GARY S. BENEDUCCI v. MICHELE BENEDUCCI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3969-10T2

GARY S. BENEDUCCI,

Plaintiff-Respondent,

v.

MICHELE BENEDUCCI,

Defendant-Appellant.

________________________________

February 23, 2012

 

Submitted: November 30, 2011 - Decided:

 

Before Judges Axelrad and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-258-04.

 

DeTorres & DeGeorge, LLC, attorneys for appellant (Rosanne S. DeTorres, of counsel and on the brief).

 

McDonald & Rogers, LLC, attorneys for respondent (John P. McDonald, of counsel and on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant Michele Beneducci appeals from portions of the January 21, 2011 order modifying the parenting schedule set forth in the parties' property settlement agreement (PSA) and child support, and the March 7, 2011 order denying reconsideration. We affirm in part and remand in part.

The parties were divorced in 2004 when their daughters were four and five years of age. Their PSA that was incorporated into their divorce judgment provided for joint custody with defendant as the primary residential parent, and plaintiff Gary Beneducci to have parenting time every weekend from 4:00 p.m. on Friday to 4:00 p.m. on Sunday. The PSA also provided for plaintiff to spend a one-week vacation with the children, as well as designated special days and holidays. Child support was set at $1,000 per month, with no reference to the parties' incomes or to the Child Support Guidelines.

Pursuant to an application by defendant in October 2009, the court ordered the parties to seek co-parenting counseling. The parties never jointly sought the assistance of counseling but did attend mediation. In October 2010, defendant filed a motion to enforce litigants' rights and prohibit plaintiff's consumption of alcohol during his parenting time pursuant to the PSA, and to require co-parenting counseling.1

Plaintiff filed a cross-motion to modify parenting time and child support. He requested the court modify visitation to every other weekend from Friday afternoon to Sunday afternoon and every Wednesday from 4:00 p.m. until the beginning of school on Thursday. He explained that the change would result in essentially the same amount of parenting time but would allow him more direct involvement with his daughters' schools and doctors. He provided examples whereby defendant deleted his contact information and attempted to have him excluded from picking up his children at school.

Plaintiff also certified that since 2000 he has been employed with the Federal Bureau of Investigation (FBI) as a Special Agent, he remarried in 2006, his wife is also an FBI agent, and they have two children ages three years and three weeks. He further stated that defendant is employed full-time as a school teacher and part-time as a bartender. Plaintiff represented that, following the divorce, he voluntarily gave defendant periodic monetary increases on an informal basis without the benefit of the Child Support Guidelines. He submitted a Shared Parenting Worksheet under the Guidelines, representing he "utilized the exact figures used by the mediator in calculating [defendant's] income [as] [defendant] told the mediator how much she made in cash tips while bartending [which] amount was not shared with [him][.]" Plaintiff's certification represented he also attached "all supporting documents, as Exhibit B." Defendant's appendix omits "Exhibit B" but includes the four-page Worksheet and plaintiff's and his current wife's 2009 New Jersey tax return and W-2 statements. Plaintiff did not provide an appendix. Plaintiff requested he be ordered to pay $1,243 per month in child support pursuant to his Guidelines calculations.

Defendant filed a response, opposing defendant's parenting time modification request, noting it would not result in the same amount of parenting time by plaintiff. Moreover, it would negatively impact her income and leave her unable to financially support herself and the children. Defendant certified that approximately twenty-five percent of her income was earned at her second job, bartending on Friday and Saturday nights. Moreover, bartending was her only source of income during the summer. According to defendant, by changing the established parenting times, she would be unable to maintain her current bartending employment because "[a]n employer would not be willing to find a substitute every other weekend to cover the nights I would need to take off caring for the children." Alternatively, "employing a caregiver for those nights would result in a monetary net loss; the cost of childcare ($12 per hour) is more than I net per hour on most nights."

She also requested the court maintain child support at $1,660 per month, which plaintiff had been voluntarily paying and apparently found to be fair and equitable. She further claimed the Worksheet figures plaintiff submitted from mediation were confidential and should not be admissible, though she did not dispute the accuracy of the figures on her end. Defendant did question, however, that plaintiff did not provide a current pay stub to the mediator, but rather provided an Excel worksheet he created. Defendant additionally challenged plaintiff's estimation of his parenting time.

Following oral argument in which plaintiff was represented by counsel and defendant was self-represented, the judge entered an order on January 21, 2011. The judge granted plaintiff's request to modify parenting time to every other weekend from 6:00 p.m. Friday to 4:00 p.m. Sunday and 8:00 p.m. Wednesday to Thursday morning the week following weekend visitation and from 4:00 p.m. Wednesday until school on Thursday on the "off" week. The judge noted that visitation orders are subject to modification and found plaintiff demonstrated changed circumstances and that the new arrangement was in the children's best interests. The judge also granted plaintiff's request to modify his child support obligation to $1,243 per month. He noted there was a substantial and permanent change in circumstances and both parties agreed there should be a modification from the PSA. He further noted that defendant provided her Case Information Statement (CIS) but plaintiff did not.2 Nevertheless, the judge granted plaintiff's requested relief because "[d]efendant agreed that the $1243 is acceptable."

