BRADLEY ROSENTHAL v. MELANIE C. WHYTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1776-10T4

BRADLEY ROSENTHAL,

Plaintiff-Respondent,

v.

MELANIE C. WHYTE, f/k/a

ROSENTHAL,

Defendant-Appellant.

__________________________________

December 5, 2011

 

Submitted November 2, 2011 - Decided

 

Before Judges Fuentes and Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-39-09.

 

Philip N. Muldoon, attorney for appellant.

 

Richard A. Russell, attorney for respondent.

PER CURIAM

Defendant Melanie Whyte applied to the Family Part for modification of a property settlement agreement (PSA) incorporated into a final judgment of divorce. After failing to achieve her goals, Whyte renews her substantive arguments in this appeal, claiming that changed circumstances and the best interests of the child compel modification of both the parenting time and child support provisions set forth in the PSA. She further challenges the Family Part's award of attorney's fees to plaintiff Bradley Rosenthal on the ground that the court failed to weigh the relevant factors set forth in Rule 5:3-5(c). We affirm in part, and reverse and remand in part.

I.

Whyte and Rosenthal were married in March 2002. They had one daughter, Mia (a pseudonym), together in March 2005. The parties eventually separated and a final judgment of divorce was entered on September 29, 2008.

The judgment incorporated a PSA, which was executed on July 8, 2008. Section 2.1 of the PSA provided that the parties would share joint legal custody of Mia, with Whyte as the parent of primary residence and Rosenthal as the parent of alternate residence. The PSA contemplated that Whyte would move with Mia to upstate New York, where they currently reside. Rosenthal remained living in, and coincidently working for, Cape May County. The roundtrip driving distance between the two parents' residences is over five hundred miles.

The PSA provided that Rosenthal could see Mia one weekend each month, plus specified holidays, as well as enjoy extended parenting time over the summer. Section 2.3 set forth the summer parenting time schedule, in which Mia would reside with Rosenthal for one continuous month plus one additional week to be chosen by him. Rosenthal elected to have five weeks of continuous parenting time during the summers of 2008 and 2009.

Section 3.1 of the PSA provided that Rosenthal would pay $132 per week in child support "based upon a New Jersey Child Support Guidelines calculation" beginning on the date Whyte departed from the marital residence. Pursuant to Section 3.3 of the PSA, the parties agreed to "waive all rights to receive support from each other whether in the form of alimony or otherwise." The agreement also noted that Rosenthal had consented to the removal of Mia out of state so that Whyte could pursue a business venture "at the considerable expense of his future relationship with his child," but that in return, "[h]usband does not wish to be held responsible for [Whyte's] financial support in the event that venture fails."

Rosenthal's 2010 five-week summer parenting time with Mia was scheduled to commence on June 19, 2010, one day before Father's Day. On June 17, 2010, however, Whyte e-mailed Rosenthal to inform him that she was withholding his parenting time with Mia.

On June 23, 2010, Whyte filed a notice of motion with the Family Part requesting modification of the final judgment of divorce (1) "as it pertains to parenting time for the parties' minor child to more conform with her best interests" and (2) to change "the child support for the parties' minor child to comport with the incomes of the parties as the result of a change of circumstances for each."

In an attached certification, Whyte outlined a series of incidents that occurred during the summers of 2008 and 2009, which she claimed warranted a modification of parenting time. She alleged that Rosenthal failed to adequately protect Mia from insect bites during his 2009 summer parenting time, despite receiving a letter from Whyte's prior attorney regarding the subject. She also claimed that Rosenthal demonstrated a lack of care for Mia's general health and heart condition, by failing to inform Whyte of Mia's becoming sick while under his care and by expressing an unwillingness to take her to previously scheduled medical appointments. In the summer of 2009, Whyte also learned that Rosenthal had taken Mia to Lake George without informing her of the trip. The "most serious incident," however, took place during the Memorial Day weekend of 2010. One day after dropping Mia off with Rosenthal at an agreed-upon location in New York, Whyte received a telephone call from a United States Border Patrol officer informing her that Rosenthal attempted to cross the United States-Canada border without proper identification for Mia. According to Whyte, Rosenthal and Mia were detained for several hours before being released into the United States.

