BRIAN RUSSELL BERRYMAN v. DEBORAH LYNN SAUNDERS-FONT f/k/a BERRYMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3135-04T23135-04T2

BRIAN RUSSELL BERRYMAN,

Plaintiff-Respondent,

v.

DEBORAH LYNN SAUNDERS-FONT

f/k/a BERRYMAN,

Defendant-Appellant.

 

Submitted November 9, 2005 - Decided March 2, 2006

Before Judges Hoens and R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-991-00.

Trace & Jenkins, attorneys for appellant (Mary Cay Trace and Blaise Pittman, on the brief).

Abramason, Walker and Moore, attorneys for respondent (Barbara Barclay Moore, on the brief).

PER CURIAM

Defendant Deborah Lynn Saunders-Font, formerly known as Deborah Berryman, appeals from the February 25, 2005 order of the Chancery Division, Family Part denying her post-judgment motion and granting in part the cross-motion of plaintiff Brian Russell Berryman concerning child custody and support. We reverse and remand.

The parties were married in 1986 and divorced in 2001. At the time of their divorce, the couple had two children, who, by the time of the motions now before us, were eighteen and fourteen years old. The court incorporated the parties' Property Settlement Agreement (PSA) into the judgment of divorce. The provisions of the PSA that are relevant to the issues on appeal are the following:

Releases:

It is explicitly agreed that Husband hereby waives any and all form(s) of child support, to the extent permissible under applicable law.

Children:

Husband and Wife shall enjoy joint custody of the minor children of the marriage. Husband shall be named as the Parent of Primary Residence and Wife as the Parent of Alternate Residence.

Wife shall be permitted reasonable and liberal visitation with the minor children as follows. Wife shall have visitation with the children two consecutive weekends out of each consecutive three, starting 7:00 p.m. on Friday until noon on Sunday. In addition, every Wednesday from 4:00 p.m. until 8:00 p.m. Husband will share responsibility transporting the children, picking them up at 8:00 p.m. on Wednesdays and dropping them off at 7:00 p.m. on Fridays . . . .

With respect to Holiday & Summer visitation the parties agree that in absence of an agreement between the parties, the Holiday Visitation schedule shall be employed. Wife shall continue to be understanding to the wishes of the children.

Summer parenting time shall be the same as the school year unless otherwise agreed to by the parties. However, Wife shall be entitled to two weeks vacation with the children in the summer upon one-month notice to Plaintiff . . . .

Counsel Fees:

Except as otherwise provided herein, each party agrees to be responsible for his or her own legal fees and expenses.

The PSA was modified by means of a consent order filed on July 23, 2004. According to that agreement, plaintiff continued to be designated as the Parent of Primary Residence (PPR) but defendant's parenting time was increased. In particular, her weekend time was extended so that it ended at 1:00 p.m. rather than at noon on Sundays. In addition, defendant was given custody "every Monday from 8:00 p.m. until Wednesday at 8:00 p.m." The Holiday schedule remained unchanged, but defendant was given custody during three specified summer weeks and she was given a further two weeks that she could demand at any time during the year on thirty days' notice.

In January 2005, defendant moved for an order: (1) designating her as the PPR; (2) fixing child support; (3) enforcing terms of the PSA relating to life and disability insurance; and (4) awarding her counsel fees. Plaintiff cross- moved for an order: (1) denying a change in the PPR designation; (2) modifying the agreed-upon parenting time; (3) granting plaintiff additional summer and vacation visitation; (4) imputing income to defendant; and (5) requiring defendant to provide transportation for the children.

In accordance with R. 5:5-4(e), the Family Part judge issued an advance tentative decision in which she indicated that she was inclined to deny defendant's application to be designated as the PPR, for child support and for counsel fees. The judge further indicated that she intended to refer the parenting time and transportation issues raised by plaintiff to mediation, but that she would grant plaintiff's request for additional summer and vacation weeks and would deny plaintiff's application for imputation of income.

Following oral argument on February 25, 2005, the Family Part judge announced her intention to enter an order in accordance with her tentative decision and she did so that day. In a letter opinion dated March 2, 2005, the judge further explained the reasons for her decisions on each of the applications. She denied defendant's request for child support on the ground that there was no change in circumstances and thus no basis for altering the PSA. She denied defendant's PPR designation request because the designation in the PSA was tied to the agreement about the school that the children would attend and because neither party had addressed the implications of a change in PPR designation on the children's school enrollment. She expressed concerns about defendant's motivations, reasoning that the 2004 consent order might have been fueled by defendant's desire to alter the PPR designation and seek child support. Finally, she explained that she had granted plaintiff's request for more summer and vacation time in order to make his parenting time equal to defendant's.

