MICHAEL F. SHEA II v. TAWNYA L. SHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1732-10T1

MICHAEL F. SHEA II,

Plaintiff-Respondent,

v.

TAWNYA L. SHEA,

Defendant-Appellant.

_____________________________

November 9, 2011

Argued October 12, 2011 - Decided

Before Judges Espinosa and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-789-03.

Beverly A. Plutnick argued the cause for appellant.

Michael F. Shea, II, respondent, argued the cause pro se.

PER CURIAM

Defendant appeals from the decision of the Family Part granting plaintiff's cross-motion for reimbursement of summer travel expenses for the parties' children and from a subsequent order denying reconsideration. We affirm essentially for the reasons expressed by Judge Julie M. Marino and we add only the following comments.

On April 24, 2002, the parties, then separated, agreed to the entry of a consent order regarding custody and support of the three minor children born of the marriage and equitable distribution. The order provided that the defendant may relocate with the three children to Montana and that the State of New Jersey "shall continue to exercise jurisdiction over issues affecting the children, including custody, residence, parenting time, support, medical insurance, medical care and educational issues for a period of six years from the date of this order." The consent order further provided that "the parties will split equally the costs of transporting the children to New Jersey and back to Montana during the summer break commencing in the year 2003 and every year thereafter."

On April 28, 2004, the court entered an amended dual final judgment of divorce between the parties which provided, among other things, that the order of April 24, 2002, "is hereby made a part of this judgment of divorce, and shall not merge with, but shall survive this judgment of divorce; and the parties are hereby directed to comply with the terms of the same."

At the time the judgment of divorce was entered, the defendant and the children of the marriage had been residing in Montana for two years.

On June 11, 2010, defendant filed a motion in the Family Part for an order "confirming that . . . New Jersey no longer has jurisdiction in this matter and that Montana properly has jurisdiction"; "confirming" that the parenting time provisions included in the consent order of April 24, 2002 remain in effect; and for such further relief as the court may deem equitable and just. Plaintiff, acting pro se, filed a

cross-motion for, among other things, an order compelling defendant to pay half of the expenses plaintiff incurred in having the children travel back and forth between Montana and New Jersey during the summers of 2005, 2006 and 2010.

In an accompanying certification, plaintiff indicated that in September 2009, he purchased a roundtrip plane ticket for one of the children for the summer of 2010 and, at that time, notified defendant of his purchase of the ticket. He also alleged that defendant did not pay her half of travel expenses in the years 2005 and 2006 for which he bought roundtrip tickets for all three children and timely provided information about the expenses to the defendant. Appended to his certification were documents from Delta Airlines confirming the purchase of airline tickets for the three children for the summers of 2005 and 2006. Plaintiff claimed that he was owed $2,672.81 for half the cost of the children's travel expenses for 2005, 2006, 20071 and 2010. Defendant replied that New Jersey no longer had jurisdiction in the matter but "in the event that this court intends to consider plaintiff's cross-motion" she submitted a five page certification contesting the plaintiff's claims.

Judge Marino held a hearing August 6, 2010. She found that the defendant "has resided with the children for eight years in Montana, that the parties agreed that jurisdiction would transfer to Montana and that there's really no good reason that it should not." The judge also noted that defendant indicated she's "going to . . . register the case in Montana . . . [I]f she doesn't register this matter in Montana . . . then [plaintiff] can file a motion here because [New Jersey] still ha[s] jurisdiction until [Montana] take[s] jurisdiction."

With respect to travel expenses, Judge Marino noted that, "it appears that the agreement was to divide them. It appears

. . . [the airline tickets] have been purchased each year well in advance." On August 13, 2010, the court entered an order granting in part the defendant's motion, "[t]o confirm that jurisdiction of this matter has transferred to Montana" and adding that "the defendant shall attempt to register this matter for jurisdiction in Montana pursuant to the parties' consent order; if Montana accepts jurisdiction, then all issues in this matter shall proceed in Montana; if Montana denies jurisdiction either party may petition this court for a determination of proper jurisdiction of this matter pursuant to the UCCJEA." The order also granted plaintiff's motion to compel defendant to reimburse him for her share of the children's summer expenses and required defendant to reimburse the plaintiff in the sum of $2,672.81. In a written statement of reasons appended to the order, Judge Marino noted, in part:

Husband demonstrates that he has maintained a pattern of purchasing the children's airline tickets in the September preceding, his summer parenting time with the children. Husband further demonstrates that he has notified wife of same almost immediately following his purchase of the tickets. Wife contends that she should not be responsible for half of the summer travel expenses incurred by husband as she has chosen to drive to New Jersey to pick up the children, thus incurring her own travel expenses.

