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D.W. v. P.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 18, 2010

D.W., PLAINTIFF-RESPONDENT,
v.
P.W., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-603-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2010

Before Judges Yannotti and Espinosa.

Defendant appeals from an order entered by the Family Part on December 17, 2009, awarding plaintiff reimbursement for certain child custody expenses. Defendant also appeals from an order entered by the Family Part on December 30, 2009, which denied her motion for reconsideration of the court's order of August 24, 2009 order and for other relief. We affirm.

The following facts are pertinent to our consideration of this appeal. The parties were married on September 14, 1986. The court entered an order dated February 27, 2003, dissolving the marriage and on October 10, 2003, following a trial on various contested issues, the court entered a final judgment as to equitable distribution, alimony, child support, custody, parenting time and counsel fees.

The judgment provided, among other things, that the parties would share joint legal custody of their two minor children: a daughter, A.W., and a son, N.W. In the judgment, defendant was designated as the parent of primary residence for the children and plaintiff was ordered to pay child support in the amount of $1148.00 per month.

On January 27, 2006, plaintiff sought the immediate issuance of an order granting him custody of the children. In support of that application, plaintiff submitted evidence that defendant had physically abused one of the children. The court entered an order dated January 27, 2006, awarding plaintiff temporary physical custody of the children.

In February 2006, the court awarded plaintiff primary residential custody of the children, pending the completion of defendant's psychiatric evaluation and a child custody evaluation. By order dated January 31, 2007, the court ordered defendant to pay child support in various amounts, retroactive to January 27, 2006. Effective November 1, 2007, defendant's child support obligation was fixed in the amount of $873.00 per month.

Judge Mark J. Fleming conducted a plenary hearing in the custody dispute and entered an order dated June 12, 2008, granting plaintiff sole legal and primary physical custody of the children. Defendant sought reconsideration of the court's order, which the court denied on August 5, 2008. Defendant appealed and we affirmed the trial court's custody determination. D.W. v. P.W., No. A-6227-07 (App. Div. Mar. 10, 2009).

In May 2009, plaintiff filed a motion in the trial court seeking, among other things, an order requiring defendant to pay her proportional share of certain unreimbursed medical, dental and camp expenses for the children. In July 2009, defendant filed a cross-motion in which she sought, among other relief, to have plaintiff held in contempt for failing to pay previously court-ordered expenses of $1386.48; an order restraining plaintiff from enrolling the children in summer camp unless required due to his work schedule; an order granting her the right to enroll N.W. in classes for religious instruction at a church in the vicinity of defendant's residence; and to have plaintiff held in contempt for failing to encourage A.W. to participate in parenting time with her.

After hearing oral argument and placing his decision on the record, Judge Fleming entered an order dated August 24, 2009, which provided, among other things, that the parties shall pay their proportional shares of the children's medical and summer camp expenses and permitted plaintiff to enroll N.W. in a school for religious instruction at a church near plaintiff's residence. In November 2009, defendant filed a motion for reconsideration of various provisions of the August 24, 2009 order and for other relief, including retroactive modification of her child support obligation.

The court entered an order dated December 17, 2009, which required defendant to pay plaintiff for unreimbursed medical, dental and camp expenses in the amount of $3176.00, less the $1386.00 that plaintiff owed defendant, for a balance of $1760.46. The court also entered an order dated December 30, 2009, which, among other things, granted in part defendant's motion for a retroactive modification of her child support obligation, and denied defendant's motion to direct plaintiff to enroll N.W. in a religious education program at a church near defendant's home. Defendant's appeal followed.

Defendant raises the following issues for our consideration:

POINT I

THE COURT FAILED TO ADEQUATELY SCRUTINIZE WHETHER AND TO WHAT EXTENT DEFENDANT AS NON-CUSTODIAL PARENT SHOULD BE REQUIRED TO REIMBURSE PLAINTIFF FOR PLAINTIFF'S UNILATERALLY INCURRED CHILDREN EXPENSES FOR NONEMERGENT AND QUESTIONABLE MEDICAL AND RECREATION PURPOSES, WHICH ARE ABOVE AND BEYOND DEFENDANT'S CHILD SUPPORT OBLIGATIONS.

