Jeffrey Slosky v. Valerie Slosky ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2032-22
JEFFREY SLOSKY,
Plaintiff-Respondent,
v.
VALERIE SLOSKY,
Defendant-Appellant.
_______________________
Submitted March 12, 2024 – Decided July 22, 2024
Before Judges Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-1744-12.
Kerr Law Group, LLC., attorney for appellant (Stacey,
D. Kerr, on the brief).
Keith, Winters, Wenning & Harris, attorneys for
respondent (Brian D. Winters, on the brief).
PER CURIAM
Defendant Valerie Slosky appeals from a Family Part order denying her
motion to impose child support on plaintiff Jeffrey Slosky. Defendant argues
the trial court erred by finding she did not establish a prima facie case of changed
circumstances. We agree, and reverse and remand for further proceedings.
I.
Plaintiff Jeffrey Slosky and defendant Valerie Slosky married on March
29, 2005 and divorced on July 24, 2013. The parties share one child, E.S.,1 born
in September 2006. The parties agreed in their marital settlement agreement
(MSA) to share both legal and physical custody of E.S. The parties shared fifty-
fifty parenting time without litigation until 2022.
During plaintiff's parenting time on July 27, 2021, E.S., who was fourteen
years and ten months old at the time, left plaintiff's home and ran approximately
three miles to defendant's home. The reason for E.S. leaving plaintiff's home is
disputed by the parties. Defendant certified E.S. reported an argument with
plaintiff transpired while returning home from a basketball game caused by
plaintiff critiquing E.S.'s performance. Plaintiff maintains that sports were not
the substance of the disagreement but does acknowledge a rift between them
1
In the interest of privacy, we refer to the minor child by his initials. See R.
1:38-3(d).
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occurred that day. Plaintiff certified that it was typical for him to critique his
son's performance and it was part of their relationship and bond to discuss what
he did well and what needed improvement. The parties do not dispute that E.S.
has not returned to plaintiff's home for an overnight stay since the argument in
July 2021.
Plaintiff provided copies of text messages showing sporadic
communication between him and E.S. Days after the argument on August 3,
2021, plaintiff texted "[E.S.], when are you coming over here?" to which E.S.
replied "Got your phone call. I'm not ready to talk yet but I will be soon."
Plaintiff texted E.S. two more times on October 10 and 12 inviting E.S. over to
his home to watch football and do homework, to which E.S. didn't respond.
Plaintiff next texted E.S. on December 3, 2021, asking "Are you ready to talk
over our differences? I have reached out to you twice before without a response.
Your Uncle Eugene said that you haven't responded to his messages either. We
have been making the effort. How about you giving it a try." E.S. responded,
"Let me know when Uncle Eugene is back in town, I would like to see him first
then we could take it from there." Plaintiff then texted "[E.S.], both Eugene and
I are available 24/7 to talk to you." The two then had periodic contact in May
and June 2022 regarding obtaining a passport and other travel documents for
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E.S. that required plaintiff's signatures. In September 2022, E.S. wished
plaintiff a happy birthday.
By October 2022, E.S. had been continuously living with defendant for
over fourteen months. Defendant filed a motion seeking: sole legal custody of
E.S.; the establishment of a child support obligation to be paid by plaintiff;
reimbursement for extracurricular expenses; and counsel fees. Plaintiff cross-
moved, seeking: denial of defendant's motion; establishment of a parenting
schedule to include overnights; designated phone time for plaintiff and E.S.;
details of E.S.'s tutoring and extracurricular activities from defendant; and an
order requiring defendant cease all disparaging remarks about plaintiff and to
encourage E.S. to participate in telephone and in-person visits with plaintiff.
The parties appeared for argument on February 17, 2023. 2 The court
issued a written order that same day denying defendant's request for sole
custody, child support and counsel fees, but granting her request for
reimbursement for extracurricular expenses. The court also granted in part and
denied in part plaintiff's cross-motion, ordering defendant to: provide plaintiff
with information regarding E.S.'s tutoring and extracurriculars; cease any
2
At the time of argument, E.S. was sixteen years and four months old and had
been living continuously with defendant for just short of nineteen months.
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disparaging remarks about plaintiff in front of E.S.; and encourage E.S. to enjoy
telephone and in-person visits with plaintiff. The court also ordered the parties
to engage in reunification therapy.
In denying defendant's request for custody and child support, the court
found that the "hearsay account of the parties' child, as relayed in [d]efendant's
filings, are not adequate to demonstrate a prima facie case of changed
circumstances to justify the relief being sought by defendant." The court also
cited plaintiff's certification that he was unaware of any long-term situation
arising from the interactions with the parties' son.
Defendant appeals, contending the trial court erred by: failing to make
sufficient findings of fact; improperly finding certified statements were hearsay;
and failing to find changed circumstances warranting an order of child support.
II.
We "accord particular deference to the Family Part because of its 'special
jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super.
457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the
mark' should we interfere." Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v.
E.P., 196 N.J. 88, 104 (2008)). "We will reverse only if we find the trial judge
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clearly abused his or her discretion." Clark v. Clark, 429 N.J. Super. 61, 72
(App. Div. 2012). "While an 'abuse of discretion . . . defies precise definition,'
we will not reverse the decision absent a finding the judge's decision 'rested on
an impermissible basis,' considered 'irrelevant or inappropriate factors,'"
Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571-72 (2002)), or
"failed to consider controlling legal principles or made findings inconsistent
with or unsupported by competent evidence," ibid. (quoting Storey v. Storey,
373 N.J. Super. 464, 479 (App. Div. 2004)). However, "all legal issues are
reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).
