KENT BANIA v. GLORIA BANIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4931-03T24931-03T2

KENT BANIA,

Plaintiff-Respondent,

v.

GLORIA BANIA,

Defendant-Appellant.

 

 

Argued September 20, 2005 - Decided January 20, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-779-02.

Cipriano & Donadio, attorneys for appellant, did not appear at oral argument (Catherine Donadio, on the brief).

Toni Belford Damiano argued the cause for respondent (Damiano Law Offices, attorneys; Steven M. Segalas, of counsel and on the brief).

PER CURIAM

Defendant Gloria Bania appeals from the April 2, 2004 order of the Chancery Division, Family Part, denying her motion for reconsideration. We affirm.

Defendant Gloria Bania and plaintiff Kent Bania were married in 1972. Four children were born during the marriage, which ended in divorce in 2003. Although there were numerous disputes between the parties during the pendency of the divorce proceedings, only their dispute about child custody and child support is relevant to the issues on appeal. As to those issues, on the day of trial and after extensive negotiations, the parties agreed to the terms of a settlement by consenting to it on the record on March 6, 2003. In pertinent part, counsel recited the parties' agreement about child custody and support as follows:

the parties have agreed that they are going to share joint legal and physical custody of the unemancipated children. Neither parent is to be designated as parent of primary residence. Neither parent will pay child support to the other. The parties have agreed that they will pay the expenses of the children as and when the children are with them. They will be responsible for those costs. We will work out the -- any other expenses between them if necessary.

The agreement was subsequently reduced to writing. The written agreement included the following terms relating to child custody:

The parties recognize and hereby agree that the Children are of sufficient age and maturity to determine their respective relationships with each parent. The parties further agree that they shall share joint legal and physical custody of the Children, with neither parent being designated as the parent of primary residence.

Regarding child support, the written agreement provided:

In light of the overall terms of settlement, the parties agree that there shall be no further obligation by either party to provide child support to the other. The parties agreed that in light of each party agreeing to provide for the children when with that parent, until such time as the emancipation of that child, and the essential equalization of their responsibilities for the Children, that the support of the Children is adequately addressed without the need for the establishment of a formal sum of child support to be paid by one parent to the other.

After the written settlement agreement was prepared, defendant refused to sign it. Instead, she executed a substitution of attorney, relieving the attorney who had represented her during the settlement negotiations and designating herself to act pro se.

In July 2003, defendant filed a motion seeking to vacate portions of the agreement, including the terms concerning child custody and child support. Plaintiff cross-moved for a variety of relief including an order compelling defendant to execute the written agreement and enforcing its terms. The Family Part judge, who had presided at the proceedings surrounding the divorce and had heard the recitation of the terms of the settlement, entertained oral argument on the cross-motions in September 2003. He denied defendant's motion and granted plaintiff's cross-motion, following which an amended judgment of divorce which incorporated the written settlement agreement was filed. Defendant neither sought reconsideration nor pursued an appeal.

In January 2004, defendant retained new counsel and moved for a modification of the provision of the settlement agreement relating to child support, for an order directing plaintiff to turn over to her a check representing insurance proceeds for a damaged vehicle and for other relief not relevant to the issues on appeal. In support of her application for relief respecting child support, defendant certified that the original agreement contemplated that the children would spend an equal amount of time with each parent. She certified that by agreeing that each parent would be responsible for the children's expenses when the children were with each of them, they intended that they would be sharing the expenses for the children equally. She further certified that in reality, the children spent little time with plaintiff, with the result that she was bearing more than an equal share of their support.

Plaintiff cross-moved to enforce the agreement. He argued that the original understanding of the parties, as expressed both in original recitation of terms on the record and in the written settlement agreement, contemplated that each parent would provide for the children when the children were in the care of each and that in fact each was doing so. He disputed defendant's factual assertion about the amount of time that the children spent with him. In addition, he asserted that the agreement about the children's expenses when they were in each household was part of a more complex arrangement relating to their support. Plaintiff contended that there was no evidence of changed circumstances and he argued that the January 2004 motion was substantially the same as the prior application that had been denied in September 2003.

The same Family Part judge heard the January 2004 motion and cross-motion. In particular, in response to the argument from defendant's new lawyer that defendant had not expected that the children would spend so much time with her and that she was "overwhelmed" and was "supporting the children on her own" the judge commented:

But I have to say this and I said it before and I'll say it again. This case almost didn't settle because Mr. Bania wanted custody of those children. And this thing went on for a long time and that was a sore spot. And it wasn't until the very end, if memory serves me right, that he backed off because of the trade of the houses -- but he didn't want that. He wanted -- he was fighting for those children. Trust me. And it was at the very last minute that he backed off. And I don't know what the final reason was.

