Before Judges Long, Stern and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County.
The opinion of the court was delivered by
Plaintiff Robert Whitfield (plaintiff or father) appeals from: 1) the denial of his motion seeking enforcement of an Agreement Concerning Parenting (Agreement); 2) an order entered on defendant Margaret Whitfield's (defendant or mother) cross-motion which sought to enforce the terms of a Virginia divorce decree respecting plaintiff's child support obligation; and 3) the motion Judge's decision which only partially granted plaintiff's subsequent motion for reconsideration. Plaintiff contends that the motion Judge erred in: (1) denying plaintiff discovery and failing to conduct a plenary hearing; (2) failing to enforce the terms of the Agreement, to impose sanctions on defendant for violating the terms of the Agreement, and to award plaintiff counsel fees; (3) failing to reimburse plaintiff for visitation and co-parenting expenses as required by the terms of the Agreement; (4) failing to give full faith and credit to the Virginia divorce decree by improperly determining plaintiff's child support obligation and arrearage; and (5) assessing counsel fees against plaintiff. *fn1 We agree with plaintiff's contentions and reverse and remand for further proceedings consistent with this opinion.
The parties were married on October 22, 1977. They resided together in the Commonwealth of Virginia until August 24, 1994, when defendant and the parties' two minor children moved to New Jersey. The two children, Matthew and Michael, are presently, and respectively, fifteen and eleven years old. Defendant relocated to New Jersey with the minor children because she accepted a position as an investment analyst in New York. Plaintiff remains a Virginia resident.
Prior to defendant's move with the two children to New Jersey, the parties entered into the Agreement, dated June 28, 1994. The Agreement was thereafter incorporated into a "Final Custody and Child Support Consent Order" (Consent Order) entered September 15, 1994. The Agreement was a substantially comprehensive document addressing the parties' rights and responsibilities with respect to the upbringing of their children. It provided a framework for decision making regarding the children, stipulated joint legal custody, but granted primary physical custody to the defendant. Of importance here, and discussed more specifically infra, the Agreement outlined the parenting-time guidelines for plaintiff and both parties' responsibilities in sharing transportation costs for plaintiff's visitation. The Agreement specifically noted that plaintiff was unemployed, having last worked in June 1993 as an appraisal officer.
Four clauses in the Agreement are pertinent to this appeal:
21. Visitation with the Boys Following Margaret's Move.
Subsequent to Margaret's move to the New York City area, if the Boys are then residing with her, Robert shall make every attempt consistent with his then-current employment schedule and economic situation, to visit with the Boys regularly. Similarly, if the Boys are then residing with Robert, Margaret shall make every attempt, consistent with her then-current employment schedule and economic situation, to visit with the Boys regularly. During the first ninety (90) days following Margaret's move . . ., in order to establish a continuity of relationships with both Parties, the non-custodial parent shall make every effort to . . . visit with the Boys in the area of the Boys' residence on alternating weekends between 6:00 pm Fridays and 6:00 pm Sundays.
If the Boys are residing with Margaret, and Robert has not yet resumed normal employment (defined herein as salary and benefits equal or greater than those which he received at his last employer, MNC Financial) for a period of ninety days, Margaret shall be responsible for and shall pay all reasonable costs of the Boys' meals and nearby lodging (comparable to an Embassy Suites) for Robert and the Boys for alternating weekend visitations.
Subsequent to the first ninety days following Margaret's move with the Boys, Robert shall have the option of having the Boys travel to his residence on alternating weekends for visitation or at his option, he may visit with the Boys in the New York area. Subsequent to the first ninety days following the mother's move, and for the following nine (9) months period, provided that her economic circumstances have not materially deteriorated from what they are upon execution of this Agreement, the Mother shall be responsible for the reasonable costs of visitation, but not to exceed $3,000, in making all arrangements in the New York area and in paying for the reasonable cost of transporting the Boys to the Washington Metropolitan Area once per month as long as the Husband remains in that area or any other area not more than 300 miles from New York City. The Husband shall make all arrangements and pay the costs of local travel, meals, accommodation and entertainment while the Boys are in the Washington Area or other area in which he shall then be residing.
In the second year after the mother's move, assuming that the father is employed, the parties shall share the reasonable costs of transportation for visitation, as set out herein, proportionate to their income. If such sharing works a hardship on either party, he or she can request mediation, or failing agreement in mediation, a Court's determination of the reasonable sharing of visitation costs. *fn2
29. Child Support. Both Parties acknowledge their responsibilities and obligations for child support which shall be agreed by the parties, or failing agreement determined in accordance with the guidelines for child support then in effect in the Commonwealth of Virginia. As long as one or other of the Parties resides in Virginia, the child support guidelines of that state shall be employed absent an agreement by the Parties to the contrary.
For so long as Robert shall remain unemployed through no fault of his own or he is employed but compensated at less than half of his former salary at MNC Financial, Inc. of $50,000 per year, and Margaret shall continue to receive earnings equal to or greater than at the rate she is now compensated by Tucker Anthony, Margaret shall make no claim for payment to her of any amount for support and maintenance of the Boys. . . .
30. Resolution of Disputes. . . . The Parties agree that, in the event of any material dispute . . ., the Parties will resort to a process of mediation or arbitration . . . .
35. Construction. This Parenting Agreement shall be construed according to the laws of the ...