ALEXI STEELE v. BRIAN STEELE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4031-10T4

ALEXI STEELE,

Plaintiff-Respondent,

v.

BRIAN STEELE,

Defendant-Appellant.

______________________________________

December 3, 2012

 

Submitted March 6, 2012 - Decided

 

Before Judges Nugent and Maven.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1247-07.

 

Darren C. O'Toole, attorney for appellant.

 

Paras, Apy & Reiss, P.C., attorneys for respondent (Peter C. Paras, of counsel; Mr. Paras and Susan M. Markenstein, on the brief).

PER CURIAM

Defendant Brian Steele appeals from those provisions of a Family Part order that: denied his motion to modify the parenting-time schedule the parties agreed upon in their matrimonial settlement agreement (MSA); denied his request for an order compelling plaintiff Alexi Steele to schedule the children's non-emergency medical appointments at times when he could attend; denied his request for counsel fees; and granted plaintiff's request for counsel fees. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

I.

After six years of marriage, the parties divorced. Their September 15, 2007 dual judgment of divorce (JOD) incorporated their MSA, which provided for joint legal custody of their two children, then ages four and one, with plaintiff as the parent of primary residence and defendant as the parent of alternate residence. The parties also agreed defendant would exercise parenting time every weekend from 3:30 p.m. Saturday through 7:00 p.m. Sunday, and on the first weekend of each month from 3:30 p.m. Friday through 7:00 p.m. Sunday.

More than three years after the divorce, in February 2011, defendant filed a motion to modify the parenting-time schedule and require plaintiff to give him advance notice of the children's medical appointments. Defendant certified that the children resided with their maternal grandparents three nights each week while the plaintiff worked as a waitress those evenings. According to defendant, in 2008 the children spent one or two nights each week with their grandparents, and in 2010 the children spent three nights each week with their grandparents. The children also spent nights with plaintiff's friends. Defendant attached to his certification a December 14, 2010 text message from plaintiff acknowledging that she worked four nights each week; asserted that in December 2010 the children spent only ten days at home with their mother; and claimed the "unstable lifestyle" was "taking an emotional[] and physical toll on both the children who are only [seven] and [five] years old." Defendant also alleged the children "are in a minimum of three different homes per week and sometimes four different homes."

In addition to seeking modification of the MSA parenting-time schedule, defendant sought to compel plaintiff to schedule the children's medical appointments at times he would be available to attend. He alleged that because plaintiff was not keeping him informed about the children's medical treatment and medications, she violated the MSA provision requiring them to consult each other about the children's illnesses, health, and welfare.

In a certification opposing defendant's motion, plaintiff explained that when she and defendant were divorced, she worked as a waitress from 4:00 p.m. to between 10:00 p.m. and 2:00 a.m. three days each week; and a double shift, day and night, on Sunday. She asserted that defendant was well aware of her schedule, and knew that she had to place the children in her parents' care while she worked. She explained that the amount of child support and alimony she received from defendant was based on her ability to work. She pointed out that in August 2011, defendant was no longer obligated to pay alimony, but at that time they were supposed to recalculate his child support obligation. Plaintiff also asserted that defendant had "never before expressed an interest in having the children more than [the MSA] calls for," and "ha[d] not wanted the children for all the time the MSA grant[ed] him." Those circumstances caused plaintiff to surmise that defendant was seeking more overnights to minimize his child support obligation when it was recalculated.

Plaintiff also explained that of the three nights their grandmother cared for them, the children spent one night at home and two nights at their grandparents' house. At times, due to severe weather, the boys stayed overnight with their grandparents all three nights that plaintiff worked. Plaintiff further explained that her parents had decorated a room for the children exactly like their room at home; the children chose where to sleep; and the children enjoyed sleeping at their grandparents' house. When the children slept at their grandparents' house, plaintiff took them to school in the morning. Occasionally, plaintiff slept at her parents' home. Plaintiff also explained that her parents have been an integral part of her family life. Defendant visited plaintiff at her parents' house frequently after they started dating, and had his own key. He ate, showered, and eventually lived there. Defendant and plaintiff married in her parents' yard, and the parties moved in with plaintiff's parents after the wedding so that they could save money to purchase their own home. After the first child was born, plaintiff spent most days with the child at her parents' home. "All of the boys' birthday parties were held at [plaintiff's] parents' house."

