TRACEY ANNE ZUCCARO v. BRUCE D. ZUCCARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2403-09T2

TRACEY ANNE ZUCCARO,

Plaintiff-Respondent,

v.

BRUCE D. ZUCCARO,

Defendant-Appellant.

________________________________________________________________

February 18, 2011

Argued November 30, 2010 - Decided

Before Judges Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1120-04.

Frank Imparato argued the cause for appellant.

Robin Jill Schneider argued the cause for respondent.

PER CURIAM

Defendant Bruce D. Zuccaro appeals the orders of October 16, 2009, and December 11, 2009, denying reconsideration of the October order, which modified child support and custody without a showing of changed circumstances. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand to the trial judge for a determination as to the proper disposition of these issues in light of the parties' 2004 oral agreement on the record as well as the entry of a judgment of divorce nunc pro tunc to July 8, 2004.

The parties were married on August 13, 1994. Two years later, their only child was born. An odd procedural history gives rise to the issues in this case. On January 23, 2004, plaintiff Tracey Anne Zuccaro filed for divorce on the grounds of extreme cruelty, citing defendant's alcohol abuse. Plaintiff and defendant were divorced in open court on July 8, 2004, and orally agreed to settlement terms, which included $139 per week in child support and joint legal custody of their daughter, primary residential custody remaining with plaintiff. Defendant agreed to alternate weekend and mid-week parenting time, to be supervised by a third party until defendant completed a substance abuse risk assessment with favorable results. Unfortunately, the oral judgment of divorce and agreement were never memorialized in writing by defense counsel, as he agreed to do.

Two years later, on August 9, 2006, after plaintiff's counsel had prepared the judgment of divorce and settlement, a newly-assigned judge refused to sign the judgment. Although both parties were willing to abide by their original agreement, and equitable distribution had been accomplished pursuant to that agreement, the judge mistakenly interpreted the lack of a written judgment of divorce to mean that the 2004 proceedings were neither binding nor final. As a result, the parties were directed to continue in litigation as if they were not divorced. They attended an early settlement panel in October 2006 but were unable to reach a new agreement. After filing a motion to be relieved, defense counsel was relieved on February 7, 2007.

On January 19, 2007, a final restraining order (FRO) under N.J.S.A. 2C:25-17 to -35 was entered against defendant by consent, granting "temporary child custody" to plaintiff. Parenting time was to be arranged by plaintiff and defendant's father, and visits were to be supervised by defendant's parents until defendant obtained an alcohol assessment and completed any recommended treatment.

Defendant, no longer represented by counsel, first appeared drunk before the court and then failed to appear on the adjourned date. A default was entered on that adjourned date. Plaintiff prepared a notice of equitable distribution pursuant to Rule 5:5-10. Ultimately, the divorce was granted for the second time, and on June 27, 2007, the trial judge entered a written judgment of divorce by default pursuant to the notice of equitable distribution. The terms of the notice of equitable distribution were different than the original 2004 agreement between the parties in that sole custody was awarded to plaintiff, and child support was increased from $139 to $252 per week. Additionally, plaintiff was awarded $10,000 in counsel fees and allowed to declare the child as her dependent for tax purposes.

Defendant engaged in unsuccessful post-judgment motion practice without a lawyer, seeking to enforce the parenting time provisions of the 2004 agreement. Finally, he hired an attorney and moved to vacate the second divorce judgment and enforce the first judgment. Defendant sought relief from the 2007 judgment of divorce pursuant to Rule 4:50-1. The judge agreed on May 29, 2009, that he had made a mistake in refusing to enforce the 2004 divorce and agreement. On October 16, 2009, the judge determined that the parties were in fact divorced in 2004, and he would enforce the 2007 divorce terms as an "amendment" to the 2004 settlement agreement. Defendant filed a motion for reconsideration regarding the enforcement of the provisions of the 2007 judgment, which the judge denied.

