ANTOINETTE CHANDLER v. AARON CHANDLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1775-11T2

ANTOINETTE CHANDLER,

Plaintiff-Respondent,

v.

AARON CHANDLER,

Defendant-Appellant.

__________________________________

January 31, 2013

 

Argued September 25, 2012 - Decided

 

Before Judges Lihotz and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1024-10.

 

Aaron Chandler, appellant, argued the cause pro se.

 

Kathleen P. Garvey argued the cause for respondent (Marotta & Garvey, attorneys; Ms. Garvey, on the brief).

PER CURIAM

Defendant Aaron Chandler appeals from that part of the Family Part's November 4, 2011 post-judgment order in which the court (1) denied defendant's request to modify residential custody of the parties' two children; and (2) denied defendant various forms of relief based on plaintiff's failure to pay the mortgages on the former marital home as required by the parties' property settlement agreement (PSA). Defendant also argues the court erred in dispensing with oral argument. We affirm in part and reverse in part.

I.

A.

The Dual Final Judgment of Divorce (JOD) incorporating the PSA was entered July 27, 2010 after eleven years of marriage. Beginning in May 2011, the parties engaged in two rounds of post-judgment motion practice, resulting in an order entered June 10, 2011, the November 4, 2011 order that gives rise to the instant appeal, and an amendment to the November 4 order entered on November 9. While we need not fully recount the parties' post-judgment disputes, some are relevant to the instant appeal, as we shall discuss below.

We begin with a brief review of the pertinent provisions of the PSA. With respect to custody, both parties were to enjoy joint legal custody of their two children, born in 1997 and 1999, while plaintiff received primary residential custody. Defendant was to exercise "reasonable parenting time," including every other weekend from Friday after school until Sunday at 7:00 p.m., and shared holidays.

When the parties divorced, defendant was unemployed. The PSA described defendant's obligations while unemployed, and to some extent, delineated modifications of his obligations upon re-employment. The PSA stated that defendant was receiving weekly unemployment benefits of $600, and plaintiff was earning $750 a week, working per diem at a hospital.

Weekly child support was set at $101 while defendant was unemployed. It was to be recalculated when he got a job. Defendant was also obliged to pay five years of alimony through probation, to start when he began to work full time. His new salary would determine the alimony amount. If he earned between $85,000 and $94,999 a year, alimony would be $165 a week and if he earned over $95,000, then alimony would be $200 a week.

The parties acknowledged that there was no equity in the marital home, which was encumbered by two mortgages with a total principal balance of about $160,000. It is undisputed that the home was titled in defendant's name alone, and the mortgage debt was also in his name. The parties agreed plaintiff would remain in the home, assume responsibility for paying the mortgages, and receive the tax deduction for "all interest and taxes paid" after entry of the JOD.

Plaintiff had two years to refinance the mortgages and take title to the property. The PSA required defendant to cooperate by making sure plaintiff received the statements; it absolved plaintiff of responsibility for late payments if she did not receive statements promptly; and it granted defendant the right to assume possession of the home if plaintiff missed or paid late two mortgage payments. The PSA stated:

Wife shall be solely responsible for the payment of the first and second mortgages on the property and further agrees to indemnify and hold the Husband harmless on these mortgages. Husband shall notify the mortgage companies that all mortgage statements shall be sent to the marital premises. Husband shall promptly deliver any mortgage statement delivered to him to Wife. If a mortgage statement is late as the result of Husband failing to timely deliver the mortgage statement to Wife, the late payment shall not count as a late or missed payment. If Wife is late or misses two mortgage payments, then Husband shall have the right to re-enter the property and shall have tow [sic] years to re-finance the property and remove Wife from the mortgage. If Husband does not exercise his right to re-enter the property and re-finance, the property shall be sole [sic] and the proceeds, if any, or debt shall be equally divided by the parties after giving Wife a credit for the pay down on the principal of the two mortgages.1

 

The PSA also required the parties to equalize their credit card debt and retirement accounts, resulting in net payments to plaintiff of $1452.80 and over $11,000, respectively. The parties were to cooperate in preparing a Qualified Domestic Relations Order (QDRO) if one were required.

B.

