KAREN FASANO v. DOUGLAS J. SCALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KAREN FASANO n/k/a KAREN

FASANO THOMSEN,

Plaintiff-Appellant,

v.

DOUGLAS J. SCALES,

Defendant-Respondent.

________________________________

May 29, 2014

Argued: May 14, 2014 Decided:

Before Judges Fuentes, Simonelli and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-989-08.

Karen Fasano Thomsen, appellant pro se.

Jennifer Falstrault argued the cause for respondent (Kasowitz, Benson, Torres & Friedman, LLP, attorneys; Ms. Falstrault, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from the May 3, 2013 order of the Family Part denying her motion for reconsideration of her request for a modification of the parenting time provision set forth in the parties' Property Settlement Agreement (PSA), and the September 18, 2013 order denying her request for a plenary hearing. We affirm.

The parties were married on May 6, 2000, separated in 2006, and divorced on September 2, 2010. They have two children, a daughter who is now thirteen years old and a son, who is now twelve. Both children are honor students and take advanced classes at school. According to their September 1, 2010 PSA, the parties share joint legal custody of the children, with plaintiff designated as the "primary residential parent" and defendant serving as the "secondary residential parent."

The PSA sets forth the parties' parenting time agreement in great detail. With regard to the specific provisions involved in this appeal, defendant has parenting time with the children on alternate weekends, beginning at 6:00 p.m. on Friday and ending on Tuesday morning when the children return to school. After a weekend during which defendant has parenting time, the children spend a Thursday overnight with him, from 6:00 p.m. on Thursday until Friday morning. After plaintiff's weekend with the children, they spend an overnight with defendant on Wednesday, from 6:00 p.m. until Thursday morning. Defendant also sees the children for dinner on Monday after a weekend when plaintiff has parenting time.

The PSA states that it "contains the entire understanding of the parties, and there are no representations, warranties, covenants or undertakings other than those expressly set forth" in the agreement. The PSA does not include any provisions prohibiting either party from using child care services, such as babysitters, nannies, or other third-parties, to care for the children during their parenting time. The PSA also does not include a "first refusal clause," which would require the party having parenting time to return the children to the other parent in lieu of using a child care provider.

In February 2011, plaintiff married an individual who works in Iowa and she now spends time in that state. She also maintains a home in New Jersey and she and defendant live in close proximity to each other in the same neighborhood. Sometime after the divorce, plaintiff entered an educational program in Iowa to obtain an advanced legal degree. She attended class on Mondays in Iowa and commuted to and from New Jersey to have her parenting time with the children. Plaintiff completed the program and obtained her degree in May 2012.

In November 2012, plaintiff filed a motion seeking a modification of the parenting time agreement. Because she was no longer attending her educational program, plaintiff asserted there had been a change of circumstances as she now had more time to spend with the children. Plaintiff also objected to defendant using a nanny to pick up the children after school at the start of his parenting time and then care for them until he returned home from work at dinner time. She also objected to defendant having the nanny care for and then drive the children to school in the mornings after he went to work.

Plaintiff sought an order requiring defendant to: (1) pick up the children for all of his parenting time and, if he cannot do so, to permit her to pick up the children for parenting time; (2) drop off the children at 7:00 a.m. each morning to her on his way to work, rather than have the nanny take them to school; and (3) grant her "the right to first refusal" to care for the children in any instance where defendant might need to use third-party childcare for more than 2.5 hours. Defendant opposed the motion.

On January 25, 2013, Judge John R. Tassini denied plaintiff's motion in a thorough written decision. The judge found that plaintiff failed to demonstrate that her alleged change in circumstances required a modification of the parenting time provisions the parties had painstakingly negotiated in their PSA. The judge stated:

Use of [third-]party child care is a foreseeable part of parenting and there is no competent evidence that . . . defendant's use of [third-]party child care is contrary to the children's best interests. Further, . . . plaintiff knew of and assented to . . . defendant's nanny providing care for the children. The circumstances now were largely reasonably foreseeable at the time of the PSA and [Judgment of Divorce]. [D]efendant has changed jobs and he now has offices in New York City and in Red Bank, so that he alleges that he is more available to the children. There is no evidence here that the nanny's care, including preparing the children for school and transporting them to school is contrary to the best interests of the children. There is no competent evidence that a modification of the PSA's parenting schedule is necessary for the children's best interests.

Plaintiff filed a motion for reconsideration, which Judge Tassini denied on May 3, 2013. In another thorough written decision, the judge found that plaintiff was essentially raising the same factual and legal arguments considered in the prior motion. The judge observed:

When married, the parties used a nanny or babysitter or other responsible adult for child care. Their PSA states, "Prior to reaching this settlement, [plaintiff] has considered and carefully weighed all of the potential life changes that may occur in her life during the upcoming approximately 10 year period until their son . . . graduates high school." . . . Their PSA also states, "Routine or day-to-day decisions regarding each Child shall be made by the parent with whom the child is residing during that time.["] . . . The parties' PSA sets forth a comprehensive parenting time schedule pursuant to which . . . defendant has parenting time every 7 out of 14 nights (one being a dinner visit) with the children. The PSA does not include a right of first refusal related to parenting time.

Judge Tassini ordered the parties to participate in the mediation because they "have repeatedly litigated issues related to parenting time." If mediation failed, the judge advised the parties they could return to ask for a plenary hearing. When the mediation was unsuccessful, plaintiff asked that a hearing be scheduled to further consider her request to modify the parenting time schedule to prohibit defendant from using a nanny during his parenting time. Finding no need for a plenary hearing under the circumstances presented in this case, Judge Tassini denied the request in a September 18, 2013 order. This appeal followed.

On appeal, plaintiff argues that the judge erred in denying her request to modify the parties' parenting time agreement and her request for a plenary hearing. We disagree. Having considered plaintiff's arguments in view of the record and the applicable law, we affirm substantially for the reasons expressed by Judge Tassini. We add only the following brief comments.

The scope of our review of the Family Part's orders is limited. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),

we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion. Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).

We will only reverse the judge's decision when it is necessary to "'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Plaintiff's arguments concerning the parties' parenting time schedule, in light of the record, reveal nothing "so wide of the mark" that we can conclude that a clear mistake was made by the judge. Ibid.

A party who seeks a modification of a judgment that incorporates a PSA regarding parenting time must meet the burden of showing changed circumstances and that the agreement is no longer in the best interests of the child. Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App. Div. 2006). The issue is "two-fold and sequential." Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). In this case, the parties contemplated that plaintiff might participate in an educational program and that, if she did, she would complete that program at some point. Thus, her early completion of the program in 2012 was not a change of circumstances. Moreover, plaintiff failed to demonstrate that a change in the established parenting time schedule or the prohibition on the use of third-party child care would serve the best interests of the children, both of whom continued to excel in school. Therefore, we discern no basis for disturbing Judge Tassini's decision to deny plaintiff's request to modify the parenting time provisions of the PSA.

We also agree that a plenary hearing was unnecessary. "A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Here, the relevant material facts were not in dispute, as the parties agreed that defendant used a nanny to care for the children during the few hours he worked at the beginning and end of his parenting time. Thus, we defer to the judge's determination that a plenary hearing was not necessary. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012).

Affirmed.