L.S. v. F.H.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-0829-16T3


L.S.,

        Plaintiff-Respondent,

v.

F.H.,

     Defendant-Appellant.
_____________________________

              Submitted December 11, 2017 – Decided            June 13, 2018

              Before Judges Sabatino, Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FD-09-1326-14.

              Toni Ann Russo, attorney for appellant.

              Bonilla Law Offices, LLC, attorneys for
              respondent (Meghan K. Gulczynski, of counsel
              and on the brief).

PER CURIAM

        Defendant F.H. appeals from May 6, 2016 and October 11, 2016

orders of the Family Part related to custody, parenting time, and
support    for   her   child   with     plaintiff   L.S.   For   the   reasons

enunciated by Family Part Judge Mirtha Ospina, we affirm.

    F.H. and L.S. had a son, who was born in November 2013.                    In

January 2014, L.S., a resident of Connecticut, filed a pro se

complaint seeking to establish paternity and requesting joint

legal custody of the child.            F.H. cross-moved for child support,

sole custody, "reasonable" visitation, and an order preventing

L.S. from taking the child out of New Jersey because he was a

"careless driver."       In March 2014, the court ordered a paternity

test and held the other issues in abeyance until the results were

confirmed.

    In April 2014, L.S. filed an amended complaint, seeking

parenting time and requesting that his last name be added to the

child's.

    After oral arguments in May 2014, and based on the results

of the paternity test, the court ordered L.S.'s name be added to

the child's birth certificate as his father, and the child's

surname be a combination of both parents' names.             It also ordered

joint   legal    custody,      with    F.H.   having   residential     custody,

parenting time for L.S. every Saturday from 10:00 a.m. to 5:00

p.m., and shared holidays.            Child support was set at $29 a week,

plus fifteen percent of medical bills over $250, for which F.H.

needed to submit documentation prior to reimbursement.

                                         2                              A-0829-16T3
     In November 2014, L.S. moved to enforce parenting time and

sought to change the location for pick-ups and drop-offs to a

police station. L.S. asserted that after his first visit at F.H.'s

house, she accused him of domestic abuse and sexual assault, and

because he could not make bail on the sexual assault charge, he

was incarcerated for nearly six months.    The domestic violence

complaint was dismissed after trial, and the grand jury, in the

criminal case, entered a no-bill.    When L.S. was released, he

sought to reestablish his parenting time, but he received no

response from F.H., which caused him to miss scheduled visits and

holiday time.

     The court heard oral argument in March 2015 and ordered three

weeks of supervised visitation given L.S.'s lengthy absence from

the young child's life due to incarceration.     The other issues

were held in abeyance.

     In April 2015, the parties returned to court, where the judge

continued the supervised visitation because L.S. interacted with

the child in a loving and positive manner.     The judge ordered

visitation to continue every Saturday from 10:00 a.m. to 5:00 p.m.

and ordered the parties to attend mediation.

     After mediation, the parties agreed parenting time would

gradually increase to overnight time and child support was set at



                                3                          A-0829-16T3
$75 per week, among other things.      On May 6, 2015, the court

incorporated the agreement into an order.

     In March 2016, F.H. filed another domestic violence complaint

against L.S., and a temporary restraining order was entered.

However, in April after a trial, the court vacated the temporary

restraining order and dismissed the complaint.

     On April 4, 2016, L.S. moved to enforce and expand parenting

time.   He argued the agreement provided he could seek to increase

parenting time; however, when he sought to have the child overnight

on alternating weekends, F.H. initially agreed, but she stopped

all parenting time and communication when he asked her to reduce

the arrangement to writing.   L.S. requested make-up parenting time

and a set schedule for holidays.     He also sought to enforce the

prior name-change order, claiming that F.H. refused to use the

child's legal name.    He further requested counsel fees for the

enforcement action.

