EILEEN KENNEDY-GALLAGHER v. STEVEN SADOFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5484-04T15484-04T1

EILEEN KENNEDY-GALLAGHER,

Plaintiff-Respondent/

Cross-Appellant,

v.

STEVEN SADOFF,

Defendant-Appellant/

Cross-Respondent.

____________________________

 

Argued September 12, 2006 - Decided November 20, 2006

Before Judges Coburn, R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD 14-675-99.

Wayne F. Jentis argued the cause for appellant/cross-respondent.

Salvatore A. Simeone argued the cause for respondent/cross-appellant (Cutler, Simeone, Townsend, Tomaio & Newmark, attorneys; Mr. Simeone, of counsel and on the brief; Mario A. Ferraro, on the brief).

PER CURIAM

Defendant, Steven Sadoff, appeals from those portions of the order entered in the Family Part on May 6, 2005, that among other matters: 1) directed defendant to pay after-school childcare expenses for the parties' daughter, Kiersten; 2) directed that Kiersten is to be accompanied by an adult chaperone known to her when traveling to and from Florida for parenting time with defendant; 3) directed defendant to pay all travel expenses for Kiersten and the chaperone; and 4) denied his request for attorney fees and costs. Defendant also appeals from the orders of June 16, 2005, and June 27, 2005, that amended the order of May 6, 2005, limiting defendant's parenting time with Kiersten to two weeks in the summer of 2005. Plaintiff, Eileen Kennedy-Gallagher cross-appeals from the order of May 6, 2005, denying her application for attorney fees and costs. We affirm.

The parties were involved in a romantic relationship which resulted in Kiersten's birth on August 30, 1992. Six months following Kiersten's birth, defendant moved to Florida to pursue employment. Both parties later married, with defendant remaining in Florida and plaintiff moving from New York to New Jersey with Kiersten. On December 2, 2002, the parties entered into a consent order that provided, among other matters, that defendant would pay 50% of all work-related childcare expenses for Kiersten; defendant would have three weeks' consecutive parenting time with Kiersten each summer; defendant was responsible for all travel expenses for Kiersten in connection with the parenting time; and that "[a]ll travel done by said child will be accompanied by an adult, until such point she feels comfortable to travel independently. Defendant is not obligated to accompany the child on her travels to and from Florida or pay for anyone else to accompany said child."

On November 13, 2003, defendant moved for a downward modification of his child support obligation and a holiday parenting-time schedule, including a grant of five weeks' parenting time each summer. An order was entered on December 16, 2003, that granted defendant parenting time with Kiersten in New Jersey during the Christmas 2003 school break; directed both parties to work out a specific holiday and vacation parenting-time schedule for the following year; and directed defendant to pay Kiersten's transportation costs when traveling back and forth to Florida. The order further provided that the "court [would] consider, if proper security measures are in place, allowing Kiersten to travel in the custody of the airlines."

Defendant next moved for parenting time during Kiersten's Easter break, April 3, 2004, through April 10, 2004, and for Kiersten to travel by plane to Florida in the custody of an airline attendant. On March 30, 2004, an order was entered: 1) granting defendant parenting time with Kiersten in Florida for the week requested; 2) directing that Kiersten be accompanied on the plane by a chaperone known to her with defendant paying the cost of transportation; and 3) granting defendant parenting time from August 9, 2004, to August 23, 2004, with plaintiff contributing $100 toward the chaperone's transportation costs. Although defendant objected to the court's order limiting his summer parenting time to two weeks, no appeal was taken from that order. On April 1, 2004, an order was entered providing that defendant's mother and grandmother could drive Kiersten to and from Florida during the 2004 Easter break, in lieu of having Kiersten travel by airplane.

On November 23, 2004, plaintiff moved to enforce the 2002 consent order concerning defendant's obligation to pay for after-school child care and orthodontic expenses; defendant cross-moved for a downward modification of his child support obligation. An order was entered that day modifying defendant's child support obligation and dismissing plaintiff's motion without prejudice because plaintiff failed to present sufficient proofs justifying the relief requested.

On February 7, 2005, plaintiff moved for reconsideration of the order of January 19, 2005, denying her application to compel defendant to pay for after-school child care and orthodontic expenses. Defendant cross-moved for a parenting-time schedule for the 2005 Easter, Thanksgiving and Christmas holidays; for three weeks' parenting time from August 9, 2005, through August 31, 2005; and for Kiersten "to travel via airplane to and from Florida and that the cost be shared equally between the parties."

Following argument on May 6, 2005, Judge Dangler ordered, among other matters, that defendant pay past-due and future child care and orthodontic expenses; directed that Kiersten be accompanied by an adult known to her when traveling to and from Florida for parenting time, with defendant paying all costs of transportation; and denied both parties' applications for attorney fees and costs. A confirming order was entered that day.

