KAREN L. DIMACALE VS. LUISITO E. DIMACALE (FM-01-63-10, ATLANTIC COUNTY AND STATEWIDE)(CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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-3373-14T4
A-1808-15T3
KAREN L. DIMACALE,
Plaintiff-Appellant,
v.
LUISITO E. DIMACALE,
Defendant-Respondent.
___________________________________
Submitted January 31, 2017 – Decided August 29, 2017
Before Judges Ostrer, Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Atlantic County, Docket No. FM-01-63-10.
Karen Dimacale, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
We again consider parenting time disputes in this high-
conflict post-judgment matrimonial matter. The present appeals,
which we consolidate for the purposes of this opinion, address the
trial court's orders governing Christmas vacations in 2014 and
2015. We refer to our prior opinion for the procedural history
and background of this case. See Dimacale v. Dimacale, No. A-
1823-13 (App. Div. Aug. 18, 2015). We, therefore, limit our
discussion to the facts essential to our decision in these appeals.
On May 3, 2010, after over eighteen years of marriage, the
parties received a judgment of divorce from bed and board, which
incorporated a property settlement agreement (PSA). The parties
have four children: Michael,1 who is emancipated, born July 1993;
Dana, born June 1995; Melanie, born March 1997; and Sarah, born
April 1999. Under the parties' PSA, they agreed to share joint
legal custody of the children and to "keep the other advised
regarding any . . . vacation plans and work together cooperatively
for the best interests of their children."
Initially, defendant had residential custody of the two elder
children, and plaintiff the two younger girls. However, two years
later, after extensive motion practice and a plenary hearing, the
court granted defendant primary residential custody of Melanie and
Sarah as well. The order included a "Parenting Plan Schedule"
that outlined each party's parenting time on holidays, special
days and vacations. The schedule stated:
The following holidays shall be
alternated between the parties each year.
Unless otherwise indicated, those holidays
shall run from 10 am to 7:30 pm. Defendant
shall have the even numbered holidays during
1
We use pseudonyms for the children to protect their privacy.
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even numbered years. The days and occasions
on this list take priority over regularly
scheduled parenting time.
Of significance to the pending appeals, Christmas Eve – described
as "December 24th 6 pm to Christmas Day, December 25th 11 am" –
was denominated an "odd numbered holiday" and Christmas Day –
"December 25th 11 am to December 26th 4 pm" – an "even numbered
holiday." Thus, in 2014, plaintiff was assigned parenting time
on a Christmas Eve overnight and defendant was assigned the rest
of Christmas Day. In 2015, the holidays were reversed.
The "Parenting Plan Schedule" also addressed vacation time
more generally:
Each party shall be entitled to take the
child(ren) on as many as 2 one-week vacations
each calendar year during times when school
is not in session, and shall provide the other
party with written notice of such vacations
no less than 30 days in advance. The notice
shall include the name, address and telephone
numbers of the destinations at which the
child(ren) will be lodged during the vacation.
An August 2012 order required that defendant provide
plaintiff with a copy of Dana's itinerary "at least thirty (30)
days prior to [Dana] traveling outside the State of New Jersey
. . . ." Based on the court's accompanying written decision, it
appears this requirement was prompted by defendant's decision to
permit Dana, then seventeen, to travel to Detroit, unaccompanied
by another adult, to visit a friend. A May 2013 order required
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defendant to "keep the Plaintiff informed of any travel plans for
extended periods involving the parties' children. The extended
period shall include any travel away from home for more than 1
day."
On November 11, 2014, consistent with the court's notice
requirements and "Parenting Plan Schedule," defendant notified
plaintiff by email that the children would travel to Florida to
visit their maternal grandmother from December 17, 2014 to December
23, 2014. Defendant apparently did not intend to accompany them.
Included in the email was the maternal grandmother's address and
phone number.
Plaintiff responded promptly that the three unemancipated
children "are not going to visit with my mother." A week later,
she filed an emergent application, seeking to prevent the children
from traveling to Florida. Specifically, plaintiff requested an
"[o]rder that [defendant] cannot send our children on vacation,
or anywhere else, overnight or out of state, without my permission,
approval, and informing me of their travel arrangements (flight
itinerary, etc), name, address, telephone numbers, etc."
Plaintiff stated she had differed with her parents over the
children and did not want her children to have contact with them.
