NICOLE LOMANGINO VS. FRED LOMANGINO NICOLE LOMANGINO VS. FRED LOMANGINO (FM-13-0693-13, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1569-15T3
NICOLE LOMANGINO,
Plaintiff-Appellant,
v.
FRED LOMANGINO,
Defendant-Respondent.
______________________________________________
Argued November 29, 2016 – Decided June 9, 2017
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Monmouth County, Docket No. FM-13-0693-13.
Steven P. Monaghan argued the cause for
appellant (Law Office of Steven P. Monaghan,
L.L.C., attorneys; Mr. Monaghan and Jessica
L. Berg, on the brief).
Elliot S. Solop argued the cause for
respondent (Dwyer, Bachman & Newman, LLC,
attorneys; Mr. Solop, on the brief).
PER CURIAM
Plaintiff, Nicole Lomangino, and defendant, Fred Lomangino,
were married in 2001, and had two children, A.L., born in 2004,
and F.L., born in 2006. During the marriage, the parties
resided in Tinton Falls and defendant operated his father's
business, which was also located in Tinton Falls.
Plaintiff filed a complaint for divorce in October 2012.
At the time, she was employed by a government contractor at Fort
Monmouth. The parties were divorced on June 27, 2013, when a
dual final judgment for divorce (FJD) was filed. The FJD
incorporated a matrimonial settlement agreement (MSA) dated May
30, 2013.
The MSA provided that the parties would share joint legal
custody of A.L. and F.L., who were then, nine and seven, and
plaintiff was designated the parent of primary residence.
Paragraph 2.2 of the MSA addressed schooling for the children:
The parties have agreed that the children
shall continue to attend the Tinton Falls
public school system so long as Husband
resides in Tinton Falls. Therefore, the
Husband's Tinton Falls address shall be used
for school district purposes. The children
remaining in the Tinton Falls school system
is a bargained for exchange and an integral
part of this settlement.
In July 2015, plaintiff's employer informed her that her
position at Fort Monmouth1 was being relocated to Aberdeen,
Maryland, and she would be terminated if she did not accept the
1
In 2005, Fort Monmouth became subject to the Base Realignment
and Closure (BRAC) program and the Department of Defense
subsequently began a gradual process of shutting down the base.
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transfer. Plaintiff filed an order to show cause seeking to
relocate with the children to Maryland. On August 7, 2015,
Judge Angela White Dalton entered an order denying plaintiff's
request to relocate the children; maintaining them in the Tinton
Falls School District; and ordering a hearing on plaintiff's
application. On August 13, 2015, we denied plaintiff's motion
seeking permission to file an emergent motion on short notice
challenging the August 7, 2015 order.
Judge Dalton conducted an extensive plenary hearing on
seven non-consecutive days in October and November 2015. On
November 16, 2015, Judge Dalton entered an order accompanied by
a written decision denying plaintiff's application to relocate
the children.
On appeal, plaintiff claims Judge Dalton's findings are
erroneous, constitute an abuse of discretion, and she erred as a
matter of law by failing to grant plaintiff's relocation
application under Baures v. Lewis, 167 N.J. 91 (2001). She
urges that we adjudicate the matter "anew" and exercise our
original fact-finding jurisdiction. We reject plaintiff's
arguments and affirm substantially for the reasons expressed by
Judge Dalton in her thorough and thoughtful decision. We add
only the following comments.
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We accord deference to the fact finding of our Family Part
judges because of the family court's special jurisdiction and
their expertise in family matters. Cesare v. Cesare, 154 N.J.
394, 413 (1998). We employ a de novo standard of review to
plaintiff's claim that Judge Dalton erred in her interpretation
of the law. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366,
378 (1995).
Plaintiff argues Judge Dalton erred by failing to determine
that her job transfer constituted "changed circumstances"
sufficient to warrant modification of the MSA. She also claims
the decision to uphold the non-location provision in the MSA as
a basis for denying her removal motion was "a misapplication of
law."
Judge Dalton made the following factual determination:
[T]he principal facts and circumstances
applicable to this removal action were
cognizable at the time of the entry of the
final judgment of divorce primarily because
plaintiff had been subject to potential
employment change due to the BRAC many times
before and after the divorce. . . . It appears
to this court, that the very potential posed
by Plaintiff's career that she would, at some
point, be faced with the choice of changing
careers or relocating to Maryland was the
motivation for paragraph 2.2 [of the MSA].
This conclusion finds ample support in the record, and
plaintiff does not challenge it on appeal. Since plaintiff has
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not shown that her BRAC transfer was unanticipated, she must
demonstrate that the non-location provision "is now not in the
best interests of a child." Abouzahr v. Matera-Abouzahr, 361
N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34
(2003).
Judge Dalton referenced plaintiff's testimony that, before
her removal application, she wanted to reduce the amount of time
defendant spent with the children, and proposed to "totally
eliminate" any after-school time he spent with them. The judge
expressed concerns that if plaintiff moved to Maryland with the
children, she would not encourage them to maintain their
relationship with defendant, and he would lose the daily contact
with them envisioned in their agreement.
Judge Dalton noted that the children benefit from "a rich
diversity of extended family" which she considered a significant
factor in her determination. Both parties have an extensive
support network in New Jersey and because plaintiff planned to
return to New Jersey at some point, the judge found it made
"little sense to disrupt the children on a temporary basis, and
to establish a precedent where [their] extended daily contact
with the Defendant would be eliminated from the children's
lives."
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Finally, Judge Dalton noted that the parties agreed to the
parenting time and custody arrangement in the MSA as well as the
provision maintaining the children in the Tinton Falls school
system because they believed it was in the best interests of the
children.
"New Jersey has long espoused a policy favoring the use of
consensual agreements to resolve marital controversies." J.B. v.
W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman,
158 N.J. 185, 193 (1999)). We recognize the contractual nature
of those matrimonial agreements. Pacifico v. Pacifico, 190 N.J.
258, 265 (2007). Generally, in the absence of
"unconscionability, fraud, or overreaching in the negotiations
of the settlement, . . . no legal or equitable basis exists to
reform the parties' property settlement agreement." Miller v.
Miller, 160 N.J. 408, 419 (1999).
We are satisfied that the record discloses substantial and
credible evidence to support Judge Dalton's findings and her
conclusion that there were no changed circumstances which would
support modification of the MSA.
Affirmed.
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