K.H. v. R.H. December 13, 2013

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

K.H.,

Plaintiff-Respondent,

v.

R.H.,

Defendant-Appellant.

____________________________

December 13, 2013

Argued October 29, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1844-07B.

Steven M. Resnick argued the cause for appellant (Budd Larner, attorneys; Mr. Resnick, on the brief).

Patrick M. Durning argued the cause for respondent.

PER CURIAM

This post-judgment matrimonial appeal arises from a dispute between defendant (father) and plaintiff (mother) over their child, who is now ten years old.1 Consistent with their matrimonial settlement agreement (MSA), the parties share legal custody but plaintiff is the parent of primary residence. Defendant appeals from two Family Part orders dated February 8, 2013. For the reasons that follow, we affirm in part and remand in part.

Two of the issues defendant raises on this appeal objecting to the child's attending a parochial school, and objecting to plaintiff arranging for her parents to care for the child after school instead of enrolling her in daycare were decided by another Family Part judge in 2008. Defendant did not appeal from either of the April 17, 2008 orders, which were each supported by a cogent written statement of reasons. We conclude that the motion judge who issued the February 8, 2013 orders (the motion judge) properly rejected defendant's attempt to re-litigate those issues.

With one notable exception, defendant's remaining issues, which largely concern unsubstantiated caveats about plaintiff's parenting style, were correctly handled by the motion judge in his oral opinion of February 8, 2013.2 Defendant's appellate arguments about those issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we remand for the limited purpose of reconsidering the issue of visitation.

I

By way of background, the parties were married in 2000. Their child was born in 2003. The parties were divorced in 2007. At that time, the child was four years old. The parties were living in Monmouth County but defendant was considering relocating to New York City. Plaintiff was supporting the family, while defendant was unemployed. The parties' MSA was incorporated in the dual judgment of divorce dated December 18, 2007. In pertinent part, Article III of the MSA set forth very specific provisions for child custody and visitation.

3.1 The parties shall have joint legal custody of the one (1) child born of the marriage; . . . with the Wife as parent of primary residence and the Husband as parent of alternate residence.

3.2 The Husband may decide to remain in New Jersey or he may relocate to New York City. It shall make no difference, for purposes of this Agreement, where the Husband shall reside, as his parenting time shall remain the same whether he lives in New Jersey or New York. The husband shall be responsible for all transportation associated with his timesharing.

3.3 The Husband shall have parenting time with [the child] on alternate weekends from Friday (pick-up shall be by the Husband from school) until Sunday at 8:00 p.m., when the Husband shall return [the child] to the Wife's residence.

3.4 The parties shall alternate holidays and other special days in accordance with the list attached hereto as Schedule A.

3.5 The Husband shall be entitled to have custodial time with [the child] for two (2) weeks in July each year, non-consecutive, as well as two (2) weeks consecutive in August each year. In the even years Husband will have weeks 1-2 of August and in the odd years Husband will have weeks 2-3 in August. In the odd years Wife will have the last week in July. Each party shall provide sixty (60) days written notice to the other of the exact dates that he/she wishes to spend each year in July with [the child]. . . .

The MSA recited that the parties planned to spend $10,000 per year on child care expenses once defendant moved out of the marital home. However, following plaintiff's 2008 application, the Family Part permitted her to arrange for her parents, who also lived in Monmouth County, to care for the child after school. At that time, plaintiff was paying defendant term alimony; he was still unemployed, and his contribution to the child's support was minimal. As part of the 2008 application, the Family Part also approved plaintiff's plan to enroll the child in a local parochial school, over defendant's vociferous objections.

In 2012, defendant, who was then employed and living in New York City, filed a motion seeking to revise the MSA in significant respects. After setting forth a litany of complaints about the way he claimed plaintiff and her parents were interacting with the child, he sought split residential custody and a revised child support arrangement to reflect the proposed split custody. In his certification, defendant offered to move back to Monmouth County in order to facilitate that arrangement. He claimed he had not already made that move because it "did not make financial sense unless [he] knew that [he] would have more time with [the child] without interference from [plaintiff] and her parents." As previously noted, defendant also sought to re-litigate the 2008 Family Part order permitting the child to attend parochial school and permitting plaintiff's parents to provide child care.

In her certification, plaintiff responded to all of defendant's assorted criticisms of her parenting and of the purported educational shortcomings of the parochial school. She also asserted that "[d]efendant makes no effort to co-parent with me. Rather [d]efendant continuously battles my decisions . . . and reinforces his criticisms" by discussing them with the child. Her certification noted the lengths to which defendant had gone in the past to, in her view, undermine her parenting, including filing a complaint with the Division of Youth and Family Services which the Division found to be unsubstantiated.