     In response, on April 8, 2016, F.H. moved for "full custody",

modification of parenting time, pick-ups and drop-offs to be at

the West District Police Station in New Jersey, and to enforce and

increase L.S.'s obligation to pay a portion of the child's medical

expenses.   She claimed L.S. had been negligent while the child was

in his care because the child returned with bruises, he failed to

properly dress the child, which contributed to the child's asthma

                                 4                          A-0829-16T3
condition, and he brought the child to the Bronx Center where he

had gotten hurt and sick.      She contended they had agreed exchanges

would occur at her home due to an undisclosed "medical condition,"

but he had reneged.   She requested the exchanges take place in New

Jersey because she was unable to drive for long periods because

of medical reasons, her work hours had increased, and she was

caring for an older child.

     On April 25, 2016, F.H. filed another motion, seeking an

increase in child support and a cessation of overnight visits

until the child could speak due to the stress the visits allegedly

caused him.    She claimed L.S. refused to follow the visitation

orders and did not show up, canceled, and did not bring the child

back to her.

     L.S. argued there was no change of circumstances justifying

modification of custody and denied harming the child.         He objected

to being tasked with all of the driving for parenting time, and

was willing to pay his share of medical expenses, but he claimed

F.H. never provided proof of the expenses.

     On May 6, 2016, the Family Part judge heard oral arguments

and sworn testimony by the parties.        The parties had resumed their

romantic   relationship   in    November    2015   and   L.S.'s   attorney

represented when they broke up in January 2016, F.H. started making

parenting time difficult for L.S.          L.S. claimed F.H. had called

                                    5                              A-0829-16T3
the Division of Child Protection and Permanency (the Division)

numerous times about L.S., and each time, the Division determined

the allegations were unfounded.       F.H. admitted she involved the

Division once.

     The court refused to change the custody arrangement, finding

F.H. had not shown a substantial change of circumstances and noting

that changing custody was a "last remedy" if other options were

unsuccessful.    The judge ordered sixteen make-up parenting days

for L.S., stating she did not believe the child was "conveniently

ill for [sixteen] times" as F.H. had alleged.       The court denied

F.H.'s request to have all exchanges occur in New Jersey but

allowed her to send someone in her stead if she were unable to

drive.   The judge ordered F.H. to pay $2,687.50 towards L.S.'s

counsel fees, finding the enforcement action was necessitated by

her refusal to allow parenting time and she had the ability to pay
                                                           1
counsel fees.    The judge signed an order the same day.

     On May 31, 2016, F.H. moved for reconsideration. In addition,

she made new claims for temporary sole legal and physical custody

and supervised parenting time pending L.S.'s completion of a

psychological evaluation, anger management class, and parenting

skills course.    She again requested that all pick-ups and drop-


1
   A second order was signed to correct a typographical error on
May 10, 2016.

                                  6                            A-0829-16T3
offs be in New Jersey.      She also asked the court to hold L.S. in

contempt for failing to return the child on a previous date, and

for counsel fees.      F.H. certified that her "debilitating back

condition" prevented her from driving more than forty-five minutes

and the trips to Connecticut interfered with her other son's

activities.      She   alleged   L.S.'s      "violent,     aggressive,      and

irresponsible" behavior was a threat to the child as the child

often   returned    with    "bumps,       bruises,     cuts,   scrapes,     and

scratches."     She also asked for an increase in child support,

claiming L.S. was making more money, her income had stayed the

same, and she now had to travel to Connecticut.

     L.S. denied his income had increased, stating instead he was

deprived of income while incarcerated as a result of                   F.H.'s

unfounded allegations.      He argued that she failed to show a change

in circumstances, either to change custody or increase child

support.      He requested additional counsel fees             and sought a

transfer of custody to him given F.H.'s constant interference with

his visitation rights.

