MICHELE VIDAL v. ANTHONY GELAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1553-10T4

MICHELE VIDAL f/k/a

MICHELE GELAK,

Plaintiff-Appellant,

v.

ANTHONY GELAK,

Defendant-Respondent.

________________________________________________________________

June 14, 2011

 

Argued May 24, 2011 - Decided

 

Before Judges Yannotti and Espinosa.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-307-05-Y.

 

Krisden McCrink argued the cause for appellant (McCrink, Kehler & McCrink, attorneys; Amanda Snyder, on the briefs).

 

Edward W. Hoffman argued the cause for respondent (Domers & Bonamassa, P.C., attorneys; Mr. Hoffman, of counsel and on the brief).

 

PER CURIAM

Plaintiff appeals from an order denying her post-judgment motion to modify the parenting time schedule and to recalculate child support. For the reasons that follow, we reverse the denial of her motion to modify the parenting time schedule and remand for further proceedings.

Plaintiff and defendant were divorced in 2005 after approximately five and one-half years of marriage. They had one son, who was two years old at the time of their divorce. The Final Judgment of Divorce, which incorporated a stipulation of settlement, provided for joint legal custody of their son and stated:

The parties shall attend custody mediation to attempt to reach a decision as to residential custody and parenting time. If mediation fails, they will participate in a custody neutral assessment, and share in the cost of same. The child currently spends four overnights per week with the plaintiff and three overnights per week with the defendant. Pending further agreement or order of the Court, the plaintiff may be the parent of primary residence and the defendant may be the parent of alternate residence. This shall continue until the parties reach an agreement or further order of the Court. If the parties cannot reach an agreement, either may apply to the Court for a determination.

 

Pursuant to this paragraph, defendant has had parenting time with his son from Saturday at 9:00 a.m. through Tuesday at 8:00 a.m. and plaintiff has had parenting time from Tuesday at 8:00 a.m. until Saturday at 9:00 a.m. At the time of their divorce, defendant was off from work on Saturdays, Sundays, Mondays and alternating Tuesdays; plaintiff's days off were Wednesdays and Thursdays. Therefore, this schedule afforded each parent with approximately one-half of the week and gave each some time with their son that coincided with time off from their work schedules.

Plaintiff's motion sought, in part, a modification of the existing schedule that would provide defendant with parenting time on alternate weekends from Saturday at 9:00 a.m. until Sunday at 5:00 p.m. with one non-overnight visit per week. In her supporting certification, plaintiff stated that it was disruptive for their son, then entering third grade, to go back and forth between the parties' residences, which are thirty-four miles apart, during the school week. She stated that, as a result of a change in defendant's work schedule, he now worked on Mondays and no longer had that day to spend with their son. In addition to contending that their son did not like being cared for by defendant's current wife, plaintiff made the following statements regarding the impact of the visitation schedule on their son's social life and activities:

10. In addition, [our son] is very unhappy that he cannot spend time with his friends during the weekends. He is older now and his friendships have become more important to him. [Our son] has missed out on countless birthday parties and events with friends, as he spends every weekend with Mr. Gelak, who lives over an hour away and is not willing to drive him back for play dates.

 

11. I have recently changed my work schedule so that I can spend more time with [our son]. Beginning August 14, 2010, I will have off Fridays and Saturdays, and can use my comp. time to take off Sundays when necessary. The current parenting time schedule does not allow me to spend any time during the weekends with [our son], and has caused him to miss numerous family parties and get togethers. [Our son] has school activities such as birthday parties scheduled during the weekends and sport activities, and he would like to spend time with his friends from school. However, he is unable to do any of these things due to the current schedule.

 

Defendant responded to these paragraphs in his certification as follows:

19. In response to paragraph ten, [our son] has many friends at my residence and this has always bothered the Plaintiff. In regards to [our son] missing out on countless birthday parties and events with friends, please refer to the countless letters in the plaintiffs [sic] handwriting that show we have been more than cooperative in having [our son] spend time with his mother on special events. Maybe she has selectively forgotten[.]

 

20. In response to paragraph eleven, so the court is aware, Plaintiff has a long history of claiming her work schedule will change and has never provided any credible documentation confirming same.1

 

In addition, defendant makes the point that because he works from 2:30 p.m. to 11:30 p.m. from Monday to Friday, he is unable to enjoy additional weeknight parenting time in lieu of Saturdays, aside from coming home for dinner.

Plaintiff's motion also sought a recalculation of child support to take into account any change made to the parenting time schedule and to require defendant to reimburse her for a proportionate share of their son's school supplies, clothing and extracurricular activities. Defendant filed a cross-motion seeking, in part, that plaintiff be prohibited from "using the 'parent of primary residence' moniker with the child's school, church, and medical providers in an effort to limit Defendant's access to information and records."