Here, the consent order is clear that the parties agreed to equally split the costs of the children's travel relating to husband's summer parenting time. Husband has demonstrated a good faith effort to comply with the agreement. Wife, however, now attempts to unilaterally modify the agreement by asking the court to consider her expenses in driving the children. The court shall not consider same. Wife's unilateral choice to drive the children after being aware of husband's purchase of airline tickets for the children does not free her from her obligations under the consent order.

Defendant thereafter filed a motion for reconsideration of that portion of the order requiring her to reimburse the plaintiff for the children's summer traveling expenses and in support thereof she submitted a lengthy certification. The court heard the motion for reconsideration on October 22, 2010, and, on that date, entered an order which, among other things, denied the defendant's motion for reconsideration.

In a statement of reasons accompanying the order, the court cited R. 4:49-2 requiring motions to state "with specificity" the basis on which it is made. Judge Marino explained, "[defendant] has failed to meet her burden of demonstrating [with] specificity [what] the court failed to consider or otherwise appreciate." She added, that in the motion for reconsideration, "[defendant] sets forth claims dating back to 2005 which address her belief that she should not be responsible for certain travel expenses. Because [defendant] failed to raise these arguments on [plaintiff's] original motion, [defendant] cannot possibly argue today that the court overlooked or otherwise failed to consider those contentions."

This appeal followed.

Defendant contends on appeal that the trial court should have denied plaintiff's cross-motion because the court no longer had jurisdiction and because plaintiff's claims are not factually supported and are barred by the doctrine of laches.

With respect to the issue of jurisdiction, it is clear that New Jersey, the state of judgment, necessarily retains jurisdiction to vindicate its own judgment. See Rimsans v. Rimsans, 261 N.J. Super. 214, 222 (App. Div. 1992); Biddle v. Biddle, 150 N.J. Super. 185, 192 (Ch. Div. 1977). Moreover, the trial court did not rule that it had no jurisdiction and that jurisdiction existed only in the courts of Montana. Rather, the trial court required defendant to "attempt to register this matter for jurisdiction in Montana" and that "if Montana accepts jurisdiction, then all issues in this matter shall proceed in Montana; if Montana denies jurisdiction, either party may petition this court for a determination of proper jurisdiction." Clearly, until such time as the defendant fulfilled these conditions, the trial court, by the terms of its own order, retained jurisdiction.

With respect to the laches argument, this claim does not appear to have been raised below. R. 2:10-2 provides that if an error has not been brought to the trial court's attention, such error "shall be disregarded by the Appellate Court unless it is of such a nature as to have been clearly capable of producing an unjust result." We will decline to consider questions and issues not properly presented to the trial court when an opportunity for such presentation is available "'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indemnity Insurance Co. 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Because the issue in question does not go to the jurisdiction of the trial or concern matters of public interest, we need not consider it and only add the following brief comments.

Laches is "an equitable defense that may be interposed in the absence of the statute of limitations." Lavin v. Board of Education of Hackensack, 90 N.J. 145, 151 (1982). In raising the defense of laches, a party must show more than mere delay. The delay must be unreasonable and have resulted in prejudice to the other party. West Jersey Title and Guar. Co. v. Industrial Trust Co., 27 N.J. 144, 153 (1958).

Here, defendant claims the parties made "previous agreements" which did not require the defendant to reimburse plaintiff for these travel expenses and that "she acted in reliance on those agreements." However, as noted, the trial court specifically found that the defendant offered no credible evidence to support these claims.

Where a claim on appeal is predicated upon an error in fact-finding by a trial court, the scope of appellate review is limited. The court will only decide whether the findings could reasonably have been reached on sufficient substantial credible evidence present in the record, considering the proofs as a whole. Rova Farms Resort, Inc. v. Investors, Ins. Co. of Am., 65 N.J. 474, 484 (1974). We do not disturb the factual findings and legal conclusions of a trial judge unless we are convinced they are so manifestly unsupported by and are inconsistent with the competent, relevant and reasonably credible evidence as to offend interests of justice. Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.) certif. denied, 40 N.J. 221 (1963). Such is not the case here.

Affirmed.

1 Half the travel expenses for 2007 were sought by way of an amendment to the cross-motion filed in July 2010.