On December 12, 2014, after hearing oral argument, the trial
court denied plaintiff's motion. The court rejected plaintiff's
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argument that it was not in the children's best interests to travel
to Florida to see their maternal grandmother. Additionally, the
court explained that the notice requirement was not intended to
enable plaintiff to "come to court" to contest proposed trips, but
simply to put her on notice of where the children would be
traveling. As plaintiff complained that defendant did not provide
her with the flight itinerary when he notified her of the trip,
the court held that defendant was obliged in the future to provide
plaintiff with such details thirty days in advance of travel. The
court also ordered that plaintiff was entitled to speak to the
children daily, and required the children to answer plaintiff's
calls. The court denied plaintiff's motion for reconsideration
on February 6, 2015, stating plaintiff had simply repeated her
original unsuccessful arguments.
Another round of motion practice preceded the 2015 Christmas
vacation. On November 20, 2015, defendant contacted plaintiff to
notify her of their children's "yearly vacation to visit their
grandmother . . . ." That trip was scheduled for December 19,
2015 to December 27, 2015. In his email, defendant also provided
plaintiff with the flight numbers, the address where the children
would be staying, and the maternal grandmother's contact number.
Plaintiff responded that none of the children had her permission
to visit her mother in Florida. She then filed a motion seeking
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an order to bar the children from making the trip. She stated in
support of her motion that she mistrusted her mother with the
children, and that they would not be safe with her.
In oral argument on December 18, 2015, plaintiff contended
that the trip also violated the holiday schedule. Defendant
responded that the parties had not abided by the schedule in a
year, as the children came and went as they pleased.
The court denied plaintiff's motion, finding that plaintiff
had submitted essentially the same application and arguments as
she did the year before. The court again found that plaintiff had
failed to demonstrate that the children's safety was at risk or
the travel was contrary to the children's best interests. The
trial court noted that all but one child was over the age of
eighteen. Although they remained financially dependent, the court
found it inappropriate to override their travel preferences. The
court acknowledged that the trip would include Christmas Day, but
noted that the proposed trip was the only time of the year when
the children visited their grandmother.
Plaintiff appeals both the trial court's February 6, 2015
order denying reconsideration and the trial court's December 18,
2015 order denying plaintiff's motion to enforce litigants'
rights. Plaintiff presents multiple grievances about the court's
handling and disposition of her case; contends defendant has
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repeatedly violated court orders; and argues her rights, as a
joint legal custodian of the children, have been infringed.
However, appeals are from orders, not from opinions, or statements
of the court. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199
(2001). We also restrict ourselves to the specific relief sought
and adjudicated before the trial court, which pertain in relevant
part to the children's holiday travel to Florida in 2014 and 2015.
See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Our review of a trial court's decision is limited. Generally,
we will accord deference to the family court, based on its
familiarity with the case, its opportunity to make credibility
judgments based on live testimony, and its expertise in family
matters. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We
will not interfere with a family court's decision that is supported
by "adequate, substantial, credible evidence." Id. at 412.
Our courts have long recognized the contractual nature of
marital agreements. See Massar v. Massar, 279 N.J. Super. 89, 93
(App. Div. 1995). Given our commitment to enforce family-related
agreements, we will generally enforce such agreements like any
other contract, "[a]bsent fraud or unconscionability . . . ."
Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div. 2016);
see also Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (stating
that courts should enforce matrimonial agreements "as the parties
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intended"). As with any contract, we review de novo a trial
court's interpretation of a matrimonial settlement agreement. See
Quinn v. Quinn, 225 N.J. 34, 45 (2016) (applying contract
principles to the interpretation of matrimonial settlement
agreements); Kieffer v. Best Buy, Inc., 205 N.J. 213, 222-23 (2011)
(stating that the interpretation of a contract is an issue of law
that an appellate court reviews de novo); Jennings v. Reed, 381
N.J. Super. 217, 227 (App. Div. 2005) (stating that an agreement
settling a lawsuit "is a contract like any other contract").
At the outset, we note that for two reasons, we do not deem
the issues raised on appeal as moot, notwithstanding that the 2014
and 2015 holidays are long past. Cf. Greenfield v. N.J. Dep't of
Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) ("An issue is
moot when the decision sought in a matter, when rendered, can have
no practical effect on the existing controversy." (internal
quotation marks and citation omitted)). First, the issues here
may be capable of repetition. See Zirger v. Gen. Accident Ins.
