March 26, 2010
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Passaic County, Docket No. FD-16-1086-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2010
Before Judges Baxter and Alvarez.
Defendant M.O. appeals from an August 12, 2009 Family Part order in which the judge refused to reconsider an April 3, 2009 order that had considerably expanded the parenting time afforded to plaintiff R.R. Defendant maintains that the judge erred when he granted the April 3, 2009 enlargement without requiring plaintiff to demonstrate that circumstances had changed in the one month that had elapsed since the parties agreed, by consent order, to the extent of plaintiff's parenting time. Defendant also maintains that the judge erred when he declined to reconsider his April 3, 2009 denial of her motions to increase child support, transfer venue and change the child's last name. Because defendant has failed to provide us with the portions of the record that are essential to our review, and which the Rules of Court require an appellant to provide, we dismiss defendant's appeal.
The parties have one child, a son born in April 2008. By the time their son was born, the parties were no longer living together. It is unclear from the record whether any child support order was entered when they separated. In December 2008, defendant obtained a domestic violence temporary restraining order (TRO) against plaintiff. That TRO remained in effect until February 10, 2009, when defendant agreed to dismiss the TRO in exchange for an agreement specifying the terms and conditions of plaintiff's parenting time and his child support obligation. The parties' agreement on those subjects was incorporated in a February 24, 2009 consent order that designated defendant as the parent of primary residence and plaintiff the parent of alternate residence.
The consent order afforded parenting time with the parties' son as follows: on alternate Thursdays and alternate Saturdays from 1:00 to 6:00 p.m., and every Friday from 8:00 a.m. to 5:00 p.m.
The consent order also specified that plaintiff was responsible for payment of child support in the amount of $150 per week, noting that such child support was "based upon the calculations prepared by the Court and included in the Sole Parenting Worksheet annexed hereto."
On March 3, 2009, defendant filed a motion to recalculate the child support that had been awarded by the February 24, 2009 consent order, alleging the judge had failed to consider an increase in the daycare expenses she was paying, and that the judge incorrectly calculated plaintiff's pension deductions.
Plaintiff cross-moved for an increase in his parenting time. When defendant received plaintiff's cross-motion, she retained an attorney to represent her in opposing that application; however, because the attorney was retained only one day before the scheduled April 3, 2009 motion hearing, defendant's attorney directed her not to attend the court proceeding because he anticipated being able to obtain an adjournment. Her attorney mistakenly went to the Essex County courthouse rather than the Passaic County courthouse to address the judge concerning his adjournment request. With only plaintiff and his attorney appearing for the motion hearing, the judge granted plaintiff's motion for increased parenting time in its entirety. Defendant's motion for an increase in child support was denied.
The April 3, 2009 order increased plaintiff's parenting time considerably. Instead of the alternate Thursdays and alternate Saturdays, from 1:00 p.m. to 6:00 p.m., and consecutive Fridays from 8:00 a.m. to 5:00 p.m., as set forth in the February 24, 2009 consent order, the April 3, 2009 order granted plaintiff parenting time each week from Thursday at 8:00 a.m. to Saturday at 10:00 a.m., and also afforded him alternating Saturdays until 8:00 p.m. The April 3, 2009 order also made provision for plaintiff's parenting time on certain holidays and during four weeks in the summer.
After learning that her lawyer had been unable to secure an adjournment of the April 3, 2009 motion hearing, and that the hearing had therefore been conducted in her attorney's absence, defendant discharged her attorney and wrote to the judge beseeching him to permit her to re-file her motion. In response to defendant's letter, the judge agreed on April 15, 2009 to stay the implementation of the April 3, 2009 order, provided that defendant "forthwith" filed a motion for reconsideration.
Defendant did not file the motion "forthwith" or within the twenty-day period specified by Rule 4:49-2. She apparently filed her motion in late June 2009.
On July 31, 2009, after extensive oral argument, during which both sides were represented by counsel, the judge denied defendant's motion for reconsideration of his April 3, 2009 parenting time order. The judge based his decision on plaintiff's unwarranted delay in moving for reconsideration and on the lack of any meritorious basis for vacating the earlier order. A confirming order was entered on August 12, 2009.
We recognize the well-established rule that a party seeking modification of a parenting time order is obliged to demonstrate a change of circumstances. Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). Defendant's sole argument on appeal concerning the expansion of plaintiff's parenting time is that the judge granted plaintiff an increase without requiring plaintiff to demonstrate a change of circumstances.
However, defendant has failed to provide us with the certification plaintiff filed in February 2009 when he filed his cross-motion seeking the increase in his parenting time; she has only provided us with his notice of motion. This is in direct violation of Rule 2:6-1(a)(1)(A), which requires an appellant to submit all of the pleadings filed in the action. Plaintiff's certification is obviously a pleading within the contemplation of that Rule.
