NOEL EUSTAQUIO v. BIYUN ZONG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NOEL EUSTAQUIO,

Plaintiff-Respondent,

v.

BIYUN ZONG,

Defendant-Appellant.

_______________________________

July 21, 2016

Before Judges Lihotz and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-391-13.

Biyun Zong, appellant pro se.

Noel Eustaquio, respondent pro se.

PER CURIAM

Defendant appeals from a Family Part order dated December 4, 2014, addressing disputes regarding the parties' child. The order denied defendant's request for reconsideration of her prior applications seeking to: (1) change the child's name; (2) increase the amount of child support paid by plaintiff; (3) require plaintiff to repay her an alleged $3700 loan; and (4) denying an alteration in parenting time, to allow the child's weekly attendance in an educational program chosen by defendant. Plaintiff cross-appeals from a provision in the same order denying his request to increase his parenting time. We affirm.

The parties are the parents of a four-year-old child. Earlier, following a disagreement, defendant unilaterally removed the child from New Jersey and placed him in the care of her parents who reside in China.1 The Family Part ordered the child's return to New Jersey, which occurred on March 7, 2013. After further proceedings, the child was placed in the joint legal custody of both parents, with defendant designated as the parent of primary residence. Over the ensuing year after this order was entered, subsequent motions were filed. A number of orders were entered that fixed defendant's child support obligation pursuant to the New Jersey child support guidelines, defined parenting time, and addressed other issues.

On December 4, 2014, the Family Part judge reviewed the parties' respective requests for reconsideration of certain issues previously addressed by the court. Following a lengthy hearing, the judge rendered an oral opinion and filed the order memorializing her conclusions, from which the parties have separately appealed.

When reviewing a trial judge's order, we defer to factual findings "supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Reversal is warranted only when a mistake must have been made because the trial court's factual findings are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . .'" Rova Farms Resort, Inc. v. Inv['rs] Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). On the other hand, a "trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013).

[Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015).]

When considering a judge's denial of a motion for reconsideration, we have determined

Reconsideration itself is "a matter within the sound discretion of the Court, to be exercised in the interest of justice[,]" D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but

should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (citation omitted)]

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (alterations in original).]

We will not disturb a trial judge's denial of a motion for reconsideration absent a finding the judge abused her reasonable discretion. Id. at 289.

When reviewing the trial court's exercise of discretion, we do not "'decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court[,]'" which is an improper course of action. Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (quoting Gittleman v. Cent. Jersey Bank & Tr[.] Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)), certif. denied, 144 N.J. 174 (1996). We review only "'whether the trial judge pursue[d] a manifestly unjust course[,]'" which requires reversal. Ibid. (quoting Gittleman, supra, 103 N.J. Super. at 179).

[Burns v. Hoboken Rent Leveling & Stabilization Bd., 429 N.J. Super. 435, 443 (App. Div. 2013) (alterations in original).]

We considered defendant's challenges on appeal, in light of these standards.

Defendant, citing Gubernat v. Deremer, 140 N.J. 120, 145 (1995), argues the law imposes a burden on the non-custodial parent to rebut "the presumption favoring the custodial parent's choice of name" as being in the child's best interests. We reject defendant's arguments for several reasons.

First, as the judge noted, the underlying order denying the application to change the name given to the child at birth was filed on July 24, 2014, making the request for reconsideration untimely. R. 4:49-2 (requiring motions for reconsideration to be filed within twenty days). Despite defendant's delay in seeking reconsideration, the judge permitted her to explain the basis for her request.

Second, defendant suggested plaintiff's objection to her name-change request was a result of spitefulness and a modification to include her surname would reflect her ethnic heritage. The judge noted defendant had expressed the same arguments during the underlying hearing, and offered no new arguments demonstrating an erroneous application of the law or failure to consider material facts. The judge's factual findings and conclusions are supported by the record.

Third, unlike the plaintiff in Gubernat, who had sole custody of the parties' child, in this matter the parents share joint legal custody and jointly chose the child's name. Therefore, plaintiff's assertion she alone can determine the child's best interests is incorrect. "In applying the best-interests test . . . the party seeking to alter the status quo from the surname jointly given to the children at birth must bear the burden of proving by a preponderance of the evidence that the change in the children's surname is in their best interests." Emma v. Evans, 215 N.J. 197, 202 (2013). Defendant not only failed to meet her burden to prove a name modification was in the child's best interests during the underlying hearing, but she also provided no additional evidence on reconsideration, offering only her personal desires.

Following our review, we conclude the judge properly denied reconsideration of defendant's request to change the child's name, a request she found to be motivated by defendant's personal reasons that were unrelated to the child's best interests. Id. at 218 (holding a primary custodial parent's choice is an insufficient reason in and of itself to support a changein a child's surname).

Regarding defendant's claim for repayment of $3700, the judge recited provisions in the July 24, 2004 order stating the issue was resolved by agreement of the parties. Defendant was unable to present a basis to set aside that provision. Therefore, reconsideration properly was denied.

As to the request to increase the amount of child support paid by plaintiff, defendant's application was unaccompanied by documentation demonstrating a change in financial circumstances. During argument, defendant's position merely suggested plaintiff was not earning all he could. She admitted evidence demonstrating plaintiff's current employment and agreed the costs of schooling and day care had not changed. Consequently, no basis for modification was found. Lepis v. Lepis, 83 N.J. 139, 157 (1980) ("The party seeking modification has the burden of showing such 'changed circumstances' . . . .").

Finally, regarding defendant's request to modify parenting time to allow her to take the child to a specialized education program each week, we reject the notion the judge abused her discretion. The parties demonstrated animosity and distrust of unilateral decisions that infringed on the other's designated parenting time. We conclude the judge's determination to enforce the schedule as set, thus preserving the parties' rights for agreed decision-making, was reasonable and appropriate. See N.J.S.A. 9:2-4 ("[I]t is the public policy of this State to assure minor children of frequent and continuing contact with both parents . . . and . . . it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy."); see alsoAsch v. Asch, 164 N.J. Super.499, 505 (App. Div. 1978) ("It is axiomatic that the court should seek to advance the best interests of the child where her parents are unable to agree on the course to be followed.").

Plaintiff's cross-appeal challenging the denial of additional parenting time was not briefed and is deemed waived. SeeR.2:6-2; Telebright Corp., Inc. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012) (failure to brief issue results in waiver on appeal).

Affirmed.

1 The Boonton Township Police Department reported the child's status to the United States Immigration and Customs Enforcement, the Morris County Prosecutor's Office, Interpol, and the New Jersey State Police.