PENNY GOLDBERG-ASCANI v. ROBERT FLYNN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6373-04T26373-04T2

PENNY GOLDBERG-ASCANI,

Plaintiff-Appellant,

v.

ROBERT FLYNN,

Defendant-Respondent.

________________________________________________________________

 

Submitted April 25, 2006 - Decided May 17, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FD-02-1028-01.

Post, Polak, Goodsell, MacNeill & Strauchler, attorneys for appellant (Laura M. LoGiudice, of counsel and on the brief).

Respondent did not file a brief.

PER CURIAM

The parties have never been married, but they are parents of Hannah Goldberg, born on December 14, 2000. By order of May 13, 2005, the Bergen County Family Court entered an order granting relief requested in a motion by defendant as follows: (1) weekly child support was reduced from $213 to $166, retroactive to the filing date of the motion, March 15, 2005; (2) "as agreed by the parties, the overpayment of childcare by the defendant to plaintiff in the amount of $1157.97 will continue to be repaid by the plaintiff to the defendant as agreed;" (3) the child will visit with the defendant four times per year, one week per visit; and (4) travel expenses incurred for the four visits would be shared fifty percent by each party. Plaintiff had not filed a response to defendant's motion, but contended she did not receive the papers in time. She therefore filed a motion for reconsideration, supported by her certification, to which defendant filed a reply. The judge conducted oral argument on July 8, 2005. The judge denied plaintiff's reconsideration motion in its entirety. Plaintiff now appeals and presents these arguments:

POINT I

THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO ENTER ANY ORDERS IN THIS MATTER.

POINT II

THE COURT ERRED WHEN IT ORDERED PLAINTIFF TO PAY FOR FIFTY (50%) OF DEFENDANT'S PARENTING TIME TRAVEL EXPENSES.

POINT III

THE COURT ERRED WHEN IT ORDERED PLAINTIFF TO REIMBURSE DEFENDANT FOR CHILD-CARE COSTS RETROACTIVE TO MARCH 2004.

Defendant has filed no response to the appeal. We have carefully reviewed the record and the arguments presented by plaintiff. We reject Points I and III, but agree with Point II. Accordingly, we affirm in part and reverse in part.

Before the parties met, defendant was a resident of the Pittsburgh, Pennsylvania area. He has continued to live there ever since. Plaintiff was a long-time resident of New Jersey and continues to have family in New Jersey. She works in the hotel industry, and she met defendant while working at a hotel in Pittsburgh and living there. They began a romantic relationship. However, plaintiff was transferred to a hotel in Chicago. Over the next months, the parties continued to have some contact, and although they were engaged to be married, they ended their relationship. During this time, plaintiff had become pregnant. During her pregnancy, she left her job in Chicago and returned to New Jersey and lived with her family. Hannah was born in New Jersey.

On May 9, 2001, an order was entered in Bergen County awarding sole legal and physical custody of Hannah to plaintiff and ordering defendant to pay $195 per week in child support. The child support order was increased from time to time, reaching $213 by order of December 24, 2003.

Although no parenting time order was entered, by the mutual agreement of the parties, defendant traveled to New Jersey every three weeks to visit Hannah. He made the trip by car on a weekend, staying overnight in a motel one night. This pattern continued for several years.

In March 2004, plaintiff received an opportunity for employment in a hotel in Atlanta, Georgia. She decided to accept the position and relocate to Georgia. She informed defendant of her intentions and suggested that the child support obligation should be recalculated based on Georgia guidelines. She requested that defendant furnish her with his most recent pay stub and tax return for this purpose. Defendant furnished the requested information and, although he later disputed that he agreed to the relocation, he certainly acquiesced in it. When the matter later came before the court, defendant acknowledged that even if he did not originally agree, he accepted the relocation at that point and would not contest it.

Plaintiff attempted to have the support order transferred to Georgia. She made efforts to obtain a sealed copy of the New Jersey order, but was unsuccessful in doing so. Both parties continue to express their desire to have this matter transferred to the Georgia courts, and their agreement all along has been that the child support obligation should be calculated under Georgia guidelines.

As part of his child support obligation, defendant was contributing thirty-nine percent to plaintiff's daycare cost for Hannah. After plaintiff moved to Georgia, defendant continued paying the same amount as when she had been in New Jersey. It turns out that the daycare cost in Georgia was considerably cheaper, $131.40 per week, as opposed to $226 per week in New Jersey. Defendant requested that plaintiff reimburse him for the overpayments, and in August or September 2004, she began doing so. In her certification in support of her reconsideration motion, plaintiff stated: "I continued to pay him each month up through March 2005, when he informed me he would be filing a motion, at which point I stopped to await the court's decision."