 

In May 2011, plaintiff moved to compel defendant to change the mailing address of the two mortgage statements, alleging he had failed to do so. Defendant responded that he could not comply. He alleged the mortgagees refused to cooperate because he was the sole borrower. Regarding the first mortgage, defendant alleged plaintiff received email notifications, and had paid the mortgage online. Regarding the second mortgage, the statements were apparently linked to defendant's other personal financial accounts at a credit union. Defendant alleged that he sent the statements to plaintiff by certified mail, which plaintiff refused to retrieve.

Without making any factual findings, the court attempted to resolve the dispute by entering an order on June 10 stating: "[I]n an effort to comply with the spirit of the agreement, Defendant shall provide all necessary information so that the Plaintiff may access the statements on line to ensure timely payment of the mortgages pursuant to the parties' PSA." Neither party appealed.

In her May 2011 motion, plaintiff also sought enforcement of other aspects of the PSA's equitable distribution provisions, which directly or indirectly affected her current financial condition. Defendant had not paid plaintiff the $1452.80 to equalize the parties' marital credit card debt. Although defendant claimed his unemployment prevented compliance, the court found defendant had made no effort to pay over a period of nine months and ordered he do so within thirty days. Plaintiff had also moved to compel defendant to provide sufficient information about his 401k to enable preparation of a QDRO. The court denied that relief only because it was moot, as defendant provided the information before the motion was decided. The court denied without prejudice plaintiff's motion for fees, finding defendant had "made some reasonable efforts to comply" with some provisions of the PSA.2

C.

On or about September 28, 2011, plaintiff again sought enforcement. She asked the court to compel defendant to sign the proposed QDRO which she said was sent to him on September 9. She asked the court to hold defendant in contempt for continuing to fail to pay the $1452.80. She alleged he had started a full-time job around the beginning of August. She asked the court to order defendant to commence paying alimony, and to pay a modified level of child support. She requested oral argument.

Defendant responded that he commenced paying alimony effective August 26, 2011 in the biweekly amount of $400 by paying $400 by check to Probation; he attached a September 6, 2011 wage statement from his new employer, the Newark Board of Education. It reflected a biweekly garnishment of $400 for spousal support against a biweekly salary of over $4000 (exceeding the PSA's $95,000 predicate for $200 a week alimony). The wage statement reflected no garnishment for child support. Defendant did not state when he started his new job. He did not oppose plaintiff's motion regarding the QDRO, nor did he deny that the $1452.80 remained unpaid.

However, defendant cross-moved for relief arising out of his allegation that plaintiff had fallen behind in the mortgage payments. The first mortgagee had sent a notice of intention to foreclose on July 27, 2011, asserting that two months of payments were unpaid, totaling $2670.90 including late charges. Defendant included subsequent notices from late September, reflecting that the mortgage remained in default. He also alleged that plaintiff had paid the mortgage late in the past, and attached a December 2010 statement which reflect numerous late payments and late charges.

He alleged that as a result of plaintiff's non-payment of the second mortgage, the credit union debited his other accounts for the payments. He attached a single page of a four-page statement from July 31, 2011, which appeared to reflect an inter-account transfer of $263 to pay the second mortgage.

He asked the court to: grant defendant ownership of the marital home effective August 2012 and have plaintiff sign over the deed to defendant "if [the] home can be withdrawn from foreclosure status"; require plaintiff to pay all mortgage payments due; and reimburse defendant for withdrawals from his bank account. He asked that he be permitted to claim the tax deduction for interest payments made from his credit union account. He requested that the court declare the start date for his alimony payments, but that he be permitted to pay the alimony payments toward the mortgage. He also asked that the $1452.80 obligation be suspended, in light of the deductions taken against his credit union accounts.

Defendant also cross-moved for shared residential custody of the two children. He asserted that while unemployed, he lived with relatives, "so he did not request any additional parenting time." However, he stated that he had a job, and obtained an apartment that could accommodate both children in the same town as plaintiff. He alleged "[t]he children are 11 and 14 and have expressed interest in also residing with the Defendant[.]" He proposed a "rotating every other week schedule or a schedule where the minor children can reside with him on Monday and Tuesday and rotate every Friday with the Plaintiff." Defendant requested oral argument.

Plaintiff opposed the cross-motion. She alleged defendant had interfered with her ability to pay the mortgage by failing to provide her with access to the mortgagees and to the statements, and by failing to comply with other provisions of the PSA. She stated that she had advised defendant not to send her mail certified, as it was inconvenient for her to go to the post office to retrieve it. She did not respond to his assertion he had also sent statements regular mail, nor that she had online access for the first mortgage. She alleged when she attempted to gain online access to his bank account, he filed a criminal complaint in municipal court.

