JESSICA GUENTHER v. JOSEPH GUENTHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03032-12T4

JESSICA GUENTHER,

Plaintiff-Respondent,

v.

JOSEPH GUENTHER,

Defendant-Appellant.

__________________________________

April 17, 2014

Submitted February 12, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-837-11-W.

Joseph Guenther, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Joseph Guenther appeals a Family Part order that granted plaintiff Jessica Guenther's post-judgment motion, increased defendant's weekly child support obligation from $60 to $112, and awarded plaintiff counsel fees in the amount of $1,500. The order also denied all relief defendant requested in his cross-motion, including a change of venue. Plaintiff has not filed a brief in opposition to defendant's appeal. Because the undisputed facts certified by defendant in support of his motion for a change of venue entitle him to that relief, we order that venue be transferred. Further, because we are unable to discern the factual basis for the relief the court granted to plaintiff, we reverse and remand for further proceedings.

I.

Although the record is somewhat sparse, we derive the following facts from the certifications the parties filed in support of their cross-motions as well as the record of their oral arguments. The parties married in September 2007, had one child, now age four, separated in December 2010, and divorced in April 2011. The final judgment of divorce (FJOD) incorporated a handwritten agreement (HA), which defendant has not included in the record on this appeal.

In October 2012 plaintiff filed a motion in the Ocean County Chancery Division, Family Part, seeking to have the court increase defendant's child support payments, calculate his child support arrears, order him to contribute to the cost of their child's daycare, and award her attorney's fees. Defendant cross-moved for an order denying plaintiff's motion, transferring venue from Ocean to Atlantic County, designating him as the parent of primary residence (PPR), terminating child support, and prohibiting plaintiff from alienating their child from him.

In her motion, plaintiff certified that she had been "the primary caretaker" of their child since the child's birth, and that defendant enjoyed parenting time for "two overnights per week." She averred that she worked as a casino cocktail server and later agreed that her yearly income was $25,000. She further certified that because defendant was unemployed when they divorced, they agreed that he would pay only $60 per week in child support, a temporary obligation that would be adjusted when he got a job. During the eighteen months following the divorce, though he held several jobs, defendant did not inform plaintiff of his employment and "refused to consent to a recalculation" of child support. Defendant's recalcitrance forced plaintiff to file the motion.

Plaintiff also asserted that defendant was behind in his child support payments and had refused to contribute toward the cost of their child's daycare. She asked the court to award her attorney's fees.

In his cross-motion, defendant admitted that he had agreed to pay $60 per week in child support when he and plaintiff were divorced, but claimed he agreed to pay more only if he got a job with a salary greater than the "imputed figure" of $35,000. He said he was in the process of enrolling in school and intended to make "a full time student commitment for [four] semesters."

Defendant further certified that though the FJOD guaranteed him two overnights each week, he and plaintiff had modified their agreement in April 2012 so that he would have five overnights each week with their son. Based on the changed circumstances, defendant asked that he be designated as the PPR, though he added that he did not expect plaintiff to pay child support if that occurred.

Defendant also requested that venue be transferred from Ocean County to Atlantic County. He certified that he, plaintiff, and their child all resided in Atlantic County. He also claimed that he had raised the issue of venue with plaintiff's attorney, and the attorney told him that under court procedure, the motions would likely be decided before venue was changed. According to defendant, plaintiff's attorney had no problem with future motions being heard in Atlantic County.

During oral argument on February 2, 2013 ten months after the date on which the parties had, by their conduct, modified their custody arrangement - defendant explained that though he had cared for his son five nights each week, most recently he had begun to care for his son four nights each week. Plaintiff conceded that their custody arrangement had changed, and that their child was now spending four overnights with defendant's parents, with whom he lived, but claimed the change was necessary because defendant refused to contribute toward daycare. Plaintiff had claimed in her reply certification that much of the time their child was at the paternal grandparents' home, defendant was not there.

