VERONICA GUZMAN v. AGUSTIN ARCE, JR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3597-07T33597-07T3

VERONICA GUZMAN,

Plaintiff-Appellant,

v.

AGUSTIN ARCE, JR.,

Defendant-Respondent.

________________________________

 

Submitted: January 22, 2009 - Decided:

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-223-08.

Central Jersey Legal Services, attorneys for appellant (Shoshana Gross, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Veronica Guzman appeals from portions of an order entered on February 6, 2008, granting defendant Agustin Arce, Jr., extensive parenting time, requiring plaintiff to pay fifty percent of visitation travel expenses, granting defendant's relatives liberal visitation in Florida, and suspending child support payments during extended periods of parenting time. Defendant did not oppose this appeal. We reverse the award of liberal visitation to defendant's relatives in Florida and vacate and remand the award of parenting time and travel expenses for reconsideration in accordance with this opinion.

Defendant is the thirty-one-year-old father of plaintiff's two children, a son born on December 9, 2004, and a daughter born on January 30, 2006. Plaintiff was born on February 7, 1987, and was seventeen years old when her son was born. The parties were not married. Although they had a relationship for three-and-a-half years, which began when plaintiff was sixteen, they cohabited for only four months. The rest of the time, plaintiff resided with her parents or her older sister. Defen dant psychologically abused plaintiff and, as their relationship pro gressed, the abuse became physical. They separated for the last time in early June 2007.

On July 30, 2007, plaintiff obtained a temporary restrain ing order after defendant committed acts of assault and criminal mischief against her. A final restraining order (FRO) was entered on August 14, 2007. Plaintiff was awarded temporary custody of the children and defendant was granted parenting time from 9:00 a.m. to 9:30 p.m. on Mondays and Tuesdays. The pater nal grandparents were to transport the children for defendant's parenting time. Defendant was required to pay $76 per week for child support.

One week after the FRO was entered, defendant sought over night parenting time on Mondays, which plaintiff opposed on the grounds of inadequate housing, defendant's failure to undergo the mental-health and substance-abuse evaluations, and his fail ure to pay any child support. She also informed the court that, between August 14 and October 10, defendant had only availed himself of parenting time on one occasion. On October 24, 2007, the Family Part judge amended the FRO to require the parties to exchange the children at the Highland Park Police Department as defendant's parents were unable to provide transportation to and from plaintiff's home. A decision on overnight parenting time was deferred pending an evaluation of the children's best interests by the Probation Department.

Also on October 24, 2007, plaintiff filed a motion pursuant to N.J.S.A. 9:2-2 seeking leave to relocate to Jacksonville, Florida, with her parents and sister. Her father had secured employment in Florida and had already relocated, but her mother remained with plaintiff in order to help plaintiff by taking the children to a babysitter when plaintiff worked eleven-hour shifts and to watch the children when plaintiff had appoint ments. Plaintiff had discussed this upcoming transfer with defendant before they separated in June.

Plaintiff was employed by Ashley Furniture earning $2000 per month and would be able to work at an Ashley Furniture store in the Jacksonville area where there were job openings. How ever, plaintiff preferred to find a night job so that she could be home with the children when her mother was at work and her parents could watch the children when she was at work, thus saving the expense of childcare. She explained that she could not afford to have a home of her own and pay for childcare on her limited income because independent living expenses would exceed $3000 per month. As a result, she wanted to continue living with her parents to minimize housing expenses and elimi nate childcare. She stated that defendant had made only one child-support payment and was $457 in arrears, which had risen to $913 at the time of the hearing; thus, she could not count on defendant for consistent support for the children.

Plaintiff proposed that defendant have parenting time for one week during Christmas, one week during the spring, and two weeks in the summer. She proposed that the travelling expenses for three trips to New Jersey be shared equally. She had no objection to defendant having additional parenting time in Flor ida. She also was amenable to additional parenting time in New Jersey at defendant's sole expense until the children entered school.

