CRAIG LEWIS v. TRACEY LEWIS GLOGORSKI

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CRAIG LEWIS,

Plaintiff-Respondent,

v.

TRACEY LEWIS GLOGORSKI,

Defendant-Appellant.

__________________________________

April 13, 2015

 

Submitted October 29, 2014 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1433-05.

Tracey Lewis Glogorski, appellant pro se.

Law Offices of Hanan M. Isaacs, P.C., attorneys for respondent (Hanan M. Isaacs, on the brief).

PER CURIAM

Defendant Tracey Lewis Glogorski appeals the Family Part's August 2, 2013 order modifying residential custody of the parties' older son and terminating child support. We affirm in part and remand in part.

I.

We discern the following facts and procedural history from the record on appeal.

Plaintiff Craig Lewis and Glogorski were married on September 1, 1991. Lewis is a businessman and Glogorski is a doctor. They have two sons: Allen, born in 1995, and Isaac, born in 1999.1 Lewis and Glogorski separated in 2005, after which Lewis filed for divorce.

In February 2007, the Family Part entered a consent order providing for joint legal custody, with Glogorski designated as the parent of primary residence and Lewis designated as the parent of alternate residence. On May 14, the court entered a final order for parenting and custody time, which continued the existing custody arrangement.

In April, the parties entered into an agreement for binding arbitration on economic issues. A final judgment of divorce was filed on December 18. The judgment provided that it would be amended to incorporate the results of the then-pending arbitration.

The arbitration decision was issued on August 26, 2008, and supplemented on February 13, 2009. The arbitrator's award was limited to the determination of unresolved financial issues, including child support.

On November 13, the parties entered into a consent order to settle financial issues, including the sale of the marital home, child support, and the payment of higher education expenses. Lewis agreed to $2235 per month in child support, payable in two installments per month. Lewis was to make the payments through the probation department.

In addition, Lewis and Glogorski agreed that their children should continue their education after high school. They each agreed to pay fifty percent of the cost of each child's higher education, less any grant, scholarship, or loans received. The percentage allocation was subject to review if, at the time either child applied to college, a party's annual salary had changed. Further, the parties were to resolve any college expense issues prior to involving the court.

As of 2011, both Allen and Isaac were attending private schools in New Jersey. In May 2011, Lewis moved to California for business reasons. At approximately the same time, Allen stopped, at least temporarily, communicating with him.

On May 17, the court entered an order modifying Lewis's parenting time in light of his move. The order provided that Lewis would have parenting time for one weekend per month, would be permitted to spend time with the children when he was in New Jersey on business, and that they would be with him in California during their spring and half of their summer vacations. In addition, the judge ordered that neither parent should disparage the other in front of the children, nor "attempt to alienate the affections of the children" toward the other parent. The parties' joint legal custody continued, with Glogorski remaining the parent of primary residence.

In 2012, Glogorski sought permission to relocate to Florida with the children so she could earn additional income. On May 4, the Family judge granted Glogorski's request to relocate. In May, Glogorski moved to Florida with her new husband and Isaac. Allen, who was seventeen, was allowed to remain in New Jersey so he could finish his last year of high school in New Jersey.

In April, Lewis filed a motion alleging that Glogorski had alienated his two sons from him. He maintained that he had not received any information regarding Isaac's application for enrollment in a school in Florida. On May 4, the judge entered an order appointing Timothy F. McGoughran, Esquire, as a guardian ad litem for both Allen and Isaac. McGoughran was to determine whether parental alienation had occurred.

In October, Lewis successfully moved to terminate the requirement that McGoughran investigate and attempt to resolve the issue of alienation. Lewis remained solely responsible for payment of McGoughran's fees. On October 26, McGoughran issued a report outlining his interactions with Lewis, Allen, Glogorski, and her husband. His report stated that he had assisted the parties in reaching an oral agreement to modify the children's custody and support arrangements to accommodate Allen's stay in New Jersey. He also reported that he had discovered no direct evidence of parental alienation.

On November 6, Lewis filed a pro se motion seeking change of custody and enforcement of the oral agreement mediated by McGoughran. Among other relief, he sought residential custody of Allen, alleging that the parties had already made such an agreement "in principle," that McGoughran had recommended it, and that he had been fully supporting Allen since October in conformance with the agreement. He also requested termination of his child support obligations, contending that the parties had agreed to that as part of the custody change. Lewis sought reimbursement for child support paid since October 1. He also asked that Glogorski be required to pay at least fifty percent of the expenses incurred by McGoughran. Finally, Lewis requested reaffirmation of all other orders, including the requirement that both parents share in the costs of private schooling and college for the children.

