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Schottel v. Kutyba

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 21, 2007

WIOLETTA SCHOTTEL F/K/A WIOLETTA KUTYBA, PLAINTIFF-APPELLANT,
v.
PIOTR KUTYBA, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-1008-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically September 10, 2007

Before Judges S.L. Reisner and Gilroy.

Plaintiff Wioletta Schottel appeals from a May 9, 2006 order of the Family Part, addressing plaintiff's child support obligations, including the amount of arrears owed, denying plaintiff's application for a change of custody of the parties' child, and addressing several visitation issues. The order memorialized the terms of an oral opinion that Judge Mizdol placed on the record on April 28, 2006. We affirm.

I.

These are the most pertinent facts. The parties were married in Poland in 1991. They moved to the United States, had one child, and were subsequently divorced in New York in 2002. Plaintiff was ordered to pay child support as part of that divorce judgment. Plaintiff moved to St. Louis in 2004 and re-married; her current husband is an attorney. Defendant, the child's father, lives with the child in New Jersey.

In 2005, plaintiff filed a motion in New Jersey to modify visitation. Following a three-day plenary hearing during which he heard testimony from both parties and interviewed the child in camera, Judge Martinotti issued an order dated August 3, 2005, awarding defendant sole legal custody and primary residential custody and setting a very detailed visitation schedule. On December 16, 2005, Judge Martinotti entered a further order requiring plaintiff to pay fifty dollars per week in child support and establishing an amount of arrears.

In the action giving rise to this appeal, defendant filed a motion in January 2006 seeking to enforce the December 16, 2005 child support order. Plaintiff opposed the motion, claiming that she could not afford to pay child support because she was planning to conceive another child by in vitro fertilization and would not be able to work when she became pregnant. Plaintiff did not submit a doctor's report or other medical evidence in support of these contentions. In February 2006, she filed a cross-motion to modify or terminate her child support obligation. She also filed a motion to obtain exclusive residential custody of the child and for permission to remove the child out of State. Although she had re-married after the New York divorce, plaintiff contended as part of her motions that the New York divorce judgment was obtained by fraud. In April 2006, defendant filed a further motion, reiterating his request that the court enforce child support and seeking an order that plaintiff return the child from visitation trips at least two days before the child was scheduled to return to school.

In a comprehensive oral opinion, Judge Mizdol granted defendant's motion to enforce child support and denied plaintiff's application to modify or terminate her support obligation. The judge concluded that plaintiff's planned pregnancy did not justify plaintiff in failing to support her existing child. On that issue, the judge reasoned, "There's nothing before me except [plaintiff] telling me I choose not to work because I choose to have a baby with my new husband; so, therefore, I'm washing my hands of support for [plaintiff's and defendant's child]. There is no justification for that." The judge also concluded that plaintiff had not presented evidence of changed circumstances such as would justify a plenary hearing on the issue of custody. She further concluded that the evidence plaintiff did provide in support of her motions could have been presented to Judge Martinotti during the proceedings in 2005. She rejected as constitutionally inappropriate plaintiff's contention that the child should be in plaintiff's custody because defendant, being a male, could not raise an adolescent girl. Consequently, the judge declined to modify the prior order granting defendant sole custody of the child. Judge Mizdol also set detailed guidelines for visitation, including a requirement that plaintiff return the child from visitation at least "one full day prior to the re-commencement of school."

II.

On this appeal, plaintiff raises the following points for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR CHANGE OF CUSTODY WITHOUT A PLENARY HEARING IN THAT THERE HAS BEEN A SIGNIFICANT CHANGE OF CIRCUMSTANCES AND THE TRIAL COURT'S ORDER AND JUDGMENT IS NOT IN THE BEST INTEREST OF THE CHILD.

POINT II: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO MODIFY AND/OR TERMINATE THE PREVIOUS CHILD SUPPORT ORDER IN THAT THE ORDER WAS OBTAINED BY FRAUD AND UNENFORCEABLE.

POINT III: THE TRIAL COURT ERRED IN MODIFYING THE AUGUST 3, 2005 CHILD CUSTODY AND VISITATION ORDER AT THE REQUEST OF DEFENDANT-RESPONDENT IN THAT THE TRIAL COURT FAILED TO CONDUCT A PLENARY HEARING AND THERE IS INSUFFICIENT EVIDENCE TO WARRANT THE CHANGES.

Absent an abuse of discretion or a departure from applicable law, we will ordinarily defer to the decision of the Family Part, bearing in mind that court's expertise in family issues. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Having reviewed the entire record in light of the applicable standard of review, we find no basis to disturb Judge Mizdol's decision, which is supported by the evidence, and we conclude that plaintiff's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons set forth in Judge Mizdol's cogent oral opinion.

Affirmed.

20070921

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