Defendant opposed plaintiff's application to relocate because it would not be fair to the children to be taken away from him. If the judge allowed plaintiff to relocate, he sought extensive parenting time at plaintiff's sole expense as follows:

(1) December 9 until New Year's Day one year; on alternating years, four weeks beginning with Christmas week and ending after their daughter's birthday on January 20;

(2) three weeks starting the last week in February and ending after the second week in March;

(3) six consecutive weeks during the summer including Father's day and July 4;

(4) the last two weeks in October;

(5) every other Thanksgiving during the year that defendant had four weeks of parenting time beginning Christmas week;

(6) two weeks when defendant had vacation, to be scheduled on a seven-day notice basis;

(7) additional parenting time in New Jersey or Florida for up to three days at a time on forty-eight-hour notice at defendant's sole expense;

(8) two-week overnight visitation for defen dant's parents and brother in Florida when they were there on vacation, with plaintiff driving the children to a central meeting place;

(9) weekend visitation for defendant's sis ter, who lived in Florida, on one-week notice, with plaintiff driving half the distance between their respective homes and further visitation in Jacksonville on forty-eight-hour notice.

Defendant completed a Financial Statement for Summary Support Actions, indicating that he earned $300 per week. He also sought cessation of child support while defendant had parenting time and his family had visitation.

The judge placed his decision on the record on December 13, 2007. In analyzing the application for removal, the judge care fully considered all of the applicable factors enunciated in Baures v. Lewis, 167 N.J. 91, 116-17 (2001), and correctly con cluded that plaintiff's request for permission to relocate should be granted. He then considered the issue of parenting time. At the hearing, defendant represented that he was about to enter an anger management program as initially ordered on August 14, 2007, and had passed the substance-abuse evaluation ordered at the same time. The record does not disclose whether defendant attended the parenting classes ordered on August 14, 2007.

The judge found that "the financial situation[s] of the parties limit both of them and their abilities to do whatever it is they'd like to do." Expressing that "a proper and fair fos tering of the child relationship with the noncustodial parent can be accommodated," the judge concluded that he "particularly like[d] the schedule proposed by [defendant, because] it has a much more detailed approach." He also explained that he had to consider "the effect of the move on the extended family" and the need of the children to know both sets of grandparents. He agreed that the extended family had no standing to assert any rights of visitation, but nonetheless concluded that the sched ule proposed by defendant "looked . . . to be appropriate." The judge also acknowledged that "it may be that the[ parties] can't afford to do it," but stated that he wanted "a court order to allow the visits. They don't have to do them . . . if they can't afford them." He ordered that all of the expenses for the travel were to be split equally between the parties and speci fied "with regard to the parents, sisters, and brothers in Flor ida, I'd just like the order to say that there would be liberal visitations upon 48 hours notice" with defendant's relatives allowed to keep the children overnight, although he agreed that the two weeks of such visitation sought by defendant was "a little too much." Finally, the judge concluded that, when defendant had the children for extended periods of time, he would not be obligated to pay child support.

The order entered on February 6, 2008, in accordance with the judge's decision, provides in pertinent part as follows:

2. Defendant's parenting time will be as follows:

a) Alternating Thanksgiving and Christ mas Holidays. On the year that the plaintiff has the children for Thanksgiving, Defendant will have the children from the week of December 9th through Christmas.

b) During the years that Defendant has the children for Thanksgiving, Defendant shall have parenting time starting the week after Christmas and ending after the daughter's birthday, January 20th.

c) Three weeks starting the last week in February and ending the 2nd week in March.

d) Six consecutive weeks during the sum mer that is inclusive of Defen dant's birthday, July 4th, and Father's day.

e) Last two weeks in October.

f) Two weeks (may or may not be con secu tive) during Defendant's vaca tion from work of which Defendant will give the Plaintiff seven days notice.

g) If Defendant wants to see the chil dren outside of these times, he shall be required to give 48 hours notice and bear 100% of the travel expense to Florida or for the chil dren to New Jersey and be permitted to keep the children overnight for two to three day visits.