Rosenthal denied these allegations and claimed that Whyte unilaterally terminated his parenting time over the Father's Day weekend. With regard to the Memorial Day weekend incident, he explained that he and his girlfriend had taken Mia (and the girlfriend's children) to Niagara Falls, planning to walk across the Rainbow Bridge to have lunch in Canada. Because Rosenthal did not have a passport for Mia, however, the Canadian Border Patrol telephoned Whyte to ask for permission for Mia to enter Canada, which she refused. After walking back to the United States, Rosenthal and Mia were again delayed entering the country until Whyte could be contacted. According to Rosenthal, "[t]he whole process took a half hour."

In addition to these events, Whyte claimed that the current visitation schedule, which removed Mia from her care for up to five weeks each summer, would "have a detrimental effect on [Mia's] educational and social progress." She requested a modification of Rosenthal's summer parenting time, to two two-week periods over the summer, rather than five consecutive weeks.

With respect to child support, Whyte contended that because her earnings had fallen sharply after leaving her former teaching position in New Jersey and moving to New York, and because Rosenthal had received a raise in salary, Rosenthal's child support contribution should be recalculated to account for the change in circumstances, and to include Mia's tuition fees and daycare expenses, which were not provided for in the original calculation.

On July 7, 2010, Rosenthal filed a cross-motion requesting denial of all relief sought by Whyte and seeking compensatory parenting time, a full custody evaluation, the enforcement of certain provisions of the PSA, and reallocation of attorneys' fees.

Being sensitive to the passage of time and unable to swiftly schedule a hearing due to calendar conflicts, the Family Part judge wrote to the parties on July 23, 2010, informing them of his decision on the 2010 summer parenting time dispute. After reviewing the parties' submissions, the judge ordered five weeks of uninterrupted parenting time in favor of Rosenthal to commence on July 26, 2010, on the condition that Rosenthal provide Whyte "with an itinerary regarding how [Rosenthal] intends to spend the five (5) weeks with the child. [Rosenthal] is permitted to deviate from that itinerary so long as Ms. Whyte is given twenty-four (24) hours notice."

On August 13, 2010, a hearing was held before the motion judge. After considering the oral arguments presented by the parties' attorneys, the judge denied Whyte's request for modification of the parenting time schedule. In reviewing the incidents which she claimed caused her concern, the judge concluded that although some of Whyte's concerns were valid, there was no reason to re-examine the overall parenting time arrangement because of "the limited amount of time that's passed since the [PSA] was struck." The judge noted that the parties had specifically contemplated Whyte's move with Mia to upstate New York, far from Cape May County, requiring both parties to invest significant effort to make sure that the parenting schedule was followed.

With respect to Whyte's request for modification of child support, the court similarly found that because the PSA was less than two years old and there had been no significant change in either parent's circumstances, particularly none that were not anticipated by Whyte's voluntary change in employment, no modification was warranted. The added expenses for tuition and daycare were found to be inconsequential in regards to the changed circumstances calculus.

Finally, with regard to Rosenthal's application for compensatory time for the visitation days that Whyte withheld, as well as attorney's fees, the court granted Rosenthal one additional weekend to make up for both the Father's Day weekend and two additional weekends withheld by Whyte, and ordered Whyte to pay one half of Rosenthal's attorneys' fees associated with her application in the amount of $2,670. A memorializing order dated September 2, 2010, was entered by the court.

On September 28, 2010, Whyte filed a motion characterized by the court as not having been filed "within the proper time limit by the rule" for reconsideration. Nonetheless, in a written decision entered on October 29, 2010, the court denied the motion for reconsideration, finding it to "[m]erely [reiterate] previous arguments." The court, however, granted Rosenthal's request for enforcement of litigant's rights and attorneys' fees relating to the reconsideration motion. A memorializing order was entered on November 4, 2010. This appeal, challenging the orders of September 2 and November 4, ensued.

II.

Decisions rendered by the Family Part are generally entitled to deference due to "'the family courts' special expertise in family matters.'" N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009)); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998).

"A party seeking modification of a judgment, incorporating

a PSA regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J.

34 (2003); see also Faucett v. Vasquez, 411 N.J. Super. 108,

119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The issue is "two-fold and sequential." Id. at 127. 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).

