L.G. v. M.A.A. (FM-07-1553-19, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3357-20
L.G.,
Plaintiff-Respondent,
v.
M.A.A.,
Defendant-Appellant.
________________________
Argued June 1, 2022 – Decided August 2, 2022
Before Judges Fisher, DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FM-07-1553-19.
Veronica R. Norgaard argued the cause for appellant
(Gomperts Penza McDermott & Von Ellen, LLC,
attorneys; Lisa M. Regan and Veronica R. Norgaard,
of counsel and on the briefs).
Edward A. Berger argued the cause for respondent.
PER CURIAM
Defendant M.A.A.1 appeals the Family Part's denial of certain aspects of
his motion for post-judgment relief. Among other things, defendant moved to:
compel renewal of his daughter J.A.'s2 passport and take her to visit Egypt;
secure additional parenting time; and enforce other aspects of the matrimonial
property settlement agreement between the parties. Plaintiff objected, and
cross-moved for certain relief. The Family Part denied defendant's motion to
travel with his daughter to Egypt as well as his motion to increase parenting
time. The court granted other aspects of defendant's motion as well as
plaintiff's cross-motion, but it denied counsel fees to both parties. We affirm.
I.
The parties were married on August 26, 2012. There was one child born
of the parties’ marriage, J.A., who is now nine years old. The parties entered
into a property settlement agreement (PSA), and a Consent Order as to
Custody and Parenting Time (Consent Order), both dated May 30, 2019. A
Final Judgment of Divorce (FJOD) was entered on August 19, 2019,
incorporating the PSA and the Consent Order. Under the terms of the Consent
Order, the parties share joint legal custody of J.A., with plaintiff as the parent
1
We use initials to protect privacy interests and preserve confidentiality in
accordance with Rule 1:38–3.
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of primary residence. The parenting time schedule shows defendant has J.A.
on alternate weekends and Wednesday evenings. The Consent Order also
contains provisions for parenting time on holidays, spring break and summer
vacation.
The Consent Order governs each parent's travel with J.A.. The relevant
language reads as follows:
32. If [J.A.] is taken on vacation by either parent, that
parent shall be obligated to advise the other parent of
the following information, via email or some other
written form, within seven (7) days prior to the date of
the trip: (1) Destination; (2) Departure Date; (3)
Return Date; (4) Mode of [T]ransportation; (5) Exact
addresses and phone numbers where they can be
reached during the trip; and (6) any other key
information.
33. Both parties agree to execute or deliver any
instrument, furnish any information, or perform any
other act reasonably necessary to carry out the
provisions of this Order without undue delay or
expense.
After defendant's attempts to travel to Egypt with J.A. in 2020 were
unsuccessful, due in large part to the COVID-19 pandemic, he sought
plaintiff's cooperation to update J.A.'s passport to allow the child to travel to
Egypt in 2021. Plaintiff declined, telling defendant she did not want J.A. to
travel to Egypt at that time, citing the ongoing pandemic.
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Defendant filed a motion on April 27, 2021, seeking, among other
things, an order: compelling renewal of J.A.'s passport to facilitate
international travel; scheduling certain dates for defendant and J.A. to travel
together to Egypt; modifying the Consent Order to create additional parenting
time for defendant; and enforcing the terms of the PSA relating to odd and
even year tax deductions by the parties. Plaintiff opposed the application and
filed a cross-motion seeking costs for defendant's excess-mileage charges on a
vehicle leased by her but operated by defendant and awarded to him under the
terms of the PSA. Each party made application for counsel fees.
The court considered the papers and heard argument. It granted
plaintiff's cross-motion to compel defendant to reimburse her $2,181 in excess-
mileage charges. The court found that plaintiff, as part of her home refinance,
had paid the vehicle charge, but also found that defendant regularly operated
the vehicle and knew he had exceeded the mileage allowance. Next, the court
found plaintiff improperly claimed J.A. on her 2020 tax return in violation of
the PSA. The court ordered plaintiff to file an amended 2020 tax return within
fourteen days of its order. The court directed that the parties follow the PSA,
which called for plaintiff to claim their daughter in odd years and defendant to
claim their daughter in even years.
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The court next denied defendant's parenting time application, finding
that he failed to show changed circumstances sufficient to modify parenting
time. The court found defendant provided "nothing" in the way of substantive
proofs in his moving papers.
