On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FD-15-0899-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Defendant Dana Manuel appeals from two orders issued by the Family Part. The first, issued on September 2, 2008, requires her to pay child support in the amount of $250 per week for her daughter, who will be seventeen years old in July. She also appeals from a March 13, 2009 order that: 1) denied her motion for reconsideration of the September 2, 2008 child support order; 2) denied her motion to change residential custody of her daughter from the child's father, plaintiff Robert Glab, to herself; and 3) established a parenting time schedule that she maintains is extremely limited and therefore not in her daughter's best interests.
As to the September 2, 2008 order, we agree with defendant's claim that the judge made errors in calculating the award, and that those errors are sufficiently significant to warrant recalculation of the child support order. We therefore remand for that purpose. As to the March 13, 2009 order, although we affirm the denial of defendant's motion to change residential custody, we agree with her contention that the parenting time schedule is unreasonable. On remand, the judge is directed to establish a more generous schedule for defendant's exercise of her parenting time.
The parties' daughter was born in 1993. When she was four years old, each party filed a motion for custody. A court- ordered custody evaluation performed by a probation officer concluded that although the child had been spending as many as seven days a week in the father's custody, the living situation there was far from optimal, as the child did not have her own room and slept in the same bed as her father. For that reason, the evaluator recommended that "residential custody be vested with defendant, as she [could] provide the safest and most appropriate physical environment." The evaluator recommended "liberal" parenting time for plaintiff due to the "great mutual affection" between the child and her father.
Because the parties advised the judge that they were on the verge of settling the custody and child support issues, the judge did not issue an order of custody. Unfortunately, the parties never submitted a consent order or formalized their purported 1998 custody and parenting time arrangement. As we shall discuss, each party claims to have been the residential parent for the ten-year period between 1998 and the initiation of the current proceedings in 2008.
On January 17, 2008, plaintiff applied for welfare benefits from the Ocean County Board of Social Services (OCBSS) under the Temporary Assistance for Needy Families (TANF) program. His application included a claim for financial support of his daughter and listed defendant as an "absent parent." Plaintiff did not provide defendant's address or her employer to OCBSS, even though her place of employment and home address had not changed.
On April 15, 2008, OCBSS instituted proceedings on behalf of plaintiff seeking child support from defendant. At the ensuing hearing before a hearing officer in July 2008, defendant acknowledged that the parties' daughter typically spent four days per week with her father. She also asserted that plaintiff should not be receiving welfare benefits for the child because she, defendant, had been the child's sole support, and the child had been spending time at plaintiff's residence only because his home was closer to the child's school. Although the parties both reside in the same municipality, their homes are approximately seven miles apart and are served by two different high schools.
At the July 15, 2008 child support hearing, defendant testified that plaintiff abused drugs. When asked by the hearing officer why she had not removed her child from plaintiff's home if she had those concerns, plaintiff responded that her daughter had asked her not to do so. The proceedings were adjourned until September 2, 2008 to enable OCBSS to conduct a further investigation of the parties' finances.
When the proceedings resumed, defendant again testified that her daughter had been living with plaintiff for approximately two years. Defendant agreed that her gross income was $1,938 per week. As a result, the hearing officer entered an order on September 2, 2008 requiring defendant to pay $250 per week in child support. Defendant signed the order, stating that she understood its provisions and did not wish to appeal to the Superior Court.
Nonetheless, on September 19, 2008, defendant filed a motion for reconsideration of the September 2, 2008 child support order. Shortly thereafter, plaintiff filed a motion for custody of the parties' daughter. On November 3, 2008, defendant cross-moved for residential custody, and sought the establishment of a parenting time schedule for plaintiff.
At the motion hearing, because the judge was unable to determine which of the two parties was actually the primary residential parent, the judge scheduled a plenary hearing and took testimony on December 12, 2008. Defendant testified that she owned her own home and that the parties' daughter had her own room. She also stated that she had always been the child's "sole supporter," paying for clothing, food, shelter, medical and school expenses, and that plaintiff had never contributed toward any of the child's expenses. Defendant also explained her daughter's living arrangements, stating:
Well, [the child] usually stayed [at plaintiff's house] -- she stayed there many a night because of the fact that she was going to school in the morning. Her school starts at 7:00 a.m. and she would be at the bus by 6:00 in the morning. So it was -- it was easier for her to spend the nights there in order that she could go to school in the high school that she wanted to continue to go to school at. So, several nights during the week she would stay there.
Defendant also testified that she believed the child's paternal grandmother, Phyllis Glab, was the person actually caring for the parties' daughter while at plaintiff's home. Defendant asserted that without his mother's help, plaintiff would be unable to care for the parties' daughter because he "has an ongoing drug addiction and he's been incarcerated." Defendant also maintained that she had added the parties' daughter to her health insurance and that the coverage would begin on January 1, 2009.
Plaintiff also testified at the plenary hearing. He acknowledged that he had been incarcerated for approximately seventy days beginning in April 2008 as a result of a violation of probation involving testing positive for drugs. Plaintiff also acknowledged that he had been suffering from a serious drug and alcohol addiction for over thirty years, and that it was likely he had been under the influence of drugs while his daughter was with him. He insisted, however, that he had been clean for a year.
Plaintiff also claimed that he had been paying child support to defendant until 1998, but had stopped paying when defendant "stopped picking [their daughter] up" for visitation. He asserted that he had no choice other than seeking financial assistance from OCBSS because he had not been working and needed medical coverage for the parties' daughter. He maintained that his daughter had been living with him since she was a child, stating:
She's been at my house since she's been two, your Honor. The mother has been there, but not enough. She begins to pick her up and then just for months we don't see her and this has been going on for years. I'm not saying [defendant's] a bad mother. She's just never there.
He insisted that his daughter has her own bedroom at his house and that he had purchased clothing and a laptop for her in the past. He acknowledged that his mother had been providing him with some financial support ...