JAMES E. KRAUSE, JR v. DELPHINE M. DOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAMES E. KRAUSE, JR.,

Plaintiff-Appellant,

v.

DELPHINE M. DOR,

Defendant-Respondent.

November 30, 2016

Submitted November 10, 2016 Decided

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0003-10.

Kimberly A. Shubert, attorney for appellant.

Law Office of Timothy F. McGoughran, attorneys for respondent (Jay M. McManigal, on the brief).

PER CURIAM

Plaintiff James E. Krause, Jr. appeals from: (1) an April 30, 2015 Family Part order establishing his child support obligation at $160 per week plus $25 per week toward arrears, and requiring him to be responsible for all travel costs related to his parenting time with the parties' then ten-year-old child; and (2) a July 23, 2015 order granting reconsideration and reducing child support to $120 per week and allocating travel costs sixty-five percent to plaintiff and thirty-five percent to defendant Delphine M. Dor. For the reasons that follow, we affirm.

The parties, who were never married, have a son who was born in October 2004. Plaintiff resides in New Jersey, while defendant presently resides in South Carolina with the child.

We recount the most pertinent portions of the procedural history of this matter so as to lend context to the issues presented on appeal. On July 13, 2005, the parties entered into a consent order granting defendant sole legal custody of the child. The order expressly contemplated that plaintiff might be deployed to military service in Iraq. It further provided that "[b]y consent of the [p]arties, [defendant] may relocate out of [New Jersey] with [the child]."

On September 12, 2006, the parties entered into a second consent order resolving issues of custody, parenting time, child support, uninsured medical expenses, life insurance, and counsel fees. Among other things, the order provided that: (1) the parties would share joint legal custody of the child, with defendant designated parent of primary residence and plaintiff designated parent of alternate residence; (2) defendant was allowed to relocate with the child outside of New Jersey upon a showing that she obtained valid full-time employment, in which event plaintiff would exercise parenting time with the child for a two-week period every two months, and the parties would equally share the child's summer vacation period and any extended school breaks; (3) plaintiff would pay child support of $89 per week pursuant to the Child Support Guidelines (Guidelines);1 (4) child support would be renegotiated should defendant relocate with the child, "taking into consideration the costs which [p]laintiff shall be required to incur for travel expenses for parenting time purposes;" and (5) New Jersey would retain jurisdiction over all matters related to the child.

Following the entry of several interim orders addressed mainly to parenting time issues, plaintiff filed an order to show cause on March 31, 2010, seeking to restrain defendant from relocating with the child to Hawaii. On May 14, 2010, the parties entered into a third consent order permitting the relocation. They agreed that child support would cease; "that for the foreseeable future, [the child] will require an adult to accompany him on his trips to New Jersey from Hawaii and on return" when visiting with plaintiff; and that "[plaintiff] will be responsible for all transportation costs, including the person accompanying [the child]. This is based on the waiver of child support and estimated transportation costs of $4,000 to $7,500 per year." It was also agreed that plaintiff would have parenting time with the child on alternating Thanksgiving and Christmas holidays, every spring break, and for seven consecutive weeks in the summer.

On January 28, 2015, defendant filed a motion seeking to re-establish plaintiff's child support obligation and reduce his summer parenting time from seven to five weeks. In her supporting certification, defendant asserted that she moved to Texas in February 2012, and then to South Carolina in August 2012. Consequently, she contended that plaintiff's travel expenses when exercising parenting time had significantly decreased so that the waiver of child support was no longer appropriate. She further averred that plaintiff had parenting time for seven weeks in the summer because of her prior residence in Hawaii, and that the shorter distance to South Carolina no longer warranted such a prolonged visitation period in the summer.

Plaintiff filed a cross-motion seeking the denial of defendant's motion. He also sought to amend the parenting time schedule to grant him two additional long weekends with the child, and to allow the child to fly unaccompanied, in accordance with airline rules and regulations. In a reply certification, defendant estimated that the annual round-trip travel costs to South Carolina for plaintiff and the child were $2364, which was substantially lower than the approximately $9600 plaintiff was incurring to travel to Hawaii. Defendant also expressed a willingness to allow the child to fly unaccompanied, which would further reduce the travel costs to $788 per year.

When the parties appeared for oral argument,2 both represented by counsel, the judge took some limited testimony. Plaintiff testified that in 2014 he spent about $4000 to travel back and forth to South Carolina four times. The judge noted that the May 10, 2010 consent order obligating plaintiff to pay all transportation costs was based on a waiver of child support and estimated annual transportation costs of $4000 to $7500. The court found that "[n]ow clearly the transportation costs have gone down." On April 30, 2015, the judge entered an order reducing plaintiff's parenting time to six weeks in the summer but awarding him two additional long weekends during the year. The judge also ordered plaintiff to pay child support of $160 per week plus all travel costs associated with his parenting time.

