess sessions on a disproportionate basis. That, of course, leaves the issue of whether the parties should share transportation costs of defendant with respect to the other agreed-upon parenting-time sessions. In light of the presentation by plaintiff of a prima facie case of changed circumstances, we also vacate that portion of the June 27, 2005 order denying her request for modification or elimination of her responsibility to equally share in those parenting time transportation costs, and remand the matter for a hearing to determine that issue in light of those changed circumstances.

The Family Part should require each party to file a complete case information statement in accordance with R. 5:5-2 in order to fully evaluate the parties' respective financial circumstances. We hasten to add that whether it is necessary for the Family Part to conduct a plenary hearing to resolve these issues will depend upon whether the court, upon review of all supporting documents, certifications and financial information, determines that there is a material fact in dispute. Lepis, supra, 83 N.J. at 157.

 
Reversed and remanded.

The record on appeal does not contain an order of the California Superior Court dated December 10, 2004. Our review of the record discloses that defendant filed an application for an order to show cause with that court on December 10, 2004. It appears that the June 27, 2005 order is actually referring to an order issued by the California Superior Court on February 23, 2005. We note, however, that that order did not require plaintiff to reimburse defendant $3,215.37; rather, it reserved on that issue.

The record on appeal also contains a consent order issued on October 11, 2005, which is identical in all respects to the executed August 3, 2005 order.

There has been no appeal from the Family Part's determination in the June 27, 2005 order that plaintiff was entitled to a credit of $447 for parenting-time airfare costs she had paid.

(continued)

(continued)

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A-0639-05T3

May 24, 2006