3. The parties shall each pay 50% of the children's travel expenses for parenting time.

4. Defendant's relatives shall have liberal visitation in Florida.

5. Defendant's child support payments shall be suspended during extended periods of parenting time.

In plaintiff's appeal, she contends first that the judge erred in awarding defendant's family visitation as they have no right to same. Second, she asserts that the judge erred in suspending all child support during extended periods of visita tion. Finally, she argues that the parenting time the judge awarded to defendant was excessive and inequitable under the circumstances.

Our review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evi dence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Trial courts that "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

"Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the impli cations to be drawn therefrom,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this latter instance, the reviewing court will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

The Supreme Court has observed that matrimonial courts possess special expertise and experience in the field of domes tic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclu sions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not "second-guess [a Family Part judge's factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

The judge was required by Baures to consider "the effect of the move on extended family relationships here and in the new location." Baures, supra, 167 N.J. at 117. That factor, how ever, bears only on the issue of whether the "the move will not be inimical to the child's interest." See id. at 116-17. The Baures Court never suggested that the effect of the relocation on extended family relationships should be ameliorated by according extended family visitation rights.

Parents have a fundamental right to raise their children as they see fit and, even in an intact family, may deny grandpar ents visitation. Moriarty v. Bradt, 177 N.J. 84, 115 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). In such a case, "the grandparents bear the burden of establish ing by a preponderance of the evidence that visitation is neces sary to avoid harm to the child." Id. at 117. This is so because the parents have a fundamental due process right "to make decisions concerning the care, custody and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 149 L. Ed. 2d 49, 57 (2000) (citation omitted). Grandparents must show "something more substantial [than the unwanted termination of] an ordinary grandparent-child relationship" in order to satisfy the burden imposed by Moriarty. Daniels v. Daniels, 381 N.J. Super. 286, 293 (App. Div. 2005).

Here, defendant's family did not even seek visitation time with his children. The record is bereft of any evidence that such visitation was necessary to avoid harm to the child, as they would have been required to prove under Moriarty. Indeed, there is no evidence that they ever had such visitation time with the children, who were only two and three years old at the time of the hearing. In permitting such visitation, the judge clearly infringed upon the mother's fundamental due proc ess right to decide what, if any, visitation to allow defen dant's family members when the children were not with the father during his parenting time. As a consequence, paragraph 4 of the February 6, 2008, is reversed. We next consider the parenting time given to defendant.

Pursuant to the FRO, the defendant was entitled to thirty-six hours of continuous parent ing time from 9:30 a.m. on Mondays to 9:30 p.m. on Tuesdays, which in one block of time over a year would have been equivalent to seventy-eight days. This was entirely appropriate for children of such tender years. The visitation granted by the judge was equivalent on an annual basis to between 106 days to 118 days. This patent effort to avoid any reduction in the defendant's parenting time was not mandated by the Baures Court. Indeed, the Court recognized that "alterations in the visitation scheme when one party moves are inevitable and acceptable. If that were not the case, removal could never occur and what Cooper and Holder attempted to achieve would be illusory." Baures, supra, 167 N.J. at 117. Because Baures signaled no departure from prior case law governing an award of parenting time, the judge should have considered that law in awarding parenting time.