Plaintiff's attorney recounted for the court the negotiations culminating in the FJOD and HA. Part of his argument was based on facts the parties had attested to in their certifications, and part of it was based on facts that were not contained in the certifications. The attorney argued that defendant had acted in bad faith by failing to disclose his employment to plaintiff. He also asserted that when plaintiff attempted to "work this out," defendant "stubbornly refused, and that stubborn refusal has translated to him filing this retaliatory cross motion seeking a change of physical custody." Asserting that defendant's stubbornness had also caused plaintiff to incur unnecessary counsel fees, the attorney urged the court to award counsel fees to plaintiff.

Lastly, the attorney acknowledged that overnight child care had changed, but insisted that the situation was temporary and brought about by a combination of his client's work schedule and defendant's "refusal to contribute to work-related child care." The attorney insisted that "[a]bsent those factors there is . . . really no change of circumstances that would justify a change of physical custody." The attorney confirmed, however, that plaintiff worked from 2:00 a.m. to 10:00 a.m. five days each week, Friday through Tuesday.

Based on the certifications and oral argument, the court imputed weekly income of $479 to plaintiff and $671 to defendant. The court based its decision in part on the $35,000 yearly income defendant was earning when he quit his job at a tavern, a job he got after he and plaintiff divorced. The court determined that defendant's decision to become a full-time student was not a rational, logical decision because he was obligated to support his child and could not do so without working.

The court initially determined that the "[c]ustodial parent is [plaintiff]" and that it would use the shared-parenting worksheet to calculate child support. Plaintiff's counsel objected to the use of the shared-parenting worksheet, arguing that defendant lived and cared for his son at his parents' home, and had no "fixed expenses for the child." When defendant confirmed that he lived in his parents' home, the court decided to use the sole-parenting guidelines, explaining that "[t]here are certain requirements to utilize the shared parenting [worksheet] that are not met if the defendant is not living in his own residence." The court did not explain to defendant either what "requirements" were not met, or the basis for the conclusion that the unspecified requirements were not met. The court increased defendant's weekly child support to $112, payable through probation.

The court also denied defendant's motion to designate him as the PPR, stating: "[t]he parties had agreed that [plaintiff] would be designated as the child's primary physical custodian in their Judgment of Divorce in April of 2011. I do not find any good cause to alter that agreement made by the parties."

Lastly, the court awarded plaintiff counsel fees and directed defendant to pay plaintiff's counsel $1,500 "because [he] w[as] supposed to report [his] employment, and [he] failed to do that."

Defendant appealed from the order the court entered implementing its decision.

II.

Defendant presents the following points for our review:

Defendant should be named Parent of Primary Residence based on [the fact] his parenting time with the child is more than the Plaintiff and he has the minor child more than fifty percent of the year incurring more costs than the Plaintiff.

The child support obligation Defendant is ordered to pay is based off of improper calculations and incorrect findings by the Court.

[The court] refused to even acknowledge Defendant's request for a change in venue during the [hearing]. He did not deny nor grant, but outright ignored Defendant's request for the matter to be addressed.

Defendant was ordered to pay attorney's fees based on the Court stating he acted in "bad faith" that he was never employed when indeed the Defendant provided proof that he was employed and did not act in "bad faith" eliminating the Court's reasoning for him to pay attorney's fees.

When we review a decision made by a judge in the Family Part following a hearing, we defer to the family court's findings of fact "because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). Even when there is no hearing, as in the case now before us, an "appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citation and internal quotation marks omitted) (discussing motions to modify alimony). "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.'" Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Of course, a court must "find the facts and state its conclusions of law thereon in all actions tried without a jury, [and] on every motion decided by written order that is appealable as of right." R. 1:7-4.

We first address defendant's argument that the court erred because it refused to acknowledge his motion for a change of venue. Rule 5:2-2 provides that "[c]hange of venue in family actions shall be governed . . . [by] [R.] 4:3-3 (civil actions)." Rule 4:3-3(a) provides that

a change of venue may be ordered . . . (1) if the venue is not laid in accordance with [R.] 4:3-2; or . . . (4) in Family Part post-judgment motions, if both parties reside outside the county of original venue and application is made to the court by either party to change venue to a county where one of the parties now resides.

