January 13, 2010
WIOLETA SCHOTTEL, F/K/A WIOLETA KUTYBA, PLAINTIFF-APPELLANT,
PIOTR KUTYBA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1008-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2009
Before Judges Reisner and Chambers.
Plaintiff Wioleta Schottel appeals from the trial court's order of April 17, 2009, that allowed her to take her daughter on a four week vacation to Poland in July 2009, on condition that she pay $2500 toward the child support that she owes to defendant Piotr Kutyba. The order further provided that she would be responsible for all of the child's medical expenses on the trip because the child's medical insurance provided no medical coverage for such a trip. Schottel contends that conditioning the vacation upon payment of child support was in error and that she should be allowed to take the child to Poland although she refuses to pay child support.
We note that the appeal is now moot since the time to take the child on the vacation has now passed. However, because the issue is likely to arise anew, we address the question presented. Bursztyn v. Bursztyn, 379 N.J. Super. 385, 394 (App. Div. 2005) (stating a court may review a moot issue if it is "one of substantial importance, likely to reoccur, but capable of evading review").
We conclude that the trial court may not condition the trip upon a child support payment because New Jersey law treats child support and parenting rights independently. However, the fact that the child would be without medical coverage while on the trip would be a sufficient basis to deny the trip. When considering alternatives to address this problem, the trial court may take into account Schottel's history of failing to make payments on child support when it examines the likelihood that she would obtain and pay for any medical services that may become necessary on the trip.
The parties were married in Poland in 1991, but they thereafter moved to the United States. One child was born to the marriage. In 2002, defendant obtained a divorce in New York State.*fn1 That judgment ordered plaintiff to pay defendant child support of $50 per week. An order was entered in New Jersey on August 3, 2005, after a plenary hearing, awarding defendant sole legal and primary residential custody of the child and providing a visitation schedule for plaintiff that included four weeks in the summer. It also provided that the child could not be removed from the United States without the written consent of the other parent or a court order.
Then began a long history of court orders directing plaintiff to make child support payments and holding her in violation of litigant's rights for failing to do so. Specifically, the record reflects that the following orders were entered against plaintiff on the child support issue. The order of December 16, 2005, directed plaintiff to pay child support of $50 per week, and fixed arrears at $950. By order dated May 9, 2006, plaintiff was ordered to pay $50 per week in child support and $25 per week toward arrears, and arrears were fixed at $1950. This order was affirmed on appeal. Schottel v. Kutyba, Docket No. A-5342-05 (App. Div. September 21, 2007). In the order dated July 21, 2006, plaintiff was held in violation of litigant's rights, an arrest warrant was issued requiring that she be held until $500 was paid, and child support arrears were determined to be $2500. An order dated August 10, 2006, held plaintiff again in violation of litigant's rights, and an arrest warrant was again issued requiring that she be held until $500 was paid. We reversed the portion of this order that suspended plaintiff's parenting time until she paid $500 toward child support arrears. Schottel v. Kutyba, Docket No. A-5342-05 (App. Div. September 21, 2007). By order dated September 22, 2006, plaintiff was again adjudicated in violation of litigant's rights. An order dated November 2, 2007, adjudicated plaintiff in violation of litigant's rights, awarded defendant a judgment against plaintiff in the sum of $5594, representing arrears, entered a judgment in favor of the defendant's attorneys for $1880, and affirmed the child support award of $50 per week and payment toward arrears of $25 per week.*fn2
Against this backdrop, plaintiff filed a motion returnable April 17, 2009, seeking the court's permission to take her daughter on a four week vacation to Poland to visit plaintiff's family there, including the maternal grandparents. Plaintiff argued that the trip was in the best interest of the child. At the hearing before the trial court, she acknowledged that she would be paying the cost of the child's plane fare which amounted to $1200.
The trial court noted plaintiff's "flagrant disregard" of the support orders, and noted that the cost of the plane fare would cover twenty-two weeks of support.*fn3 The trial court distinguished between vacation time and visitation and concluded that the trip would be permitted provided plaintiff paid $2500 toward arrears. In addition, because the trial court was advised by defense counsel that the child's medical insurance would only cover her while in the United States or Canada, the trial court required that plaintiff would be responsible for any medical expenses incurred for the child as a result of the trip.
Plaintiff appeals, contending that her support obligations must be treated separately from the visitation issues, and that the trial court erred when conditioning the trip upon payment of support.
The obligation of a parent to provide support is considered to be independent of the parent's right to parenting time. See Wagner v. Wagner, 165 N.J. Super. 553, 556 (App. Div. 1979) (stating that "since visitation is primarily for the benefit of the children of a marriage, defendant's obligation to support the children is independent of his visitation rights"), certif. denied, 85 N.J. 93 (1980); Fiore v. Fiore, 49 N.J. Super. 219, 225-27 (App. Div.) (overturning order that abated child support payments if mother or her family interfered with the father's visitation rights and stating that "duty of a father to support his children and the right of a father to visitation and overnight custody are not dependent upon or connected with each other"), certif. denied, 28 N.J. 59 (1958); Ryan v. Ryan, 246 N.J. Super. 376, 383-84 (Ch. Div. 1990) (concluding that court was not bound by an agreement whereby the father gave up his visitation rights in exchange for being relieved of his support obligations and stating that "[i]n the best interests of the child, support and the right of visitation cannot be dependent upon or connected with each other"). While economic sanctions may be imposed upon a parent who violates an order respecting custody or parenting time, R. 5:3-7(a)(2), we have located no New Jersey case authorizing a reduction in parenting time because the non-custodial parent has failed to pay child support.
We find no authority to circumvent this law by distinguishing between a vacation and visitation. Further, the order of August 3, 2005, which appears to be still in effect, gave plaintiff four weeks of parenting time in the summer months; thus, the four week trip to Poland would have been part of her parenting time. Nor is there evidence that paying for the trip would preclude plaintiff's financial ability to pay child support.
Accordingly, we reverse the order because it conditions the trip upon a payment toward the arrears in child support. Should the issue of a trip abroad be renewed, the court must analyze the application in terms of the child's best interests. See Comas v. Comas, 257 N.J. Super. 585, 590 (Ch. Div. 1992) (stating standard was best interests of the child when determining whether requested two-week vacation should be granted) (citing Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971)).
The lack of health coverage would be a serious factor when considering whether the trip was in the best interests of the child and may be a basis to deny the request. We note that the trial court addressed this concern by making plaintiff responsible for any medical expenses incurred. Imposing this financial obligation upon plaintiff was appropriate. The order of August 3, 2005, fixing plaintiff's parenting time schedule expressly states that "[p]laintiff is responsible for all costs associated with her parenting time."
However, given the plaintiff's deliberate, long standing refusal to pay any child support, the difficulty encountered by defendant in obtaining any funds from her, and the apparent futility of the many court orders entered to enforce her support obligation, the trial court may conclude that she is unlikely to shoulder willingly medical expenses for her child should they arise and that collection of any such expenses from her is unlikely. Further, she may not be financially able to replace the child's insurer and pay substantial medical costs should they arise. These are factors for the court to consider in determining whether to allow such a trip.