WELLS FARGO BANK, N.A. VS. GEORGE TORNEY(F-30500-14, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-0939-15T2
JENNIFER L. BONELLI,
n/k/a JENNIFER L. MURRAY,
Plaintiff-Appellant,
v.
JONATHAN A. BONELLI,
Defendant-Respondent.
_________________________________________
Argued March 28, 2017 – Decided April 27, 2017
Before Judges Yannotti and Fasciale.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FM-21-0138-12.
Stephanie P. Tettemer argued the cause for
appellant (Tettemer Law Offices, LLC,
attorneys; Ms. Tettemer, on the briefs).
Damiano M. Fracasso argued the cause for
respondent.
PER CURIAM
Plaintiff appeals from provisions in an order of the Family
Part dated September 2, 2015, which permitted plaintiff to
temporarily reside in Pennsylvania with the parties' minor
children, and allowed defendant parenting time on weekends and
Tuesdays and Wednesdays each week. Plaintiff also appeals from the
Family Part's order of September 22, 2015, which denied her motion
for reconsideration of the September 2, 2015 order. We reverse and
remand the matter to the trial court for further proceedings.
We briefly summarize the relevant facts and procedural
history. The parties were married in May 2007, and two children
were born of the marriage, in February 2006 and April 2009,
respectively. The marriage was dissolved by a final judgment of
divorce dated October 17, 2011.
The court entered a consent order pertaining to custody and
parenting time, dated October 17, 2011, which provides, among
other things, that plaintiff shall be the parent of primary
residence and defendant the parent of alternative residence. The
October 2011 order further provides that the County of Warren
shall be the children's home county, and the children shall not
be removed from New Jersey for more than seven consecutive days
without the written, notarized consent of the parties.
The October 2011 consent order also states that, except as
otherwise provided in the order, defendant shall have parenting
time with the children each week from Friday at 5:00 p.m. to Sunday
at 8:00 p.m. In addition, defendant shall have parenting time each
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week on Tuesday and Thursday, from 4:00 p.m. to 8:00 p.m. Plaintiff
has parenting time for the remaining time each week.
Thereafter, the trial court entered a consent order dated
December 6, 2012, which amended the October 2011 order. The
December 2012 order states that effective May 1, 2012, plaintiff
could temporarily relocate with the children to a municipality in
Bucks County, Pennsylvania. The December 2012 order states that
if plaintiff wanted to extend the temporary relocation, she must
file a motion in the trial court and demonstrate that such an
extension is in the children's best interest.
The December 2012 order did not make any change to defendant's
parenting time, as provided in the October 17, 2011 order. The
December 2012 order also states that the Superior Court of New
Jersey will continue to exercise jurisdiction over the children
until they are emancipated.
In May 2015, plaintiff filed a motion in the trial court
which sought, among other relief, authorization to relocate
permanently with the children to the State of Pennsylvania. In a
certification submitted in support of her motion, plaintiff noted
that she and the two children had been residing in Pennsylvania
for several years with her new boyfriend, as permitted by the
December 2012 order, and she had given birth to another child in
2013.
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In her motion, plaintiff also sought a change in defendant's
parenting time based on the fact that defendant allegedly had only
been exercising his parenting time on weekends. She therefore
sought to eliminate his parenting time on Tuesdays and Thursdays,
as provided in the October 2011 order.
Defendant opposed plaintiff's motion for permanent
relocation, and filed a cross-motion seeking, among other relief,
to change his weekday parenting time from Tuesdays and Thursdays
to Wednesdays and another weekday suitable to the parties and
their children.
The court scheduled the motions for oral argument on August
28, 2015. Prior to the scheduled argument date, the court provided
the parties with a preliminary decision, which stated that there
was no change of circumstances warranting a change in the parties'
consent order of December 2012 regarding temporary relocation or
the parenting schedule established in the October 2011 order.
However, the court's preliminary order changed defendant's
weekday parenting to Tuesdays and Wednesdays. The court thereafter
issued an amended preliminary decision and order. The amended
preliminary order made other changes to the parenting schedule.
The order stated that defendant would have parenting time every
other weekend, and one day during the week.
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The parties appeared in court on August 28, 2015, and
expressed disagreement with the court's preliminary decisions as
to relocation and parenting time. The court then engaged in a
colloquy with counsel in an effort to resolve the dispute.
Plaintiff's attorney indicated that she wanted "finality"
regarding the relocation. Plaintiff's attorney also indicated that
plaintiff wanted to change the parenting schedule to reflect the
actual parenting time that defendant was enjoying.
The court told plaintiff's attorney that it would either
enforce the terms of the consent orders or conduct a plenary
hearing pursuant to Baures v. Lewis, 167 N.J. 91 (2001). After
further discussion, defendant's attorney informed the court that
defendant did not object to plaintiff continuing to reside with
the children in Pennsylvania on a temporary basis, with the New
Jersey court retaining jurisdiction in the matter.