The court provided counsel with its tentative rulings and, thereafter, heard oral argument on the motion and cross-motion. At oral argument, plaintiff's counsel requested mediation of the parenting time dispute and, in the event that failed, a plenary hearing. Reference was made to the court's decision not to interview the child in camera and the court stated, "Well, at some point the Court would interview the child. He's old enough to be interviewed." Defendant's counsel argued that plaintiff's change in work schedule was insufficient to constitute the requisite change in circumstances without evidence from a professional speaking on behalf of the child stating that he did not want to spend all of the scheduled time with his father. He argued further that the court should not interview the child based solely upon the conflicting certifications of the parents.

In addition, both counsel advised the court the parties had agreed that plaintiff was "entitled to tell people that she is the parent of primary residence because we got issues with regard to residency and schooling . . . ."

The motion judge entered an order dated October 13, 2010, which addressed the issues relevant to this appeal as follows:

1. Plaintiff's motion to modify parenting time to every other weekend from Saturday at 9:00 am until Sunday at 5:00 pm, with one overnight visit per week, is DENIED without prejudice. In order to change custody or visitation arrangements there has to be a showing of a substantial change of circumstances affecting the welfare of the child such that it is appropriate to review custody/visitation. Mastropole v. Mastropole, 181 N.J. Super. 130 (App. Div. 1981). While there have been changes for the family since 2002, the Court does not find a substantial change in circumstances that is affecting the welfare of the child. The child is an honor roll student at school. Colin is now eight years old and attending school regularly. There is no evidence of tardiness or absence from school provided by the parties. Traveling back and forth during the school week does not appear to affect the child substantially to warrant a change in custody or visitation.

. . .

6. Plaintiff's motion to recalculate the Defendant's child support obligation is DENIED without prejudice. The Court did not change the visitation schedule so there is no need to recalculate child support.

. . .

10. Plaintiff's motion to compel the Defendant to reimburse Plaintiff for his proportionate share of the child's school supplies, clothing, and extracurricular activities is DENIED without prejudice. Defendant pays child support and a provision for these expenses was not provided for in the Property Settlement Agreement. Defendant does not have an obligation to separately reimburse for these expenses incurred by Plaintiff.

. . .

23. Defendant's motion to prohibit Plaintiff from using the "parent of primary residence" moniker with the child's school, church, and medical providers in an effort to limit Defendant's access to information and records is GRANTED. Parties are reminded that they share joint legal custody as it relates to all issues pertaining to the child['s] health, education, and welfare.

 

The parties agree that Paragraph 23 erroneously fails to include the modification they agreed upon and should be amended.

In other rulings that are not the subject of this appeal, the court also granted in part plaintiff's motions to allow her to enroll the child in sports in the township in which she resides and to compel defendant to obtain her permission prior to signing the child up for extracurricular activities. The court directed that the parties must communicate with each other and agree on activities and classes together; that one party cannot sign-up the child for an activity without the other's permission; and that activities that each schedules must occur during the time when that parent has parenting time.

In light of the parties' agreement regarding the correction of the order, the remaining issues presented for our consideration by plaintiff's appeal are that the trial court erred in denying her motion to modify the parenting time schedule2 and her motion to recalculate child support.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104. See also Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). 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." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision of the Family Part judge.

A party who seeks modification of a judgment that incorporates a property settlement agreement regarding custody or visitation must meet the burden of showing changed circumstances and that the agreement is no longer in the best interests of the child. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Finamore v. Aronson, 382 N.J. Super 514, 522-23 (App. Div. 2006). The issue is "two-fold and sequential." Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The party seeking a modification "must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[]. . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts." Id. at 127-28 (internal citations and quotations omitted). Indeed, when "a genuine and substantial issue" concerning parenting time exists, the court is required to refer the case to mediation pursuant to R. 5:8-1.

The Legislature has found and declared "the public policy of this State to assure minor children of frequent and continuing contact with both parents [after divorce] and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4. Both parties here have a fundamental right to "the custody, care and nurturing of their child[]." Watkins v. Nelson, 163 N.J. 235, 245 (2000). As neither has a right that is superior to the other, "the sole benchmark" to a determination of the parenting time issue is the best interests of the child, Sacharow v. Sacharow, 177 N.J. 62, 80 (2003), that is, what will protect the "safety, happiness, physical, mental and moral welfare of the child," Beck v. Beck, 86 N.J. 480, 497 (1981), "no matter what the parties have agreed to." P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999).

In Faucett, supra, 411 N.J. Super. at 127, we addressed the issue of whether the military deployment of the parent of primary residence for a year or more, standing alone, presented a prima facie case of changed circumstances to warrant a change in custody. Other than his father's deployment, there were no significant changes or problems in the child's life. He remained in the same school, was near his friends, had his medical needs met and there were no reported problems with the care provided by his stepmother. The trial judge found no need for a change of custody to "immediately occur" and concluded there was "no evidence that the child's best interests w[ould] be served . . . by an abrupt change of custody." Id. at 117. Nonetheless, we exercised our parens patriae authority, holding that the mother did not have to abide the change to secure proof of an adverse impact on the child.