Finally, the court rejected defendant's motion to compel renewal of J.A.'s
passport and take her to Egypt. The court found the PSA contained language
contemplating the parties' international travel with their daughter. However,
the court took judicial notice of the extant federal CDC guidelines and found
that the CDC recommended no travel to Egypt for unvaccinated persons due to
the COVID-19 pandemic. Observing that J.A. was too young to receive any of
the COVID-19 vaccinations available at the time, the court denied defendant's
motion without prejudice. The court left open the possibility for defendant to
file a motion to travel to Egypt with his daughter when "there may be a
different situation."
The court denied counsel fees to both plaintiff and defendant, finding
"violations on both sides of the aisle," with plaintiff improperly taking the
2020 child tax deduction and defendant not being candid with the court
regarding the leased vehicle overcharge.
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Defendant appealed, contending the court erred by: denying his
application to compel update of J.A.'s passport as well as their travel together
to Egypt in 2021; finding no changed circumstances warranting a modification
of existing parenting time; and denying him counsel fees.
II.
A.
Our Supreme Court has routinely recognized the Family Part's "special
jurisdiction and expertise in family matters." Thieme v. Aucoin-Thieme, 227
N.J. 269, 282-83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998));
see also Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 587 (App. Div.
2016) (recognizing "review of the Family Part's determinations regarding child
support is limited"). Thus, we defer to the Family Part's factual findings and
decision absent an abuse of discretion, i.e.: (1) its "findings are 'so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice, '" Spangenberg v.
Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015) (quoting Rova Farms
Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)); (2) the court
failed to consider all controlling legal principles, Gotlib v. Gotlib, 399 N.J.
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Super. 295, 309 (App. Div. 2008); or (3) the court entered an order that lacks
evidential support, MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007).
A Family Part's "legal conclusions, and the application of those
conclusions to the facts," however, are reviewed de novo. Reese v. Weis, 430
N.J. Super. 552, 568 (App. Div. 2013); see also Quinn v. Quinn, 225 N.J. 34,
45 (2016) (noting traditional contract principles apply to the Family Part 's
contract interpretation of a parties' PSA); Kieffer v. Best Buy, Inc., 205 N.J.
213, 222-23 (2011) (noting the interpretation of a contract is an issue of law
that an appellate court reviews de novo).
B.
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.
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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)). See also R. 5:8-6.
III.
A.
Defendant first alleges that the trial court abused its discretion by
denying his application to compel J.A.'s passport renewal and travel to Egypt.
We are not persuaded. The trial court clearly stated its reasons on the record,
and it pointed out that the order was without prejudice. We disagree with the
notion that the court somehow "re-wrote" the PSA the parties negotiated for
themselves when it denied defendant's motion to travel. Paragraph thirty-two
of the PSA contemplates notice being given by the traveling parent to the non-
traveling parent of prospective trip details. Paragraph thirty-two lists the first
trip detail as "Destination." Plaintiff had a right under the PSA to know where
defendant intended to take J.A., and the record shows that when she learned
the destination was Egypt, she raised appropriate concerns in light of the
unprecedented global COVID-19 pandemic, which by that time had taken
countless lives, in the United States and internationally. The court properly
exercised its discretion when it considered J.A.'s age, her ineligibility to be
vaccinated, and Egypt's status as a country unsafe at that time for unvaccinated
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persons in its decision to deny relief. We discern no error in the court's
decision, which is supported by sufficient evidence in the record.
B.
Defendant argues next that the trial court erred when it denied his
application to modify the parenting time agreement spelled out in the Consent
Order. The Family Part has substantial discretion in granting or denying
applications to modify such orders, and, generally, we will defer to the Family
Part's decision on "whether a plenary hearing must be scheduled." Jacoby v.
Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012).
Defendant stated in his certification that at some point after the parties
executed the Consent Order in May 2019, he relocated to a residence "two
minutes" from plaintiff's home. He also alleged that J.A. wanted to spend
more time with him. Curiously, defendant never advised the court of his new
address in his certification, nor did he advise the court of when he actually
moved. Our review of the record reveals nothing to explain whether defendant
moved before or after the FJOD date of August 19, 2019.
We evaluate changed circumstances based on facts existing at the time
the prior parenting time order was entered. Donnelly, 405 N.J. Super. at 127-
28. The trial court was well within its discretion to deny defendant's parenting
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time motion without a plenary hearing where defendant failed to make a prima
facie case that such a hearing was necessary.
C.
An award of counsel fees in matrimonial matters is discretionary. R.
5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). We will not disturb a
counsel fee award absent a showing of "an abuse of discretion involving a
clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App.
Div. 2010); Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).
There was no abuse of discretion here, as the record is devoid of evidence
showing the trial court made a clear error in judgment. Consequently, we
reject defendant's fee argument.
Any of defendant's arguments not addressed here are without sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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