Defendant objected, however, to any change to the parenting
schedule in the October 2011 order, but suggested a change to
paragraph eleven of that order. Paragraph eleven provides that in
the event the parent, spouse, or their natural parents are
unavailable for parenting time, the other parent has a right of
first refusal to exercise such parenting time. Counsel proposed a
"three-hour cutoff" for the exercise of this right of first
refusal.
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Plaintiff's attorney again informed the court that her client
wanted "finality." The court again told plaintiff's attorney that
it would either uphold the previous consent orders or plaintiff
would have a Baures hearing. Plaintiff's attorney then advised the
court that she would agree to continue the relocation on a
temporary basis. Counsel also said that she was amenable to the
court's "clarification" of paragraph thirteen of the proposed
order, which addressed parenting time, and with the three-hour
cutoff for additional parenting time, as proposed by defendant.
The court then issued an order dated August 28, 2015, which
granted in part plaintiff's motion to modify the prior agreement
as to custody and parenting time. The order stated in pertinent
part that plaintiff's relocation to Pennsylvania was only
temporary. The order also stated that defendant would have
parenting time every weekend, from 5:00 p.m. on Fridays to 8:00
p.m. on Sundays, and from 4:20 p.m. to 8:00 p.m. on Wednesdays,
or another weekday that is convenient for the children. The order
stated that, except as provided therein, all provisions of the
court's prior orders and judgments shall remain in full force and
effect.
On September 1, 2015, defendant's attorney wrote to the court
and objected to the provision of the order which limited
defendant's weekday parenting time to only Wednesdays, noting that
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the court had clearly indicated that defendant would not be losing
any weekday parenting time. Counsel asked the court to restore
defendant's Tuesday parenting time. In addition, counsel noted
that the court had omitted the three-hour cutoff for the exercise
of the right of first refusal for additional parenting time.
On September 2, 2015, the court issued an amended order which
stated that defendant would have weekday parenting time on Tuesdays
and Wednesdays. In its transmittal memo, the court noted that the
parties would be submitting a separate consent order to address
the three-hour cutoff.
Plaintiff objected to the September 2, 2015 order, and the
court treated the objection as a request for reconsideration. The
court entered an order dated September 22, 2015, denying the
application. In the accompanying statement of reasons, the court
pointed out that the preliminary and amended preliminary decisions
contained errors regarding the parenting time schedule, which had
caused confusion. The August 28, 2015 order also erroneously
omitted defendant's Tuesday parenting-time and did not include the
three-hour cutoff for exercising the right of first refusal for
additional parenting time.
The court noted that it had offered plaintiff an opportunity
for a plenary hearing on permanent relocation and her proposed
change in the parenting-time schedule, but plaintiff had declined
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the offer. She had agreed to continue relocation in Pennsylvania
on a temporary basis and to maintain the parenting schedule as
provided in the court's prior orders. The court found that the
omission of defendant's Tuesday parenting time was a clerical
error.
The court rejected plaintiff's contention that it had acted
improperly by amending the August 28, 2015 order to correct the
error. The court also noted that the three-hour cutoff would be
included in a separate consent order; therefore, that issue was
moot. This appeal followed.
On appeal, plaintiff argues: (1) she has the right to appeal
the trial court's orders; (2) she was denied due process because
the court denied her motion for a change in the parenting time
schedule without a plenary hearing; (3) defendant violated the
prescribed procedure for seeking reconsideration by requesting a
change to the August 28, 2015 order without filing a motion; (4)
the court should have granted her application to relocate
permanently with the children to Pennsylvania; (5) plaintiff met
her burden of showing that the parenting plan should be modified;
and (6) the trial court's orders should be vacated.
The scope of our review of the trial court's findings of fact
is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The trial
court's factual findings will not be reversed on appeal if
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supported by adequate, substantial, and credible evidence in the
record. Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs
Ins. Co., 65 N.J. 474, 484 (1974)). Although we defer to the trial
court's findings of fact when supported by sufficient evidence,
we owe no deference to the trial court's decision on an issue of
law or the legal consequences that flow from established facts.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
As we have explained, the parties had agreed to the entry
of the December 2012 consent order which allowed plaintiff to
relocate to Pennsylvania with the children on a temporary basis,
and plaintiff later filed her motion seeking to make the relocation
permanent. In her motion, plaintiff cited several reasons why the
court should approve her application. Plaintiff noted that she and
the children had resided in Pennsylvania with her new boyfriend,
and plaintiff had another child with this individual.
Plaintiff also noted that she had lived with the children in
Pennsylvania for three years, and both children had been enrolled
in Pennsylvania schools. She said the children were "ensconced"
in their schools, and had established friends and extracurricular
activities that give them stability. She also stated that the two
children had bonded with her new child, and the children had an
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established group of teachers, doctors, and coaches upon which
they rely emotionally.
Plaintiff also sought to change defendant's parenting time,
which had been established by the October 2011 consent order.
Plaintiff asserted that the parties have not been following the
previously-established schedule. She claimed that defendant was
not exercising his parenting time on weekdays. She said it would
disrupt the children's schedule to have them travel to defendant's
home mid-week.