Whyte argues that Mia's impending entry into kindergarten and Rosenthal's supposed inability to properly care for the child presented changed circumstances warranting judicial review. Specifically, Whyte alleged that Rosenthal (1) unsuccessfully protected Mia from insect bites, (2) failed to appreciate the dangers of driving in inclement weather with Mia in the car, (3) refused to "undertake[] any involvement in [Mia's] medical well-being despite the existence of a noted health concern," and (4) neglected to inform Whyte of trips outside New Jersey and to Canada. In rendering its decision, the court determined that while Whyte's concerns "warranted . . . consideration," the "background of concerns, especially given the limited amount of time that's passed since the [PSA] was struck" did not require a modification of parenting time.

When parties voluntarily enter into an agreement, "[s]ubsequent events which should have been in contemplation of the parties as possible contingencies when they entered into the contract will not excuse performance." Schiff v. Schiff, 116 N.J. Super. 546, 561 (App. Div. 1971), certif. denied, 60 N.J. 139 (1972). Whyte insists that because Mia has reached school age and become involved in extra-curricular activities modification of the parenting time arrangement is warranted, especially during the summer months. However, the parties contemplated, and Whyte admits in her brief, that "[a]ll parties agreed that [Mia] was scheduled to begin kindergarten in September 2010." Whyte further argues that the court improperly focused on the immaturity of the PSA, to the exclusion of Mia's best interests. However, by focusing on the age of the PSA, the court was merely pointing out that many of the alleged changes were specifically contemplated when the PSA was executed, such that Whyte could not establish a prima facie change in circumstances impacting Mia's welfare. The Family Part properly exercised its discretion in holding that there had been an insufficient change in circumstances to warrant modification of parenting time.

Whyte further contends that the Family Part judge should have held a plenary hearing to determine whether the parenting time schedule had to be amended. We disagree. An appellant is not entitled to a plenary hearing where she has not made a sufficient showing in her submissions that there are material facts in dispute. See Schiff, supra, 116 N.J. Super. at 56; see also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (the opportunity to seek modification "need not include a hearing when the material facts are not in genuine dispute"). Here, the relevant material facts were not in dispute. Although the parties presented differing versions of Rosenthal's child-rearing practices, the court rightly determined that none of those events were significant enough to trigger the need for an evidentiary proceeding, regardless of whose version it believed to be true.

Whyte claims that a modification of child support was warranted based on "a decrease in [her] income, an increase in [Rosenthal's] income and the incurring of preschool/daycare expenses for [Mia]." "Whether a[] [support] obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). A motion to modify a support obligation "'rests upon its own particular footing and [we] must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). An award of child support "will not be disturbed unless it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice.'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)).

Nevertheless, a support order is "always subject to review and modification on a showing of 'changed circumstances.'" Lepis, supra, 83 N.J. at 146 (citations omitted). See also

N.J.S.A. 2A:34-23 (stating orders setting child support "may

be revised and altered by the court from time to time as

circumstances may require"). A party seeking modification of a

child support obligation has the burden to show materially changed circumstances warranting relief from the current child support order. See Ibrahim v. Aziz, 402 N.J. Super. 205, 213 (App. Div. 2008) (holding defendant had the burden to show that a decrease in his income warranted a downward modification in his child support obligation).

A showing of changed circumstances requires the party seeking modification "to convince the court that to enforce the agreement would be unconscionable, the same standard that is applied by courts of equity to the specific enforcement of contracts in other fields." Schiff, supra, 116 N.J. Super. at 561. "Only if such a showing is made does the court have the right to order full discovery regarding the financial circumstances of the other spouse." Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). "[T]he guiding principle [in making this determination] is the 'best interests of the children.'" Lepis, supra, 83 N.J. at 157.

Some "changed circumstances" that have been found sufficient to modify an existing child support arrangement include: "(1) an increase in the cost of living[;] (2) increase or decrease in the supporting spouse's income[;] . . . [and]

(6) subsequent employment by the dependent spouse[.]" Id. at 151 (internal citations omitted). Moreover, an increase in the child's needs "whether occasioned by maturation, the rising cost of living or more unusual events has been held to justify an increase in support by a financially able parent." Ibid. (citing Shaw v. Shaw, 138 N.J. Super. 436 (App. Div. 1976)).

Under Section 3.1 of the PSA, Rosenthal was obliged to pay $132 in child support per week. At the time of the agreement Whyte was a school teacher. However, the PSA expressly noted that she was about to leave her teaching position to pursue a "new business venture" in New York. In support of her application for increased child support, Whyte cited her decrease, and Rosenthal's increase, in income.