Plaintiff's pending deployment for an entire year, in itself, was a circumstance of such magnitude, and likely to affect Billy's welfare, that defendant need not have awaited the passage of time and the consequences of plaintiff's absence vis-a-vis their son, to seek modification.

 

[Id. at 129.]

We concluded that the child's mother met her burden of demonstrating a prima facie change of circumstances that affected the child's welfare based solely upon the father's impending deployment and was therefore "entitled to a plenary hearing as to disputed material facts regarding the child's best interests, and whether those best interests are served by modification of the existing custody order." Id. at 111.

Although this case concerns visitation and not custody, we have recognized that "'the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare,' a plenary hearing must be required by the court even if the parties have waived it." Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (internal citation omitted). See also V.C. v. M.J.B., 163 N.J. 200, 228-29 (2000), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

As in Faucett, the parties' son is doing well in school and has not manifested any overt detriment as a result of the parenting time schedule.3 However, there are certain undisputed facts that raise a genuine and substantial issue regarding parenting time that should be resolved in mediation pursuant to R. 5:8-1 or in a plenary hearing and do not require a delay until there is proof of an adverse impact upon the child. In reaching this conclusion, we draw upon the following factors that are to be applied in a best interests analysis:

the parents' ability to agree, communicate and cooperate in matters relating to the child; . . . the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; . . . the parents' employment responsibilities; and the age and number of the children.

 

[N.J.S.A. 9:2-4(c)]

See V.C., supra, 163 N.J. at 227-28; Hand v. Hand, 391 N.J. Super. 102, 105-106 (App. Div. 2007).

The record here reflects no significant ability by the parents to "agree, communicate and cooperate in matters" relating to their son's needs and preferences regarding parenting-time. However, most obviously here, there has been a significant change regarding the age of the child and the parties' employment responsibilities. In addition, despite a conflict in the parties' representations, there is an absence of competent evidence of the child's preference.

At the time of their divorce, each of the parties had time to spend with their child when they were off from work. Now, only defendant has such free time. Plaintiff's regular parenting time consists exclusively of days in which she is scheduled to work and, during the school year, the child is in school.

When they divorced, the parties' son was two years old and lacked any autonomy. His activities and schedule were completely within their control and easily manipulated within their scheduled parenting time. No external factor had any authority to influence the parties' decisions in allocating his time. At eight years old, their son is forming friendships, both at school and at his father's home. His interest in having a say in pursuing those friendships with both planned and spontaneous activities will only increase over time. It is also represented that he is interested in engaging in community-based activities. Inevitably, the authorities who direct such activities make demands upon a child's time that compete with and sometimes override parents' scheduling plans, even in an intact family, and are unlikely to accommodate a rigid parenting time schedule.

Finally, the motion judge acknowledged that the child is old enough to be interviewed and yet, his voice was not heard as to his preferences.4 Instead, his preferences were the subject of conflicting representations in the parties' certifications.

The facts, including the conflict in representations as to the child's preferences, present a genuine and substantial issue as to parenting time that invokes "the court's special responsibility to safeguard the interests of the child . . . because the child cannot be presumed to be protected by the adversarial process." Kinsella v. Kinsella, 150 N.J. 276, 317-18 (1997).

We are satisfied the undisputed facts present a prima facie change of circumstances that affect the child's welfare. Plaintiff was therefore entitled to a plenary hearing5 as to disputed material facts regarding the child's best interests, and whether those best interests are served by modification of the existing parenting time schedule. We note that, in advancing the best interests of the child, "the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the [issue in dispute] before their marital relationship foundered, subject to the predominant objective of serving the child's welfare comprehensively." Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978).

R

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

 

1 At oral argument, defendant's counsel acknowledged that plaintiff's work schedule had changed as she had represented.

2 As part of this argument, plaintiff contends that the court also erred in failing to interview the child on camera or through a custody neutral assessment. This relief was not specifically requested in the motion but was argued before the motion judge.

3 Still, in light of plaintiff's assertion that the child is unhappy about missing social activities in his hometown, the facts here are distinguishable from Levine v. Levine, 322 N.J. Super. 558, 565 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000)(court found no basis to change custodial arrangement where "all indications are that Danielle is both educationally and emotionally thriving[.]")

4 One of the factors contributing to the reversal of the court's award of joint custody in Mastropole, supra, 181 N.J. Super. at 137-38 was the fact that the court discounted the child's preferences.

5 We do not foreclose the use of mediation to resolve this dispute in the event that both parties and the court conclude mediation is reasonably likely to be successful.