Plaintiff emphasized that since entering into the MSA, defendant had never expressed any interest in changing the parenting schedule. Plaintiff also asserted that the children "stopped wanting to go to the defendant's house" after he remarried and he and his second wife had a child. Plaintiff pointed out that defendant's proposed modified parenting-time schedule "clearly relies on the defendant's wife babysitting for the children many hours per week while the defendant is at work." Plaintiff asserted that defendant's proposed schedule "involves his wife watching the boys and getting them on and off the school bus at times when I am available to do so." Plaintiff proposed a modified parenting-time schedule that would assure that defendant, not his second wife, would be available to spend time with the parties' children.

Plaintiff denied that she withheld medical information from defendant. She explained that when she took the children to the doctor, she would text defendant afterwards.

Defendant submitted a reply certification in which, among other things, he denied plaintiff's accusation that he had expressed no interest in additional parenting time. He stated that he constantly requested additional parenting time, and when the plaintiff agreed, he took advantage of it. He also denied plaintiff's specific accusations about his motives. Defendant explained that he filed a motion, in part, because he wanted to have one of their children enrolled in a kindergarten enrichment program. Defendant also pointed out that plaintiff's proposed modified parenting-time schedule would unduly restrict his time with the children.

The parties argued the motion on March 11, 2011. Following their argument, the court delivered an oral opinion from the bench. Explaining that it was "simply trying to put the best interests of the kids before anyone," the court stated:

And right now I think that the kids, the two children, are in a rather comfortable environment with the grandparents. They have similar bedroom sets at the grandparents' house. The grandparents are instrumental in nurturing the children. They're at a tender age.

 

And for me to now just simply disrupt the parenting-time schedule, I think it would be too disruptive for the children and I'm going to deny that request. I'm not going to grant any modification.

 

Although the court granted defendant relief on some items defendant had requested in his motion, the court denied defendant's request to compel plaintiff to schedule non-emergency medical appointments at times defendant could attend. The court determined that entering such an order "would be just logistically difficult for the parties to try to arrange that to occur on non-emergency medical appointments."

The court denied defendant's request for counsel fees, but awarded fees to plaintiff. The court explained:

I really question whether or not this actually had to come down to the filing of a motion and I'm not satisfied that the defendant's actions were genuine. I don't think it had to come down to this. I think what it all stemmed from was this $290 endocrinologist bill which, because the plaintiff made a motion before probation asking that an adjustment be modified, she was then forced then to -- she then learned that the defendant was seeking counsel. She went out and sought counsel. And it all kind of spiraled into what we have here today.

 

So keeping that in mind, I'm going to award counsel fees . . . in the amount of $1000 payable within [sixty] days of the date of this order.

The court entered a memorializing order the same day. This appeal followed.

II.

We first address defendant's argument that the court erred by refusing to modify the parenting-time schedule. Defendant argues that to prevail on his motion to modify the parenting-time schedule, he need not demonstrate a change of circumstances affecting the children's welfare, because, as between himself and the maternal grandparents, he is presumed to be entitled to custody or parenting time. Alternatively, defendant argues that he established a prima facie case of changed circumstances warranting a plenary hearing.

Plaintiff counters that the precedent relied upon by defendant, precedent pertaining to custody disputes between a parent and a third-party, is inapplicable here. Plaintiff points out that defendant is not seeking a change in custody, but rather a change in a parenting-time schedule. Plaintiff asserts that defendant failed "to demonstrate a prima facie showing of a substantial change in circumstances requiring a modification that would be in the best interests of the children."

Our role in reviewing a decision of the family court is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Because of the Family Part's special expertise, we must accord particular deference to its fact-finding and to the conclusions that logically flow from those findings. Id. at 412-13. Of course, "the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). We will not disturb such findings unless they demonstrate lack of support in the record or are inconsistent with the substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Although we owe no special deference to the trial courts' conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J 366, 378 (1995), "we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

Generally, when courts are confronted with disputes concerning custody or parenting time, the court's primary concern is the best interests of the child. See Sacharow v. Sacharow, 177 N.J. 62, 80 (2003); Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). The court must consider "what will 'protect the safety, happiness, physical, mental and moral welfare of the child.'" Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981) (quoting Beck v. Beck, 86 N.J. 480, 497 (1981)) (internal quotation marks omitted). "A judgment, whether reached by consent or adjudication, embodies a best interests determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). Consequently, when a parent seeks to modify a parenting-time schedule contained in a MSA that is incorporated into a JOD, that parent "must bear the threshold burden of showing changed circumstances which would affect the welfare of the children." Ibid.