     On October 11, 2016, the Family Part judge denied the motion

for reconsideration, finding F.H. raised no issues the court

previously    failed   to   address   and     no     substantial   change    in

circumstances warranting a change of custody or an increase in

child support.     Instead, the judge found F.H. in violation of the

                                      7                               A-0829-16T3
previous order to pay L.S.'s counsel fees and the order requiring

the use of the father's last name, and was not submitting medical

bills to L.S. prior to requesting reimbursement.             The judge found

that F.H. "want[ed] to relitigate this over, and over, and over

again, wasting not only clearly [L.S.'s] time and making him have

to seek counsel and for counsel fees, but wasting the Court's time

on the same issues that have been litigated ad nauseam."                      The

judge denied F.H.'s motion for reconsideration with prejudice,

telling her she could not "make another application" for the same

relief.     She awarded counsel fees of $3,675 to L.S., because the

reconsideration motion was "a waste of time, was in fact, made in

bad faith, and more importantly, . . . I'm awarding [counsel fees]

under the enforcement application."           The judge told F.H. if she

continued    to   disobey   court   orders    and    interfere    with    L.S.'s

custody, the judge would consider transferring custody to him.                  An

order was signed the same day.

     On October 20, 2016, F.H.'s emergent application to stay the

October 11, 2016 order was denied.           The next day, F.H.'s request

to file an emergent motion in the Appellate Division was also

denied.

     This appeal followed.          F.H. appeals from the May 6, 2016

order   denying    F.H.'s   application      for    change   in   custody     and

enforcing L.S.'s parenting time, and from the October 11, 2016

                                      8                                  A-0829-16T3
order denying reconsideration.         In her appeal, she raises ten

points, which essentially amount to four assertions: The Family

Part judge erred by (1) denying her request for sole custody and

to modify parenting time without a plenary hearing; (2) increasing

L.S.'s parenting time without a showing of changed circumstances;

(3) awarding counsel fees to L.S.; and (4) denying her motion for

reconsideration.    We will address these issues in turn.     All other

arguments are either moot or without merit.

                                  I.

     F.H. argues the Family Part judge erred in denying her

applications for sole custody and to decrease L.S.'s parenting

time, as she showed a prima facie case of changed circumstances

sufficient to warrant a plenary hearing.            She claims changed

circumstances were shown cumulatively because L.S. "failed to

appreciate   [the    child's]   medical    issues    and   dress     [him]

appropriately to avoid asthma attacks," he exposed the child to

"an environment where he has gotten sick," the child suffered

bruises while in L.S.'s care, and he was "inconsistent" with

parenting time.

     Due to "the special jurisdiction and expertise of the family

court," we defer to factual determinations made by the trial court

as long as they are "supported by adequate, substantial, and

credible evidence in the record."       Milne v. Goldenberg, 428 N.J.

                                  9                                A-0829-16T
3 Super. 184, 197 (App. Div. 2012) (citing Cesare v. Cesare, 
154 N.J. 394, 413 (1998)).          We will not disturb the fact-findings of

the trial judge unless "they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interest of justice."                       Abouzahr v.

Matera-Abouzahr, 
361 N.J. Super. 135, 151 (App. Div. 2003) (quoting

Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 
65 N.J. 474,

484 (1974)).     "[D]eference is especially appropriate 'when the

evidence    is   largely       testimonial    and     involves    questions      of

credibility.'"    MacKinnon v. MacKinnon, 
191 N.J. 240, 254 (2007)

(quoting    Cesare,      
154 N.J.    at   412).         Absent     compelling

circumstances,    the    Appellate      Division    may    not   substitute    its

judgment for that of the trial court, which has become familiar

with the case.        Schwartz v. Schwartz, 
68 N.J. Super. 223, 232

(App. Div. 1961).

      "In custody cases, it is well settled that the court's primary

consideration is the best interests of the children."                     Hand v.

Hand, 
391 N.J. Super. 102, 105 (App. Div. 2007) (citation omitted).

A   party   seeking     to   modify     custody     or    parenting    time   must

demonstrate changed circumstances that affect the welfare of the

child.   Ibid.; Lepis v. Lepis, 
83 N.J. 139, 157 (1980); Abouzahr,


361 N.J. Super. at 152.         Once the moving party makes a prima facie

showing of changed circumstances, only then is the moving party

                                        10                                A-0829-16T3
entitled to "a plenary hearing as to disputed material facts

regarding the child's best interests, and whether those best

interests are served by modification of the existing custody

order."   Faucett v. Vasquez, 
411 N.J. Super. 108, 111 (App. Div.