On appeal, defendant challenges each of the decisions of the judge that was adverse to her, raising the following points for our consideration on appeal.

A. TRIAL COURT'S FINDING OF FACT, THAT DESIGNATING APPELLANT PARENT OF PRIMARY RESIDENCE WAS NOT IN THE BEST INTEREST OF THE CHILDREN, WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE FACTS ON THE RECORD.

1. The Trial Court Cited No Objective Facts in Support of the Decision That Designating the Appellant PPR Was Not in the Best Interest of the Children.

2. The Decision of the Trial Court as to Whether Appellant Exercised Her Parenting Time is Irrelevant and Not Supported by Sufficient Credible Evidence on the Record.

3. It Would Be an Abuse of Discretion for the Trial Court to Enforce the Prior Agreement of the Parties to the Detriment of the Children.

B. TRIAL COURT'S DENIAL OF APPELLANT'S CHILD SUPPORT APPLICATION WAS CONTRARY TO BINDING CASE LAW.

1. Appellant Met the Burden of Showing a Change in Circumstances Which Justifies a Request for Modification of Support.

2. A Parent is Not Permitted to Waive a Child's Right to Support and the Trial Court is Required to Make Findings of Fact Supporting Any Deviation from the Guidelines.

3. The Trial Court Based its Decision To Deny Child Support on Irrelevant Facts Regarding the Alleged Motive of the Appellant.

C. TRIAL COURT'S GRANTING OF EX-HUSBAND'S APPLICATIONS FOR ADDITIONAL PARENTING TIME AND FOR APPELLANT TO PROVIDE ALL TRANSPORTATION FOR PARENTING TIME WERE NOT SUPPORTED BY THE COURT'S OWN FINDINGS OF FACT, AND WERE CONTRARY TO BINDING CASE LAW.

D. TRIAL COURT'S DENIAL OF APPELLANT'S REQUEST FOR COUNSEL FEES AND COSTS, WITHOUT FINDINGS OF FACT OR AN ANALYSIS OF THE WILLIAMS FACTORS IS CONTRARY TO BINDING CASE LAW.

Because we are persuaded by some, but not all, of these arguments, we deem it appropriate to address each of them in turn.

In reviewing a case such as this, we will uphold a lower court's findings if they are based on "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). First, we find merit in defendant's arguments relating to the designation of either parent as the PPR. Defendant moved to be so designated based on the consent order's distribution of parenting time. Plaintiff opposed that application on the ground that the consent order did not comport with the actual practice of the parties as to parenting time and on the alternate ground that the change in designation would adversely affect the children's right to attend school in the district where plaintiff resides.

In addressing these arguments, the Family Part judge found, as a matter of fact, that plaintiff's assertion about the way in which the parties actually behaved as to parenting time was correct notwithstanding the provisions of the consent order. The Family Part judge questioned defendant's motivation in seeking the consent order and she expressed a concern about whether plaintiff appreciated the significance of the increased parenting time to which defendant thereby became entitled. Finally, the judge concluded that a change in PPR designation would not be in the children's best interests because it might affect their right to continue in their schools. Moreover, in a related ruling, the judge reconfigured parenting time to reflect her finding about the reality of parenting in accordance with plaintiff's assertions and contrary to the consent order.

We are constrained to reverse and remand this aspect of the February 25, 2005 order for several reasons. First, the order is based on the judge's findings on disputed issues of fact and, in part, on her finding that plaintiff was more credible concerning the actual parenting time utilized by each of the parties than was defendant. In part, as well, her decision was based on her expressed concern that defendant had acted from motivations other than the best interests of the children and that plaintiff had sought the increased parenting time permitted by the consent order only as a prelude to her application for child support.

Each of these issues, however, was contested by the parties. They disagreed about how parenting time was actually used and how the weeks should be counted for purposes of the PPR designation. They disagreed about whether defendant had "put one over" on plaintiff and whether plaintiff understood the implications of the consent order when he signed it. They even disagreed about how or whether the alteration in the PPR designation would affect the children's school enrollment and whether they were aware of that question when they entered into the consent order.

These disputes of fact were critical to the judge's analysis of the issues. Her factual findings and her credibility determinations were central to her reasoning and to her decision. Under the circumstances, however, these factual findings and these determinations about credibility could not appropriately be made on the papers, but should have been made following a plenary hearing.

As we have previously held in the related context of disputes concerning alimony, "[a] hearing is not required or warranted in every contested proceeding for the modification of a judgment or order . . . ." Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998). Rather, a hearing is only required "where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful . . . ." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976); see Lepis v. Lepis, 83 N.J. 139, 159 (1980).

