ILENE BRODY v. JOEL BRODY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2345-04T32345-04T3

ILENE BRODY,

Plaintiff-Respondent,

v.

JOEL BRODY,

Defendant-Appellant.

________________________________________________________________

 

Argued November 10, 2005 - Decided

Before Judges Wefing and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Somerset

County, FM-18-342-00.

Thomas A. Battaglia argued the cause for appellant.

Deborah A. Rose argued the cause for respondent.

PER CURIAM

The parties were married on February 16, 1996, and two children were born of the marriage: Adam was born on August 25, 1992, and Marianne was born on December 6, 1994. The parties were divorced in June 2000. Defendant Joel Brody appeals from orders of the Family Part entered on October 18, 2004, and December 1, 2004. We affirm in part and reverse in part.

As a result of defendant relocating to North Carolina, plaintiff filed a notice of motion to modify the custodial arrangement and to adjust child support payments to reflect plaintiff's increased time with the children. Plaintiff also asked the court to order that defendant be solely responsible for transportation costs and supervision of the children when they traveled to and from North Carolina.

[A]s to the trip to North Carolina, I cannot afford to pay for the transportation, particularly, at holiday time for the children. I never budgeted into my life money for that purpose. Moreover our daughter, who has serious behavioral problems, cannot fly without adult supervision. It would be unfair and unreasonable for our son to have to take responsibility for managing her behavior during a flight, in the airport past the security gates, or during an unexpected layover somewhere on the way. I respectfully request that Defendant be responsible for the transportation costs of the children and that he accompany them on the trips until such time as our daughter is able to travel without the need for adult supervision.

On October 18, 2004, the court required defendant to pay eighty percent of the costs of transportation for the children. The order also provides that "[t]he parties shall mutually agree as to mode of transportation and arrival and destination locations, and if they cannot, flights shall be to and from (on the New Jersey end) either Newark, Mercer County or Philadelphia Airports."

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN PUTTING A LIMITATION ON WHAT AIRPORTS COULD BE USED WHEN TRANSPORTING THE CHILDREN FOR VISITATION.

POINT II

BASED ON THE TOTALITY OF THE ADDED BURDENS ON DEFENDANT, THE TRIAL COURT ABUSED ITS DISCRETION IN REQUIRING DEFENDANT TO PAY 80% OF THE CHILDREN'S TRANSPORTATION COSTS, COMPEL HIM TO TRAVEL WITH THE CHILDREN AND TO PAY PARTIAL COUNSEL FEES TO PLAINTIFF'S ATTORNEY.

"The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We do not disturb the factual findings and legal conclusions of a trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (citation omitted). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. In this case, however, we are unable to locate any reasons for limiting airline flights to Newark, Mercer County or Philadelphia airports.

Defendant argues that plaintiff's notice of motion did not ask for a limitation on the airports to be used when the children travel to and from North Carolina to visit their father. According to defendant, if any such relief had been requested, "a reasonable defense could have been presented":

For example, LaGuardia airport is actually closer than the Philadelphia airport. It could have been presented that LaGuardia was the only area airport that had direct flights to and from Wilmington, North Carolina. By excluding LaGuardia, the court mandates two air trips for each trip to and from Wilmington. This adds substantial times to the children's trip for no reason. This would also substantially increase Defendant's time and money for his required accompanying the children.

In response, plaintiff argues:

Contrary to Defendant's position, the trial court did not entertain a new application without notice. Rather, it merely addressed a clarification question of its decision upon request of a party. Due to a dispute about interpretation of details of the Order regarding transportation that arose when the attorneys left the court room, the matter was easily cleared up by way of a telephone conference. Certainly, in the interest of judicial economy, a conference call to clarify a point of confusion is not only within the Court's discretion but practical and reasonable in order to equitably resolve a matter relating to a motion that had just been argued.

We commend the trial court's efforts to accommodate the parties by participating in a telephone conference call with the attorneys following oral argument on October 15, 2004; however, a verbatim record must be made of all such telephone arguments. R. 1:6-2(e). Apparently that did not happen in this case, and we are unable to properly review the airport restriction without the benefit of a record and the findings of fact and conclusions of law mandated by Rule 1:7-4. Thus, we are constrained to reverse and remand paragraph 2 of the order dated October 18, 2004, which requires the children to fly to and from the Newark, Mercer County or Philadelphia airports.

We have considered defendant's remaining contentions in light of the record, the arguments, and the applicable legal principles, and we conclude that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A)(E). Our review of the record confirms that the findings of the trial court are firmly supported by adequate, substantial, credible evidence, and its conclusions predicated on those findings are legally sound. Accordingly, with the exception of the airport restriction, we affirm substantially for the reasons set forth by the motion judge in the orders under appeal.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

 

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A-2345-04T3

December 2, 2005