At the motion hearing, the court found that Whyte's claimed reduction in income was an anticipated event. It stated, "[a]t the very least I think I should impute income to her at that level." With respect to Rosenthal's increase in income, which went from $1,000 to $1,200 per week, the court found it was not so substantial to "warrant a reexamination of the child support."

Based upon the motion record, we conclude that the Family Part acted within its principled discretion in denying the application to modify child support payments. Whyte's salary was understandably affected by her decision to leave her teaching position in favor of embarking on a business venture in New York. However, a trial court is called to consider whether "[t]he circumstances claimed to be changed by defendant's income are, in reality, the circumstances contemplated by the very agreement plaintiff now seeks to abrogate." Glass v. Glass, 366 N.J. Super. 357, 376 (App. Div.), certif. denied, 180 N.J. 354 (2004). Here, that decision to change occupations had not only been made at the time the PSA was executed, it was incorporated into the agreement. With respect to Rosenthal's modest increase in income, we do not view as an abuse of discretion the Family Part's holding that "changed circumstances" had not been shown. Cf. Isaacson, supra, 348 N.J. Super. at 579 (a "substantial increase in plaintiff's income" may warrant an adjustment in child support).

Lastly, Whyte argues that the motion judge erred in awarding Rosenthal one half of his attorney's fees without conducting a thorough-going analysis under Rule 5:3-5(c) and N.J.S.A. 2A:34-23. We review an award of counsel fees for abuse of discretion. Where the judge follows the law and "makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000).

Because we are unable to detect an express rationale for the attorneys' fees award, we must remand for a proper explanation of reasons. See Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003). Rule 5:3-5(c) lists the following factors for the court's consideration in its award of attorneys' fees:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

In Mani v. Mani, 183 N.J. 70, 93 (2005), the Supreme Court

described the required considerations in awarding counsel fees

pursuant to Rule 5:3-5(c)(1) and Rule 4:42-9(b):

[T]he court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.

 

[Id. at 94-95 (citations omitted).]

Here, it could be reasoned that the court focused on the "the reasonableness and good faith of the positions advanced by the parties both during and prior to [the motion]." R. 5:3-5(c)(3). In reaching its decision, the court expressed its disapproval of Whyte's self-help in suspending visitation, but also acknowledged Rosenthal's less-than-ideal conduct of bringing Mia to the Canadian border without a passport and without advance notice to Whyte. It explained:

We have court orders and we've reduced these things to writing for a reason, which is that people simply don't do what they think is appropriate under the circumstances, and I know that that sounds strange even as I uttered it, but you have to abide by the court order. What Mr. Rosenthal did in my view was a stunt. It was boneheaded, and to a certain extent he was messing with her, but it wasn't a direct violation of the court order, and to simply say that you're not getting that parenting time . . . [t]hat type of self help, we have chaos otherwise, and I don't expect that what Mr. Rosenthal did was appreciated. At the same time, especially since the deal had been struck and confirmed as recently as a couple days before the anticipated drop-off, that you crossed the line, ma'am. Because, [addressing Rosenthal's attorney], I believe that a large degree of the responsibility falls on [Rosenthal's] side and he could have avoided it, I'm not asking him I'm not giving him everything that he's asking for either in terms of fees or in make-up time . . . I'm going to order [Whyte] to pay half of your fees associated with these applications.

 

However, the court did not address many of the other factors listed in Rule 5:3-5(c), including the financial circumstances of the parties, the amount of fees previously obtained, and the parties' ability to pay their own fees. Therefore, we remand for a more thorough statement of reasons. See Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007).

III.

In summary, we affirm the Family Part's denial of Whyte's two-pronged application for a reduction of Rosenthal's parenting time and an increase in child support for Mia. We reverse and remand the dispute over the reallocation of attorneys' fees for further proceedings in accordance with this opinion.1 We do not retain jurisdiction.

 

1 Except to the extent that it was an independent basis for the additional reallocation of attorneys' fees, we affirm the Family Part's discretionary denial of Whyte's motion for reconsideration. See Palombi v. Palombi, 414 N.J. Super. 274, 288-89 (App. Div. 2010). However, on remand, the Family Part must address whether, and to what extent if any, there should be reallocation of attorneys' fees related to the reconsideration motion.