With respect to travel expenses, we first note that at no time during Hannah's life has defendant lived in close proximity to her. In his certification in response to plaintiff's reconsideration motion, defendant compared his current visitation travel expenses to his previous ones. Under the current circumstances, he flies to Georgia and returns by air with Hannah. He then flies back with her and returns by himself to Pittsburgh. Defendant stated that the total airfare for the four trips in each year is approximately $2,378.40. He estimated his travel to New Jersey as costing $60 per trip for gasoline, $60 for one overnight stay in a hotel, and $14 in tolls. Multiplying those amounts by seventeen trips per year resulted in an aggregate yearly expense of $2,278. Thus, the total expenses were about the same before and after the relocation.

The motion judge concluded that the parties had agreed upon the reimbursement for the overpayment of daycare expenses and, indeed, plaintiff made substantial payments to defendant pursuant to that agreement and stopped only when defendant filed his motion so she could await the outcome in court. As far as the travel expenses, the judge acknowledged that plaintiff's income was substantially higher than defendant's. The judge further reasoned:

You elected to go to Georgia and move from New Jersey. It would be a different situation if it was New Jersey and Pennsylvania. We might say mileage might be totally understandable or we'd say we have visitation once every month for a weekend and we meet at "X" location, which would be the midpoint. See, that would be a very prominent way to handle this. But when the parent says, I want to move and given the fact that your income is substantially higher than the defendant's, you know, we have to try to be fair with that allocation.

Plaintiff argued that defendant's travel expenses to Georgia were actually $4,000 less per year than his multiple trips to New Jersey. However, her calculations were based upon theoretical allowances allowed by the Internal Revenue Service for employees' mileage and hotel accommodations. These figures bear no relationship to the actual costs incurred by defendant, which were and reasonably stated by defendant and are undisputed.

We first address the jurisdictional issue. Plaintiff never objected to the jurisdiction of the New Jersey court during the trial court proceedings. Ordinarily, this circumstance alone would induce us to refuse to consider the issue on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, because the issue not raised in the trial court is jurisdictional, it is appropriate that we give it our consideration. Ibid. The authorities cited by plaintiff provide only that New Jersey courts possessed continuing, exclusive jurisdiction as long as one of the affected parties continues to reside in New Jersey. See N.J.S.A. 2A:34-66a; N.J.S.A. 2A:4-30.72(a)(1). Plaintiff presents no authority to support her argument that the New Jersey courts lacked jurisdiction. While the exclusivity of that jurisdiction is no longer preserved, there is not a lack of jurisdiction. We are hopeful that by the time we are rendering this decision the parties have done what they both expressed their desire to do, transfer this case to Georgia, which would be in the best interests of all involved. However, we are satisfied that the New Jersey Superior Court, Family Part, had jurisdiction to enter the orders that are now before us.

Plaintiff does not dispute that the daycare cost decreased when she moved to Georgia and that defendant overpaid for a period of time. She was in the process of reimbursing defendant, thus acknowledging her obligation to pay back money she wrongfully received. There was no error in the judge's order that she reimburse the balance due. Plaintiff's appeal arguments on this point lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We are persuaded, however, by plaintiff's argument regarding parenting time travel expenses. For several years, defendant was incurring an annual expense to exercise his parenting time in addition to paying his child support obligations. This was part of the agreement and understanding between the parties. As we have stated, defendant acquiesced in the relocation to Georgia. He acknowledges that by spending four one-week periods with Hannah, he is able to enjoy better quality time than during the more frequent weekend trips, and that the four parenting time periods accomplished by air travel are more convenient for him. By his own admission, his annual expenses are about the same. Thus, there was no change in circumstances.

It appears to us that the motion judge's analysis presupposed that before the relocation defendant lived in close proximity to Hannah and that the relocation caused a disadvantage to defendant's ability to spend time with Hannah and at an added expense. However, by mutual agreement, the parties rearranged the parenting schedule, making it more feasible to substitute air travel for car travel, and by substituting less frequent visits, each for a longer period of time. The net effect of the revised arrangements has caused no detriment to defendant and no increase (or at least no material increase) in his travel expenses. Therefore the change provides no basis for an order that plaintiff contribute to those expenses. The portion of the order requiring plaintiff to contribute fifty percent to travel expenses is vacated.

Affirmed in part; reversed in part.

 

Plaintiff was physically present in the courtroom and defendant participated by telephone.

(continued)

(continued)

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A-6373-04T2

May 17, 2006