On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1248-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued: December 1, 2010
Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Duane Rouba (Duane) appeals from two March 1, 2010, post-judgment orders in this divorce proceeding modifying his parenting time and requiring preparation of joint 2008 income tax returns with equal responsibility for any taxes due.
He also appeals an April 16, 2010, order denying his timely motion for reconsideration of the March 1 orders. We now reverse and remand.
The parties were married in 1998 and have one daughter who was born in 2004. They were divorced on March 18, 2009, and the dual judgment of divorce incorporated their marital settlement agreement (MSA). Pursuant to the MSA:
The parties shall have joint legal custody of their daughter . . . and shall be bound by the custody and parenting plan annexed hereto . . . . The parties acknowledge that pursuant to Dr. Morton Fridman's recommendation, the parenting time schedule shall be implemented for a period of one year from the date of this Agreement and will be reviewed at that time.
Plaintiff Amy Rouba (Amy) was designated as the parent of primary residence, with Duane as the parent of alternate residence. A custody and parenting time plan was appended to the MSA. The regular overnight parenting time schedule, which was on a four-week cycle, provided that Duane would have overnight parenting time eleven out of twenty-eight nights.
When the MSA was executed, the parties resided in the marital home in Mendham, which was listed for sale. They agreed that, as long as they both resided together, they "shall be responsible for paying the current mortgage, taxes, homeowners['] insurance, utilities, and necessary repairs mandated in order to maintain the integrity of the property until sale on a fifty-fifty basis (50% each)." However, "[i]t is contemplated that [Amy] may relocate from the marital residence before the time of closing." Then, Amy would pay one-half of the mortgage, taxes, and homeowners' insurance, and Duane would pay for all utilities, lawn maintenance, and regular repairs up to $250 per occurrence. The custody and parenting time plan provided that Amy "shall be moving to . . . Metuchen . . . when [their daughter] finishes school in June 2009." The parties initialed a handwritten paragraph in the MSA concerning taxes: "The parties agree to consult with their accountant to determine the most advantageous filing for the tax year 2008." Both parties waived alimony.
Barely nine months after the divorce, Amy filed a notice of motion seeking, in part, "modification of [then] current parenting time schedule" and "requiring [Duane] to cooperate with the accountant for the parties and finalize the 2008 income tax returns of the parties no later than January 31, 2010." In her supporting certification, Amy asserted that she had relocated with her five-year-old daughter to her parents' home in Metu-chen, where their daughter was enrolled in a full-day kindergarten program. Amy stated that, when the parenting plan was finalized, "it was anticipated that both [parties] would be relocating to the Metuchen-Edison area and thus the travel time between the homes of the parents would be quick and easy." However, Duane continued to reside in the marital home, causing the typical travel time between the homes to last forty-five minutes to an hour.
Amy asserted that the "six hours or more each week" spent traveling between homes was "taking a toll" on their daughter. For example, "[s]ince school began, she ha[d] gotten sick on three Mondays . . . while coming in from Mendham, twice vomiting before she even got into the school at which time [Duane] turned around and brought her back to Mendham." Amy also recounted evenings when their daughter was "emotional," and one Thursday in December, she received "an hysterical call" from their daughter "begg[ing Amy] to come up to Mendham to see her." Amy stated that their daughter was "inconsolable" and "still crying" forty-five minutes later.
Amy related that the parties had presented the matter to Dr. Marcy Pasternak, a parenting coordinator, at a recent joint session. In a memorandum dated November 18, 2009, Dr. Pasternak stated:
It is recommended that Dr. Fridman conduct an evaluation update with regard to the specific issue of [Duane's] overnight parenting time on school nights. [Amy] has raised a concern regarding [their daughter's] well-being on these nights due to the geographic distance between the two homes. Among other concerns, she feels that [their daughter] has to wake up too early on school days when she has to travel from [Duane's] home to her school in Metuchen. [Duane] feels that [their daughter] is adjusting well and is not suffering. It appears that when Dr. Fridman recommended a parenting plan, he was of the understanding that both parents would be living geographically close to one another. It would be best to have Dr. Fridman evaluate what is in [their daughter's] best interest given the current geographic distance between the homes.
In her certification, Amy asserted that neither party had the resources to "afford to keep engaging professionals to evaluate this rather common[-]sense request" and proposed a modification of the ...