POINT II

THE COURT ERRED BY FAILING TO PROPERLY CONSIDER THE IMPACT OF ITS DECISION THAT THE PARTIES' SON DID NOT HAVE TO RECEIVE HIS RELIGIOUS EDUCATION AND INSTRUCTION IN DEFENDANT'S HOME PARISH.

POINT III

THE COURT FAILED TO ADDRESS DEFENDANT'S UNDERSTANDABLE CONCERN THAT PLAINTIFF WAS NOT FULFILLING HIS OBLIGATIONS TO ENSURE THE PARTIES' DAUGHTER SPENT ADEQUATE PARENTING TIME WITH DEFENDANT.

POINT IV

DEFENDANT'S CHILD SUPPORT OBLIGATION SHOULD HAVE BEEN RETROACTIVELY MODIFIED TO THE DATE OF THE DOWNWARD ADJUSTMENT OF HER ALIMONY OBLIGATION

POINT V

UNDER THE APPLICABLE STANDARD OF REVIEW, THE FINDINGS AND CONCLUSIONS OF THE COURT BELOW MUST BE REVERSED.

POINT VI

THE COURT ERRED IN ITS CALCULATION OF THE NEW CHILD SUPPORT OBLIGATION AS IT SHOULD HAVE ADOPTED DEFENDANT'S CHILD SUPPORT OBLIGATION CALCULATIONS. BY NOT DOING SO, IT UNJUSTLY ENRICHED PLAINTIFF.

POINT VII

THE COURT ERRED IN RESTRICTING DEFENDANT'S PARENTING TIME BY ORDERING THAT [THE] CHILDREN MUST ATTEND EXTRACURRICULAR ACTIVITIES DURING DEFENDANT'S PARENTING TIME.

POINT VIII

UNDER THE APPLICABLE STANDARD OF REVIEW, THE DETERMINATION OF THE COURT BELOW MUST BE REVERSED.

Having thoroughly reviewed the record, we conclude that these contentions are entirely without merit.

In this appeal, defendant challenges the trial court's factual findings on certain issues pertaining to custody, child support and parenting time. We note that "[t]he scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We must defer to the trial court's factual findings when the findings are "supported by adequate, substantial, credible evidence." Id. at 412. Furthermore, because of their special "expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Defendant first argues that the trial court erred by ordering her to pay certain unreimbursed medical, dental and summer camp expenses that plaintiff incurred in 2006, 2007 and 2008. Defendant argues that plaintiff failed to establish that these expenses were legitimate and reimbursable. She also argues that there were genuine issues of material fact concerning these expenses that should not have been resolved without a plenary hearing. We disagree.

Here, the trial court found that defendant owed plaintiff $3176.46 for unreimbursed medical, dental and camp expenses that plaintiff incurred for the children. Plaintiff provided the court with a chart detailing the expenses and amounts owed. He also submitted receipts to substantiate the expenses claimed. In our view, there was sufficient credible evidence in the record to support the trial court's factual findings regarding these expenses.

Furthermore, an evidentiary hearing on plaintiff's demand for reimbursement was not required. "[P]ractically every dispute in the matrimonial motion practice involves a factual dispute of some nature and to avoid holding plenary hearings to resolve practically all motions we require that the movant first carry the threshold burden of establishing a prima facie case." Klipstein v. Zalewski, 230 N.J. Super. 567, 576 (App. Div. 1988). In this matter, defendant failed to present a prima facie case on her assertion that the expenses at issue were not reimbursable.

Next, defendant argues that the trial court erred by failing to require that N.W. obtain his religious instruction at a church near her home in Mercer County. The court permitted plaintiff to enroll the child in classes for religious instruction at a church near his residence in Somerset County.