Without the certification plaintiff filed in support of his cross-motion, we are unable to determine if plaintiff demonstrated the change of circumstances Sheehan requires. We will not blithely assume he did not. In fact, defendant has not even provided us with a copy of the motion and supporting certification she filed in support of her request for reconsideration of the April 3, 2009 order.
These critical omissions on defendant's part are exacerbated by her failure to provide us with a transcript of the April 3, 2009 proceeding,*fn1 during which the judge considered plaintiff's cross-motion and certification and granted the increased parenting time plaintiff sought. Rule 2:5-3(b) requires an appellant to submit a copy of "the entire proceedings in the court... from which the appeal is taken,... unless a written statement of... reasons was filed by the judge."
We recognize that defendant's appeal is from only the August 12, 2009 order, entered as a result of the July 31, 2009 hearing on defendant's motion for reconsideration; however, we cannot evaluate the judge's denial of defendant's motion on July 31, 2009 without knowing why the judge granted plaintiff's motion for increased parenting time on April 3, 2009. Defendant has thus failed to provide the transcript that Rule 2:5-3(b) requires. See also R. 2:6-1(a)(1)(I) (requiring a party on appeal to provide the court with "such other parts of the record... as are essential to the proper consideration of the issues...."). Unquestionably, defendant has not complied with either of these Rules.
By her failure, defendant, in effect, asks us to reverse a judge's decision while keeping us completely in the dark about the evidentiary record and legal arguments that were before the judge when he made his April 3, 2009 decision. We refuse to engage in such speculation or to guess the judge's reasons.
When a litigant's violation of the Rules of Court deprives an appellate court of the tools the panel needs to substantively address an appeal, the court should dismiss the appeal. Gross v. Borough of Neptune City, 378 N.J. Super. 155, 159 (App. Div. 2005) (affirming the trial judge's decision where appellant failed to include in the record on appeal the evidence the judge considered in rejecting the party's claim); Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (noting that failure to provide the complete transcript "prohibits review" of the claims advanced on appeal); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (observing that when appellant fails to provide the appellate court with the parts of the record as are essential to a proper consideration of the issues, appellate review is impossible); Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001) (reaching the same conclusion). We thus decline to consider defendant's claim that the judge erred when he refused to reconsider his April 3, 2009 order that granted plaintiff additional parenting time.
However, we add a few brief comments. While consent decrees such as the parties' February 24, 2009 agreement on parenting time are encouraged, Lepis v. Lepis, 83 N.J. 139, 148-49, 154 (1980), a court is not bound by the terms of such agreement, Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971). The law favors parenting time arrangements that promote the best interests of the child, Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985), and that afford liberal parenting time so as to enable the "children of separated parents [to] be imbued with love and respect for both parents...." Id. at 496. Consent orders that do not provide a suitable amount of parenting time are thus not binding on a court. Hallberg, supra, 113 N.J. Super. at 209.
So viewed, it is difficult to find fault with the parenting time plan the judge established in his April 3, 2009 order. That order strikes us as neither excessive nor unwarranted, especially because the February 24, 2009 consent order included no overnights, holidays or summer vacation parenting time. Indeed, defendant makes no claim that the parenting plan the judge ordered was unreasonable, instead confining her argument on appeal to plaintiff's failure to demonstrate a change of circumstances. Thus, were we to consider on the merits the April 3, 2009 parenting plan the judge established, it is unlikely that we would have found it to be an abuse of discretion. See Levine v. Bacon, 152 N.J. 436, 442 (1998) (requiring affirmance unless the parenting plan represents an abuse of discretion).
Last, we consider defendant's claim that the judge erred by refusing to transfer venue to Union County from Passaic County, and in denying her motions for an increase in child support and for permission to change the child's last name. As we have noted, defendant has not provided us with a copy of the motion and supporting certification she filed in support of her July 31, 2009 motion for reconsideration. Thus, we are unable to determine if she even sought review of those issues, or if, as plaintiff contends, defendant's reconsideration motion was confined to the parenting time issue. We will not fault the judge for failing to consider an issue defendant may not even have raised. Nor are we able to review the venue and child support claims defendant advances without a definitive ruling on those subjects by the judge.
In contrast, the judge did address defendant's motion to change the child's last name, and ruled that defendant had not provided the court with enough information to enable him to decide the motion. The judge specifically authorized defendant to re-file the motion. We will not review interlocutory orders such as this except by leave granted, R. 2:2-4, which has not occurred here. We thus decline to consider the name change issue; defendant is free to re-file such motion in the Family Part.