Defendant moved for reconsideration. She argued that plaintiff was actually spending forty-eight hours less per month with his children under the new parenting arrangement. She also claimed the judge failed to take into account the serious economic effect on her children resulting from the decrease in her ability to bartend. Defendant emphasized that the Worksheet will be inaccurate following the court's change to the visitation schedule and should be amended to reflect plaintiff's reduced number of overnights and her reduction in income from her secondary job. Plaintiff filed opposition.

Following oral argument on March 4, 2011, the court denied reconsideration, memorialized in an order of March 7, 2011. In his oral decision, the judge explained, in part, that his attention had not been focused on an "hourly tally" of plaintiff's parenting time but on the overall mid-week quality parenting time opportunity he would have with his daughters, who were approximately seven years older than when the PSA was executed. Moreover, he was not insensitive to defendant's secondary employment opportunity in modifying the arrangement but had considered the totality of the circumstances. The judge was further satisfied that defendant's claim of diminution of income was speculative and premature, and not a compelling basis to reconsider support; nevertheless, if the change in visitation renders defendant unable to maintain secondary employment, thereby reducing her income by twenty to twenty-five percent, she could file a motion for adjustment of child support. This appeal ensued.

On appeal, defendant argues the court failed to make specific findings of fact as to all statutory custody factors under N.J.S.A. 9:2-4(c), and the court erred in concluding plaintiff demonstrated changed circumstances in the best interests of the children, thereby mandating a reversal of the modified parenting schedule. She further contends the modification of child support was unsupported by credible evidence of plaintiff's income, his wife's income, daycare expenses, or health insurance costs.

"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). Defendant never contended that plaintiff's proposed change in the visitation schedule was not in the best interests of their daughters, now pre-teens. Her only objection was the anticipated impact on her secondary employment in that she would not be able to bartend on the weekends her children were with her. Plaintiff's request was not an unreasonable one in view of the passage of seven years since the PSA, his remarriage and additional young children, his desire to have more interaction with his daughters' teachers and doctors and share more in his daughters' daily lives, and his apparent problems with defendant concerning school pick-up. Under the totality of the circumstances, we are satisfied the Family Part judge acted within his discretion and made appropriate findings under the law. Accordingly, we discern no basis to disturb the portion of the order modifying the parenting arrangement.

As the judge recognized at oral argument, a CIS is required to be filed in all contested family actions where there is any issue as to support. R. 5:5-2. At argument and in his order, the judge expressed concern that plaintiff had not filed a CIS, although he had provided some financial information. Based on the language of the order, it is clear the judge granted husband's requested child support modification at the $1,243 per month figure because defendant, who was self-represented, agreed to it. We understand that plaintiff was only obligated under the PSA to pay $1,000 per month in child support and that he voluntarily increased it to $1,660 three years prior without prejudice and without any analysis of the Guidelines. We are also aware that defendant did not file a cross-motion to increase child support; however, as reflected in the order, both parties agreed there had been a substantial change in circumstances warranting an increase from the PSA.

It may very well be that the $1,243 per month child support award was correct. However, the fact remains that plaintiff did not file a CIS as required by the court rules. Contrary to his assertion on appeal, the CIS would not have been superfluous but would have reflected the work-related child care costs and health insurance premiums paid by plaintiff to support the $152 and $22 adjustments on lines sixteen and seventeen of the Worksheet. The court should have required plaintiff to file a CIS3 to confirm the calculations were correct. Defendant was self-represented and most likely was unaware of her rights. She was confronted at oral argument with the Hobson's choice of agreeing to the additional $243 per month or having support remain at the figure set in the PSA. Moreover, a parent may not waive a child's right to support. Ordukaya v. Brown, 357 N.J. Super. 231, 240-41 (App. Div. 2003) (citing Monmouth Cnty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 95-96 (Ch. Div. l997)).

Accordingly, we remand for the court to require plaintiff to submit a CIS with appropriate documentation. We leave to the court's discretion whether to conduct oral argument or decide the matter on the papers. We are unaware of whether defendant's financial circumstances changed as a result of the modified parenting arrangement. If so, we leave to the court's discretion whether to address that issue, with appropriate submissions, on remand.

Affirmed in part; remanded in part. We do not retain jurisdiction.

1 In the January 2011 order, the court granted defendant's request regarding the alcohol but denied her request for co-parenting counseling. These items are not part of the appeal.

2 Defendant's certification does not reference any financial documentation as attachments. At oral argument she stated she submitted her pay stubs from her second job. Defendant's CIS is not included in her appendix. Defendant does include in her appendix her 2009 federal tax return, three paystubs from September and October 2010 from her bartending job, and June and September 2010 paystubs from teaching; it is unknown whether these were submitted to the trial court.

3 We are assuming defendant filed a CIS; if not, the court should have required the submissions by both parties.