JOHN ORR VS. SYLVANNAH ORR (FM-20-1281-18, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0579-20
JOHN ORR,
Plaintiff-Appellant,
v.
SYLVANNAH ORR,
Defendant-Respondent.
_________________________
Argued September 13, 2021 – Decided October 6, 2021
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-1281-18.
Andrew M. Shaw argued the cause for appellant
(Freeman Law Center, LLC, and Shaw Divorce &
Family Law, LLC, attorneys; Adam C. Brown and
Andrew M. Shaw, on the briefs).
Kristyl M. Berckes argued the cause for respondent
(Lawrence Law, LLC, attorneys; Jeralyn L. Lawrence
and Kristyl M. Berckes, on the brief).
PER CURIAM
In this post-judgment matrimonial action, plaintiff John Orr challenges a
September 18, 2020 Family Part order denying his motion for reconsideration
of a July 24, 2020 ruling that modified the parties' parenting time schedule.
Plaintiff also challenges the court's denial of his request to establish an
appropriate child support order and its decision to award defendant, Sylvannah
Orr, $1000 in attorney's fees. Having reviewed the record against the applicable
legal principles, we vacate those portions of the July 24, 2020 and September
18, 2020 orders under review, and remand for further proceedings.
I.
We briefly summarize the pertinent facts. The parties married in July
2010, and two children were born of the marriage. On October 18, 2018, the
trial court entered a dual final judgment of divorce which incorporated the terms
of an "oral marriage settlement agreement" that was placed on the record and
which purportedly settled all financial issues between the parties. Among other
terms, the oral agreement acknowledged that with respect to the certain credit
card debt and an outstanding loan:
The parties have agreed that defendant shall be
responsible for [fifty] percent of the debt up to the, and
including the July 16[,] 2016 debt. But her . . .
contribution shall be limited to $5400.
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There's also a claim by plaintiff for contribution by
defendant toward a $25,000 loan from his parents. The
parties have agreed that [defendant] will pay $5000
toward that debt.
The oral agreement, however, did not resolve custody or parenting time
issues. Accordingly, over the next year, the parties successfully worked with
custody expert Sharon Ryan Montgomery, Psy.D., and agreed on a custody and
parenting time plan that they memorialized in an October 29, 2019 consent
order. The consent order designated plaintiff "as the parent of primary
residence" and specified that the children would reside with him in North
Carolina.
Because plaintiff lived several states away, the parties agreed that
parenting time would be scheduled in "blocks of time," based on the children's
school schedule. As specifically detailed in the consent order:
The North Carolina school sessions are nine weeks on
and three weeks off. Defendant shall, therefore, have
parenting time with the children on approximately three
and one half of the four track outs each year. For May,
2020, [d]efendant shall have the children from May 16,
2020 until May 31, 2020. Plaintiff shall have the
children from July 1, 2020 until July 8, 2020. The
parties shall adjust the schedule similarly in 2021 and
going forward in that the specific dates shall vary in
subsequent years. This may be modified by mutual
agreement of the parties and confirmed by email.
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The consent order also addressed parenting time as to the Thanksgiving
and Christmas holidays. Specifically, it provided that defendant would exercise
parenting time with the children for the Thanksgiving holiday if it fell within a
track out. The parties would alternate Christmas breaks with defendant having
odd years and plaintiff having even years.
Finally, the order addressed concerns regarding defendant's prior drug
use, and required her to have a "hair follicle test for drugs each quarter with a
look back of ninety . . . days prior to any parenting time with the children." It
further provided that in the event defendant tested positive for any illicit drugs,
her parenting time would be suspended "until a clean drug test is submitted."
In 2020, as a result of the COVID-19 pandemic, the children's North
Carolina school district, like many others, was forced to alter its calendar
resulting in an additional time off for summer break from June 11, 2020 to
approximately August 16, 2020. Defendant spoke with plaintiff and requested
additional parenting time during this period. Plaintiff declined defendant's
request as he contended it was contrary to the detailed and intensely negotiated
consent order which took into account the children's best interests, and
defendant's prior drug use. Defendant thereafter filed an order to show cause
arguing that the consent order should be immediately modified as the COVID-
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19 pandemic constituted a change in circumstance that warranted alteration of
the parenting time schedule.
The parties submitted supporting and opposing certifications in which
they disputed the intent and meaning regarding certain terms in the consent
order, and specifically whether defendant was entitled to parenting time when
the children were on vacation from school, including during any extended
summer breaks. Plaintiff maintained that defendant was "under the mistaken
belief that [her] parenting-time is during any vacation time the children have"
and that nothing "in the agreement designates vacation time as time when the
[d]efendant will have the children, nor have we been traditionally exercising
parenting-time in such a manner." In sum, plaintiff claimed that defendant was
only permitted to parenting time during the children's track outs.