We reject defendant's argument that he was not required to make a showing of changed circumstances before the trial court because he was competing for parenting-time with the children's maternal grandparents and therefore presumed to have priority. For that proposition, defendant relies on V.C. v. M.J.B., 163 N.J. 200 (2000) and Watkins v. Nelson, 163 N.J. 235 (2000). V.C. did not involve parenting time between parents; rather, the case required the Supreme Court to determine "what legal standard applies to a third party's claim to joint custody and visitation of her former domestic partner's biological children, with whom she lived in a familial setting and in respect of whom she claims to have functioned as a psychological parent." Supra, 163 N.J. at 205. Similarly, Watkins involved "an action for custody of a . . . child who has been residing with the maternal grandparents since the sudden death of the mother twelve days after giving birth to the child." Supra, 163 N.J. at 237. The case before us does not involve a visitation or custody dispute between a parent and a third party. Rather, it involves one parent's attempt to change a parenting-time schedule that both parents agreed was in the best interests of their children when they signed their MSA.

To be sure, the parents' work schedules, and one parent's need to have a third party watch the children while that parent works, are factors to be considered by a court deciding a parenting-time dispute. However, defendant has cited no authority for the proposition that such considerations are presumptively dispositive of parenting-time issues. Here, the grandparents had been an integral part of the children's routine and family structure from the time the children were born. Significantly, defendant did not dispute plaintiff's assertion that at the time of the divorce, she worked, and he knew her parents would care for the children when she worked. Considering those circumstances, the trial court did not err by refusing to indulge in a presumption that would have been dispositive of defendant's request for a change in the parenting-time schedule.

Defendant next contends that even absent a presumption in his favor, he made a prima facie showing of changed circumstances that entitled him to a plenary hearing. We disagree.

As previously noted, when the parties entered into the MSA, they knew plaintiff's parents would care for the children when plaintiff worked, and that arrangement continued at the time defendant moved to change the parenting-time schedule. Defendant did not show that those circumstances changed significantly between the date he signed the MSA and the date he filed his motion more than three years later.

Defendant worked when he signed the MSA; he worked when he filed his motion. He submitted no evidence of a change in his working hours. Nor did he explain what effect, if any, his living arrangements and the time that he spent with his second wife and their child would have on his parenting time with the parties' children. In short, the motion record was so deficient of comparative facts demonstrating changed circumstances that we cannot conclude the trial judge erred by determining defendant had not met his threshold burden of demonstrating changed circumstances that would affect the welfare of the children.

Defendant also contends that the trial court did not support its decision with sufficient findings of fact and conclusions of law. We agree that the trial court's decision was not supported by sufficient factual findings and an application of legal principles to those findings. The court's singular conclusory statement -- that it did not want to disrupt the nurturing provided to the children by the grandparents -- was inadequate. Nevertheless, we need not remand this matter for either a hearing or for the court to supplement its decision. Defendant's primary argument -- that defendant was presumptively entitled to a modification of the MSA parenting-schedule -- presented a legal issue, not a factual one. We have rejected, as a matter of law, defendant's argument that he was entitled to such a presumption. Defendant's primary reliance upon that argument may explain why he did not attempt to make an adequate factual record to demonstrate changed circumstances. As we have indicated, the factual record is so defective as to changed circumstances that there is no need to remand this matter for further fact-finding by the trial court.

Defendant also argues that the court erred by not ordering the parties to enroll their son in an enrichment program. Defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Finally, defendant contends that the trial court erred when it awarded counsel fees to plaintiff. He argues that the court "failed to address the applicable factors when [c]ounsel fees were inappropriately entered in this matter." The court did not suggest in its decision that it considered the factors relevant to determining whether attorneys' fees should be awarded. See R. 5:3-5(c). Accordingly, we reverse and remand that issue to the trial court to reconsider after evaluating all relevant factors.

A

ffirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.