In November, Glogorski, also acting pro se, opposed the motion. She argued that Lewis had failed to submit an updated case information statement with his motion and that there had been no change in circumstances warranting a change in custody. Glogorski represented that, although she had been open to the idea of a change of custody when there was a guardian ad litem to protect the best interests of the children, she expressed concern that there would be nothing to protect the children from losing their father's financial support without one. She also expressed concern that a change of custody would result in Allen being ineligible for in-state tuition at public colleges in Florida. She requested that custody stay the same and that Lewis pay seventy percent of Allen's additional expenses. Glogorski claimed she had not stopped supporting Allen. In February 2013, the judge issued an order denying Lewis's motion without prejudice, and ordering a plenary hearing on the issues raised in the motion.

The judge also denied Lewis's request that Glogorski pay half of McGoughran's fees. Although Lewis continued to pay Allen's expenses, he stopped paying child support while the motion was pending. Lewis subsequently had his wages garnished.

On April 29, Glogorski filed a motion for reconsideration, arguing that no plenary hearing was required. Lewis, then appearing through counsel, opposed the motion. On June 21, the judge denied Glogorski's request without prejudice and scheduled the plenary hearing "on the issue of whether the parties settled the matter of child support of the [2012-13] school year and the parties' respective rights and duties relative to child support."

Both sides submitted the prehearing positions to the trial judge in writing. The plenary hearing took place on July 18. Lewis was represented by counsel, but Glogorski appeared pro se. The judge outlined the issues as follows

Now, I think there's no dispute that the parties hoped that [Allen] would complete his senior year [in New Jersey].

. . . Mr. McGoughran has stated that [Glogorski] offered to him a proposal for the 2012/2013 school year that she would keep, that's to say have residential custody of [Isaac] and she would be financially responsible for [Isaac]. And that [Lewis] would have responsibility for and make direct payments for [Allen's] expenses which were expected to be [$3500] to [$4000] per month, and they would "figure out college later."

And Mr. McGoughran stated that he made that offer known to [Lewis], [Lewis] accepted, and [Lewis] started making payments for [Allen]. But [Glogorski] has placed in issue whether there was such an agreement.

And so we need to make a record in that regard, and I need to make a decision in that regard because that will [affect] the parties' obligations and we would have to have some sort of record and accounting with regard to their respective obligations.

Glogorski acknowledged that she wanted her son to stay in New Jersey for his senior year of high school. She maintained that Lewis stopped paying child support, so she could not afford to have Allen continue to live there. She had encouraged Allen "to make amends with his dad," hoping that "his dad would help [her] support him so that he could finish out his senior year because [she] knew how much he wanted to stay there." She maintained that Lewis "would not cooperate at all."

Because she was not receiving child support, Glogorski told McGoughran that the deal was off, and that Allen would have to move to Florida. When Allen asked if he could stay in the event his father paid for his expenses, she agreed, but told him that any arrangement would be between him and his father. In addition, Glogorski maintained that the deal was only until May 1, 2013, when Allen would finish high school in New Jersey and then move to Florida.

McGoughran testified that the parties had reached an agreement whereby Allen would be in Lewis's residential custody and Isaac would remain in Glogorski's residential custody. In addition, no child support would be exchanged. According to McGoughran, the idea had been initiated by Glogorski. He testified that Glogorski wanted a custody situation with mediated communication, in which there would be no direct contact between herself and Lewis. He got the sense that money was an issue, and that Glogorski and her husband did not believe that Lewis would agree to support Allen.

McGoughran further testified that the agreement would relieve Glogorski of her financial concerns and would be of limited duration.

The theme was that they were each going to have custody of one child, there was going to be no direct [child] support between the two of them, and that we were going to That wasn't going to be, you know, there was for a year I mean, it wasn't ongoing. There was a question as to where [Allen] was going to go to college, either in Florida or California.

In addition, the parties would split private school costs for both Allen and Isaac.

According to McGoughran, he presented the proposal to Lewis in September or early October 2012. Lewis agreed to the arrangement and began paying for Allen's expenses in early October. McGoughran testified that Glogorski did not reject the proposal, but continued to negotiate through October. She never terminated the negotiations.

On October 19, 2012, McGoughran spoke to Allen, who confirmed that Lewis was paying his bills. However, McGoughran conceded that he never communicated to Glogorski that Lewis was performing under the agreement.

Lewis testified that he sent Glogorski a letter on October 9, informing her that he agreed to the change in custody for Allen and wanted to draft a consent order to that effect. He listed the terms of the consent order as follows: (1) he would assume residential custody of Allen and she would continue residential custody of Isaac; (2) no child support would be exchanged; and (3) all prior orders would remain in effect. Glogorski never responded to the letter, but she stopped paying for Allen's expenses. At the time of the hearing, she had not resumed paying for Allen's expenses. Lewis stopped paying child support in conformity with the agreement. Glogorski contacted probation, which subsequently collected the outstanding child support. As of the date of the hearing, Lewis was current with his child support for both children.

