ANDREW M. PODEMS v. MICHELE PODEMS
Annotate this CaseNOT 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-2281-15T3
ANDREW M. PODEMS,
Plaintiff-Appellant,
v.
MICHELE PODEMS,
Defendant-Respondent.
_____________________________
Submitted October 17, 2017 – Decided May 14, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey
Chancery Division, Family Part, Union County,
Docket No. FM-20-0952-14
Andrew M. Podems, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Andrew M. Podems appeals the trial court's February
1 and February 2, 2016 orders denying his post-judgment motions
to modify the parties' custody and parenting time, and granting
defendant Michelle Podem's motion for counsel fees and other
enforcement. We affirm all three orders, except for the award of
counsel fees, which we vacate and remand for reconsideration.
I.
Plaintiff and defendant were married in New Jersey in 1999.
They moved to Alaska in 2001, and had a child there in 2009.
Plaintiff filed for divorce from defendant in Alaska in 2011.
After a trial the Alaska Superior Court issued a judgment of and
decree for divorce on July 9, 2013. That court ordered that
defendant have legal and physical custody of the child, that
plaintiff receive visitation, and that plaintiff pay child
support.
Plaintiff appealed to the Alaska Supreme Court, which
affirmed the Alaska Superior Court's decision. The Alaska Supreme
Court remanded to finalize the division of defendant's retirement
accounts. Podems v. Podems, No. S-15242, 2
014 Alas. LEXIS 54
(Apr. 9, 2014), reh'g denied, 2
014 Alas. LEXIS 78 (Apr. 29, 2014).
That issue was still pending when the motions before us were
decided.1
Defendant and then plaintiff moved back to New Jersey in
2013. On January 24, 2014, the Family Part granted defendant's
1
The Alaska Supreme Court subsequently affirmed the Alaska
Superior Court's revised division of defendant's retirement
accounts. Podems v. Podems, No. S-15751, 2
017 Alas. LEXIS 42
(Mar. 29, 2017).
2 A-2281-15T3
motions "to register the July 9, 2013 Judgment and Decree for
Divorce and Findings of Fact and Conclusions of Law, entered by
the Superior Court of the State of Alaska," as well as that court's
Child Support Order entered on the same date. Both motions were
granted "with the consent of [p]laintiff on the record." The
court also granted defendant's motion "to establish New Jersey as
the home state of the minor child . . . with the consent of
[p]laintiff on the record." "Both parties stipulated on the record
that the minor child . . . has resided in the State of New Jersey
since February, 2013." The court also granted defendant's motion
"to establish venue in Union County for adjudication of child
custody, parenting time, child support, and related issues . . .
with the consent of [p]laintiff on the record." Finally, the
court granted defendant's motion to modify child support.
After New Jersey courts attained jurisdiction, both plaintiff
and defendant filed further motions. A series of orders were
issued by different judges, which we will discuss where pertinent.
On December 8, 2015, plaintiff filed a motion ("early December
motion") requesting shared legal custody, physical custody for the
summer, and to amend the holiday schedule to include Jewish
holidays and additional days off from school. Further, plaintiff
requested that the pick-up/drop-off times be changed so that he
can pick the child up directly from school, the meeting place for
3 A-2281-15T3
other exchanges be changed from at the police station to a "public
place," and that he have a right of first refusal. Finally,
plaintiff requested to have Skype communications with the child.
The trial court held a hearing on January 29, 2016. The
court addressed plaintiff's motion filed "December 11, 2015," in
a February 1, 2016 order. The court granted plaintiff's request
for Skype communication. "All other requests for relief" in
plaintiff's motion filed on December 11, 2015, were denied.
The trial court also issued two orders on February 2, 2016.
The first February 2, 2016 order granted defendant's motion for
wage execution, modified holiday and vacation parenting time, and
stated that all pick-up/drop-offs would occur "inside" the police
departments. The court also awarded defendant counsel fees and
costs of "$1,455 as a consequence of filing the Order to Show
Cause dated November 23, 2015, and the within Post-Judgment
Motion."
