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A.K. v. D.O.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2009

A.K., PLAINTIFF-APPELLANT,
v.
D.O., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Family Part, Docket No. FV-02-22346-06.

Per curiam.

RECORD IMPOUNDED

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 9, 2009

Before Judges Lisa and Sapp-Peterson.

In this unopposed appeal,*fn1 plaintiff appeals from that portion of the April 18, 2008 Family Part order finding that she was in violation of litigant's rights for failing to change the name on her daughter's birth certificate from H.R.K. to H.R.O. and ordering plaintiff to pay counsel fees on behalf of defendant. We reverse in part and affirm in part.

The origin of this appeal stems from a paternity action filed by plaintiff to adjudicate defendant as H.R.K.'s father. H.R.K. was born October 5, 2006 and plaintiff claimed that defendant is the putative father. On February 21, 2007, the trial court entered an order, by consent, adjudicating that defendant is the father of H.R.K. The order directed plaintiff to amend H.R.K.'s birth certificate "to reflect that the child's father is D.P.O." Thereafter, another motion was filed that addressed issues related to child support. Defendant also apparently filed a motion seeking to change H.R.K.'s name to J.L.O.*fn2

On October 19, 2007, after entertaining oral argument addressing child support, the court inquired of counsel about the birth certificate issue. Defense counsel advised the court that the birth certificate had not been changed in accordance with the court's February 21, 2007 order and that plaintiff had commented that "she didn't believe the order from Judge Jerejian [directing the name change] would be sufficient for the Registrar of birth certificates." Defense counsel argued further that he did not believe the Registrar would have rejected a signed order from a Superior Court judge and that plaintiff's failure to comply with the order was not an "innocent oversight." He indicated further that defendant had an application pending to change H.R.K.'s name to J.L.O., the name upon which the parties had previously agreed.

In response, plaintiff's counsel advised the court that because defendant was petitioning the court to change H.R.K.'s name to J.L.O., he believed that "it's up to Your Honor to change the child's name to J.L.O., I think it's up to Your Honor today to determine exactly what the new birth certificate going forward will say[.]" Plaintiff's counsel also objected to defense counsel's characterization of plaintiff's conduct:

[PLAINTIFF'S COUNSEL]: Well, let's --let's put this in proper perspective, Judge. We had to sue [defendant] to get his name on the birth certificate, something we want, okay. The interim order that was issued by Judge -- Judge Jerejian, I don't know that it would have been sufficient with the Registrar. We're waiting for a final order to determine the other issues, like the amount of child support that Your Honor is finally doing, counsel fees, and a final order with a judgment of paternity which I've submitted to Judge Jerejian three or four times, I think, in the course of this.

THE COURT: What do -- wait a minute, I don't understand. I thought Jerejian is finished with it, I have it. I have the case now.

[DEFENDANT'S COUNSEL]: You do, Judge.

[PLAINTIFF'S COUNSEL]: Well, what I'm saying, Judge, I know you've had the case but in terms of saying we haven't changed the birth certificate, as if to thrust the burden on us to change it, we didn't have a final order.

[DEFENDANT'S COUNSEL]: I think it was finalized to that issue, Judge.

THE COURT: Okay, I've read

--[PLAINTIFF'S COUNSEL]: But

--THE COURT: -- the papers for both parties.

[PLAINTIFF'S COUNSEL]: I don't know who's --

THE COURT: I know they're prevailing, they're prevailing --

[PLAINTIFF'S COUNSEL]: We're the one who asked the Court for the birth certificate change and the fact that we haven't done it ministerially just now I don't think is really an issue that -- that is the issue that the defendant wants to make it.

Plaintiff filed no motion for reconsideration, nor did she seek leave to file an interlocutory appeal. Instead, plaintiff retained new counsel and filed a motion seeking to vacate that part of the court's interlocutory order directing that she change the birth certificate to H.R.O. As an alternative, plaintiff urged that the birth certificate be changed to reflect the name H.R.O-K. Defendant cross-moved for further relief, including reconsideration of the portion of the court's October 19, 2007 order directing that the minor child's name be changed to H.R.O. Defendant once again sought to have the minor child's name changed to J.L.O. Following oral argument, the court entered an order finding plaintiff in violation of litigant's rights for failure to comply with its order "compelling Plaintiff to change the birth certificate of the minor child to read, "'[H.R.O.].'"*fn3 The order further provided that plaintiff was to complete the necessary forms to accomplish the name change and that "[i]f Plaintiff fails to abide by this Provision[,] sanctions and/or counsel fees will be imposed on Plaintiff." The present appeal followed.