In contrast, defendant maintained that track out time was synonymous
with holidays and vacations, and that the children's school itself refers to those
days as vacation time. Accordingly, defendant claimed that "it was intended
[for her to] . . . have parenting time with the children during every single track
out/vacation," and that she should be permitted to parent the children during the
extended summer break.
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On July 24, 2020, the court ordered the parties to evenly split the
unplanned nine-week vacation after concluding defendant established a prima
facie showing of changed circumstances. The court found that "parenting time
[was] scheduled because of the North Carolina [. . .] school calendar" and during
the pandemic, the calendar went "up in smoke." The court explained that "[o]nce
that school calendar no longer existed, it justifie[d] a change in circumstances,
which justifie[d] a modification in parenting time."
The court reasoned that the "spirit and general purpose" as it related to
defendant's parenting time, "was to grant visitation to the [d]efendant for the
majority of the time when the children were not in school." The court further
found that any future school vacation, track out, or break from school that was
not considered in the consent order be equally shared by the parties. The court
also permitted defendant to exercise parenting time during the first week of July
2021 to make up for missed time during 2020. Finally, the court concluded that
a plenary hearing was not required as there was no dispute of material fact.
Plaintiff moved for reconsideration of the July 24, 2020 order and for
other, unrelated relief. Specifically, he requested that the court: 1) establish a
child support order; 2) compel defendant to pay the $10,400 of outstanding debt
reflected in the October 18, 2018 oral agreement; 3) vacate the July 24, 2020
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order as it related to parenting time; and 4) award attorney's fees. Defendant
opposed the motion and cross-moved for an award of attorney's fees.
In plaintiff's accompanying certification, he maintained that contrary to
the court's finding, track out days were distinct from vacation time under the
terms of the parties' consent order. With respect to his separate request that the
court establish a child support order, he certified that "custody issues (which
include things such as child support) were still outstanding when the divorce
agreement was made" and that the "financial issues discussed were for real
property, other assets, and financial debt." Plaintiff further stated that he solely
"pay[s] for mental health counselling . . . the scholastic support program . . . all
food, medical insurance, clothing, and the roof over [the children 's] head."
On September 18, 2020, the court issued both a written and oral decision
denying plaintiff's motion for reconsideration. In its oral decision, the court
stated:
[T]he spirit clearly to this [c]ourt of the [consent] order
was considered by this [c]ourt and implemented, and
nothing has been presented at this time that would
change the [c]ourt's finding. Nothing different has been
presented. [The court] considered the order, how it was
made, when it was made, why it was made. And it was
clear, as [the court] stated, from the four corners of the
order that – and that's how [the court] ruled, and that's
how [the court] will continue to rule. So [defendant's]
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motion for reconsideration is denied under Rule 4:49-
2.
The court also found that the parties did not impermissibly waive child
support, but rather considered it during extensive post-divorce proceedings as
reflected in the $10,400 defendant agreed to pay plaintiff. Specifically, the court
noted in its oral decision that the "decision at the time of the order was no child
support" because it was "clear from the documents and from the papers that all
the financial issues were considered."
In its supplemental written decision, also issued on September 18, 2020,
the court further explained that absent a showing of changed circumstances, it
would not enter a child support order:
Here, the parties reached a post-divorce settlement in
which [d]efendant agreed to furnish payments to
[p]laintiff, totaling $10,400. Plaintiff contends that
payment of such does not amount to support, and that
[d]efendant seeks to improperly waive her child support
obligation through payment of the $10,400. The court,
upon reviewing the prior history of the parties finds that
the parties engaged in extensive post-divorce
negotiation and litigation, during which no child
support order was entered, however, the parties did
discuss finances extensively. The court is unpersuaded
by the argument that some specific child support
discussions never arose, but rather finds that support
was a consideration in establishing the amount
[d]efendant was to pay to [p]laintiff. Thus, the court
finds that there was no impermissible waiver of child
support, but instead the incorporation of support
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obligations into the payment schedule agreed upon by
the parties.
Further, the court ordered defendant to pay plaintiff $300 per month to
satisfy the $10,400 debt outlined in the oral agreement. Finally, after
considering the Rule 5:3-5(c) factors, the court awarded defendant $1000 in
attorney's fees, concluding that plaintiff's motion for reconsideration, at least
with respect to the parenting time issue, "was not reasonable and not [filed] in
good faith."
This appeal followed in which plaintiff raises four issues. First, he argues
the trial court erred in refusing to enter a child support order. Second, he
contends the court's decision to modify the parenting time schedule in the
consent order incorrectly failed to: recognize that any changed circumstance
was temporary, conduct a plenary hearing, require the parties to attend
mediation, and substantively analyze the custody factors set forth in N.J.S.A.
9:2-4(c).