The second February 2 order simply denied in its entirety a
post-judgment motion plaintiff filed on December 30, 2015. As
plaintiff has not supplied us with that motion, it is unclear from
the record what relief plaintiff requested in that motion.
Meanwhile, on January 29, 2016, plaintiff filed a notice of
appeal attempting to appeal the January 24, 2014 order.
Plaintiff's appellate case information statement stated he also
4 A-2281-15T3
wished to appeal the orders issued March 28, 2014, "11/19/14";
"9/11/15"; and November 24, 2015. Plaintiff later filed a motion
to "add points to appeal." On April 25, 2016, we permitted
plaintiff to amend his notice of appeal to include the trial
court’s February 1, 2016 and February 2, 2016 orders, but ruled
that plaintiff’s appeal was dismissed as "untimely as to any
previous order." On November 7, 2016, we reiterated that we would
"only consider arguments pertaining to the February 1, 2016 and
February 2, 2016 orders."
II.
Plaintiff argues New Jersey courts do not have proper
jurisdiction to modify the child support order, originally issued
in Alaska. However, there was no modification of child support
granted by the February 1 and 2 orders, which either denied relief
or addressed other issues.2 Therefore, the issue of jurisdiction
to modify child support is not before us.
Plaintiff cites the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA),
N.J.S.A. 2A:34-53 to -95, and the
Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A.
However, he does not dispute that the trial court had jurisdiction
over "legal custody, physical custody, and visitation." N.J.S.A.
2
The first February 2 order granted wage execution, but plaintiff
does not appeal that issue.
5 A-2281-15T3
2A:34-54; see 28 U.S.C. § 1738A(b)(3), (b)(9), (c) (addressing
"custody" and "visitation"). In any event, we note plaintiff
consented to registering the Alaska judgment in New Jersey, and
agreed that New Jersey is the child's home state, that it had been
since February 2013, and that the Union County court had venue to
adjudicate child custody, parenting time, and child support.
III.
Plaintiff challenges the trial court's rulings denying his
motions to modify child custody, parenting time, and other
visitation issues. "In Lepis v. Lepis,
83 N.J. 139 (1980), the
Supreme Court set forth 'the proper procedure for courts to follow
on modification motions.'" R.K. v. F.K.,
437 N.J. Super. 58, 62
(App. Div. 2014) (citation omitted).
Modification of an existing child custody
order is a "'two-step process.'" First, a
party must show "a change of circumstances
warranting modification" of the custodial
arrangements. If the party makes that
showing, the party is "'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.'"
[Costa v. Costa,
440 N.J. Super. 1, 4 (App.
Div. 2015) (quoting R.K., 437 N.J. Super. at
62-63; other citations omitted).]
6 A-2281-15T3
Here, the trial court ruled that plaintiff failed to show
changed circumstances, and denied plaintiff's motion without a
plenary hearing.
A.
Plaintiff argued that the trial court erred in failing to
increase his parenting time during the child's summer vacation.
Plaintiff's early December motion asserted the child should "spend
the summer with" plaintiff, giving defendant only visitation
because the child's IEP plan indicated the child would not need
to attend summer school in summer 2016. Plaintiff and defense
counsel agreed plaintiff was referring to a portion of the October
2015 IEP stating summer school was "not required at this time."
According to defense counsel, defendant's certification stated
past practice had been, and both parents were advised at the time
of the October 2015 IEP, that the final determination on summer
school was based on the entire school year and would not be made
until the spring. When plaintiff claimed the IEP was the final
decision, the trial court replied: "Why don't you get me a
certification, if that's your position, from the people at the
school district who you claim have conclusively decided as of
October that a special needs child will the following June not
have to attend some sort of summer schooling?" The court told
plaintiff he could file a new motion with such a certification and
7 A-2281-15T3
a parenting plan to explain what summer activities the child would
do in plaintiff's custody to replace the summer activities he did
in defendant's custody.