On appeal plaintiff contends the trial court erred in its ruling finding her in violation of litigant's rights. Plaintiff claims the court further erred in denying her request to have the minor child's name reflect the last names of both parents. Finally, plaintiff argues that the court erred in awarding counsel fees to defendant.

I.

Our role in reviewing a decision of the family court is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The findings of the trial court are binding on appeal if they are supported by "adequate, substantial, credible evidence." Id. at 412, 713 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Indeed, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., supra, 65 N.J. at 484). We also accord additional deference to the findings of family court judges due to their special expertise in this area. Id. at 412-13.

Here, in its October 19, 2007 order, the court stated, "I'm going to order that the birth certificate be changed to read [H.R.O.]" The court did not place on the record its reason for reaching this conclusion. When the court considered plaintiff's motion to vacate this decision and defendant's motion for reconsideration of its decision declining to change H.R.K.'s name to J.L.O., the court stated, "no one has given me any reason why, aside from the prior order, why this should be changed as per the plaintiff."

Plaintiff's certification in support of the motion, however, did provide the court with reasons for her request to utilize both parties' last names for their daughter. Plaintiff first advised the court that the defendant's proposed name of J.L.O. was only his expressed preference and that while they had discussed options, no decision had been reached. Plaintiff next explained she was not present during the October 19, 2007 motion hearing and was shocked to learn of the court's decision and made "repeated requests to [her former attorney] to take whatever action was necessary to accomplish [changing H.R.K.'s name to H.R.O-K]." She told the court that she had no objection to the use of a hyphenated surname but found it unfair to do otherwise. She explained further:

I take full care of our daughter. I have another daughter - [M.K.] - who is 7 years of age, and who also lives with me. The three of us live as a family. I firmly believe that it is in [H.R.K.'s] best interest to also have the last name of [K] -the same last name as [M].

The court, in denying the motion to partially vacate its October 19, 2007 order, did not provide any reasons why it rejected plaintiff's reasons.

Rule 1:7-4(a) requires a court deciding a motion to "find the facts and state its conclusions of law thereon in all actions." As we observed in Salch v. Salch, the absence of fact-finding on the part of a judge "constitutes a disservice to the litigants, the attorneys and the appellate court." 240 N.J. Super. 441, 443 (App. Div. 1990) (citing Curtis v. Finneran, 83 N.J. 563, 570 (1980) (citing Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976))). Additionally, "meaningful appellate review is inhibited" in the absence of such factual findings, leaving our review subject "to conjecture as to what a trial judge may have had in mind." Ibid.

We additionally observe that in opposing plaintiff's motion, defense counsel focused upon plaintiff's failure to comply with the court's earlier orders rather than the merits of the use of a hyphenated surname for the parties' daughter. Indeed, after the court expressed its view that neither party had given it a reason to change its ruling that their daughter should continue with the H.R.O. designation, the court inquired of plaintiff's counsel, "Now, are you still pressing, Counsel, for the [J.L.O]?" Defense counsel replied, "Judge, I'm not." It does not appear, therefore, that defendant had any significant objection to the use of a hyphenated surname.

Rule 2:10-5 permits us to exercise original jurisdiction "as is necessary to the complete determination of any matter on review." Given the absence of any apparent objection on the part of defendant to the use of a hyphenated surname for the parties' daughter, we exercise original jurisdiction to dispose of that issue both for the sake of completeness and because the record provides ample basis for disposition without further fact-finding. See Bressman v. Gash, 131 N.J. 517, 528-29, (1993) (exercising original jurisdiction to "conclude the matter"); see also Pector v. Meltzer, 298 N.J. Super. 414, 418-19, (App. Div. 1997) (exercising original jurisdiction to "complete the determination of the matter").