2009).

     The judge found F.H. did not show a substantial change of

circumstances sufficient to change custody, and there was no

"reason to deprive the father of any more . . . parenting time."

Our review of the record demonstrates the evidence supports the

judge's decision.

     F.H. claimed the child was "bruised" when he returned from

seeing his father; she reported her allegations to the Division,

which found they had no merit.        Similarly, although F.H. claimed

L.S. put the child in situations where he got sick, these were

simply general claims that L.S. failed to provide appropriate

care.     Her    allegations   were    supported    only    by   her      own

certifications    and   testimony,    and   given   her   repeated     false

accusations against L.S. and attempts to deprive him of parenting

time, the court did not find her to be credible.

     We do not find the court's determination was in error.            Given

that F.H. did not meet the changed circumstances threshold, the

judge was not obliged to hold a best-interests plenary hearing on

either motion.

                                 11                                  A-0829-16T3
                                   II.

     Next, F.H. argues the judge erred by substantially increasing

L.S.'s parenting time and ordering her to drive to Connecticut

because prior to a change in parenting time, L.S. was required to

show changed circumstances and the court was then obliged to hold

a plenary hearing to determine if a change was in the best

interests of the child.     We disagree.

     The   May   2015   consent   agreement,   regarding   custody   and

parenting time, stated the parties "agreed to an incremental

parenting time arrangement which will gradually increase contact"

between L.S. and the child "as well as gradually incorporating

overnight [p]arenting [t]ime between the child and his [f]ather

in the [f]ather's house."    Starting in August 2015 and continuing

through October 2015, L.S. was to have one overnight a month in

addition to his weekly visit, and F.H. agreed to transport the

child to and from Connecticut on the overnight weekend visit.        For

November and December 2015 and January 2016, L.S. was to have two

single overnights on alternating weekends.      This schedule was "the

minimum amount of parenting time"; the parents could, by mutual

consent, increase or modify the agreement as needed.

     Beginning in February 2016, the agreement stipulated the

parents would work out a parenting time schedule "to include more

single overnights, alternating (two night) weekend overnights

                                   12                           A-0829-16T3
and/or   mid-week   parenting   time"      either    through    consent    or

mediation.     In L.S.'s April 2016 application, he claimed F.H.

refused to reduce a schedule to writing.            In accordance with the

consent agreement, the judge ordered L.S.'s parenting time to

increase to every other weekend, Friday to Sunday.

     F.H. acknowledges the parenting consent agreement, yet argues

L.S. did not show the existing parenting time agreement entered

on May 1, 2015 was no longer in the best interest of the child.

However, because the parties were bound by the consent agreement,

which contemplated an increase in parenting time, L.S. was not

required to show changed circumstances.             He only sought court

intervention   to   enforce   the   agreement    when    F.H.   refused    to

formalize an increased parenting schedule, as contemplated by the

agreement.

                                    III.

     Next, F.H. argues the Family Part abused its discretion by

ordering her to pay L.S.'s counsel fees first on May 6, 2016, and

again on October 11, 2016, because she did not consider certain

factors under Rule 5:3-5(c).        "An award of counsel fees is only

disturbed upon a clear abuse of discretion," and will be disturbed

only on the rarest of occasions.         J.E.V. v. K.V., 
426 N.J. Super.
 475, 492 (App. Div. 2012) (quoting City of Englewood v. Exxon

Mobil Corp., 
406 N.J. Super. 110, 123 (App. Div. 2009)).              Thus,

                                    13                              A-0829-16T3
we defer to the court's determinations unless they plainly lack

evidentiary support, are contrary to the record, or are based on

a misapplication or disregard of the law.    Tannen v. Tannen, 
416 N.J. Super. 248, 280-81 (App. Div. 2010).