Plaintiff has not supplied us with the IEP or defendant's
certification, both of which are "essential to the proper
consideration of the issues[.]" R. 2:6-1(a)(1)(I); see Soc'y Hill
Condo. Ass'n, Inc. v. Soc'y Hill Assocs.,
347 N.J. Super. 163,
177-78 (App. Div. 2002) (ruling that where the appellant failed
to provide essential parts of the record, "we have no alternative
but to affirm"); see also Cipala v. Lincoln Tech. Inst.,
179 N.J.
45, 55 (2004). Moreover, according to the transcript, the October
IEP was stating the situation "at this time" and the final decision
would be made in the spring. In these circumstances, we cannot
fault the trial court's decision that it was "not even close to
looking at the summer," that it lacked adequate information, and
that plaintiff should file a new motion with proper certifications.
See R. 1:6-6 ("If a motion is based on facts not appearing of
record or not judicially noticeable," the movant must support it
with "affidavits made on personal knowledge"). Therefore, the
court did not abuse its discretion in declining to rule on
plaintiff's request to expand his summer parenting time.
8 A-2281-15T3
B.
Plaintiff also argues that the trial court erred in failing
to afford him custody on Jewish holidays and Columbus Day, Election
Day, NJEA convention days, and any other days off from school that
were not previously included in the original November 21, 2014
order. The November 21, 2014 order granted plaintiff's cross-
motion to establish a holiday schedule by consent, adopting the
court's holiday schedule. The court's holiday schedule provided
that the parties should alternate a list of holidays, including
Columbus Day. The court's holiday schedule added:
Note: Depending on the heritage, culture and
traditions of the particular family, the
parties may wish to expand the list of
holidays to include Ramadan, Passover, Yom
Kipper, Rosh Hashanah, Chanukah and/or Kwanza.
None of these days, however, will be
considered as Holidays unless specifically
ordered by the Court or agreed upon in
writing.
At the January 29, 2016 hearing, plaintiff asserted that his
father is Jewish and that it is his paternal family's tradition
to meet for Jewish holidays. Defendant disputed whether plaintiff
had ever celebrated the Jewish holidays during the marriage.
The trial court declined to modify the holiday schedule to
allow parenting time to plaintiff on Jewish holidays because
plaintiff admittedly failed to raise the issue when the holiday
schedule was first agreed to on November 21, 2014, and plaintiff
9 A-2281-15T3
could not identify any change in circumstances. The same is true
for the other holidays.
There is a "'strong public policy favoring stability of
arrangements'" in family court matters. Lepis,
83 N.J. at 148
(citation omitted). "Because the custody arrangement was agreed
to and incorporated in the trial court's judgment, plaintiff is
required to demonstrate changed circumstances to justify its
modification." Bisbing v. Bisbing,
230 N.J. 309, 337 (2017). As
plaintiff failed to demonstrate changed circumstances, the trial
court properly rejected his attempt to fine tune the holiday
schedule to add holidays he could have sought in 2014.
C.
Plaintiff also appeals the trial judge's decision to not
alter the pick-up/drop-off location from specified police
departments to a public space.
The March 28, 2014 order states:
Plaintiff's Motion for Defendant to assist
with the pick-up/drop-off of the minor child
. . . is hereby granted. With regard to the
pick-up/drop-off of the minor child, the
parties stipulated on the record that the
parties shall perform pick-up/drop-off [of]
the minor child at [a specific] Police
Department parking lot.
The November 21, 2014 order provided: "Unless mutually agreed
to by parties, pickup/drop[-]off] shall continue to be at the
10 A-2281-15T3
police department in the municipality where the parties reside,"
which the order specified. The November 20, 2015 order addressing
Thanksgiving 2015, provided that the parties would exchange the
child at the "Police Department" in their respective towns.