She also attributed her non-payment of the mortgages to defendant's failure to pay the $1452.80; his delay in signing the QDRO, which would result in a payment to her of over $11,000; and his delay in starting alimony payments and paying increased child support. She alleged alimony should have started "back in July or August when he obtained the full time employment." She alleged defendant failed to provide copies of pay stubs to her or her lawyer to set the amount of his alimony payments. She asserted a print out from probation indicated that probation had only received child support payments and not alimony.3 She asked the court to increase child support to $232 per week based on the guidelines.

Plaintiff also opposed the request to modify custody arrangements. She asserted defendant had never previously requested additional parenting time. She also stated he left the state in May 2011, without making any prior arrangements regarding parenting time:

Prior to moving he did not discuss his move with me and how we could arrange parenting time with him being so far away.4 Defendant just left and he did not bother to even say goodbye to the children. I then learned that he moved back to New Jersey in July, but did not ask to visit with the children until the middle of August, 2011.

 

D.

The court denied the joint request for oral argument, "finding that oral argument will not further elucidate the issues before the [c]ourt in accordance with Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010)."

By order entered November 4, 2011, the court granted plaintiff's motion to compel payment of the $1452.80, and ordered that the amount be added to defendant's child support account and directed Probation to adjust his account accordingly. The court ordered defendant to provide the court with the date he started his new job, and required both parties to provide their last three pay stubs. The court would then calculate child support. The judge stated she could not determine whether defendant had actually paid alimony as the alimony payments were not yet "set up through Probation."

The court denied without prejudice defendant's request to transfer ownership of the marital home effective August 2012. She ordered: "Defendant shall immediately contact the mortgage company and provide them with the required information necessary for Plaintiff to make payments. Defendant shall further determine whether the house can be taken out of the current foreclosure status. All efforts in this regard shall be reported to Plaintiff's counsel." The court denied without prejudice defendant's request to direct his alimony payments to creditors.

In support of her decision, the court reviewed the parties' competing assertions of fact regarding whether plaintiff has received adequate access to the mortgagees and to the mortgage statements. The court also noted plaintiff's assertion that once the QDRO was signed, plaintiff would receive $11,000 that would enable her to bring the mortgage current. The judge concluded "both parties are responsible for the foreclosure status of the former marital home." The court noted, "[b]oth parties dispute whether electronic notification was properly set up," but the court did not make a finding regarding the dispute. The court also found that both parties "waited until the home is now in foreclosure status" before seeking relief from the court.

The court denied without prejudice defendant's request to modify residential custody. After recounting the parties' respective assertions, the court explained that the best interests of the children were paramount and defendant had "failed to prove to the [c]ourt that there has been a change in circumstance that warrants a review of the existing custody arrangements."

In an amended order entered November 9, 2011, the court ordered defendant to sign the QDRO within five days.

Defendant appeals and argues the court erred in declining to hear oral argument or hold a plenary hearing to resolve disputed issues of fact; denying defendant title to the home as of August 2012; and in not allowing defendant to claim the interest paid on the second mortgage on his tax return.

II.

Based on our review of the record in light of applicable principles of law, we conclude it was error for the court to deny the parties oral argument, but we affirm those provisions of the court's order that defendant continues to challenge on appeal.

We begin by addressing the court's denial of defendant's motion to modify custody. A judge's custody determination must be based on the best interests of the child. N.J.S.A. 9:2-4; Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). We defer to the Family Part judge's expertise. Cesare v. Cesare, 154 N.J. 394, 412 (1998); Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003) (discussing deference accorded to trial court's decision regarding alleged changed circumstances supporting request to modify custody). Although the trial court here did not conduct a testimonial hearing and assess witness demeanor, we nonetheless will not disturb findings of fact and conclusions of law premised on fact findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Abouzahr, supra, 361 N.J. Super. at 151 (citation omitted).

However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). Also, "if the court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).