     Rule 4:42-9(a)(1) states "[n]o fee for legal services shall

be allowed . . . except [i]n a family action . . . pursuant to

Rule 5:3-5(c)."   Rule 5:3-5(c) says that in determining the amount

of the fee award, the court should consider:

          (1) the financial circumstances of the
          parties; (2) the ability of the parties to pay
          their own fees or to contribute to the fees
          of the other party; (3) the reasonableness and
          good faith of the positions advanced by the
          parties both during and prior to trial; (4)
          the extent of the fees incurred by both
          parties; (5) any fees previously awarded; (6)
          the amount of fees previously paid to counsel
          by each party; (7) the results obtained; (8)
          the degree to which fees were incurred to
          enforce   existing   orders   or   to   compel
          discovery; and (9) any other factor bearing
          on the fairness of an award.

     In granting L.S.'s counsel fee request, the judge considered

the certification of his attorney, including her qualifications.

She noted that F.H. had the ability to pay, and that L.S.'s motion

was to enforce missed parenting time, and for that reason, she

imposed counsel fees.    The judge considered the actions brought

by both parties, concluding the only part of F.H.'s motion that

was for enforcement regarded L.S.'s alleged non-payment of medical


                                14                          A-0829-16T3
bills, and found F.H. had not properly presented the bills for

payment.    The results obtained were not favorable to F.H. and were

favorable to L.S. Moreover, L.S.'s motion to enforce his parenting

time rights was necessitated by F.H.'s lack of cooperation.

     The judge also noted, based on documented paystubs, F.H.

earned $148,000 per year, and at least $102,000 in 2015.          The

child support worksheet, which the court prepared in setting L.S.'s

child support obligation in May 2014, shows F.H. had a yearly

gross income of $111,644, while L.S. had a yearly gross income of

$16,016.     Where one party has substantial income and the other

does not, "[t]hat disparity alone would suggest some entitlement

. . . to a fee allowance."   Lavene v. Lavene, 
148 N.J. Super. 267,

277 (App. Div. 1977).

     While F.H. asserts the judge erred in not considering fees

previously awarded, there were none.   She also complains the judge

did not consider fees previously paid.     F.H. represented herself

at this hearing, and although she claims she owed her former

counsel money, she provides no evidence supporting this in the

record.     As such, any error in not considering these factors was

harmless.

     On October 11, 2016, the judge again granted counsel fees to

L.S. under the enforcement application.    F.H. now argues that the

judge did not consider the relevant factors under Rule 5:3-5 and

                                 15                          A-0829-16T
3 Rule 4:42-9.

     The judge concluded under Rule 5:3-7(a), the court can impose

economic sanctions when a party has violated an order regarding

custody or parenting time. Additionally, she found the fees sought

were reasonable, and F.H. acted in bad faith and wasted the court's

time by not only seeking reconsideration, but adding new and

meritless requests for relief.

     The judge noted the motion for reconsideration was a mere re-

litigation of issues previously been fully addressed.    Moreover,

F.H. made no payment towards the counsel fees initially ordered

in May 2016, and failed to abide by multiple orders with respect

to the child's name.   Considering the record as a whole, we do not

find this award of fees was an abuse of discretion.

                                 IV.

     Lastly, F.H. asserts the judge erred in denying her motion

for reconsideration.   The decision on whether to deny a motion for

reconsideration rests squarely in the discretion of the trial

court.   Marinelli v. Mitts & Merrill, 
303 N.J. Super. 61, 77 (App.

Div. 1997) (citation omitted). A motion for reconsideration should

be granted only under the narrow circumstances "in which either

(1) the [c]ourt has expressed its decision based upon a palpably

incorrect or irrational basis, or (2) it is obvious that the

[c]ourt either did not consider, or failed to appreciate the

                                 16                         A-0829-16T3
significance of probative, competent evidence."    Fusco v. Bd. of

Educ. of City of Newark, 
349 N.J. Super. 455, 462 (App. Div. 2002)

(citations omitted).

