OSCAR F. GONI v. LUDMILLA TCHISTIAKOVA

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

OSCAR F. GONI,

Plaintiff-Respondent,

v.

LUDMILLA TCHISTIAKOVA,

Defendant-Appellant.

_______________________________________

April 6, 2015

 

Submitted March 25, 2015 Decided

Before Judges Fuentes and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FD-19-0190-12.

Ludmilla Tchistiakova appellant pro se.

Oscar F. Goni, respondent pro se.

PER CURIAM

Defendant Ludmilla Tchistiakova and plaintiff Oscar F. Goni are the parents of Lenny,1 presently nine years of age. Defendant is the primary caretaker. Defendant appeals from a November 1, 2013 Family Part order that denied her application to compel plaintiff to contribute to Lenny's before and after school care expenses. The order further provided that, before defendant could file another application seeking plaintiff's contribution to these costs, both his and his family's parenting time had to be "significantly expanded." We reverse.

On September 18, 2013, defendant filed a summary action in the Family Part, pursuant to Rule 5:6-1, to modify an existing child support order.2 At that time, the order compelled plaintiff to pay defendant $140 per week in child support. In her application, defendant asked that plaintiff pay half of the costs for a before and after school care program at the "Day Plus School." The program cost $225 per month. She also sought reimbursement of the costs she had incurred for sending Lenny to this program since September 2012.

According to defendant's application, in January 2013 she filed the same application, but the court ordered the parties to resolve the matter on their own and denied her request. We do not have a transcript of that proceeding and are thus unable to verify what transpired. Defendant also failed to attach a copy of the order denying her request for relief.

The record indicates defendant returned to court in July 2013 asking for the same relief, but the court again ordered the parties to work out the matter on their own and denied her application. We do not have a transcript of that proceeding or a copy of the order denying that relief.

Defendant did provide a copy of the transcript of the hearing that resulted in the November 1, 2013 order. Although plaintiff did not file an application seeking any relief, the court heard his request to increase parenting time. He reported he saw Lenny every other weekend from Saturday at 7:00 p.m. until Sunday at 7:00 p.m., but wanted parenting time every weekend.

Plaintiff further testified that defendant falsely reported to Lenny's school that his fiancé had struck Lenny; that she filed a domestic violence complaint and obtained a temporary restraining order, see N.J.S.A. 2C:25-17 to -35, that was later dismissed because her claims were fabricated; and that she repeatedly called "child services" to make unfounded complaints about him.

The court determined that plaintiff had very limited parenting time and that defendant "should expand that." The court also noted that it was

[his] impression that [this] is a case [where] the defendant will call these agencies and problems are generated for the plaintiff. I do think his family and himself would like expanded visitation time. That should be accommodated before the Day Plus is utilized and paid for by Mr. Goni.

The November 1, 2013 court order stated in pertinent part

Application by defendant for contribution

to Day Plus is denied. Prior to making any additional application [for before and after school care expenses,] parenting time of plaintiff or his family must be significantly expanded. . . . Defendant not to file another application regarding Day Plus until parenting time has been expanded as referenced above.

On appeal, defendant argues the court erred when it denied her request to compel plaintiff to contribute to the subject expenses and, further, conditioned her right to file another application for this relief upon providing plaintiff and his family expanded parenting time. We agree.

"When reviewing decisions granting or denying applications to modify child support, we examine whether, given the facts, the trial judge abused his or her discretion." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (citations omitted). The trial court's decision "'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Ibid. (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).

Here, the court failed to provide a reasonable basis for denying defendant's request that plaintiff contribute toward before and after school care expenses.3 Unless there are circumstances that excuse a parent from paying child support, a parent must contribute to work-related day care expenses. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2671 (2015). There was no evidence plaintiff was relieved of this duty.

Second, even if defendant interfered with plaintiff's parenting time, his obligation to pay child support was not diminished. A "parent's responsibility to support [his] child financially cannot be lessened by the other parent's interference 'with rights of custody or visitation granted by a court.'" Pascale v. Pascale, 140 N.J. 583, 592 (1995) (quoting Ross v. McNasby, 259 N.J. Super 410, 414 (App. Div. 1992)).

Third, there was no application before the court to expand plaintiff's parenting time. Moreover, unless a grandparent or sibling has filed an application and a court has ordered visitation pursuant to N.J.S.A. 9:2-7.1, family members are not entitled to visitation. There is no evidence a court ordered visitation for any family member.

Finally, there was no justification for barring defendant from filing a new application seeking the subject relief, let alone conditioning the filing of a new application upon expanding plaintiff's parenting time and giving visitation to his family members. Before prohibiting a litigant from filing a motion, a court must find it "objectively determinable" that the litigant has used litigation to harass another party. Parish v. Parish, 412 N.J. Super. 39, 49 (App. Div. 2010). Further, any restraint imposed must apply to "'specifically identified claims'" that have been found to "'fall within one of the recognized categories of objective harassment . . . .'" Id. at 49-50 (quoting D'Amore v. D'Amore, 186 N.J. Super. 525, 530 (App. Div. 1982)).

Here, the court did not make the requisite findings to support the imposition of such a drastic measure. Moreover, defendant was entitled to receive and plaintiff had a duty to pay his share of before and after school care expenses.

Accordingly, the November 1, 2013 order is vacated, and the matter reversed and remanded for a determination of plaintiff's share of before and after school care expenses under the Child Support Guidelines. In addition, the court shall consider if defendant is entitled to retroactive relief pursuant to N.J.S.A. 2A:17-23a.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 To protect his privacy, the child's name is fictitious.

2 A copy of this order was not provided.

3 At one point during the hearing, plaintiff stated that Lenny did not need after school care because defendant's work hours ended at 3:00 p.m. However, the trial court never made a finding about the veracity of this claim or found that Lenny did not require after school care.


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