Plaintiff filed a motion for reconsideration on May 19, 2015, accompanied by a case information statement that was not previously submitted. Although plaintiff "agree[d] that child support should be recalculated" based on the Guidelines, he requested that any travel expenses related to his parenting time be offset against his child support obligation in accordance with the prior May 14, 2010 consent order. He further asserted that "[a]lthough the travel costs are less than those for Hawaii, I will still incur a substantial cost of approximately $2000 per year ($38.50 per week) for my three parenting time visits with [my child]." Plaintiff also attached price estimates gleaned from the internet to substantiate his anticipated transportation expenses. Defendant again cross-moved for an order denying plaintiff's motion, and for an award of counsel fees.

Following oral argument, the judge issued an oral opinion explaining that he recalculated child support at $120 per week based on the newly-submitted evidence. Regarding transportation expenses, the judge found that "many things have changed since" the 2010 consent order. These included "the travel costs going way down from [] defendant living in Hawaii [to now] living in South Carolina . . . [a]nd the fact that the child could travel on his own now." The judge then re-allocated the travel expenses sixty-five percent to plaintiff and thirty-five percent to defendant, which he concluded represented "a more reasonable and fairer situation." The judge entered a memorializing order on July 23, 2015, and this appeal followed.

Before us, plaintiff argues that defendant failed to establish a substantial change in circumstances warranting modification of the parties' 2010 consent order that offset plaintiff's travel expenses against his child support obligation, and that the motion judge abused his discretion in modifying the prior consent order. Alternatively, plaintiff contends the motion judge erred in failing to order a plenary hearing to determine the annual cost of the travel expenses. We have considered these arguments in light of the record and controlling legal principles and do not find them persuasive.

We provide substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

"The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). We "accord great deference to discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). Such discretion "takes into account the law and the particular circumstances of the case before the court." Ibid. (internal quotation marks omitted) (quoting Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007)). However, we will not defer to a family court's decision where the court abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). "An abuse of discretion 'arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."'" Milne, supra, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). The family judge's legal decisions are subject to this court's plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J.583, 590 (1995). "The right to child support belongs to the child and 'cannot be waived by the custodial parent.'" Id.at 591 (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)); see alsoDolce v. Dolce, 383 N.J. Super.11, 18 (App. Div. 2006) ("Of course, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent[.]"); Patetta v. Patetta, 358 N.J. Super. 90, 94-95 (App. Div. 2003) (declining to enforce parents' agreement to emancipate child at age eighteen). Parents are permitted to fashion an agreement contrary to prevailing law, as long as they do not bargain away the child's support. SeeOrdukaya v. Brown, 357 N.J. Super.231, 239-41 (App. Div. 2003) (parties may agree to deviate below the standards for child support in the Guidelines, but not if the child will be prejudiced).

A party seeking modification of a child support obligation has the burden of demonstrating a change in circumstances warranting an adjustment. Lepis v. Lepis, 83 N.J.139, 157-58 (1980). The decision must be made in accordance with the Guidelines and the best interests of the children. SeeCaplan v. Caplan, 182 N.J.250, 266 (2005). The trial court's discretion in determining the amount of child support is limited by the foregoing principles and the Guidelines, which are designed to result in a fair allocation of the parental responsibility to provide appropriate child support given the parents' resources. Seeid.at 267-68, 271.

So long as children receive appropriate support, parties are free to enter into voluntary agreements departing from the general Lepisrule and establish their own standards by which they agree to be guided in cases involving "reasonably foreseeable future circumstances[.]" Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993). We appreciate that agreements such as the parties' 2010 consent order "have great potential for ensuring the desired degree of stability in support arrangements." Lepis, supra, 83 N.J. at 153. Nevertheless, until a child's emancipation, the inherent equitable powers of the Family Part allow the court to enter, revise or alter support orders "from time to time as circumstances may require." N.J.S.A.2A:34-23; see alsoLepis, supra, 83 N.J.at 146-47.

Here, when the 2010 consent order was entered, defendant was relocating with her then five-year-old child to Hawaii. Since that time, defendant relocated to Texas and now resides in South Carolina. The motion judge correctly determined that, given the reduced travel expenses, a change of circumstances was established warranting modification of child support and travel expenses. Notably, plaintiff raises no issue with respect to the calculation of his child support obligation pursuant to the Guidelines. Moreover, the court's discretionary re-allocation of the travel expenses was proper and is supported by the record.

Finally, we have no quarrel with the judge's exercised discretion in not holding a plenary hearing. We defer to the motion judge's determination as to whether to schedule aplenary hearing. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). Given the judge's discrete findings of fact that established changed circumstances, we do not view plaintiff's contention that there was a genuine issue of material fact with respect to the cost of travel as correct. "[N]ot every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J. Super.39, 47 (App. Div.) (citing Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988)), certif. denied, 142 N.J.455 (1995). Here, plaintiff testified under oath regarding his travel expenses, and the costs were easily ascertainable and verifiable via internet research such as that which plaintiff himself conducted. We thus discern no factual dispute for which a plenary hearing would be helpful in reaching resolution. Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Shaw v. Shaw, 138 N.J. Super.436, 440 (App. Div. 1976).

Affirmed.

1 R. 5:6A.

2 Defendant appeared telephonically from South Carolina.