In Baures, the Court held that when parents are divorced and
one parent seeks to relocate with a child from New Jersey, the
movant must present a prima facie case showing (1) the parent had
a good faith reason to move, and (2) the move will be in the
child's best interests. Bauers, supra, 167 N.J. at 118. The
movant's prima facie case must include a proposal for the other
parent's visitation. Ibid.
The parent who opposes the application then has the burden
of showing that the move is not in good faith or inimical to the
child's interest. Id. at 119. "Where visitation is the issue, in
order to defeat the custodial parent's proofs, the burden is on
the noncustodial parent to produce evidence, not just that the
visitation will change, but that the change will negatively affect
the child." Ibid.
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In addressing these issues, the court should consider the
following factors:
(1) the reasons given for the move; (2) the
reasons given for the opposition; (3) the past
history of dealings between the parties
insofar as it bears on the reasons advanced
by both parties for supporting and opposing
the move; (4) whether the child will receive
educational, health and leisure opportunities
at least equal to what is available here; (5)
any special needs or talents of the child that
require accommodation and whether such
accommodation or its equivalent is available
in the new location; (6) whether a visitation
and communication schedule can be developed
that will allow the noncustodial parent to
maintain a full and continuous relationship
with the child; (7) the likelihood that the
custodial parent will continue to foster the
child's relationship with the noncustodial
parent if the move is allowed; (8) the effect
of the move on extended family relationships
here and in the new location; (9) if the child
is of age, his or her preference; (10) whether
the child is entering his or her senior year
in high school at which point he or she should
generally not be moved until graduation
without his or her consent; (11) whether the
noncustodial parent has the ability to
relocate; [and] (12) any other factor bearing
on the child's interest.
[Id. at 116-17.]
Here, the trial court recognized that under Baures, a plenary
hearing should be conducted on plaintiff's motion for permanent
relocation and her proposed change to defendant's parenting
schedule. The court found, however, that plaintiff had voluntarily
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agreed to continue her temporary relocation and to continue to
abide by the prior orders regarding parenting time.
The transcript of the August 28, 2015 proceeding reflects
that plaintiff had agreed not to seek an order authorizing her
permanent relocation with the children to Pennsylvania. However,
the transcript does not support the trial court's finding that
plaintiff had agreed to allow defendant to continue to enjoy
parenting time every weekend and for several hours on two weekdays
each week.
As the trial court recognized in the statement of reasons
appended to the September 2, 2015 order, errors in the preliminary
and amended preliminary decisions created some confusion regarding
parenting time. Regrettably, that confusion was not entirely
eliminated by the discussion that took place on the record on
August 28, 2015. It seems that plaintiff and her attorney left
that proceeding with the understanding that, while she had agreed
to continue her relocation with the children on a temporary basis,
that agreement was subject to a change in defendant's parenting
time.
As noted, at the August 28, 2015 proceeding, plaintiff's
counsel referred to the court's "clarification" of paragraph
thirteen of the proposed order, which plaintiff apparently
interpreted as meaning defendant would only have mid-week
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parenting time on Wednesdays. The confusion was compounded by the
court's order of August 28, 2015, which stated that defendant
would only have mid-week parenting time one day during the week.
Defendant's attorney objected to the change in his mid-week
parenting time, and the court viewed it as a clerical error. The
September 2, 2015 order restored defendant to two days of mid-week
parenting time – on Tuesdays and Wednesdays. However, plaintiff
insisted she never agreed to continue with the previously-
established parenting schedule.
We are therefore convinced that the court erred by finding
that the parties had a meeting of the minds regarding the issues
of permanent relocation and parenting time and, for that reason,
erred by deciding that a plenary hearing was not required. As we
have explained, the record does not support the conclusion that
the parties reached an agreement to maintain the parenting schedule
set forth in the court's order of October 2011.
Therefore, we reverse the relevant provisions of the court
order of September 2, 2015, and the September 22, 2015 order
denying reconsideration. We remand the matter to the trial court
for further proceedings on the issue of permanent relocation and
parenting time. On remand, if the parties agree to resolve one or
both of these issues without the need for a plenary hearing, any
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such agreement should be spelled out in a consent order and filed
with the court.
If the parties cannot agree, the court should conduct a
plenary hearing and address plaintiff's motions for permanent
removal and alteration of the previously-established parenting
schedule. Plaintiff's temporary relocation and the parenting
schedule established by the court's September 2, 2015 order shall
remain in effect pending a decision by the trial court at the
conclusion of the remand proceedings.
As noted, on appeal, plaintiff also argues that she was denied
due process in the trial court proceedings; defendant flouted the
procedure for seeking reconsideration of the court's August 28,
2015 order; her application for permanent relocation should have
been granted; and she met her burden of showing the parenting plan
should be changed. In view of our decision remanding the matter
to the trial court for further proceedings, we need not address
these issues.
Reversed and remanded to the trial court for further
proceedings in conformity with this opinion. We do not retain
jurisdiction.
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