We have long recognized that "[t]he pivotal factor and paramount consideration in matters involving custody of minor children is the happiness and welfare of such children." Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958). Once custody has been decided, as here, a court must still consider the happiness and welfare of the chil dren. Cf. Beck v. Beck, 86 N.J. 480, 497 (1980) ("It would be incongruous and counterproductive to restrict application of this standard to the relief requested by the parties to a custody dispute."). This concern must infuse the consideration of parenting time. "The children's best interest in this situation is closely related to the noncustodial parent's right to visitation. 'From that perspective, the "cause" requirement of N.J.S.A. 9:2-2 impli cates the best interests of the child as manifested through visitation with the noncustodial parent.'" Winer v. Winer, 241 N.J. Super. 510, 518 (App. Div. 1990) (quoting Holder, supra, at 352) (internal citation omitted). Thus, the court must consider each parent's constitutional right to enjoy a relationship with their children. In re Adoption of Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). The goal is to arrive at a reasonable parenting-time schedule consistent with the best interests of the children and the rights of the parents. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984) ("It is well[-]settled that the law favors visitation. . . . [C]ourts should endeavor that children of separated parents should be imbued with love and respect for both parents [by] conferring reasonable rights of visitation on the [noncustodial] parent."), certif. denied, 99 N.J. 243 (1985); In re Application of Jackson, 13 N.J. Super. 144, (App. Div. 1951) ("Consistent with the paramount concern for the welfare of the child . . . [a] court always determines that, whenever custody is awarded to a parent, the other parent shall not only be privileged to see the children at all times, but shall be encouraged by the parent custodian in seeing them as freely, as fully, as often, and as long as possible, and in a manner best suited to the encouragement of mutual affection.") (internal citation and quotations omitted); Barron v. Barron, 184 N.J. Super. 297, 301 (Ch. Div. 1982) ("Parental rights will be preserved unless enforcing them will adversely affect the 'safety, happiness, mental and moral welfare of the child.'") (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)); cf. V.C. v. M.J.B., 163 N.J. 200, 228 (visitation is presumptive subject to N.J.S.A. 9:2-4 considerations), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

Where a custodial parent has been permitted to relocate to another state, the court is to formulate a reasonable and real istic parenting-time schedule. Cooper, supra, 99 N.J. at 57; see also Holder, supra, 111 N.J. at 353 ("Maintenance of a reasonable visitation schedule by the noncustodial parent remains a critical concern, but in our mobile society, it may be possible to honor that schedule and still recognize the right of a custodial parent to move."); Winer, supra, 241 N.J. Super. at 521 (observing that "[u]nder Holder some level of reduction in the amount of visitation must be deemed acceptable"). Thus, the judge was not bound to provide as much or more visitation time that defendant and the children enjoyed before plaintiff relocated to Florida.

We are satisfied that the evidence is insufficient to sup port a conclusion that the parenting-time schedule formulated by the court was realistic in light of the parties' limited finan cial circumstances. The court should have elicited testimony from the parties respecting their financial ability to pay for the cost of transportation for parenting time. See Zwernemann v. Kenny, 236 N.J. Super. 37, 45-46 (Ch. Div. 1988), aff'd, 236 N.J. Super. 1 (App. Div.), certif. denied, 117 N.J. 172 (1989). This, of course, would require an initial determination respecting whether it is realistic to expect that children of such tender years could fly to New Jersey unaccompanied by a parent. In deciding this issue, airline restrictions on the travel of unac companied minors must be considered by the court. If they must be accompanied, the cost of round-trip airfare for the children with a parent, which necessarily would mean airfare for four round-trips, might approximate $800 per trip. Of course, the expense would be half that amount if the children do not need to be accompanied.

Next, the court must consider both parties' Case Information Statement and proof of income to determine their ability to pay for parenting-time travel expenses. If the parties cannot afford airfare, then the court must consider the expense of transporting the children by car. The court erred in awarding parenting time to defendant when he recognized that the parties might not be able to afford the transportation costs, because the order subjected plaintiff to a mandate to provide all the parenting time allowed, whether she could afford it or not, thus subjecting her to the risk of violating the court order.

Once the financial ability of the parents to pay for par ent ing time is established, then the court will be in a position to determine the number of times per year that parenting time will take place, how it will be arranged, and where it will take place. For example, without suggesting that this is appropri ate, which we do not do because the record is insufficient to permit any determination, the court might conclude that defen dant's parenting time during his two weeks of vacation must be spent with his parents in Florida, which will cost considerably less than having to undertake the expense of four round-trip airfares and will promote the children's relationship with their paternal grandparents at the same time.

