On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-743-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Plaintiff, Arsen Areyan, appeals from a series of orders of the Family Part culminating in the August 29, 2007 order designating defendant, Darlene Areyan n/k/a Katz, as the parent of primary residence of the parties' now nine-year-old daughter, and ordering that the child be enrolled in private school commencing with the 2008-2009 school year with the parties sharing the cost equally, and further ordering that the parties shall "equally share" parenting time-related transportation. Plaintiff also appeals from the March 24, 2008 order, which established his child support obligation for the child, and provided that defendant "shall have the right to use the income taxation deduction of . . . the . . . child . . . ." We reverse both orders and remand for further proceedings.
The facts pertinent to our decision may be summarized as follows. The parties were married on August 11, 2000, at which time defendant was pregnant with the parties' daughter who was born in November. Plaintiff is an émigré from the former Soviet Union, having lived in the United States since the age of eighteen. Defendant was born in the United States and is of West Indian background.
The parties separated in 2002, and were divorced by a final judgment entered on February 13, 2004, which incorporated their Property Settlement Agreement (PSA). The PSA includes the following provisions pertinent to the issues on appeal: (1) "[t]he parties shall share joint legal custody and control of [their daughter]" and "shall enjoy and participate in a shared parenting arrangement with equal time allocated to each party"; (2) "[n]either party shall have an obligation to be solely responsible for transporting the child [for parenting time] unless that spouse relocated [sic] more than thirty (30) miles from their present residence"; (3) defendant "shall be entitled to claim the child . . . as a deduction/exemption on her income tax return in odd years and [plaintiff] shall be entitled to claim the child . . . as a deduction/exemption on his income tax return in even years"; and (4) "[i]f the parties cannot agree on parenting time, then the parties shall submit such dispute to a mediator selected by both parties."
At the time of the parties' separation, plaintiff moved into his mother's residence in Plainsboro, and defendant moved into her mother's residence in Edison. The child resided with defendant, and plaintiff had parenting time from Thursday to Monday afternoon every other weekend and Thursday overnights on the alternate week.
In October 2003, the parties agreed to send their daughter to a Montessori preschool in Edison from Tuesday through Thursday each week, and to share equally the $1000 monthly tuition. At some point the decision was made to have the child attend preschool on Monday, thereby eliminating plaintiff's parenting time on that day; his schedule changed to Thursday to Sunday one week and Thursday night to Friday on alternating weeks; at this point, the child did not attend preschool on Fridays so that she could spend time with plaintiff. The parties shared transportation.
In the Fall of 2005, two significant events occurred: (1) upon the preschool teacher's recommendation, the child's attendance increased to include Fridays, thereby eliminating plaintiff's parenting time on that day; and (2) defendant advised plaintiff of her intention to relocate with the child to Long Branch and marry David Katz, whom she had been dating since January 2005. Communication between the parties "broke down" as a result.
Plaintiff researched the community and school system of Long Branch and expressed concern that the area was "crime infested" with approximately eleven sex offenders living there. Plaintiff also determined that the school system was not equal to the one where he lived in Plainsboro.
In November 2005, plaintiff asked defendant to reconsider her plan to relocate to Long Branch because of the superiority of the West Windsor-Plainsboro regional school system, and also because Long Branch was more than thirty miles from his residence. Defendant declined and, in July 2006, she married Katz and moved to Long Branch with the parties' daughter. Defendant, without discussing the question with plaintiff, enrolled the child in the Anastasia School, a magnet school in the public school system, for the 2006-2007 school year.
By this time, defendant had retained an attorney and in December 2005, filed the application which is the subject of these proceedings; she sought to designate herself as the child's parent of primary residence and to establish plaintiff's child support obligation. Plaintiff cross-moved to compel mediation pursuant to the PSA. These motions were not heard until February 3, 2006, and by order entered on February 14, 2006, the parties were required to attend mediation within thirty days on the issues of school attendance, parenting time and child support.
When mediation proved unsuccessful, the trial judge established a discovery schedule in anticipation of a plenary hearing, and required all discovery including expert reports to be completed by July 15, 2006. By order entered on September 1, 2006, the trial judge required that pendente lite the child would attend the Anastasia School and that such attendance would "not be a factor in the ultimate custody/parenting time determination . . . ."
The plenary hearing was not held until almost one year later, in July and August 2007. The delay was at least partially attributable to defendant seeking several adjournments in order to ...