III.
Defendant argues the trial court erred by finding E.S.'s continuous
nineteen-month stay with defendant did not constitute changed circumstances.
She contends the trial court focused too heavily on the disputed reason for the
rift between E.S. and plaintiff rather than the uncontroverted fact that plaintiff
no longer exercised parenting time. Defendant also argues the court failed to
make required findings as required by Rule 1:7-4 and wrongly focused on a
hearsay issue. Defendant does not argue the court erred in denying her request
for sole custody, and her appeal only addresses the court's child support
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determination. See Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.
2:6-2 (2024) ("It is, of course, clear that an issue not briefed is deemed waived."
(citing State v. Shangzhen Huang, 461 N.J. Super. 119, 125 (App. Div. 2018))).
Marital settlement agreements are "entitled to considerable weight with
respect to their validity and enforceability." Dolce v. Dolce, 383 N.J. Super. 11,
20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)).
However, the Family Part has authority under N.J.S.A. 2A:34-23 to modify
alimony and child support awards. Spangenberg, 442 N.J. Super. at 535. The
statute provides that alimony and child support orders "may be revised and
altered by the court from time to time as circumstances may require." N.J.S.A.
2A:34-23. "Our courts have interpreted this statute to require a party who seeks
modification to prove 'changed circumstances.'" Spangenberg, 442 N.J. Super.
at 536 (quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)).
Any deviation or modification must be in the best interests of the child.
Ordukaya v. Brown, 357 N.J. Super. 231, 239 (App. Div. 2003). "It is a
fundamental princip[le] of the Family Division that the right to child support
belongs to the child or children, not to the custodial parent." Id. at 241 (quoting
Monmouth Cty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 95
(Ch. Div. 1997)); see also Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App.
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Div. 1993) ("Each parent has a responsibility to share the costs of providing for
the child.").
Consideration of "changed circumstances" includes changes in the parties'
financial circumstances, whether the change is continuing, and whether the
parties' agreement "made explicit provision for the change." Spangenberg, 442
N.J. Super. at 536 (quoting Lepis, 83 N.J. at 152). A significant change in
custody or parenting time constitutes a change in circumstances warranting a
modification in child support, Winterberg v. Lupo, 300 N.J. Super. 125, 133
(App. Div. 1997), provided the change is not temporary and "some time" has
elapsed before the application to modify the responsibility to support is filed,
Koelble v. Koelble, 261 N.J. Super. 190, 196 (App. Div. 1992) (quoting Ohlhoff
v. Ohlhoff, 246 N.J. Super. 1, 7 (App. Div. 1991)).
Here, the trial court mistakenly exercised its discretion by finding
defendant had not met her burden of establishing a prima facie case of changed
circumstances. The parties agreed to an MSA that evenly divided parenting time
and, on that premise, did not include a child support obligation for either party.
While we acknowledge the validity and weight of MSAs, it is well settled the
court may modify a child support arrangement if the party seeking the
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modification can show changed circumstances. Spangenberg, 442 N.J. Super.
at 536 (quoting Lepis, 83 N.J at 157).
In this case, defendant clearly established changed circumstances.
Defendant certified E.S. has lived with her continuously and without additional
support from plaintiff for nearly fifteen months at the time defendant filed her
motion. While plaintiff disputes the cause of his damaged relationship with
E.S., it is not material to whether changed circumstances exist. What is material
is the undisputed fact that his relationship with E.S. is strained and that he has
not exercised parenting time since their argument. Further, plaintiff does not
dispute he has not provided any additional financial support and has only
maintained his payment of E.S.'s health insurance premiums as agreed to in the
MSA. The new arrangement had been in place for nearly fifteen months at the
time defendant filed her motion and nearly nineteen months when the trial court
issued its order. "Some time" had clearly elapsed in this case and it was clear
the significant change in parenting time was not temporary. Koelble, 261 N.J.
Super. at 196 (quoting Ohlhoff, 246 N.J. Super. at 7). We conclude defendant
established a prima facie case of changed circumstances.
Plaintiff's reliance on Ohlhoff is misplaced. In Ohlhoff, this court merely
held "a child support obligation is not automatically abrogated when a child for
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whom support is owed moves into the home of the supporting parent." Ohlhoff,
246 N.J. at 7 (emphasis added). Instead, Ohlhoff recognizes that a party must
rather "obtain court approval before terminating or reducing support." Ibid. In
other words, Ohlhoff would be dispositive if defendant, owing a child support
duty to plaintiff, unilaterally stopped payments once E.S. moved in full time.
Defendant here instead appropriately applied to the Family Part when it
appeared the new parenting arrangement was permanent. Therefore, Ohlhoff
does not foreclose defendant's requested relief.
The trial court's order appropriately included reunification therapy with
the laudable goal of an eventual normalization of the relationship between
plaintiff and E.S. Despite plaintiff's contention that he wasn't aware it was a
permanent situation—a belief cited in the trial court's order—the record contains
no suggestion of a realistic expectation of a reversion to the negotiated fifty -
fifty parenting schedule in the foreseeable future. While the court was prudent
to facilitate reunification via therapy, plaintiff's obligation to "proper[ly]
support" his unemancipated son "to the extent he is financially able" continues
in the meantime, "even though [if there is currently] no relationship between
them." J.R. v. L.R., 386 N.J. Super. 475, 484 (App. Div. 2006).
We reverse and remand for a plenary hearing.
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