JOANNE DUKES v. MARTIN D. FRITZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6139-07T36139-07T3

JOANNE DUKES,

Plaintiff-Respondent,

v.

MARTIN D. FRITZ,

Defendant-Appellant.

 
 

Submitted October 21, 2009 - Decided

Before Judges Stern, J.N. Harris, and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-199-07.

Martin D. Fritz, appellant pro se.

Joanne Dukes, respondent pro se.

PER CURIAM

This appeal arises out of a palimony action commenced against defendant Martin D. Fritz by his former paramour, plaintiff Joanne Dukes. Dukes claimed that for over a decade she and Fritz resided together and held themselves out as a married couple, with Fritz assuring plaintiff that eventually they would be legally married. Indeed, Fritz and Duke are the parents of two minor children, K.V.F. and J.D.F., and share ownership of residential real property in Lower Township, where Dukes and the children currently reside.

After the parties separated in 2006, Dukes filed a verified complaint for palimony and other equitable relief. In nine counts, she sought remedies for palimony (count one), partition (count two), unjust enrichment (count three), joint ventureship (count four), quantum meruit (count five), quasi-contract (count six), implied contract (count seven), constructive trust (count eight), and custody (count nine). The matter proceeded to trial on all counts except those pertaining to partition and custody. On February 15, 2008, the trial judge entered an order dismissing all claims, rejecting Dukes' claim of palimony and other equitable remedies.

Immediately following the palimony trial and court's decision, the parties commenced a second theatre of conflict: motion practice. First, Dukes moved for reconsideration. Then, Fritz moved for joint custody, a change in parenting time of the children, and immediate payment of his interest in the property. Finally, in this first burst of post-trial activity, Dukes moved for the appointment of a custody expert. The motions were combined and resolved in a written opinion dated May 1, 2008.

The judge ultimately denied the motion for reconsideration on the ground that Dukes had still not satisfactorily demonstrated that her relationship with Fritz included a promise of lifetime support. As the judge put it, "[t]he promise is the sine qua non of a palimony claim." The judge denied Fritz's motion for a change in parenting time, finding that the parties' mediation agreement from October 2006 controlled in the absence of a change in circumstances, a change that had not been demonstrated. Accordingly, the judge denied Dukes' correlative motion that sought the appointment of a custody expert.

After making several determinations regarding child support, tax issues, and other economic issues relating to credits and debits, the court turned to the disposition of the real property. The judge concluded that it was appropriate to postpone a partition sale because to do so would "render the plaintiff and the parties' children homeless." Relying on what the court viewed as the equitable discretionary authority flowing from Newman v. Chase, 70 N.J. 254 (1976), he ordered a delay in the partition sale until the parties' youngest child reaches the age of eighteen. During Dukes' occupancy of the dwelling with the parties' minor children, she was made responsible for all costs associated with the house, and she was relieved of any obligation to pay rent to Fritz.

The court considered the economic consequences of its determination. The judge recognized that although the rent that Fritz was arguably due was more than Dukes' obligation to cover the cost to maintain the property, any excess would be deemed child support, supplemental to the child support provided for in the Child Support Guidelines. The judge made findings, explaining why he deviated from the Guidelines in order to "allow his [Fritz's] children to remain in the home that they have grown up in." Lastly, the judge provided that at the time of the partition sale, Fritz would be compensated for the excess child support payments calculated, plus interest. An order (denominated a "corrected order") was filed on May 1, 2008, but logically must have been actually filed several days thereafter.

Thereupon, Fritz filed a motion for reconsideration. He challenged the court's several conclusions: 1) that there was no change in circumstances to warrant a modification in custody or parenting time, 2) that a deferred partition sale was appropriate, and 3) that the child support credit was only $3,010. Dukes responded in kind with her own motion seeking several tweaks in child support and to enforce previously imposed restraints between the parties. An order was entered on July 1, 2008, denying Fritz's motion in its entirety and granting Dukes limited relief.

Fritz followed up by filing a notice of appeal on August 15, 2008. His brief raises six arguments on appeal. He seeks:

1) equal custodial and visitation rights and parenting time,

2) recalculation of the amount of his child support overpayment from $3,010 to $7,310, 3) an accounting of the rents Dukes owes him, 4) equal tax credits regarding the children,

5) recalculated child support, and 6) an immediate partition sale of the house.

We have carefully analyzed the wealth of data and the arguments provided to us by the parties in light of the record and applicable law. Except for the financial issue regarding the overpayment of child support, we find insufficient merit in any of Fritz's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

An appellate court does not disturb a trial court's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We must give suitable regard to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 25 (2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In determining visitation and custody rights of a parent, courts are guided by the standard of what is in the best interest of the child. Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984). Although it is routine in the law to ensure that both parents have meaningful interaction with their children following the termination of the parents' relationship, visitation may be restricted where it would "cause emotional or physical harm to the child, or where the parent is shown to be unfit." Id. at 496 (citing In re N., 96 N.J. Super. 415, 423-24 (App. Div. 1967)).

When a party seeks modification of a parenting time agreement or of a judgment determining custody or visitation of minor children, that party bears the burden of "showing changed circumstances and that the agreement is now not in the best interests of the child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003), See also, Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981).

In order to determine whether the circumstances have so changed since the original judgment as to warrant a modification, a court must have some knowledge or information as to the circumstances which existed on the date of the original judgment. This is for the twofold purpose of (1) acquainting the court with the facts which existed at the time that the original judgment was entered, so that he may ascertain what motivated the original judgment and determine whether there has been any change in circumstances, and (2) aiding the court in evaluating the bona fides of the person who seeks a modification upon the grounds of change in his status of fitness.

[Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div.), cert. denied, 28 N.J. 147 (1958).]

Fritz sought to undo the parties' custody and visitation arrangement only two days after the trial judge accepted the mediation agreement. Fritz stated that "after careful consideration, I have determined that these arrangements are not the best, or most fair arrangements for me or for my children." The trial judge, in rejecting the modification motion, properly viewed this as simply a party changing his mind about the agreement. Fritz points to his lack of housing at the time he entered the parenting time agreement during mediation, and how at the time of the trial he had a completely renovated home in which he was living. The trial judge was fully aware of the history of the parties and the facts surrounding the family. He was able to properly consider Fritz's overall conduct in the course of proceedings in determining whether a true change in circumstances existed. We will not disturb the trial court's conclusions because they are soundly based upon the record.

Fritz argues most passionately about the deferred partition sale. We have noted "that the trial court's exercise of discretion may be disturbed only if it is 'so wholly insupportable as to result in a denial of justice.'" Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996) ((quoting Goodyear Tire and Rubber Co. v. Kin Properties, Inc., 276 N.J. Super. 96, 106) (in turn quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Under the specific facts of this case, in considering the countervailing circumstances of the best interests of the parties' children, we cannot say that the judge denied Fritz justice.

A delicate act of balancing is always required when a court is called upon to exercise its equitable jurisdiction to resolve a dispute between joint owners of property that cannot be partitioned or sold without hardship or violation of public policy. See Newman v. Chase, supra, 70 N.J. at 263 (recognizing partition as "an ancient head of equity jurisdiction [and] an inherent power of the court"); Schwartz v. Becker, 246 N.J. Super. 406, 413 (App. Div. 1991) (recognizing the relevance of hardship to partition); Michalski v. Michalski, 50 N.J. Super. 454, 467 (App. Div. 1958) (considering acrimonious and litigious nature of parties' relationship in ordering partition rather than enforcing an agreement barring partition). We find unconvincing Fritz's suggestion that the court abused its concededly broad discretion when the court reached the ultimate determination that the partition sale shall be deferred for several years in order to foster a stable and familiar home environment for the children. It is both reasonable and appropriate that the best interests of the children are advanced by treating Fritz's intangible credit based upon comparing the fair market rent against the maintenance costs of the house as the equivalent of child support.

We have noted that "children are entitled to be supported at least according to the standard of living to which they have grown accustomed prior to the separation of their parents." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992) (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980)). Even when looking at the statute that governs actions for partition of real estate, the statute is permissive, stating that "[t]he Superior Court may, in an action for the partition of real estate, direct the sale thereof if it appears that a partition thereof cannot be made without prejudice to the owners, or persons interested therein." N.J.S.A. 2A:56-2.

The trial court did not err in refusing to adjust the allocation of income tax exemptions. In Gwodz v. Gwodz, 234 N.J. Super. 56 (App. Div. 1989), we acknowledged the propriety of the Family Part in maximizing income available for the support of children through use of the exemption. Id. at 61. That case also acknowledges the Internal Revenue Code's presumption that the custodial parent is to retain the tax exemption, subject to waiver. Id. at 62.

In considering "a request for change in the status quo respecting exemptions," a trial judge must first determine the extent of child support provided by each parent. Ibid. If a change in tax exemptions is "deemed warranted," the court must also consider whether modification of the existing support order is necessary to "reflect the benefits achieved by the change." Id. at 62-63. The trial court, however, must also consider whether the change in an exemption "falls within the principles of Lepis v. Lepis, 83 N.J. 139, 149-53 (1980)." Gwodz, supra, 234 N.J. Super. at 63.

In Lepis, the Court required a showing of "changed circumstances" as a prerequisite to modification of a support order. Lepis, supra, 83 N.J. at 146. In other words, as a threshold proposition, Fritz must establish a change in circumstances because equalizing the exemptions is a significant alteration of the status quo. In this case, no such change in circumstances is apparent that would warrant adjustment by us on this appeal.

Lastly, we address the trial judge's refusal to alter the amount of overpaid child support. In its decision of May 1, 2008, the amount of Fritz's child support was set at $167 per week and the total amount of overpayment due to Fritz for the eighty-six weeks of payments he made at $202 was determined to be $3,010. Yet, after May 8, 2008, the judge issued a corrected order that lowered the amount of Fritz's child support payments to $117 per week, but did not adjust the amount of overpayment that was due to him. Mathematically, as Fritz indicates, based upon the new amount of his child support payments, the amount of overpayment would be $7,310. As such, we remand this matter to the trial court solely for the limited purpose of recalculating the amount of overpaid child support for the eighty-six weeks indicated in the court's "Memorandum of Decision on Motions" dated May 1, 2008. We do not adjust the method, manner, or timing of the repayment of the corrected credit. In all other respects, the determinations and orders of the Family Part are affirmed.

Affirmed in part; reversed and remanded in part.

 

The parties had children of their own from prior relationships who are not directly involved in this action.

Dukes sought not only a firm declaration of a right to enjoy the ownership of this real property, but also the right to participate in distribution of real property interests from three solely-owned parcels of Fritz and to share in Fritz's business interests. Except for the instant real property, all of Dukes' claims were dismissed. She does not appeal from the trial court's determinations.

The court found that Fritz had overpaid child support by $3,010, representing the difference between $202 per week that was paid and the calculated child support (at that time) of $167 per week, for a period of eighty-six weeks.

The "corrected order" modified Fritz's obligation for child support from $167 per week to $117, commencing on June 1, 2008. The court did not take this reduction into account for the eighty-six weeks of prior payments of child support that had gone into his calculation of the $3,010 credit.

(continued)

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A-6139-07T3

November 13, 2009