The record demonstrates that both parties express their love for their daughter and their desire to have a significant role in her life. This factor inures in favor of a hyphenated surname. Of greater significance, however, is the fact that the parties do not live with each other and are unmarried. In Gubernat v. Deremer, 140 N.J. 120 (1995), the Court discussed the history of surnames dating back as far as the Norman Conquest through adoption of regulations promulgated by the New Jersey State Department of Health. Id. at 127-45. Under the latter regulations, "where either parent is unavailable, the choice of the child's name(s) rests with the parent who has custody of the newborn child." N.J.A.C. 8:2-1.4(a)(1). The Court further stated:

The presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interest of the child. Accordingly, we adopt a strong presumption in favor of the surname chosen by the custodial parent. However, we readily envision circumstances in which the presumption could be rebutted. A young child who has used the non-custodial surname for a period of time, is known to all by that surname, expresses comfort with the continuation of that surname, and maintains frequent contact with the non-custodial parent might be ill-served by the presumption that the assumption of the custodial surname would be in his or her best interests. Although we accord the presumption substantial weight, it is not irrefutable.

The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent's choice of name, the chosen surname is not in the best interests of the child. Courts should examine scrupulously all factors relevant to the best interests of the child and should avoid giving weight to any interests unsupported by evidence or rooted in impermissible gender preferences. The rebuttable character of the custodial-parent presumption serves two ends: it protects the right of the custodial parent to make decisions in the best interests of the child; and it permits judicial intervention, on a sufficient showing by the non-custodial parent, when that decision does not reflect the best interests of the child. [Id. at 144-45. (internal citations omitted).]

Here, there is no dispute that plaintiff is the custodial parent. The record here demonstrates that defendant did not overcome the presumption that the minor child should only bear his surname. We find plaintiff's proposal to use both surnames reasonable and in the best interests of the minor child.

Therefore, we vacate that part of the October 19, 2007 order designating the minor child's name as H.R.O. and remand to the trial court for the entry of judgment directing the filing of an amended birth certificate changing H.R.O.'s name to H.R.O-K.

Although we agree that the court erred in ordering the change in the minor child's name, we affirm the court's order directing plaintiff to pay counsel fees in the amount of $750. We are convinced that there is substantial credible evidence in the record to support the judge's determination.

A determination as to whether to award counsel fees in Family Part proceedings lies within the discretion of the trial judge. Mani v. Mani, 183 N.J. 70, 93-95 (2005). The court found that plaintiff's failure to comply with its October 19, 2007 order was not excusable neglect:

Number two, okay, perhaps I would entertain an argument of excusable neglect but I cannot entertain that argument at this point. Judge Jerejian's prior order ordered the plaintiff to change, amend, reinstitute the birth certificate listing the defendant as the father.

All my order of October 19th did was to hear the arguments why that shouldn't take place and I denied the request and I specifically stated in my order that she is ordered that the new birth certificate shall register the minor child as [H.R.O.]. So, in reality, this is a third request.

The plaintiff is found to be in violation of litigant's rights for failure to comply with the prior order of the Court dated October 19th, 2007 to change the birth certificate of the minor child to be [H.R.O.].

All parties are under an obligation to obey court orders unless or until overturned on appeal. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000). Assuming that there was a genuine misunderstanding as to compliance with the February 2007 order directing plaintiff to add defendant's name to their child's birth certificate, the court's October 19, 2007 order was clear in its direction to plaintiff to add defendant's name to the birth certificate and to change their daughter's name as ordered.

It is evident from plaintiff's certification in support of her motion to vacate the October 19, 2007 order that she strongly objected to the court's decision. She did not, however, file for reconsideration or seek leave to appeal. That she terminated the services of her prior attorney did not justify her failure to comply with the court's order. We note further that in the certification, she stated: "I no longer desired the services of [my attorney], and I filed a Motion, on my own, regarding arrears in child support. I then retained my new attorney... to assist me in this matter." Thus, plaintiff certainly knew that she could seek judicial relief even without an attorney. Consequently, we are satisfied the record supports the court's determination to award counsel fees to defendant.

The April 18, 2008 order is reversed in part and remanded for the entry of judgment changing H.R.O.'s name to H.R.O.-K. The order is otherwise affirmed as to the award of counsel fees.


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