Co., 144 N.J. 327, 330 (1996) (stating that courts may consider
an otherwise moot issue if it is likely to reoccur but evade
review). Second, although plaintiff may not recapture the 2014
or 2015 holidays, the trial court is empowered to award
compensatory time or other effective relief for a violation of a
parenting time order. Rule 5:3-7(a); cf. N.J. Div. of Youth &
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Family Servs. v. W.F., 434 N.J. Super. 288, 297 (App. Div.)
(stating that courts generally "will not decide cases in which
. . . a judgment cannot grant effective relief" (internal
quotation marks and citation omitted)), certif. denied, 218 N.J.
275 (2014).
Turning to plaintiff's arguments relating to the February 6,
2015 denial of reconsideration, we conclude that they lack
sufficient merit to warrant extended discussion in a written
opinion. R. 2:11-3(e)(1)(E). We only add the following brief
comments regarding both orders on appeal.
Under the parties' PSA, the "Parenting Schedule Plan," and
the subsequent court orders, defendant, as the parent of primary
residence, was entitled to plan vacations for their children and
the record reflects defendant's substantial compliance with court-
ordered notice requirements. Deciding that children in their late
teens could travel domestically to visit their grandmother was not
the sort of "'major' decision[] regarding the child's welfare"
that defendant was obliged to make jointly with plaintiff, who
shared legal custody but was the parent of alternate residence.
See Pascale v. Pascale, 140 N.J. 583, 596 (1995) (stating that the
parent of primary residence has responsibility for minor day-to-
day decisions, and joint legal custody involves "the authority and
responsibility for making 'major' decisions regarding the child's
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welfare" (internal quotation marks and citation omitted)). Nor
did the various parenting time orders grant plaintiff a veto right
over the children's visits with their grandmother that defendant,
as the parent of primary residence, had approved. The prior orders
were only designed to provide notice.
Thus, in order to block the visits, plaintiff was obliged to
demonstrate that (1) based on a change of circumstances, the visits
would be contrary to the children's best interests, Slawinski,
supra, 448 N.J. Super. at 32-33; or (2) a visit would violate the
express terms of an applicable parenting time order, specifically,
the holiday parenting time schedule.
We shall not disturb the trial court's determination that
plaintiff failed to show that the children's travel to Florida to
visit their grandmother was contrary to their best interests. Nor
did plaintiff demonstrate a change of circumstances to override
defendant's authority as the parent of primary residence.
However, the 2015 trip — as opposed to the trip the year
before — did violate the "Parenting Schedule Plan." In 2014, the
children returned in time to spend Christmas Day with their mother,
as contemplated by the plan. However, the 2015 trip to Florida
extended beyond Christmas Day, thereby depriving plaintiff of the
opportunity to spend the Christmas Eve overnight with the children,
as the plan provided. Even assuming that the winter break was the
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children's only opportunity to visit their grandmother during the
year, that did not justify extending the visit through December
27 and thus overriding the mother's rights to Christmas parenting
time under the plan. Nor did defendant's claim that the holiday
schedule had not been observed during the previous year.
We recognize, as did the trial judge, the practical
limitations of a parent or a court, to compel children who are
close to, or over the age of eighteen, to visit a parent if they
do not wish to do so. Nonetheless, absent exceptional
circumstances, a parent of primary residence is obliged, in good
faith, to encourage an unemancipated child to participate in the
parenting time to which the parents have agreed. Cf. N.J.S.A.
9:2-4 (stating it is the public policy of the State to "assure
minor children of frequent and continuing contact with both
parents" after divorce and "to encourage parents to share the
rights and responsibilities of child rearing"). By extending the
children's visit with the grandmother through Christmas Eve,
defendant placed an insurmountable impediment to fulfilling the
parenting time schedule.
Under the circumstances, we conclude that the trial court
should have required that the children return to New Jersey in
time to be able to exercise Christmas Eve parenting time with
their mother, as the plan provided. Therefore, we are constrained
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to reverse in part the trial court's December 18, 2015 order.
Inasmuch as the 2015 Christmas vacation has already passed, the
trial court shall consider, in the reasoned exercise of discretion,
the grant of appropriate remedies available under Rule 5:3-7(a).
Affirmed in part and reversed and remanded in part. We do
not retain jurisdiction.
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