Although defendant sought to modify the PSA's custodial arrangement in place less than eighteen months, "[t]here is no doubt that a judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances[.]" Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981) (citation omitted), superseded by statute on other grounds, N.J.S.A. 2A:17-56.23a, as recognized in Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995). However, the moving party bears the burden to establish a prima facie case for modification by showing there has been a change in circumstances affecting the children's welfare. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 1997); Mastropole, supra, 181 N.J. Super. at 136 (proponent of change bears the burden); see also Beck v. Beck, 86 N.J. 480, 496 n. 8 (1981) (even where the parent and children enjoy a strong, close relationship, "[W]hen seeking joint custody after an initial custody determination has been made, even a parent enjoying such a relationship must satisfy the same burden of proof as applies to anyone seeking to change a custody decree, namely, a change of circumstances warranting modification."). Conclusory allegations do not suffice. Hand, supra, 391 N.J. Super. at 112 (citing Lepis v. Lepis, 83 N.J. 139, 159 (1980)).

Discovery is inappropriate absent a showing of a prima facie case. See Lepis, supra, 83 N.J. at 157 (applying principle to modification of alimony and child support based on changed circumstances). A plenary hearing is required only if there are genuine and substantial issues of fact regarding the children's welfare. Compare, e.g., Mackowski v. Mackowski, 317 N.J. Super. 11 (App. Div. 1998) (reversing and remanding for plenary hearing where "trial court's order was based on its evaluation of conflicting affidavits and adoption of the assertions of one party over the other without the benefit of a plenary hearing"), superseded on other grounds by R. 5:8-6, with Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.) (no plenary hearing was required to authorize mother's relocation of her children out of state, over the father's objection, where no material factual disputes were demonstrated), certif. denied, 187 N.J. 81 (2006). However, if a "genuine and substantial issue" concerning parenting time exists, the court must first refer the parties to mediation in advance of a hearing. R. 5:8 1.

In assessing whether there are requisite changed circumstances, the court must consider the circumstances that existed when the original custody order was entered. Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958). With those facts in hand, the court can then "ascertain what motivated the original judgment and determine whether there has been any change in circumstances," and evaluate "the bona fides of the person who seeks a modification upon the grounds of change in his status of fitness." Id. at 288. Also, "[i]n assessing a claim of changed circumstances deference is given to the length and stability of the existing custody relationship." M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979). The focus of every judicial determination about custody and parenting time is "on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand, supra, 391 N.J. Super. at 105 (citation omitted).

Although the trial judge was conclusory in her determination,5 we agree that defendant failed to meet his burden to demonstrate a prima facie case of changed circumstances warranting a modification of custody. Defendant relies primarily on the ground that he has found a new job and has acquired an apartment near plaintiff that can accommodate the children. That does not suffice.

The PSA reflects that when the JOD was entered, defendant maintained an address in the same town as plaintiff and the children, yet he agreed to every-other-weekend parenting time. Presumably, his housing at the time was sufficient to accommodate the children for weekends, and there is no record evidence to the contrary. Moreover, the acquisition of sufficient living quarters does not by itself establish a change in circumstances. In Mastropole, supra, we concluded plaintiff failed to sustain his burden where the child had been in the mother's sole custody since the parties' separation shortly after birth, the relationship was stable and happy, and the only change was that plaintiff had remarried and established a home that could accommodate the child. 181 N.J. Super. at 137.

We recognize that in contrast to Mastropole, defendant asserts the parties jointly parented the children during the marriage. However, we also must give weight to the parties' own resolution of custody. As evidenced by the PSA, the parties implicitly agreed that the children's best interests would be served by the arrangement they established. Although the parties agreed that child support and alimony would be modified upon defendant's employment, they said nothing in advance to indicate that defendant's employment would justify reconsideration of custody arrangements. Instead, they agreed that plaintiff would retain the marital residence, and remain there with the children who knew it as home.

Defendant also relies on the children's preference. See N.J.S.A. 9:2-4(c) (stating that in determining custody, court shall consider, among other factors, "the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision"). Yet, defendant provides the barest of allegations, stating only, "The children are 11 and 14 and have expressed interest in also residing with the Defendant in addition to residing with the Plaintiff." First, this falls short of a clear expression that the children were dissatisfied with their present living arrangement, and they preferred to modify it, particularly since the PSA allows the children to reside with their father on alternating weekends, and defendant admitted that he was unable to exercise additional time for an extended period during his joblessness. Second, there is no showing that this expression of the children's interest constitutes a change. The children may well have felt that way from the beginning of their parents' separation, yet the parties determined it was in the children's best interests to reside primarily with the mother, in the former marital home.