Both parties agree that the first divorce proceeding was binding on the parties and that the first divorce settlement, set forth on the record on July 8, 2004, was an enforceable agreement, despite the fact that it was never reduced to writing. See, e.g., Mahonchak v. Mahonchak, 189 N.J. Super. 253, 256 (App. Div. 1983) (citation omitted) ("It is well settled that the oral pronouncement of a judgment in open court on the record constitutes the jural act and that the entry of the written judgment is merely a ministerial memorialization thereof."). The trial judge conceded that he erred in 2007 when he failed to recognize that the parties were already divorced. He mistakenly entered a default and then a second judgment of divorce. The trial judge's remedy in 2009 was to allow the terms of the notice of equitable distribution granted in 2007 to be enforced as a modification to the parties' 2004 settlement without a plenary hearing or findings of changed circumstances.

Defendant appeals, arguing that the court erred when it allowed plaintiff to modify the terms of custody and child support without the requisite showing of changed circumstances. Defendant argues that, given the 2004 divorce, the 2007 "default" is a nullity and the 2007 judgment is void and therefore not enforceable in any way, pursuant to Rule 4:50-1(d). Berger v. Paterson Veterans Taxi, 244 N.J. Super. 200 (App. Div. 1990). We agree.

A court order awarding child support or custody is subject to modification at any time upon a showing of changed circumstances. See Bencivenga v. Bencivenga, 254 N.J. Super. 328 (App. Div. 1992); Griffith v. Tressel, 394 N.J. Super. 128, 139-40 (App. Div. 2007). Consensual agreements concerning custody and child support are subject to modification by the court when a change in circumstances so requires. Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). "[T]he terms of such agreements should receive continued enforcement without modification only so long as they remain fair and equitable. The equitable authority of a court to modify [their terms] in response to changed circumstances . . . cannot be restricted." Ibid. (citations omitted).

Legal custody of a child, as opposed to physical custody, has been defined as "the legal authority and responsibility for making 'major' decisions regarding the child's welfare . . . ." Beck v. Beck, 86 N.J. 480, 486-87 (1981). Rule 5:8-6 requires a plenary hearing in cases where custody is a "genuine and substantial issue," and thus where critical facts relating to custody are in dispute. Pressler & Verniero, Current N.J. Court Rules, comment 1.4.5 on R. 5:8-6 (2011). In custody determinations, "the best interests of the child is [the] polestar" by which the court should be guided. Beck, supra, 86 N.J. at 499. In making an award of custody, whether physical or legal,

the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; . . . the interaction and relationship of the child with its parents . . .; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; . . . [and] the fitness of the parents . . . .

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

The parties agreed on joint legal custody in 2004. When the FRO was consensually entered on January 19, 2007, the judge checked the box on the form order indicating plaintiff would have temporary sole legal custody of their daughter. We do not assume that defendant, by consenting to the entry of the FRO, consented to this change in legal custody. We have not been furnished with a transcript of the hearing which resulted in the order. Defendant was apparently unrepresented at the time. Defendant has had an alcohol problem at least since the time of his divorce, and his visitation was limited in their initial agreement. The entry of a FRO does not necessarily constitute a sufficient basis for a change in legal custody, although it may justify the award of sole legal custody in the appropriate circumstances. See Grover v. Terlaje, 379 N.J. Super. 400, 406-07 (App. Div. 2005) (holding that an amended FRO granting sole legal custody to the unmarried mother was not an abuse of discretion and reiterating that a change of custody determination must be based on changed circumstances warranting modification). Accordingly, we find that a hearing is required before legal custody is changed, in light of the parties' 2004 agreement.

Defendant argues that the trial judge erred by not requiring plaintiff to prove changed circumstances before increasing his child support obligation from $139 to $252 per week. While a two year review pursuant to Rule 5:6B may have been appropriate in any event, we agree that a hearing specifically designated to address child support was needed before increasing child support. Defendant was entitled to an opportunity to provide the judge with information regarding his current finances and ability to pay before a modification was made. Without an accurate assessment of a parent's net income, a child support award cannot be said to be fair and just. Caplan v. Caplan, 182 N.J. 250, 265 (2005).

Although a retroactive adjustment of child support is ordinarily impermissible, because the 2007 order was a legal nullity, upon remand the trial judge should determine what the correct 2007 child support should have been. The court may find that a further adjustment to current circumstances is also appropriate.

R