DAWN ZERA v. KEVIN KRUSHINSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5185-10T2

DAWN ZERA,

Plaintiff-Appellant,

v.

KEVIN KRUSHINSKI,

Defendant-Respondent.

_______________________________________

May 22, 2012

Submitted March 20, 2012 - Decided

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-203-04.

Dawn Zera, appellant pro se.

Kevin E. Krushinski, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Dawn Zera, appeals from portions of a March 30, 2011 order addressing visitation, tax deductions, and access to frequent flier accounts. Plaintiff also appeals from a June 13, 2011 order denying her motion for reconsideration of the March 30 order. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

Plaintiff and defendant, Kevin Krushinski, were married on October 17, 1993 and had three children. Plaintiff filed for divorce in 2003 and the case was tried over three days between February 15, 2005 and July 26, 2005. A letter opinion was filed on October 24, 2005 and minor revisions are contained in a letter dated December 19, 2005.

The judgment of divorce (JOD), filed on January 30, 2006,1 awarded plaintiff sole legal and residential custody of the three children and included a visitation schedule for defendant. Defendant was ordered to pay rehabilitative alimony of $160 per week for a period of six years and child support of $176 per week.

The JOD did not designate who could claim the children as tax deductions,2 although the December 19, 2005 letter provided: "[w]ithregardtoDefendant'stakingtaxexemptionforthechildren,thejudgmentistobesilent,withthepartiestoawaitapost-judgmentOrder."

The entry of the JOD ended the marriage but signaled the beginning of a long and tortured history of post-judgment litigation marked by extensive, contentious and acrimonious motion practice.

In June 2006 plaintiff filed a removal motion seeking to relocate with the children to Texas. After a hearing, an order was entered on August 3, 2006, permitting plaintiff to move with the children to San Antonio. The order required plaintiff:

to arrange and be responsible for transporting the children to and from Texas to New Jersey for the following periods of parenting time with the defendant:

a) Five (5) consecutive summer weeks to coincide with the children's school break. The defendant, if working during said five weeks, shall arrange for appropriate day care for the children.

b) One week to coincide with the children's winter school break. The parties shall alternate the Christmas holiday.

c) Once week to coincide with the children's spring school break.

Defendant's motion for reconsideration of this order was denied on October 6, 2006. In 2007, defendant moved to terminate alimony, increase parenting time and claim the children as tax deductions. An order entered on November 2, 2007, denied the first two requests but did not address the tax issue.

The parties were unable to agree on specific dates for the spring 2008 visitation and again returned to court. On February 29, 2008, defendant was permitted one extra day of summer visitation as a result of a missed day during spring break but all other visitation aspects of the August 3, 2006 order were reaffirmed.

The parties returned to court twice in 2009 for review of defendant's child support obligation but no orders were entered.

In 2010, plaintiff filed a motion seeking reimbursement for work-related child care and other relief. Defendant cross-moved to terminate his alimony obligation based on plaintiff's remarriage. He also sought increased parenting time and again requested permission to claim the children as dependents for tax purposes. On April 6, 2010, an order was entered granting relief to both parties. The portions of that order relevant to our consideration are as follows:

4. Defendant's parenting time with the parties' children is hereby increased as follows:

a) Defendant shall be entitled to six (6) weeks of parenting time with the children during their summer break, with three (3) weeks to take place consecutively in the beginning of the summer, and three (3) weeks to take place consecutively at the end of the summer; and

b) Defendant shall be entitled to nine (9) days of parenting time, which shall include the two (2) travel days, during the children's Thanksgiving break; and

5. Defendant's wintertime parenting time for 2010-2011 shall end January 2, 2011, rather than January 1, 2011, to allow the parties' children to attend defendant's swearing-in ceremony; and

. . . .

7. Defendant shall be entitled to claim the parties' children as dependants for tax purposes for odd numbered tax years, and Plaintiff shall be entitled to claim the parties' children as dependents for tax purposes for even numbered tax years. . . .

Within days of the entry of that order, both parties sought additional relief. Defendant moved to compel plaintiff to file an amended tax return for 2009 as she had already claimed the children as dependants for that tax year. Plaintiff sought reconsideration of that portion of the order permitting defendant to claim the children as dependents on alternate years.

On June 28, 2010, defendant's motion to compel plaintiff to amend her returns was denied, but the motion judge determined that defendant was entitled to claim the children on his 2009 returns. Because plaintiff had already filed her 2009 returns where she claimed the children as dependents, defendant was permitted to claim them as dependents for the tax years 2010 and 2011, and odd-numbered years thereafter. Plaintiff's motion for reconsideration of the dependency exemption portion of the April 6, 2010 order was denied as was her motion to compel defendant to reimburse her for the cost of the children's flights. No appeal was taken by either party from the April 6 or the June 28 orders.

On January 15, 2011, plaintiff filed a motion for reconsideration of the portions of the April 6, 2010 order regarding visitation and tax exemptions. She also sought a "restraining order" against defendant and his wife "to prevent them from accessing information on the plaintiff and her family."

On March 30, 2011, a new motion judge denied her motions for reconsideration as untimely and found there was no support for the request for a restraining order.

On April 11, 2011, plaintiff filed a motion for reconsideration as to all three issues. Her motion was denied on June 13, 2011 and this appeal followed, raising the following arguments:

POINT I

THE COURT ERRED IN DENYING THE PLAINTIFF'S MOTION TO LIMIT THE DEFENDANT'S PARENTING TIME TO THREE TRIPS PER YEAR WITH A SINGLE VISITATION FOR SUMMER BREAK.

A

THE COURT ERRED BY IGNORING THE NEWLY DISCOVERED EVIDENCE PROVIDED IN SUPPORT OF THE PLAINTIFF'S MOTION.