It appears that on July 21, 2006, when the court initially awarded plaintiff custody of the children, it required plaintiff to enroll N.W. in religious classes at a church "near his new residence." In his order of June 12, 2008, Judge Fleming directed plaintiff to continue this arrangement.

Although defendant appealed from various provisions of the court's June 12, 2008 order, she did not challenge the provision regarding N.W.'s religious instruction. Defendant now contends that the court's order thwarts her efforts to become involved in the child's religious activities. We are convinced, however, that the trial court did not abuse its discretion by having the child's religious instruction undertaken in a place that is convenient to him and plaintiff.

Defendant also argues that the trial court erred by failing to address her concern that plaintiff was interfering with her parenting time with A.W. The record shows that in its June 12, 2008 order, the trial court declared that A.W. had the right to choose whether she wanted to attend any particular parenting session with defendant.

Defendant appealed from that provision of the June 12, 2008 order, and we affirmed the trial court's determination, stating that we rejected defendant's claim that the judge erred in not compelling [A.W.] to spend regular parenting time with her. This was a highly discretionary ruling, and a perfectly understandable one, in light of the history of conflict between mother and daughter and the mother's documented mental health issues. The option afforded to [A.W.] was consistent with Dr. Cooke's expert insights and recommendations. We see no compelling reason to require this adolescent, who is now almost sixteen, to be with her mother on a rote schedule. Indeed, forcing [A.W.] to do so may well prove counter-productive to the mother-daughter relationship in the long run. [D.W., supra, A-6227-07, slip op. at 18.]

Defendant now argues that plaintiff is hindering A.W.'s visitation with her because A.W. is not permitted to visit defendant unless her homework is complete. The court addressed that concern in its August 24, 2009 order, which stated in pertinent part that plaintiff was to "refrain from acting in a way so as to interfere with the children doing their school work at [d]efendant's residence if they wish to do so." Defendant nevertheless contends that plaintiff has done nothing to encourage A.W. to participate in parenting time with defendant. She failed, however, to submit sufficient evidence to warrant any relief on that issue.

In addition, defendant argues that the trial court erred by refusing to modify her child support obligation retroactively to November 1, 2008, based on the reduction in her alimony that became effective on that date. Defendant contends that she was not seeking a modification of child support but was instead merely seeking to correct what she says was a clerical mistake.

As we stated previously, defendant did not file a motion seeking modification of her support obligation until November 17, 2009. Plaintiff agreed, however, to allow the court to adjust the child support as of November 1, 2009, to avoid having the court calculate a partial-month adjustment. Notwithstanding defendant's arguments to the contrary, N.J.S.A. 2A:17-56.23a precluded a retroactive modification of defendant's child support obligation to November 1, 2008.

Defendant also contends that the trial court erroneously increased her new child support obligation by a 3.9 percent cost-of-living adjustment. Defendant says that her support obligation should have been $168.00 instead of $175.00 per week. She contends that her calculations were based on the 2008 support tables and, therefore, giving plaintiff an additional cost-of-living adjustment was unnecessary.

Again, we disagree. Here, defendant sought a modification of her support obligation but failed to provide the court with a new case information statement or the financial information required to make that adjustment.

Even so, plaintiff was willing to accept defendant's assertion that her support obligation should be $168.00 per week, provided he was given the 3.9 percent cost of living adjustment, in accordance with a September 18, 2009 notice from the Mercer County Child Support Enforcement office. We are therefore satisfied that, under the circumstances, the trial court did not abuse its discretion by giving plaintiff the cost-of-living adjustment he sought.

Defendant further contends that the trial court erred by requiring the children to attend certain extracurricular activities during her parenting time. We disagree. In our view, this order is a permissible exercise of the trial court's broad discretion in custody and parenting time matters. Defendant's claim that the court's order impermissibly restricts her parenting time is meritless.

We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20101118

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