Defendant moved for a venue change in his notice of cross-motion and again during oral argument, but the court did not address the issue.

Defendant certified in his motion that the parties and their son lived in Atlantic County. He also certified that he had discussed a change of venue with plaintiff's counsel, who purportedly said he had no problem with future motions being heard in Atlantic County.

In her reply certification, plaintiff did not dispute that she resided in Atlantic County. Rather, she opposed defendant's motion because he had "repeatedly threatened to have our case transferred to Atlantic County because he has family members and friends that work in the Superior Courthouse and he believes that he will receive preferential treatment there." Plaintiff also pointed out that the "divorce was handled in Ocean County" and that her attorney practiced in Ocean County.

The facts that plaintiff did not dispute that she, defendant, and their child now resided in Atlantic County entitled defendant to a change of venue. We understand that litigants sometimes make empty threats. If defendant attempted to intimidate plaintiff by referring to friends and family members in the judicial system, those threats were empty. When relatives of judicial employees become involved in litigation, the employees must disclose their relationship to the court. The court will then address such a situation, if necessary.

Here, the court should have addressed the cross-motion to change venue. But since it did not do so, and because defendant is entitled to a change of venue on the undisputed facts before us, the matter shall be transferred to Atlantic County and the parties' cross-motions shall be addressed in that venue on remand. If the court on remand determines that defendant made the threat attributable to him by plaintiff, then the court can treat that as one factor to consider when evaluating whether to award plaintiff counsel fees and take any other appropriate action.

We next address the court's decision rejecting defendant's motion to name him as the PPR. The PPR is defined as "[t]he parent with whom the child spends most of his or her overnight time." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2592 (2014). Moreover, "[t]he primary residence is the home where the child resides for more than [fifty percent] of the overnights annually." Ibid.

Here, there is no dispute that the child has four overnights with defendant. According to defendant, that situation has been ongoing for ten months. Plaintiff conceded as much at oral argument. Thus, it is difficult to discern the basis for the court's statement that it did not find any good cause to alter the parties' previous agreement that plaintiff would be designated as the child's primary physical custodian.

"Under the Guidelines, the designation of PPR and [Parent of Alternate Residence (PAR)] is not an insignificant matter. It has tangible, monetary affects." Benisch v. Benisch, 347 N.J. Super. 393, 396 (App. Div. 2002). The differences that result from designating a parent as either a PPR or a PAR may be substantial. See id. at 399.

Here, the court may have had bona fide reasons for rejecting defendant's motion to designate him as PPR. Those reasons may have been based on such considerations as defendant's absence from his parents' home while his child was there, defendant's contributing little or nothing to the expenses of caring for the child, or the determination that the current situation is temporary and will soon change. Whatever the reasons, they are not apparent from the record. When a court's reasons for designating a parent as a PPR are not apparent from the record, a remand is necessary. See ibid. On remand, if designation of the PPR requires resolution of disputed facts, then the parties should be afforded a hearing.

In view of our remand of defendant's motion to be designated as the PPR, we need not address defendant's argument that the court miscalculated his child support obligation. We note that the court's order states explicitly that "[t]he child support guidelines used to calculate the obligation are attached to this order." Defendant, however, has not included the attachment in the appellate record. Although we would have been inclined to reject defendant's argument because he did not include in his appendix "such . . . parts of the record . . . as are essential to the proper consideration of the issues," R. 2:6-1(a)(1)(I), we need not do that here. The court may be required to change its decision depending on who is now designated as the PPR. Accordingly, we reverse the court's decision concerning defendant's child support obligation. The court will undoubtedly fix defendant's child support obligation after it determines the PPR issue. The court can explain in that context why it selects a particular set of child support guidelines.

Lastly, we reverse the award of counsel fees, because after resolving the PPR issue the court may have to reevaluate the award based on the factors contained in Rule 5:3-5(c), including defendant's good faith or bad faith, and the extent to which motion practice has been required due to defendant's refusal, if any, to discharge his obligation to support his child.

Reversed and remanded. We do not retain jurisdiction.