     First, F.H. argues the judge did not consider the significance

of her medical issues and how they would impact the parenting time

arrangements with L.S.   However, during the May 6, 2016 hearing,

in response to F.H.'s assertion that because of documented back

problems, she could not make the drive to and from Connecticut as

she was ordered, the judge stated, "[y]ou can make arrangements

to have your child picked up if you so choose."       As such, the

judge clearly considered the impact that a back condition would

have on the parenting time arrangement.

     Next, F.H. contends the trial judge did not properly consider

the changed circumstances demonstrated by L.S.'s inability to

provide adequate care to the child.    However, in support of her

application for sole custody, F.H. only repeated her earlier claims

that the child was not safe in L.S.'s care, and points to nothing

the judge explicitly overlooked in making her decision.   A motion

seeking reconsideration of a prior order is governed by Rule 4:49-

2, which requires the movant to "state with specificity the basis

on which [the motion] is made, including a statement of the matters

or controlling decision which counsel believes the court has

overlooked or as to which it has erred . . . ."

                               17                           A-0829-16T3
     F.H. also contends the judge did not consider changes in

L.S.'s   income   when    denying    her    motion   for   reconsideration

regarding child support arrangements. The judge denied an increase

to   L.S.'s   child      support    obligation,      finding   no   changed

circumstances.    We cannot say this determination was in error.

     As a preliminary matter, school expenses, food, and clothing

are included in the Child Support Guidelines, and under Rule 5:6B,

child support orders are subject to an automatic cost-of-living

adjustment every two years, from the last date the support order

was entered or modified.       See Burns v. Edwards, 
367 N.J. Super.
 29, 34 (App. Div. 2004).      Furthermore, under the May 2014 order,

medical expenses were an issue separate from child support, and

even as such, F.H. provided no new information supporting an

increase in L.S.'s obligation towards these expenses.

     F.H. also asserts it was an error for the trial court to not

consider her unsupported assertions that L.S. was underreporting

his income, and such assertions warranted a plenary hearing.            When

applying for a modification of child support, the moving party

"shall append copies of the movant's current case information

statement and that movant's case information statement previously

executed or filed in connection with the order, judgment or

agreement sought to be modified."          R. 5:5-4(a).    "When the record

presented to the court in support of a motion is deficient on its

                                    18                              A-0829-16T3
face to satisfy such requirements, oral argument does not afford

litigants an opportunity to cure such evidentiary deficiencies."

Palombi v. Palombi, 
414 N.J. Super. 274, 286 (App. Div. 2010).

F.H. did not comply with this requirement, and thus, it was within

the trial court's discretion to deny her request.          See Gonzalez-

Posse v. Ricciardulli, 
410 N.J. Super. 340, 351 (App. Div. 2009)

(no further inquiry was necessary where there was no proof that

defendant was concealing his income, "nor proof that his lifestyle

was so disparate compared to his reported income").

     F.H.'s motion to reconsider the May 6, 2016 award of counsel

fees puts forth no new arguments or evidence in which she contends

the trial court failed to consider.

     Reconsideration "is not appropriate merely because a litigant

is dissatisfied with a decision of the court or wishes to reargue

a motion . . . ."       Palombi, 
414 N.J. Super. at 288.          "[T]he

magnitude   of   the   error   cited   must   be   a   game-changer    for

reconsideration to be appropriate."       Id. at 289.     "Said another

way, a litigant must initially demonstrate that the Court acted

in an arbitrary, capricious, or unreasonable manner, before the

Court should engage in the actual reconsideration process."           Ibid.

(quoting D'Atria v. D'Atria, 
242 N.J. Super. 392, 401 (Ch. Div.

1990)) (emphasis added by Palombi court).

     F.H. has not demonstrated the court acted in an arbitrary,

                                  19                             A-0829-16T3
capricious, or unreasonable manner in denying her motion for

reconsideration, and we cannot say the judge erred.

    All additional arguments introduced by defendants are without

sufficient merit to warrant discussion in a written opinion.     R.

2:11-3(e)(1)(E).

    Affirmed.




                              20                          A-0829-16T3