KELLY KING, n/k/a KELLY M. KIRBY v. BRIAN F. KING, SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3303-05T13303-05T1

KELLY KING, n/k/a

KELLY M. KIRBY,

Plaintiff-Appellant,

v.

BRIAN F. KING, SR.,

Defendant-Respondent.

______________________________________________________________

 

Argued July 10, 2007 - Decided July 26, 2007

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen

County, Docket No. FM-02-3085-01.

Wynn M. Goldstein argued the cause for

appellant.

Brian F. King, respondent, argued the cause

pro se.

PER CURIAM

Plaintiff Kelly M. Kirby appeals from a post-judgment Family Part order modifying parenting time, entered without benefit of a plenary hearing, and an order denying her motion for reconsideration. Plaintiff contends the trial court abused its discretion "by sua sponte modifying the parenting time schedule and failing to order discovery and a plenary hearing." We agree and reverse the orders under review.

The parties have one child, Brian, who was born on February 3, 2000. The "amended final judgment of divorce," dated June 17, 2002, contains the following custody and parenting time provisions:

1. The Plaintiff shall have sole custody of Brian F. King (born February 3, 2000), the unemancipated child of the marriage between the Plaintiff and the Defendant. The child shall reside with the Plaintiff.

The Defendant shall have liberal and reasonable parenting time with the child of the marriage as mutually agreed between the Plaintiff and the Defendant.

2. The visitation of the Defendant and the child shall be as follows:

a. From 10: 00 A.M. to 5:00 P.M. on Saturday, February 16, 2002, February 23, 2002, March 2, 2002[,] and March 9, 2002.

b. Effective Saturday, March 16, 2002[,] the Defendant shall have overnight visitation with the child from Saturday at 12: 00 P.M. to 5:00 P.M. Sunday.

c. Effective the summer of 2002, the Defendant shall have one week of visitation with the child. During such times as the Defendant has parenting time, the Plaintiff shall have the right to know the location, destination as well as the telephone number where the child will be at all times and further the Plaintiff shall have the right to daily telephone access with the child.

d. Commencing on Memorial Day, 2002[,] and on alternating legal holidays thereafter and on Father's Day.

As to the Defendant's visitation, he shall have the obligation in regard to visitation and he shall pick up and return the child curb side at the Plaintiff's residence.

In the event the Defendant will be delayed as to pick up or return of the child, the Defendant shall make a telephone call to the Plaintiff that he will be late.

It is anticipated that as the child matures, the Defendant will be given extended visitation.

In December 2004, plaintiff filed a notice of motion requesting she be allowed to relocate, with Brian, from the State of New Jersey, to the State of South Carolina. Defendant did not oppose plaintiff's application. In fact, in his notice of cross-motion, defendant asked the court to approve "plaintiff's proposed agreement, including the requested changes by defendant." The court granted plaintiff's application, and the order, entered on January 21, 2005, noted the parties had consented to a five-page written agreement, dated January 21, 2005, which was attached to the order. This agreement contains the following provisions:

1. the Father hereby consents to the Mother relocating [] from the State of New Jersey to the State of South Carolina with Brian F. King, Jr., the unemancipated child of the marriage between the parties.

2. The parenting time schedule set forth at Paragraph 2 of the Amended Final Judgment of Divorce entered on June 17, 2002, a copy of which has been reviewed by the Father and the Mother is hereby amended so that Paragraph 2 of the Amended Final Judgment of Divorce is amended as to parenting time and in its place and stead the Father shall have the following parenting time:

a. Six consecutive weeks during the eight/ten week spring/summer school recess subject to Father's thirty day written notice to Mother. The Mother anticipates that the spring/summer recess will be from late May to early August of each year.

b. The Easter school recess each year (subject to there being an Easter recess) as well as Christmas recess every other year commencing December 2005.

c. Any other parenting time mutually agreed to between the Mother and the Father.

3. As to the pick-up and return of the child, the parties agree to share in driving time equally so that on each and every one of the Father's parenting time, the Mother and Father shall each travel half-way between the State of New Jersey and the Mother's residence in South Carolina.

Thus, plaintiff's move to South Carolina was accomplished pursuant to a written agreement, which specified defendant's parenting time with Brian as well as the travel arrangements. Nevertheless, commencing January 1, 2006, the court ordered that "defendant shall have additional parenting time with Brian every fifth weekend from evening until Sunday afternoon at 2:30 p.m.," and it ordered plaintiff was solely responsible for the transportation of Brian to and from New Jersey every fifth weekend. In a subsequent order dated February 17, 2006, the court denied plaintiff's request for discovery and a plenary hearing, and it ordered plaintiff to "arrange for air transportation for parties['] son for defendant's parenting time."

Preliminarily, we note that New Jersey courts "encourage settlements and enforce agreements whenever it is fair and equitable to do so." Giangeruso v. Giangeruso, 310 N.J. Super. 476, 478 (Ch. Div. 1997) (citing Lepis v. Lepis, 83 N.J. l39, 148-49 (1980)). This policy "is especially important in Family Court matters." Ibid. (citing Davidson v. Davidson, 194 N.J. Super. 547 (Ch. Div. 1984)). A party seeking to modify a custody or parenting time agreement must show a change of circumstances that would affect the welfare of the child. Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div.), certif. denied, 28 N.J. 147 (1958).

We recognize the trial court found it would be in "Brian's best interest to spend more regularly scheduled time with defendant." We are convinced, however, the parenting time schedule and the transportation arrangements the parties agreed upon should not have been modified by the court based only upon the disputed allegations proffered by each party. See Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (parenting time disputes should not be decided "on the basis of conflicting affidavits or an inadequate record" (citations omitted)) certif. denied, 99 N.J. 243 (1985); Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982) ("[D]isputes implicating the welfare of a child and involving conflicting contentions . . . must be submitted to a plenary hearing."); Wagner v. Wagner, 165 N.J. Super. 553 (App. Div. 1979) (trial court's modification of visitation agreement without hearing was reversed and remanded for plenary proceeding), certif. denied, 85 N.J. 93 (1980); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968) (When the outcome of a proceeding "hinges upon factual issues and credibility," the court should take oral testimony.").

 
The orders entered on January 1, 2006, and February 17, 2006, are reversed, and the matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

The parties' divorce decree provided for plaintiff Kelly King to resume her birth name, Kelly M. Kirby.

(continued)

(continued)

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A-3303-05T1

July 26, 2007