At the January 29, 2016 motion hearing, when plaintiff
proposed moving the exchange to a bagel store, the trial court
assumed defendant "doesn't feel comfortable doing that." Defense
counsel responded: "Yes your Honor, which is why we did the police
station in the first place." The court later stated that defendant
"doesn't feel safe doing a pickup and drop[-]off somewhere else.
That's a concern for me."
Defense counsel later stated that "the reason, in part, that
the exchange is done at the station is for defendant's and the
child's safety."
Plaintiff asserts he is the one who originally requested
police station drop-offs and pick-ups. However, given the
persistent requirement that pickups and drop-offs occur at police
stations, the court could draw the reasonable inference it was a
safety precaution.
In any event, plaintiff failed to show a change of
circumstance justifying relief. Plaintiff argued that changing
the exchange location to the bagel store would save each parent
ten to fifteen minutes of driving, but offered no reason to believe
11 A-2281-15T3
that had not been equally true at the time of the 2014 orders.
Similarly, plaintiff's request to change the Friday pickup time
from 6:00 p.m. to 3:45 p.m. to avoid rush hour traffic was rejected
because the trial court was "sure there was traffic in the same
period of time when this was entered into" in November 21, 2014.
Absent a change of circumstances, the court properly declined to
disturb the exchange site and time the parties had used since
2014.
The trial court did grant defendant's motion to clarify where
at the police departments exchanges should occur: "at the police
department" in the November 21, 2014 order was modified to "inside
the police departments and not in the unattended and unsupervised
parking lot" in the February 2, 2016 order. Defense counsel argued
that it had already "been ordered that it will be inside the police
station," and that "[t]here is too much hostility . . . between
these litigants to have it anywhere else." Plaintiff disagreed.
However, his failure to provide us with defendant's certification
supporting her motion leaves us with an inadequate record to review
this relatively minor change. See R. 2:6-1(a)(1)(I).
D.
Defendant also argues the trial court erred in failing to
grant his early December motion stating: "If it doesn't already
exist, the [c]ourt should order the [r]ight of [f]irst [r]efusal
12 A-2281-15T3
with its standard provisions." However, plaintiff did not orally
argue for a right of first refusal at the January 29, 2016 hearing,
or supply a supporting certification. Plaintiff cites defense
counsel's statement that when defendant "works the 12-hour day at
the hospital" on "the day of the exchange, the maternal
grandparents serve as the conduit for getting [the child] to and
from the [police] department." However, without evidence that
circumstances had changed, the trial court properly rejected this
request.
E.
In 2013, the Alaska Superior Court awarded defendant sole
legal custody. Plaintiff's early December motion asserted the
trial court should have "changed [that] to shared so that I can
take an active role in planning and advocating for our [the
child's] education and health." At the January 29 hearing,
plaintiff argued that since the divorce he had been certified in
New Jersey as a special education teacher, but he was similarly
certified in Alaska before the divorce trial. He also argued he
had been certified in other areas of child and family support
since the divorce.
However, the great majority of those certifications preceded
the November 21, 2014 order. That order denied plaintiff's motion
to change custody "as there are no proofs as to any substantial
13 A-2281-15T3
change in circumstances warranting same." Despite leaving sole
legal custody with defendant, that order provided that plaintiff:
"shall be entitled to have access to [the child's] educational and
medical records, and shall be permitted to communicate with all
education and medical providers." Given the November 21, 2014
order, the trial court properly rejected plaintiff's claim that
he was being denied the opportunity to advocate for the child, and
found no changed circumstances since that order justifying the
termination of defendant's sole legal custody.
F.
Plaintiff also argues that the trial court erred in failing
to grant his request for a parenting coordinator. Plaintiff's
request for a parenting coordinator was denied without prejudice
in an August 15, 2014 order. Plaintiff made reference to that
2014 ruling at the January 29 hearing, but he has failed to show
that he re-raised this issue in his motions adjudicated in February
2016. Because our review is limited to the February 1 and February
2, 2016 orders, this argument is not properly before this court.