Following May 6, 2005, the parties submitted their parenting-plan proposals, with defendant seeking three weeks' parenting time for the summer of 2005, while plaintiff requested that the parenting time be limited to two weeks. On June 16, 2005, Judge Dangler entered a parenting-time scheduling order that provided in part: "the [c]ourt directs that the defendant shall have parenting time this summer with Kiersten from July 2 to July 23, 2005. This is for a period of two weeks . . . The [c]ourt directs that each summer the defendant shall have at least two consecutive weeks parenting time with Kiersten to be arranged between all parties." Following plaintiff's request for clarification concerning whether defendant was entitled to two or three weeks' parenting time for the summer of 2005, the judge entered an amending order on June 27, 2005, providing in part: "[t]his [o]rder shall serve to clarify and address some minor changes to the [c]ourt []rder of 6/[16]/05. As to the SUMMER PARENTING TIME, the [c]ourt directs that defendant shall have parenting time this summer with Kiersten from 7/2/05 to 7/16/05. All other portions of the [o]rder of 6/[16]/05 as to summer parenting time remain unchanged."

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED WHEN IT REQUIRED THAT THE DAUGHTER BE ACCOMPANIED BY (AND FATHER MUST PAY FOR) AN ADULT KNOW[N] TO [HER] WHILE TRAVELING TO FLORIDA BY AIRPLANE BECAUSE IT EFFECTIVELY PREVENTS FATHER FROM EXERCISING PARENTING TIME.

POINT II.

THE TRIAL COURT ERRED BY REQUIRING THAT THE DAUGHTER BE ACCOMPANIED BY (AND FATHER MUST PAY FOR) AN ADULT WHEN FLYING TO FLORIDA FOR VISITATION WHEN THE COURT FAILED TO SIMULTANEOUSLY PROVIDE FATHER WITH A CHILD SUPPORT CREDIT FOR SUCH EXTRAORDINARY PARENTING TIME EXPENSE.

POINT III.

THE TRIAL COURT ERRED WHEN IT REDUCED FATHER'S SUMMER PARENTING TIME FROM THREE TO TWO WEEKS.

POINT IV.

THE TRIAL COURT ERRED IN PLACING SUCH OPPRESSIVE FINANCIAL BURDENS AND TIME LIMITATIONS UPON FATHER BECAUSE IT NEGLECTED TO CONSIDER BY DOING SO IT ADVERSELY INTERFERED WITH FATHER'S [ABILITY] TO HAVE PARENTING TIME AND A RELATIONSHIP WITH HIS DAUGHTER.

POINT V.

THE TRIAL COURT ERRED WHEN IT ORDERED FATHER TO PAY THE SUM OF $3,057.38 FOR AFTER[-]SCHOOL CARE EXPENSES BECAUSE THEY WERE UNSUBSTANTIATED AND WHAT LITTLE TESTIMONY WAS TAKEN WAS DEFICIENT AND CONTRADICTORY.

POINT VI.

THE COURT BELOW ERRED WHEN IT DENIED FATHER'S CLAIM FOR COUNSEL FEES AND COSTS.

On cross-appeal, plaintiff argues that the trial court erred by denying her application for attorney fees and costs.

"The scope of appellate review of a trial court's fact-finding function is limited. 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). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." Matter of J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have carefully considered the parties' arguments in light of the applicable law. We conclude that their contentions are without merit and do not warrant an extended discussion in a full written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by Judge Dangler in his oral opinions of April 30, 2004, and May 6, 2005. The judge's findings were supported by substantial and credible evidence in the record. Cesare, supra, 154 N.J. at 411-12. We add the following.

Defendant argues that the trial court abused its discretion when it ordered Kiersten be accompanied by an adult known to her when traveling to and from Florida. This issue was addressed by Judge Dangler when ruling on the parties' cross-motions on March 30, 2004, and May 6, 2005, following his interviews with Kiersten on each motion. During his interview with Kiersten on March 30, 2004, Judge Dangler explained to Kiersten how defendant could arrange to have her fly in the care of an airline attendant who would stay with her as if a bodyguard. In denying defendant's request that the court direct Kiersten fly in the custody of an airline attendant, Judge Dangler stated:

She was very reluctant and very hesitant to want to do that. She just, in her own way, did not want to travel back and forth unless she could be with somebody, [a] family member, friend, somebody that she knew, an adult. So that's the -- the outcome of my meeting with her, and this -- unfortunately, I'm not comfortable forcing any [eleven]-year old to go on airplane with that frame of mind.

. . . .

She has no problems in her travel if, again, she could be with somebody that she knew. And so, I'm not going to force her to travel, you know, in the circumstances of a -- an airline attendant as opposed to a family friend or a family member.

On May 6, 2005, following his interview with Kiersten the day prior, Judge Dangler stated:

We talked about flying on the airplane. She's not opposed to flying. She's -- she really does not want to fly unless she has another adult with her. She doesn't want the stewardess or the steward to fly with her. That's what she told me. That's what she had said. As you know, I talked to her I guess about a year ago, and the order of the [c]ourt today with regards to this, we will have to have somebody accompany her.

. . . .