We may presume for the purposes of our decision that defendant's desire to modify parenting time is made in good faith, and motivated by a genuine desire to spend more time with his children, and to further their best interests. Nonetheless, defendant has not presented a sufficient showing of changed circumstances to warrant modifying the arrangements previously established. The court correctly denied defendant's application without prejudice. Defendant may renew his application if he is able to make a sufficient showing that circumstances have substantially changed warranting a modification.

We turn briefly to defendant's remaining substantive points on appeal. We discern no error in the court's denial of defendant's motion to assume possession of the marital home in August 2012, which was then ten months in the future, although we do so for different grounds. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) ("We are free to affirm the trial court's decision on grounds different from those relied upon by the trial court."). Simply put, the PSA did not contemplate that defendant could invoke his right to re-enter the property upon plaintiff's failure to pay two mortgage payments, but then postpone exercise of the right for almost a year. The PSA expressly provided "[i]f Husband does not exercise his right to re-enter the property and re-finance, the property shall be sol[d][.]" In the event of plaintiff's unexcused failure to pay, defendant had the right to re-enter, or to force a sale, but not to reserve his right in the future, while compelling plaintiff to remain in the home and pay the mortgage.6

We also discern no error in the court's denial without prejudice of defendant's request for reimbursement of the second mortgage payments deducted from his credit union account. Based on our review of the record, we agree with the trial court that there was insufficient evidence to determine the precise amount that was debited against defendant's accounts. Consequently, we also discern no error in the court's denial without prejudice of defendant's motion to deduct on his tax return the interest payments charged to him. Presuming defendant presents the court with sufficient evidence of the debits against his account, and plaintiff reimburses him for those amounts, then plaintiff would be entitled to retain the right to deduct those payments on her tax return.

We note that defendant did not address in his brief that aspect of the trial court's order adding the $1452.80 amount to his Probation account, although he included it in his notice of appeal. Although we may deem the issue abandoned, see Telebright Corp., Inc. v. Director, N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012) (failure to brief issue results in waiver on appeal), we are impelled to note that the court erred. Probation may administer only "alimony, maintenance, or child support or medical support provisions." See R. 5:7-4(b). We therefore reverse that part of the order and remand to the trial court to fashion appropriate relief to assure payment of this overdue amount.

Finally, we address the court's denial of both parties' request for oral argument. Rule 5:5-4 states "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions[.]" Denial of oral argument regarding a substantive issue "'deprives litigants of an opportunity to present their case fully to a court.'" Palombi, supra, 414 N.J. Super. at 285 (citation omitted). This was not the rare case where oral argument on substantive issues would have been "unnecessary and unproductive." Cf. Ibid. Even where there may not be genuine issues of material fact, the court should conduct oral argument if there are substantive legal issues. It is of no moment that the court is able to resolve those issues without the assistance of oral argument. First, it cannot predict what clarifications or arguments counsel may present. Second, oral argument gives counsel or the parties an opportunity to respond to the court's initial view of the factual and legal issues. As we have resolved the issues after oral argument before this court, no further relief is warranted.

A

ffirmed in part, and reversed in part.

1 The JOD does not clearly state the parties' rights and duties if plaintiff timely paid the mortgage, but failed to refinance in the first two years after entry of the JOD.

2 The court also granted in part plaintiff's motion pertaining to a change in the beneficiaries of defendant's life insurance policy.

3 The document is not before us.

4 Plaintiff asserts in her brief that defendant moved to Georgia for two months.

5 The trial court is obliged to set forth its findings of fact and conclusions of law in sufficient detail to explain why it has decided to grant or deny the motion. See R. 1:7-4.

6 Had we not resolved defendant's request for possession in August 2012 on this ground, it would have been incumbent upon the trial court to decide the parties' factual disputes regarding whether plaintiff's failure to pay the mortgages was excused. The PSA is a contract. See, e.g., Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995) (stating that matrimonial settlement agreements are contracts enforceable in equity). While defendant sought relief based on plaintiff's breach of her contractual obligation to make the mortgage payments, she claimed he prevented her performance by his own breaches failing to pay her $1452.80, impeding more than $11,000 in retirement account equalization, and denying her mortgage information. See Creek Ranch, Inc. v. N.J. Turnpike Auth., 75 N.J. 421, 432 (1978) (stating principle that "prevention by one party excuses performance by the other, both of a condition and of a promise") (citation omitted).