By the same token, "in a variety of contexts, courts have opined on the impermissibility of deciding contested issues of fact on the basis of conflicting affidavits or certifications alone." State v. Pyatt, 316 N.J. Super. 46, 50-51 (App. Div. 1998)(citations omitted), certif. denied, 158 N.J. 72 (1999). In particular, where the papers filed raise genuine and material issues of fact or require credibility determinations, relief cannot be granted or denied absent a plenary hearing. This has particularly been true in cases where child custody or visitation has been in issue. See Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998); Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); Fusco v. Fusco, 186 N.J. Super. 321, 327-28 (App. Div. 1982).

Here, the certifications and supporting documents filed by the parties plainly raised disputed issues of material fact concerning the actual distribution of parenting time and the understanding of the parties as it related to the effect of a change in parenting time, and of the PPR designation, on the rights of the children as it pertained to their enrollment in school, if any. That being the case, the judge's decision to accept plaintiff's assertions as true based solely on the certifications and without the benefit of a hearing was a mistaken exercise of discretion.

In remanding this matter, we note that PPR is a defined term. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2314 (2006). It is therefore a designation that follows from the distribution of parenting time. We do not mean to imply that a party who is entitled to, but does not utilize, sufficient parenting time to be designated the PPR nevertheless must be so designated. Indeed, it seems plain that in an appropriate case, the court may look behind the agreement of the parties to determine which one actually meets the definition of the PPR. However, this record reveals that there are numerous unresolved questions about both the consent order and the actual practice of the parties which bear upon the determination of which of them should be so designated.

We further conclude that the judge erred in granting plaintiff's application for additional parenting time. In addressing this request, the motion judge correctly recognized that the standard to be applied is the best interests of the children. See Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971); Comas v. Comas, 257 N.J. Super. 585, 590 (Ch. Div. 1992). She gave, however, no explanation for her decision that a reallocation of parenting time would further the best interests of the children. Rather, it appears that she simply believed that defendant sought the additional time that the consent order gave her for reasons other than a desire to spend more time with the children. Under the circumstances, however, the judge's repeated statements that she believed that undoing the terms of the consent agreement would be in the best interests of the children were not supported by any fact in the record that the judge identified.

Similarly, we are constrained to reverse and remand the judge's denial of defendant's application for an award of child support. The judge, applying the Lepis test, concluded that defendant had failed to demonstrate changed circumstances sufficient to support a modification of the original child support order. We disagree with this analysis under the circumstances in this record.

The judge relied on the PSA as a prior agreement that neither party would be awarded child support. In doing so, the judge overlooked the fact that in the PSA only plaintiff waived an award of child support. Defendant never waived the right to seek an award of child support. Therefore, apart from the fact that the right is one that belongs to the children, see Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993), defendant did not waive child support. As a result, the application was not for a modification of a prior award, but an application to fix support.

Nor, for that matter, was the designation of plaintiff as PPR fatal to an application by defendant for an award of child support. As we have previously noted, see Benisch v. Benisch, 347 N.J. Super. 393 (App. Div. 2002), the shared parenting support guidelines permit an analysis pursuant to which even a Parent of Alternate Residence (PAR) might be entitled to receive child support from the PPR. Id. at 400-01; see Child Support Guidelines, supra, at 2314. Therefore, regardless of the outcome of the decision on remand concerning which of these parents is entitled to the PPR designation, the question about defendant's right, if any, to a child support award requires separate analysis within the shared parenting framework.

Finally, we remand the court's denial of defendant's request for attorneys' fees. Although we might presume that the judge denied that application simply because defendant had not prevailed on any aspect of her motion for relief, in light of our decision to remand certain of the substantive aspects of the decision, we think it only appropriate to remand the counsel fee request as well. In doing so, we note that on remand, the judge should consider all of the factors set forth in the applicable rule, see R. 5:3-5(c), as well as the several decisions requiring a statement of reasons for a grant or denial of a counsel fee request. See Williams v. Williams, 59 N.J. 229, 233 (1971); Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

Although the judge granted defendant's application concerning proof of life and disability insurance, that relief is not challenged on appeal.

The judge also referred parenting time generally to mediation. We do not consider what, if any, effect the outcome of that process might have on the issue before us on appeal. Rather, we accept the findings and conclusions of the judge as binding on the parties for purposes of this appeal.

We recognize that the order both granted that application and referred the entire issue about parenting time to mediation, an apparently inconsistent resolution. We have elected to address this appellate argument in the alternative for the sake of completeness.

(continued)

(continued)

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A-3135-04T2

March 2, 2006