Once the court has determined how often the parties can afford parenting time for defendant, then the court must deter mine a reasonable amount of parenting time for defendant. In this respect, we remind the judge that he is not required to award more parenting time, as he did here, or even the same amount of time, because "[u]nder Holder some level of reduction in the amount of visitation must be deemed acceptable." Winer, supra, 241 N.J. Super. at 512. In this respect, of course, he must be cognizant of defendant's constitutional right to parent his children, but he also must consider their best interests, and those interests are not simply an interest in maximizing their relationship with defendant. Currently, the son is five years old and the daughter is three years old. The judge must consider their age, their interaction with their mother and father, and any other relevant factors. See V.C., supra, 163 N.J. at 228 (quoting best interest factors set forth in N.J.S.A. 9:2-4).

The judge may also consider the ability of the father to relocate because it may bear upon parenting time. Defendant's parents and his sister live in Florida. He works for an Apple bee's, many of which are located in Florida. Indeed, he told plaintiff that the owner of the Applebee's franchise where he now works has another restaurant in Florida. Even if obtaining a position in Florida with this particular franchisee is not possible, all restaurants employ line cooks and defendant could work for another restaurant in Florida if he wished to do so. Thus, the remedy for reduced long-distance parenting time, if the best interests of the children require it, is controlled by defendant and the judge should make the best interests of the children the paramount concern in establishing a reasonable parenting schedule.

For the foregoing reasons, paragraphs 2 and 3 of the Febru ary 6, 2008, order are vacated and the matter is remanded to the Family Part judge for a plenary hearing and reconsideration in accordance with this opinion. The judge should make specific fact findings regarding the parents' ability to pay and the best interests of the children and state his legal conclusions citing relevant case law. See R. 1:7-4(a); Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). Because the judge has already had an oppor tunity to observe plaintiff and form an opinion about her credi bility, there is no impediment to allowing her to appear and testify by telephone so as not to financially burden her with the expense of coming to New Jersey, where she no longer has family with whom to stay.

With respect to paragraph 5 of the February 6, 2008, order, the trial judge also erred when he suspended defendant's child support obligations during "extended periods of parenting time." As plaintiff correctly notes, a noncustodial parent may move to seek partial abatement of a child-support order for a Parent of Alternate Residence (PAR) time period extending "for five or more consecutive overnights." Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2326 (2009). However, that abatement

shall not exceed the variable expenses (food and transportation) incurred for the child during the extended-PAR Time period (i.e., the abatement should not be for the entire award during the vacation period since the custodial parent continues to have fixed and controlled expenses during that time). Variable expenses represent 37% of a basic child support award before any regular-PAR Time adjustments.

[Ibid.]

Defendant was ordered to pay $76 in child support per week. The abatement should not have exceeded $27.36, which is thirty-seven percent of $76, calculated before any regular PAR time adjustments. Accordingly, paragraph 5 is vacated and the matter is remanded to the trial court judge for reconsideration in conformance with the Child Support Guidelines and this opinion.

 
Reversed in part and vacated and remanded in part.

Cooper v. Cooper, 99 N.J. 42 (1984).

Holder v. Polanski, 111 N.J. 344 (1988).

Nonstop round-trip airfare on Continental Airlines from Newark to Jacksonville, departing on February 23, 2009, and returning on March 16, 2009, is currently $204.20. See Continental Airlines, http://www.continental.com/web/en-US/default.aspx (utilizing Continental's flight search function) (last visited Feb. 2, 2009). Under the current order, the parties are each obligated to pay one-half the cost of travel five or six times per year. At about $200 per person per flight, each will be obligated to pay between $1600 and $2000 per year. The record does not disclose whether the parties can afford this sum in light of their limited income, with defendant earning about $15,000 per year, less $4000 for child support, and the plaintiff earning about $25,000 per year plus $4000 child support.

(continued)

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A-3597-07T3

RECORD IMPOUNDED

February 20, 2009