In any event, he did not show a change of circumstances.
IV.
Plaintiff also argues the trial court in the first November
2 order erred in granting defendant's motion and awarding her
counsel fees and costs in the amount of $1,455 "as a consequence
14 A-2281-15T3
of filing the Order to Show Cause dated November 23, 2015, and the
within Post-Judgment Motion." The basis of this award is unclear,
but in part it concerns an exchange of orders to show cause
regarding which parent would have the child on Thanksgiving,
November 26, 2015.
On November 20, 2015, plaintiff filed a motion seeking an
order to show cause in which he requested the "court to enforce
[his] parent time for Thanksgiving by ordering defendant to provide
transfer times or agree to my suggested times for pickup/drop[-
]off." He attached the November 21, 2014 order's holiday schedule,
which provided that he had "Thanksgiving Day and Friday after
Thanksgiving" on "odd years." He also attached emails asking
defendant to schedule his Thanksgiving time, to which she responded
only: "Any questions about holidays and weekends revert back to
order." In a November 20, 2015 ex parte order a first family
judge granted plaintiff parenting time for Thanksgiving and the
Friday after, and ordered plaintiff to serve defendant with the
order.
However, in a November 24, 2015 order, a second family judge
ordered that "[t]he Court Order entered on November 20, 2015 by
the [first judge] awarding parenting time to Plaintiff for the
Thanksgiving holiday . . . is hereby rescinded due to integral
15 A-2281-15T3
facts not before [the first judge] at the time of issuance." The
order gave defendant the Thanksgiving parenting time.
It is unclear why the second judge reversed the first judge,
or why the trial court awarded counsel fees. Defense counsel
argued that plaintiff "neglected to tell [the first judge] that
his adversary was an attorney and that we should probably call the
attorney before we make a ruling on an ex parte order." However,
the first judge saw fit to adjudicate the application on an ex
parte basis, the rules of court do not require prior notice of
orders to show cause in all circumstances, and do not distinguish
between represented and unrepresented parties. See R. 4:52-1(a),
-2.
Defense counsel also argued that the Thanksgiving schedule
in the November 21, 2014 order "had been reversed so that
[plaintiff] had it in 2014, my client had it in 2015, [the second
judge]'s order says that in 2016, it's back with [plaintiff]."
However, the second judge's order says nothing about 2016, and
nothing before us shows the November 21, 2014 order was modified
only days after issuance.
Again, plaintiff has not supplied us with any certification
accompanying defendant's motion for counsel fees. See R. 2:6-
1(a)(1)(I). However, the orders that are before us raise questions
about awarding fees for the Thanksgiving 2015 dispute. Moreover,
16 A-2281-15T3
the trial court made no findings regarding the award of fees for
that dispute or for defendant's post-judgment motion.
"[A]ll applications for the allowance of fees [in family
actions] shall be supported by an affidavit of services," and the
judge is required to consider specified factors. R. 4:42-9(a)(1),
(b), (c); see R. 5:3-5(c), (d); R.P.C. 1.5. Here,
"[u]nfortunately, the [trial court]'s decision to award counsel
fees did not address the pertinent factors under Rule 5:3-5(c),
and failed to make the required findings set forth therein."
Clarke v. Clarke ex rel. Costine,
359 N.J. Super. 562, 572 (App.
Div. 2003) (citing R. 1:7-4).
Under these circumstances, the appropriate course is to
vacate that portion of the first February 2, 2016 order awarding
counsel fees, and to "remand for the trial judge to reconsider
whether to award counsel fees and to make findings of fact and
conclusions of law with respect thereto." Ibid. We express no
opinion on the merits. We affirm the remainder of that order, as
well as the February 1, 2016 order and the second February 2, 2016
order.
Plaintiff's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
17 A-2281-15T3
Affirmed in part, vacated in part, and remanded. We do not
retain jurisdiction.
18 A-2281-15T3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
