A.C. VS. J.M.L.M. (FV-07-1680-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-5257-18T3
A.C.,1
Plaintiff-Respondent,
v.
J.M.L.M.,
Defendant-Appellant.
Submitted November 2, 2020 - Decided December 21, 2020
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-1680-15.
Townsend, Tomaio & Newmark, LLC, attorneys for
appellant (Jennifer M. Cornelius, of counsel and on the
brief; Angela K. Halverson, on the brief).
Respondent has not filed a brief.
PER CURIAM
1
Pursuant to Rule 1:38-3(d)(9) and (10), we identify the parties by initials to
protect their privacy.
Defendant appeals from the provisions in the June 20, 2019 amended final
restraining order (FRO) that required the parties to enroll their children in the
West Orange school district and denied defendant's requests for a modification
of his parenting time and a change in the children's surname. Because we
conclude the court failed to conduct the required analyses regarding a change of
circumstances and the best interests of the children, we reverse and remand for
such findings. We affirm the court's ruling denying a change in the children's
surname.
The parties, never married, are parents of two children – X.C., born in
March 2013, and V.C., born in June 2014. Shortly after V.C.'s birth, plaintiff
filed an application for an order establishing custody, parenting time, and child
support.2 In February 2015, the court granted plaintiff a FRO against defendant.
Plaintiff was granted temporary custody of the children.
In June 2016, defendant filed an application to modify a December 15,
2015 order.3 Defendant sought an increase in parenting time, a decrease in his
2
We have not been provided with any order relating to that application.
3
That order is not provided in the record.
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child support obligation and to change the children's surname. It appears the
parties were in court in October 2016 and resolved some of their issues.4
On June 15, 2017, the parties executed a consent order memorializing
their prior agreement and resolving the remainder of their issues (consent order).
Under the order, plaintiff was established as the parent of primary residence and
defendant as parent of alternate residence. 5 They share joint legal custody. The
parties had an alternate week parenting time schedule: on "week one" defendant
had custody from Monday at 7:00 a.m. to Thursday at 7:00 p.m. On "week two"
defendant had custody from Tuesday at 7:00 a.m. to Thursday at 7:00 p.m. 6
The consent order stipulated that X.C. would attend Pre-K in the West
Orange School District for the 2017-2018 school year. The party exercising
parenting time was responsible for transporting X.C. to and from school. The
parenting exchanges were at the West Orange police station.
On August 8, 2017, defendant sent a text message to plaintiff asking if she
had enrolled X.C. in Pre-K as per the consent order. Plaintiff replied that she
4
The record does not contain any order or transcript regarding that proceeding
or settlement.
5
During this time, plaintiff resided in West Orange and defendant lived in
Kearny.
6
Defendant worked on Fridays, Saturdays, and Sundays.
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3
had submitted the application and the child was on a waitlist. Plaintiff also said
the school might not have availability until October or later. After learning that
X.C. was on a waitlist, defendant enrolled the child in Pre-K in the Kearny
school district. Plaintiff reiterated her desire for the child to attend school in
her district. Defendant replied that he enrolled the child in Kearny because he
did not want X.C. to fall behind in school.
The following August, defendant enrolled V.C. in Pre-K in Kearny and
X.C. started kindergarten. Plaintiff did not object or take any action.
On March 5, 2019, defendant filed a motion seeking to modify the consent
order and for the following relief: (1) finding plaintiff in violation of litigant 's
rights for her failure to adhere to the parenting time schedule; (2) naming him
as parent of primary residence and modifying the current parenting time
schedule to give him an additional overnight; (3) memorializing that the children
shall attend school in his school district; (4) changing the surnames of the
children to his surname; and (5) compelling plaintiff to pay his counsel fees and
costs and reducing said amount to judgment.
The application was listed on the DV docket. At the initial hearing, in
April 2019, the trial judge found no merit in defendant's assertion that plaintiff
was violating his rights and insufficient evidence to grant defendant an
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additional overnight. The judge also denied defendant's application to change
the children's surname.