On the issue of visitation, plaintiff acknowledged that defendant lived in a studio apartment in New York City, which she believed was an inappropriate place for the child to spend overnight visits. Noting that defendant had been saying "for years" that he intended to move back to New Jersey, without following through on his stated intentions, plaintiff stated, "I welcome [d]efendant's decision to obtain appropriate housing" in New Jersey.

II

In considering the motion judge's decision, we owe deference to the Family Part's expertise in matrimonial matters. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We also bear in mind that the settlement of litigation, including divorce litigation, ranks high in our public policy, Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006), and courts will ordinarily enforce matrimonial settlement agreements, absent a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). In fairness to the motion judge, we also acknowledge that defendant's attempt to re-litigate a number of issues, as well as his wide-ranging and unsupported assault on plaintiff's parenting, may have obscured the visitation issue. However, we also bear in mind that divorce settlements concerning children are always subject to revision in the children's best interests and when circumstances change. See Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Against that backdrop, when we focus specifically on the amount of time defendant is permitted to spend with the child, we conclude that reconsideration is warranted.

The MSA provides, in effect, that the child will spend alternating weekends with each parent and will spend half of the summer vacation with each parent. That aspect of the visitation arrangement was not unreasonable. Plaintiff, the residential parent, works long hours commuting back and forth from New York, and should be entitled to spend at least as much leisure time with the child as defendant does. Further, at the time the MSA was negotiated, the child was four years old and defendant was likely to be living in New York. A visitation schedule based on weekends and summer vacations made sense when the child was so young.

However, maturation may be a changed circumstance that would warrant reconsidering a visitation schedule and, in our view, the motion judge did not take that into consideration. See J.B. v. W.B., 215 N.J. Super. 305, 313 (2013) (addressing maturation in the context of child support); Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003). The child is now ten years old. The relationship of a ten-year-old with a parent is likely to be significantly different than it was when the child was four. A child is not a chattel, and the MSA should not trump the child's right to spend more time with her father if it can reasonably be arranged.

If defendant relocates to Monmouth County,3 it would be practicable for him to have some evening visitation with the child during the week. If he lived locally and were available to care for the child after school on some days, that could obviate the need for the grandparents to provide all of the afterschool care. Further, if the child has extended school holidays, such as a Christmas or Easter break, on days when plaintiff cannot take off from work, nothing on this record explains why the child should spend those days with her grandparents rather than with her father, if he is available.

In stating these possibilities, however, we must acknowledge a countervailing concern about the impact on the child of the parents' hostility toward each other. For example, we can conceive of few situations more stressful for a ten-year-old than being forced to shuttle back and forth during the school week between two hostile parents, at least one of whom is committed to second-guessing virtually every decision the other parent makes. On the other hand, if defendant in fact moves to Monmouth County, it may mitigate some of his concern about the child's welfare. When a parent lives at a distance from a child, there can be a natural tendency to exaggerate the significance of the child's moods. To the parent who lives at a distance, every passing unhappiness may be perceived as a crisis and every complaint may be seen as a prelude to disaster.

To be clear, nothing in this record suggests error by the Family Part in declining to disturb the MSA provision designating plaintiff as the parent of primary residential custody. However, we remand this case to the Family Part for the limited purpose of reconsidering whether the visitation schedule set forth in the MSA should be modified. We do not retain jurisdiction.

Affirmed in part, remanded in part.

1 We use initials to protect the privacy of the parties' child and because a child abuse complaint was filed.

2 The parties come from different backgrounds, and each party seems to view the other's lifestyle and life choices with some degree of disdain. They might both benefit from parenting counseling aimed at assisting them to see past their differences, in the child's best interests. Given the tenor of this litigation to date, we strongly suggest that if the trial court orders counseling, it be confidential, with neither party permitted to call the counselor as a witness other than to confirm their respective attendance at counseling sessions.

3 Without filing a motion to supplement the record, defendant's counsel sent us a letter on November 25, 2013, representing that his client had "proceeded to secure" an apartment in New Jersey. We will not consider that information because it is not properly part of the appellate record and because it was not presented in the form of a certification or other legally competent evidence. If defendant has actually leased an apartment in Monmouth County and has actually moved into it, he may place that information before the Family Part on remand, in legally competent form.