You know, if -- if there's a storm and the plane has to go down to Charlotte and sit for two or three hours or -- you know, there's a lot of things that can happen, and -- and I'm not going to force a child here to do this at this age. So the order will require her to fly with an -- somebody she -- some family member, somebody she knows.

As far as the particulars on that, we can set all the orders here, what weeks and so forth. My problem is I don't know how much we can do with a girl about to turn [thirteen]. We certainly aren't going to tie her up and throw her on an airplane kicking and screaming. I -- and I don't think Mr. Sadoff wants her down there if she's in that situation. He wants her because he feels emotionally that he'd like to have some time with her, and he would hope that she would enjoy coming down to visit.

Because of the child's expressed reluctance, not once but twice, to fly to and from Florida in the company of a stranger, rather than someone she knows, we are satisfied that the motion judge did not mistakenly exercise his discretion on the motion. We determine that the judge's decision was in general accord with the parties' 2002 agreement that "[a]ll travel done by [Kiersten] would be accompanied by an adult, until such point she feels comfortable to travel independently." (emphasis added). Clearly, Kiersten was not comfortable flying in the company of strangers.

Defendant argues next that the motion judge erred in directing that he be responsible for all costs of transportation incurred by Kiersten and her chaperone. We disagree. There is nothing inherently unjust in requiring the parent who desires to exercise his or her parenting time to pay for the cost of the child's transportation. Moreover, defendant has other choices in exercising parenting time. Defendant could arrange for Kiersten to travel by motor vehicle with members of his family, similar to the travel arrangements in April 2004. Defendant could also coordinate his parenting time with visitation plans by and between other members of his family: "My aunt, mother, or grandmother would transport Kiersten from New Jersey to Florida. My mother lives in Florida, and my aunt lives in New Jersey, and they travel to visit each other several times a year." Lastly, defendant could exercise his parenting time in New Jersey, rather than Florida. Moreover, even if air travel were the only means of defendant exercising his parenting time, we are not satisfied that the costs are so onerous as to effectively prevent defendant from exercising his parenting time.

The defendant challenges those portions of the orders of June 16, 2005, and June 27, 2005, limiting his parenting time in the summer of 2005 to a period of two weeks. We determine that the issue is moot. Notwithstanding, we add the following comment. Defendant's argument that the June 16, 2005 order was intended to provide for three weeks of parenting time, not two, is without merit. Although the dates listed constituted three calendar weeks, the order itself states that the summer 2005 parenting time was to be for two weeks' duration, "[t]his is for a period of two weeks." The end date provided in the order of June 16, 2005, was simply a mistake. There is no evidence to suggest otherwise. The order of June 27, 2005, merely corrected the mistake.

Defendant also contends that the motion judge should not have modified defendant's parenting time under the December 2002 consent order without conducting a plenary hearing, and making specific findings of fact why a reduction of parenting time would be in the best interest of Kiersten. Although the movant on an application for modification for parenting time is required to prove changed circumstances, the long-standing overarching principle to be applied by the court is the best interest of the child. Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971); P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999). Here, the parties submitted proposed parenting plans, with defendant requesting at least three weeks, and plaintiff seeking to limit defendant's summer 2005 parenting time to two weeks. Judge Dangler was wary of permitting more than two weeks because Kiersten had previously expressed in 2004 that as to summer visits, "she [would] only like to try it, say, a week, rather than a two-[or] three-week time period." The judge was also confronted with evidence that during the 2004 Easter break parenting time, that there had been an altercation between Kiersten and defendant wherein he allegedly called her a liar, and she was "very upset and hurt[]." We conclude that the judge properly exercised his discretion limiting defendant's summer 2005 parenting time to two, rather than three weeks. We also note that the ruling is consistent with the court granting two weeks of parenting time in the summer of 2004.

Lastly, defendant asserts that the court's decision effectively modified defendant's future parenting time by limiting it to two weeks each summer, rather than the three weeks previously agreed upon by the parties in 2002. We do not interpret the provisions of the June 16, 2005, and June 27, 2005 orders as changing defendant's right to three weeks' summer parenting time as agreed by the parties in the 2002 consent order, other than the summer of 2005. Defendant's March 14, 2005 application was for a parenting-time schedule for the 2005 Easter, Thanksgiving, and Christmas holiday school breaks, and for the summer 2005. Consistent with the March 30, 2004 order from which no appeal was taken, Judge Dangler restricted defendant's summer parenting time in 2005 to two weeks from July 2, 2005, to July 16, 2005. The order of July 16, 2005, clearly provides: "The [c]ourt directs that each summer the defendant shall have at least two consecutive weeks of parenting time with Kiersten to be arranged between all parties." (emphasis added). The term "at least" only qualifies the minimum consecutive weeks of parenting time. Accordingly, we construe the parties' agreement as provided in the December 2002 order viable unless heretofore modified.

Affirmed.

 

Although the order is file stamped May 9, 2005, it bears a signature date of May 6, 2005.

(continued)

(continued)

14

A-5484-04T1

November 20, 2006