In addressing the school enrollment issue, the judge stated the children
should finish out the school year in Kearny and she would decide at a future
time what school the children would attend in the fall. The judge asked the
parties to submit "information that would lead [her] to conclude that one district
makes more sense, it's in the best interest of the children, than the other." She
explained:
Generally, when it comes to things like that, the Court
looks at some objective measurement of statistics, or --
or rankings. All of that is subject to being challenged,
and it doesn't mean it's written in stone. Because there
is -- there is intangibles, as well, such as where are the
kids most of the day? What's best for them. In terms
of the transportation, how is that working?
And, as they get older, this stuff, you know, tends to
evolve. Right now is not a bad time to address it. But,
all things being equal, since the parties really do share
equal custody, so to speak, as close as it can get without
it being true equal custody, the -- the idea that one party
is going to be inconvenienced by traveling, unless I'm
not hearing something, is not going to be an overriding
concern. Because one of the other parties is going to
have to travel. That's not really going to be the issue.
It's really about what's best for the kids. And it's not
just academics. What other things are available to
them. What are the . . . extra[-]curricular activities.
What other opportunities might they have in Kearny
A-5257-18T3
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that they don't have in West Orange, or in West Orange
they don't have in Kearny. Those are the kind of things
that will be important for the [c]ourt to know. Okay?
At a subsequent hearing on June 5, 2019, defendant's counsel argued that
the children should attend school in Kearny because defendant has the children
for the majority of the weekdays. Although counsel conceded West Orange is a
better ranked school district, defendant contended that geography should be the
paramount consideration.
The judge told the parties she was dissatisfied with what was presented to
her. She stated: "[W]hat I didn't hear addressed is . . . the initial agreement,
since we were talking about agreements, was that they were going to go to [a]
West Orange school. So, nobody's talked about that. That was the initial
agreement." She instructed the parties to prepare supplemental submissions
addressing information about graduation rates, data about college admission,
and activities the children would pursue on weekends.
The judge held a final hearing on June 20, 2019. She stated that because
the parties essentially had a shared 50-50 custody arrangement, there was not a
parent of primary residence. In reviewing the supplemental submissions of the
parties, the judge again found them lacking. She said plaintiff only provided a
statement explaining the reasons the children should be in the West Orange
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school system. Although defendant submitted information about Kearny High
School and neighborhood opportunities, the court found the information was not
helpful.
The judge stated she had re-read the consent order and the parties' text
messages from 2017 regarding X.C.'s Pre-K enrollment. She found plaintiff had
not agreed to any modification of the order. Therefore, she found "there has not
been a material change that would allow that order to be amended, in the way
that the defendant is asking for it to be amended." Therefore, she ordered
plaintiff to enroll the children in the West Orange school district. The judge
denied any changes to the parenting time schedule, telling the parties they could
file a new application.
On appeal, defendant contends the court erred in failing to consider the
change of circumstances that have occurred since the execution of the consent
order to warrant a modification in parenting time and continued enrollment in
the Kearny school district. In addition, defendant asserts the court failed to
consider the best interests of the children in its determination of the school
enrollment issue and in denying a change of surname.
Because family courts "[have] special jurisdiction and expertise in family
matters, [we] should accord deference to family court factfinding." Cesare v.
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Cesare, 154 N.J. 394, 413 (1998). The trial court's findings of fact and
conclusions of law will only be disturbed if they are "manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evidence."
Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
However, if the trial court "ignores applicable standards, we are compelled to
reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super.
295, 309 (App. Div. 2008). We always determine whether there is sufficient
credible evidence in the record to support the trial court's factual determinations.
Rova Farms, 65 N.J. at 484.
After conducting three hearings concentrating on which school district the
parties' children should attend, the court determined the provision in the consent
order should control. Defendant contends the court failed to consider the change
of circumstances that were sufficient to warrant a modification of the consent
provision regarding school enrollment.
Under the 2017 consent order, the parties agreed to enroll their oldest child
in Pre-K in the West Orange school district for the 2017-2018 school year.