B

THE COURT ERRED BY FAILING TO FIND CHANGE OF CIRCUMSTANCES SUFFICIENT TO WARRANT REINSTATEMENT OF THE PREVIOUS VISITATION SCHEDULE.

POINT II

THE COURT ERRED IN DENYING THE PLAINTIFF'S MOTION TO REINSTATE THE ENTITLEMENT TO CLAIM ALL THREE CHILDREN AS DEPENDENTS EVERY TAX YEAR.

POINT III

THE COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR A RESTRAINING ORDER TO PREVENT THE DEFENDANT FROM ACCESSING FREQUENT FLIER ACCOUNTS BELONGING TO THE PLAINTIFF AND MEMBERS OF HER HOUSEHOLD.

We do not believe that any of these arguments merit extensive discussion and we affirm based on the thorough and comprehensive conclusions of Judge Alberto Rivas. We add only the following comments.

It is an unfortunate reality that many divorced parents are unable to resolve amicably the tensions that invariably arise when children are involved. O'Donnell v. Singleton, 384 N.J. Super. 141, 144 (App. Div. 2006). The parties here have been incapable of resolving the most petty disputes, such as extending defendant's Christmas parenting time one day to allow the children to be present for defendant's swearing in, or making up one missed day of spring break visitation the following summer. Rather than resolving these disputes, the parties have returned to court repeatedly. The disputes exemplified by the parties' positions here are typical of those faced daily by Family Part judges throughout the State. Those judges "have developed a special expertise in dealing with family and family-type matters. . . ." In re Estate ofRoccamonte, 174 N.J. 381, 399 (2002); Cesarev. Cesare, 154 N.J. 394, 412-13 (1998). Accordingly, we have entrusted to them the delicate responsibility of resolving such disputes.

Nowhere is this task more challenging and demanding than when one parent relocates with the children after a divorce. Issues surrounding these relocations are among the most difficult and heart-wrenching decisions our Family Part judges are required to make. See Morgan v. Morgan, 205 N.J. 50, 54 (2011).

When plaintiff was permitted to relocate to Texas with the children, it was on the condition that she arrange and transport the children to and from Texas to New Jersey for five weeks in the summer plus one week over their winter and spring breaks. When defendant moved for additional visitation, the April 6, 2010 order increased his summer parenting time from five to six weeks. A trial court's decision concerning custody or visitation rights is addressed to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Levine v. Bacon, 152 N.J. 436, 442 (1998). We cannot say that the decision to provide defendant with one extra week with his children was so wide of the mark as to constitute an improper exercise of the trial court's discretion.

We agree with Judge Rivas's decision treating plaintiff's March 4, 2011 motion as an untimely motion for reconsideration of the April 6, 2010 order. A motion for reconsideration is governed by Rule 4:49-2, which provides:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or to which it has erred.

A trial court's determination of a motion for reconsideration, R. 4:49-2, is left to the judge's discretion. See Triffinv. Johnston, 359 N.J. Super. 543, 550 (App. Div. 2003). A trial judge is reversed on appeal only if an "abuse" of that discretion is shown.

The April 6, 2010 order granted defendant one extra week of visitation and the right to claim the children as tax deductions on alternate years. According to Rule 4:49-2, the time period to file a motion for reconsideration of this order expired twenty days thereafter. Plaintiff's motion for reconsideration, filed on March 4, 2011, almost one year later, was clearly untimely and Rule 1:3-4 restricts the ability of the court or the parties to relax or enlarge the time specified in Rule 4:49-2.

Even if we were to consider plaintiff's claims on the merits, we are not persuaded by her argument that the trial court erred as a matter of law in failing to restore her right to claim the children as tax deductions. We find her reliance on our decision in Gwodzv. Gwodz, 234 N.J. Super. 56 (App. Div. 1989) is misplaced. In Gwodz, we acknowledged the propriety of the Family Part to allocate tax exemptions for federal and state income tax purposes to non-custodial parents. Since the trial court in Gwodz had insufficient evidence to make an allocation of the dependent child exemption, we reversed and remanded for the trial judge to "consider evidence and make findings respecting the extent of child support actually provided by each parent . . . and if a change in tax exemptions [was] deemed warranted, [to] determine whether [a] change in the existing support orders [was] required to reflect the benefits achieved by the change." Id. at 62-63.

Here, the motion judge was faced with a changed financial landscape four years after entry of the JOD. Both parties had remarried; plaintiff was seeking additional funds from defendant for work-related childcare; defendant was required to continue to pay his alimony obligation in spite of plaintiff's remarriage; and defendant was granted an additional week of visitation with no adjustment in his child support obligation. The motion judge had "the power to exercise authority to effectively allocate exemptions through use of its equitable power," and the ability to maximize income available for the support of children through use of the exemption. Id. at 61-62.

The JOD was silent on this issue and the matter was not resolved after defendant's first motion. The fact that plaintiff unilaterally decided to take the exemptions every year since the divorce does not constitute an entitlement permitting her to continue to do so. Recognizing that plaintiff had already taken the exemptions for 2009, the judge appropriately provided defendant with relief by permitting him to take the exemptions for the next two years.

Moreover, plaintiff failed to make timely objections to the motion's judge's two decisions on the exemption issue in 2010. A party is not permitted to use a motion for reconsideration as a basis for presenting facts or arguments that could have been provided in opposition to the original motion. Cummings v.Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 389.

The remaining argument advanced by plaintiff challenging the denial of her motion for a "restraining order" to prevent defendant from accessing certain frequent flier accounts is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A

1 Shortly after the December 19, 2005 letter opinion, the trial judge died and the JOD was signed by another judge.

2 Throughout the record in this case, the terms "tax exemptions" and "tax deductions" have been used interchangeably.