According to Lewis, he emailed McGoughran on October 14, after Allen told him that Glogorski was no longer supporting him financially. Lewis responded by immediately sending Allen money "ahead of anything [being on] paper because [Allen] needed [him] to take care of him." He also sent Allen a credit card and paid his overdue rent and the rent for the following month. He told McGoughran that Glogorski had not responded to his letters, and he might have to file a motion for custody change, which he did on November 6.

The judge issued a written decision on August 13, 2013, and an implementing order on the same date. In his decision, the judge found that an agreement between the parties had been reached in October 2012 "as demonstrated by [Glogorski's] ceasing payment of [Allen's] room and board and [Lewis's] payment of [Allen's] room and board and sending him a credit card for his expenses." The terms were: "(1) [Lewis] shall have primary custody of [Allen] and [he] shall pay [Allen's] expenses directly[;] (2) [Glogorski] shall have residential custody of [Isaac] and [she] shall pay [Isaac's] expenses[;] (3) [n]either party will pay the other child support . . . [;] (4) [o]rders otherwise continue." The judge also found that "the modification of custody and [the] child support obligation was in the children's best interests" and that "[Allen] [had] completed his senior year in a school where he was happy and performed [well]." In addition, he concluded that "[Isaac] was best served residing with [Glogorski]."

The judge granted Lewis's request for modification of custody and for reimbursement of child support payments. Lewis was to have residential custody of Allen, and Glogorski was to have residential custody of Isaac. In addition, child support would not be exchanged, effective October 1, 2012. This appeal followed.

II.

On appeal, Glogorski's primary argument is that the trial judge erred in making the change in the children's residential custody and the termination of child support open ended, rather than limiting it to the school year 2012-2013. She also argues that the parties' oral agreement to amend their written property settlement agreement was invalid under the statutes of fraud applicable in the states of Florida and California, where she and Lewis reside, respectively.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "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." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

As a general rule, we also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

We have held that, "'where thefocus of thedispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

A party who seeks modification of a judgment or order regarding custody or visitation, including one based on a property settlement agreement, "must meet the burden of showing changed circumstances and that the agreement is [no longer] in the best interests of the child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also 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). The party seeking the modification "must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[] . . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts." Id. at 127-28 (first three alterations in original) (citation and internal quotation marks omitted).

Because neither parent has a right that is superior to the other, "the sole benchmark" to a determination of parenting arrangements "is the best interests of the child," Sacharow v. Sacharow, 177 N.J. 62, 79-80 (2003), that is, what will protect the "safety, happiness, physical, mental and moral welfare of the child." Beck v. Beck, 86 N.J. 480, 497 (1981) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)) (internal quotation marks omitted). The child's best interests are controlling "no matter what the parties have agreed to." P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)) (internal quotation mark omitted).

"The age of the child certainly affects the quantum of weight that his or her preference should be accorded." Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977). However,

"[a] trial judge is not bound by a young child's preference to live with one parent over the other." The judge is only required to give "due weight to the child's preference;" the preference is a factor which the judge should consider along with all of the other relevant factors. Thus, stated preferences are not conclusive but must be considered in applications for modification.

[Ali v. Ali, 279 N.J. Super. 154, 169 (Ch. Div. 1994) (quoting W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989), appeal dismissed, 121 N.J. 630 (1990))].

See also Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958); Boerger v. Boerger, 26 N.J. Super. 90, 103 (Ch. Div. 1953). Courts should also evaluate the "'character, condition, habits and other surroundings' of the parents in considering their fitness and the welfare of the children." Sheehan, supra, 51 N.J. Super. at 291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952)).

We find no error in the trial judge's decision to enforce the parties' oral agreement (1) that Lewis would have residential custody of Allen during his final year of high school, even though he would reside in New Jersey and (2) that there would be no payment of child support during that time. That decision was fully supported by the record and the judge's credibility determinations.

However, the judge had specifically found that the parties' agreement was that the new "arrangement would continue until Allen entered college (in the fall of 2013)." The August 2, 2013 order contains no such provision and there is nothing in the judge's written decision explaining why the arrangement should continue beyond the time agreed upon.

Consequently, we are constrained to remand the matter to the Family Part for further proceedings. On remand, the judge must consider whether the residential custody and child support arrangements should continue beyond the agreed upon date and, if so, on what basis. We express no view as to whether the parties ought to return to their prior arrangement or whether the judge should fashion a new arrangement for both custody and child support, based on the best interests of both children and the facts existing following fall 2013.2 We note that child support considerations can differ when one child is attending college and another is still residing with a parent. See Jacoby v. Jacoby, 427 N.J. Super. 109, 119-122 (App. Div. 2012).

Having reviewed Glogorski's arguments concerning the statute of frauds, which was not raised in the trial court, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, remanded in part.

1 We use pseudonyms to refer to the children for the purpose of confidentiality.

2 Although a supplemental plenary hearing may well be required, we leave that decision to the sound discretion of the trial judge.