Third, he maintains the court erroneously concluded he acted in bad faith
and incorrectly evaluated the Rule 5:3-5(c) factors. Finally, he requests that we
direct a new judge be assigned to the matter in the event of a remand, contending
that the court made improper credibility determinations without an evidentiary
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hearing, concluded he filed the reconsideration motion in bad faith, and failed
to apply controlling legal principles.
II.
To address the issues presented to us, we first consider the relevant legal
principles and the applicable standard of review. The scope of our "review of a
trial court's fact-finding function is limited [,]" and we ordinarily defer to factual
findings "when the evidence is largely testimonial and involves questions of
credibility." Cesare v. Cesare, 154 N.J. 394, 411–12 (1998) (quoting In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). However, "'where the
focus of the dispute is . . . alleged error in the trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom,' the traditional
scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172,
188–89 (App. Div. 1993)). In those circumstances, we must reverse a trial
judge's determination where his or her findings go "so wide of the mark that a
mistake must have been made." Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW
of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989), certif. denied, 117 N.J.
165 (1989)). Further, the trial court's "legal conclusions, and the application of
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those conclusions to the facts, are subject to our plenary review." Elrom v.
Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015).
By statute, parents are presumptively required to provide for the financial
support of their unemancipated children. N.J.S.A. 2A:34-23(a). The state has
established presumptive Guidelines, and a corresponding worksheet, to calculate
child support. See Child Support Guidelines, Pressler & Verniero, Current N.J.
Court Rules, Appendix IX-A and IX-B to R. 5:6A, www.gannlaw.com (2021).
The Rules prescribe that the Guidelines "shall be applied when an application to
establish or modify child support is considered by the court." R. 5:6A; see also
Lozner v. Lozner, 388 N.J. Super. 471, 479-80 (App. Div. 2006). "A court may
deviate from the [G]uidelines only when good cause demonstrates that [their]
application . . . would be inappropriate." Id. at 480 (citing Ribner v. Ribner, 290
N.J. Super. 66, 73 (App. Div. 1996)).
We agree with plaintiff that the court erred in failing to establish a child
support award and concur that the record does not support the court's factual and
legal conclusions that the parties' oral agreement addressed child support. First,
the parties' oral agreement is devoid of any reference to child support. As is
apparent from a review of the transcript from the October 18, 2018 proceeding,
the $10,400 represented an agreement for defendant to reimburse plaintiff
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$5,400 in credit card debt and a $5,000 contribution to the plaintiff's parents for
a $25,000 loan. The record contains no support for the conclusion that these
payments were in lieu of defendant's obligation to provide financial support for
the minor children.
Second, we also note that at the time of the entry of the October 18, 2018
final judgment of divorce, a parenting time schedule had yet to be agreed to by
the parties, and the parties did not append the requisite child support guidelines
to the October 18, 2018 order as required for every child support order under
Rule 5:6A ("A completed child support guidelines worksheet in the form
prescribed in Appendix IX of these Rules shall be filed with any order or
judgment that includes child support that is submitted for the approval of the
court.").
In addition, the court's decision finding that the parties properly waived
their children's right to child support is also factually unsupported and incorrect
as a matter of law. Child support is necessary to ensure that parents provide for
the "basic needs" of their children, Pascale v. Pascale, 140 N.J. 583, 590 (1995).
The right to child support "belongs to the child" and, therefore, cannot be waived
by the custodial parent. Id. at 591. An order regarding child support "must be
based on an evaluation of the child's needs and interests and not on the conduct
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of the parents." Ibid. As noted, the parties' oral agreement never addressed their
support obligation and there is no proof in the record to support a finding or
conclusion that the parties considered that issue.
III.
We also conclude the court's decision to modify the parties' parenting time
schedule on the record before it, and without a plenary hearing, was in error. A
parent seeking to modify a parenting time schedule "bear[s] the threshold burden
of showing changed circumstances which would affect the welfare of the
children." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993) (citing
Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div. 1958)). Changed
circumstances are evaluated based on those existing at the time the prior
parenting time order was entered. See Donnelly v. Donnelly, 405 N.J. Super.
117, 127-28 (App. Div. 2009). Upon such a showing, the court may hold a
plenary hearing to resolve genuine issues of material fact. Hand v. Hand, 391
N.J. Super. 102, 105 (App. Div. 2007) (citing Shaw v. Shaw, 138 N.J. Super.
436, 440 (App. Div. 1976); Lepis v. Lepis, 83 N.J. 139, 159 (1980); R. 5:8-6).
When the court is confronted with a dispute regarding parenting time, the
primary concern is the best interests of the children. See Sacharow v. Sacharow,
177 N.J. 62, 80 (2003) (citations omitted). The court must consider "what will
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protect the safety, happiness, physical, mental and moral welfare of the child."
Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981) (internal
quotations and citation omitted). "A judgment, whether reached by consent or
adjudication, embodies a best interests determination." Todd, 268 N.J. Super.
at 398. Where a prior court order exists specifying the terms of residential
custody and parenting time, a parent seeking to alter those terms has the burden
of demonstrating a material change in circumstances. Hand v. Hand, 391 N.J.
Super. 102, 105 (App. Div. 2007). However, if the best interests of the children
are better served by overriding a prior agreement, the court should not hesitate
to make a modification. See P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div.
1999).
Factors affecting a child's best interests include, but are not limited to:
[T]he parents' ability to agree, communicate and
cooperate in matters relating to the child; the parents'
willingness to accept custody and any history of
unwillingness to allow parenting time not based on
substantiated abuse; the interaction and relationship of
the child with its parents and siblings; the history of
domestic violence, if any; the safety of the child and the
safety of either parent from physical abuse by the other
parent; the preference of the child when of sufficient
age and capacity to reason so as to form an intelligent
decision; the needs of the child; the stability of the
home environment offered; the quality and continuity
of the child's education; the fitness of the parents; the
geographical proximity of the parents' homes; the
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extent and quality of the time spent with the child prior
to or subsequent to the separation; the parents'
employment responsibilities; and the age and number
of the children.
[N.J.S.A. 9:2-4(c).]
When parents cannot agree on a custody arrangement, "[t]he court shall
specifically place on the record the factors which justify" the custody
arrangement it reached. N.J.S.A. 9:2-4(f). "[T]he articulation of reasons by the
trial court in a child custody proceeding must reference the pertinent statutory
criteria with some specificity and should reference the remaining statutory
scheme at least generally, to warrant affirmance." Terry v. Terry, 270 N.J.
Super. 105, 119 (App. Div. 1994).
In addition, it is well-established that a plenary hearing is necessary when
a genuine issue exists as to a material fact. Tretola v. Tretola, 389 N.J. Super.
15, 20 (App. Div. 2006). Indeed, a plenary hearing is required as "trial judges
cannot resolve material factual disputes upon conflicting affidavits and
certifications." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.
1995) (citation omitted); see Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div.
2004). A plenary hearing is usually appropriate before the entry of an order
affecting the custody of a child. See Fusco v. Fusco, 186 N.J. Super. 321, 327-
29 (App. Div. 1982).
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Here, the parties' certifications raised a significant dispute as to the
parenting time schedule memorialized in the October 29, 2019 consent order
that required a plenary hearing. Defendant maintained that track outs are
synonymous with vacation days, and therefore she is entitled to parenting time
for all such periods, while plaintiff certified to the contrary and further attested
that the parenting time schedule memorialized in that consent order took into
consideration defendant's prior drug use, a fact the court did not appear to
consider.
Again, we are satisfied that the parties' certifications raised disputed
factual questions on that point that could not be resolved upon the plain language
of the consent order itself. Without a more developed record, it was incorrect
for the court to conclude that the intent behind this language was to allow
defendant parenting time for all time designated as vacation days.
We also believe a remand is appropriate for the court to consider the
present circumstances regarding the children's schedule and if they have
returned to a schedule closely resembling that detailed in the consent order.
Other circumstances may also have changed during the pendency of the appeal.
We leave it to the parties and the court to address any such issues as appropriate
on remand but stress that the court is obligated to address substantively the best
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interest factors delineated in N.J.S.A. 9:2-4(c) in the event it determines a
modification of the parties' parenting time schedule is appropriate. Finally, we
also believe it beneficial to the parties for the court to refer the parenting time
issue to mediation in accordance with Rule 5:8-1, as the "parenting time issues
. . . are a genuine and substantial issue."
IV.
We next turn to plaintiff's fourth point, whether the trial court erred in
granting defendant's request for counsel fees. Given our decision that the court
erred in modifying the parenting time schedule without a plenary hearing, we
vacate the counsel fee order and do not address plaintiff's remaining arguments
that the court incorrectly concluded he acted in bad faith, failed to explain
adequately the basis for the $1000 award, or erred in its analysis and evaluation
of the Rule 5:3-5(c) factors.
V.
Finally, plaintiff argues that on remand the case should be assigned to a
different judge in part because of the court's findings that he filed his
reconsideration motion in bad faith. We conclude such a remedy is unnecessary
in this case. First, we have vacated that portion of the court's orders that led to
the fee award thereby vitiating its finding that plaintiff acted improperly in
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seeking reconsideration. Second, we note that the court granted a portion of
plaintiff's requested relief by ordering defendant to reimburse plaintiff for the
outstanding $10,400 debt. Finally, we observe that the judge is an experienced
judge of the Family Part, and we have every confidence that she can adjudge the
matter fairly and properly on remand.
We accordingly vacate the July 24, 2020 and September 18, 2020 orders,
in part, and remand for proceedings consistent with this opinion. We do not
retain jurisdiction.
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