So understand she wanted them and she understood what the deal was and they both understood what the deal was. And it was very specific and it was very detailed and it took some time to get there. So this isn't something that was just thrust upon her because if that's the situation he'll take those kids back right now.

Turning to the merits of defendant's motion, the judge agreed with plaintiff, finding that all of the issues had previously been addressed and rejected either at the time of the entry of the original judgment of divorce or in the post-judgment motions.

On March 8, 2004, defendant moved for reconsideration. Plaintiff again cross-moved to enforce his rights. The motion judge again entertained oral argument. In denying the motion for reconsideration, he again found that the agreement of the parties was clear with respect to their child custody and child support obligations and that defendant had failed to demonstrate that there was any change in circumstances sufficient to support relief. In relevant part, he stated:

the agreement says -- and I had forgotten this -- that each party will pay the expenses of a child or children while that child or children is with that respective party. Well, it's the same difference. So for your client to say she needs more money 'cause the kids are with her, she knew what her obligation was going to be. She agreed to it. That's why there was no child support paid. When she has the kids she pays out of pocket money. When he has the kids he pays out of pocket money.

He therefore denied defendant's motion for reconsideration, finding that all of her arguments had been addressed in her earlier applications and that there was no evidence of changed circumstances.

On appeal, defendant argues that the original settlement agreement is unenforceable because it includes her waiver of the children's right to child support, that the court erred in failing to appreciate that there was a change in circumstances warranting relief, that the court should have modified the settlement agreement in light of plaintiff's breach of its terms, that the court should have granted the remedy of reformation or rescission of the agreement to ameliorate the unfairness of its terms, and that the court erred in failing to conduct a plenary hearing respecting plaintiff's disposition of the insurance proceeds.

Our review of the record demonstrates that defendant's assertion on appeal that she was entitled to a share of the insurance proceeds is without merit. R. 2:11-3(e)(1)(E). The insurance company's check was issued and cashed prior to the divorce. In response to her January 2004 motion seeking relief, the judge found that the proceeds had been used prior to the divorce for household expenses. That finding is supported by substantial credible evidence in the record and is entitled to our deference. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Defendant's motion for reconsideration raised no new issue concerning the insurance proceeds that would entitle her to relief. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

Our review of defendant's assertions concerning child support and changed circumstances, however, while unpersuasive, do merit discussion. We first note that the scope of our review of the trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Id. at 413.

Second, the judge had presided over this matter during the negotiations that led to the settlement and had continued to hear the numerous motions defendant filed thereafter. He was, therefore, well aware of the parties and their respective positions.

Third, while the court has the power to order a modification of either a child support award, see Lepis v. Lepis, 83 N.J. 139, 149 (1980), or a settlement relating to child support, see Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div. 2000), it is the burden of the party seeking that relief to demonstrate changed circumstances. See Lepis, supra, 83 N.J. at 157. Our review of the record on appeal provides ample support for the Family Part judge's finding that defendant's repeated assertions about the children's living arrangements were no different from the facts on which she had relied for her arguments about child support both prior to and after the settlement was reached. In light of that factual finding, we find no ground on which to disturb the judge's conclusion that defendant failed to demonstrate that the circumstances had changed within the meaning and intendment of Lepis. Similarly, we find no ground on which to disturb his conclusion that defendant failed to demonstrate any ground sufficient to support her application for reconsideration. See Cummings, supra, 295 N.J. Super. at 384.

Fourth, the facts that defendant included in her certification seeking to modify the agreement relating to child support were not sufficient to require that the judge convene a plenary hearing. As we have previously held in the related context of disputes relating to alimony, "[a] hearing is not required or warranted in every contested proceeding for the modification of a judgment or order . . .." Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998). Rather, a hearing is only required "where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful . . .." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). In the absence of factual allegations in defendant's own certification sufficient to support the relief she sought, no plenary hearing was needed.

Fifth, we disagree with defendant's assertion that the settlement agreement amounted to an improper waiver of child support in derogation of the children's rights. It is well settled that the most important consideration in any family court matter is the best interests of the children. See Monmouth County Div. of Soc. Serv. for D.M. v. G.D.M., 308 N.J. Super. 83, 88-89 (Ch. Div. 1997). It is equally well established that the right to child support belongs to the child, and not to the parent, and that it is therefore a right that the parent cannot waive. See Pascale v. Pascale, 140 N.J. 583, 590 (1995); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Neither proposition, however, bears on the issues here in dispute. As the Family Part judge recognized, the parties did not waive child support. Instead, they entered into a complicated agreement, the specifics of which we have not set forth, in which support for the children was addressed in a variety of ways. One aspect of that overall agreement was the agreement that each parent would bear the children's expenses while the children were with that parent. We detect no inappropriate waiver and no ground on which to question the validity of the settlement in this regard.

 
Affirmed.

(continued)

(continued)

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A-4931-03T2

January 20, 2006