However, after learning the child was on a waitlist for the program, defe ndant
enrolled X.C. in Pre-K in Kearny. The child completed the Pre-K year in Kearny
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and continued on to kindergarten there for the 2018-19 school term. The parties'
youngest son was enrolled in Pre-K in Kearny for 2018-19.
Plaintiff did not take any action to change the school situation. The matter
only came before the court when defendant filed an application in March 2019
for a change of parenting time and a memorialization of the school enrollment.
By that time, X.C. was close to finishing kindergarten; V.C. was completing the
Pre-K program.
Despite the court's considerable attention to the matter, it failed to apply
the best interests standard to the parties' circumstances. The consent order only
addressed the oldest child's school attendance and only applied to one year –
2017 to 2018. Clearly, the parties intended and needed to revisit the issue for
the following school year. At that time, both children would be attending school.
Furthermore, the court did not address the practicality of the custody
arrangement vis-a-vis the school location. Defendant had custody of the
children on most school nights, an important fact to consider in any analysis.
Generally, a party must demonstrate changed circumstances to warrant
relief from the provision of a consent order. Martindell v. Martindell, 21 N.J.
341, 353 (1956). If a movant shows a sufficient change of circumstances, the
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court engages in a "best interest analysis." Baures v. Lewis, 167 N.J. 91, 113
(2001).
Once a movant meets the prima facie burden to show a change of
circumstances, the court must then consider the agreement's terms "in the
context of the circumstances at the time of the drafting and to apply a rational
meaning in keeping with the 'expressed general purpose'" of the provisions.
Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). Where the movant has shown a
change in circumstances, the court must consider the modification in light of the
best interests standard articulated under N.J.S.A. 9:2-4.
Here, given the limited scope of the parties' consent order regarding the
children's school attendance, it is arguable that defendant did not even need to
demonstrate changed circumstances. Because the consent order did not address
either child's school attendance for the 2018-19 school term, the parties needed
to either agree on the children's school going forward or apply to the courts for
a resolution. When the children began school in Kearny in the fall of 2018, it
could be inferred the parties had come to an agreement. Indeed, it was defendant
who moved before the court near the end of the 2019 school year for an order
establishing Kearny as the children's school district.
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In the absence of an agreement, the trial court was required to conduct a
best interests analysis to determine the parties' parenting time issues and school
enrollment. With children of such a young age, there is little utility in comparing
college acceptance rates, scholarship opportunities, and extracurricular
activities. See Levine v. Levine, 322 N.J. Super. 558, 566-67 (App. Div. 1999)
(holding that where joint custodians cannot agree on a choice of schools, the
issue must be decided consistent with the child's "best interests" and, in that
context, "any evaluation of a school district is inherently subjective" and
involves "more than its teacher-student ratio or State ranking.").
We cannot properly review the court's decision without a fact-finding and
determination of what is in the children's best interests. Nearly nineteen months
have passed since the court's decision, and the children are yet in another school
term. We must therefore remand to the family court to develop a thorough
record. The court should determine whether the parties need to provide
additional written submissions. Thereafter, a plenary hearing should take place,
with testimony from the parties as to their current circumstances. The family
court judge should determine which school district is in the children's best
interests to attend. Once that determination is made, the court should consider
whether any modifications to the parents' parenting time is warranted.
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We briefly address defendant's appeal from the order denying a change in
the children's surname. "[I]n renaming disputes between parents who agreed on
a surname at birth but find themselves later in a dispute over whether to alter the
surname, the proper standard to apply is the best interests of the child." Emma
v. Evans, 215 N.J. 197, 221 (2013). The parent seeking to change the name of
the child bears the burden of showing by a preponderance of the evidence that
the name change is in the child's best interest. Id. at 222.
Defendant asserts it is in the best interests of the children to have his
surname because he is acting as their custodial parent. Even if defendant was
deemed the primary custodial parent, the Emma court instructed that courts
should not give presumption to a custodial parent's name choice. Id. at 221.
Because defendant did not proffer any other reason for the name change, we
agree with the trial court that he did not meet his burden of proof to support a
change of the children's surname.
Affirmed in part, reversed in part, and remanded to the trial court for
proceedings in accordance with this opinion. We do not retain jurisdiction.
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