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Michael F. Shea Ii v. Tawnya L. Shea

November 9, 2011

MICHAEL F. SHEA II, PLAINTIFF-RESPONDENT,
v.
TAWNYA L. SHEA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-789-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2011

Before Judges Espinosa and Kennedy.

Defendant appeals from the decision of the Family Part granting plaintiff's cross-motion for reimbursement of summer travel expenses for the parties' children and from a subsequent order denying reconsideration. We affirm essentially for the reasons expressed by Judge Julie M. Marino and we add only the following comments.

On April 24, 2002, the parties, then separated, agreed to the entry of a consent order regarding custody and support of the three minor children born of the marriage and equitable distribution. The order provided that the defendant may relocate with the three children to Montana and that the State of New Jersey "shall continue to exercise jurisdiction over issues affecting the children, including custody, residence, parenting time, support, medical insurance, medical care and educational issues for a period of six years from the date of this order." The consent order further provided that "the parties will split equally the costs of transporting the children to New Jersey and back to Montana during the summer break commencing in the year 2003 and every year thereafter."

On April 28, 2004, the court entered an amended dual final judgment of divorce between the parties which provided, among other things, that the order of April 24, 2002, "is hereby made a part of this judgment of divorce, and shall not merge with, but shall survive this judgment of divorce; and the parties are hereby directed to comply with the terms of the same."

At the time the judgment of divorce was entered, the defendant and the children of the marriage had been residing in Montana for two years.

On June 11, 2010, defendant filed a motion in the Family Part for an order "confirming that . . . New Jersey no longer has jurisdiction in this matter and that Montana properly has jurisdiction"; "confirming" that the parenting time provisions included in the consent order of April 24, 2002 remain in effect; and for such further relief as the court may deem equitable and just. Plaintiff, acting pro se, filed a cross-motion for, among other things, an order compelling defendant to pay half of the expenses plaintiff incurred in having the children travel back and forth between Montana and New Jersey during the summers of 2005, 2006 and 2010.

In an accompanying certification, plaintiff indicated that in September 2009, he purchased a roundtrip plane ticket for one of the children for the summer of 2010 and, at that time, notified defendant of his purchase of the ticket. He also alleged that defendant did not pay her half of travel expenses in the years 2005 and 2006 for which he bought roundtrip tickets for all three children and timely provided information about the expenses to the defendant. Appended to his certification were documents from Delta Airlines confirming the purchase of airline tickets for the three children for the summers of 2005 and 2006. Plaintiff claimed that he was owed $2,672.81 for half the cost of the children's travel expenses for 2005, 2006, 2007*fn1 and 2010. Defendant replied that New Jersey no longer had jurisdiction in the matter but "in the event that this court intends to consider plaintiff's cross-motion" she submitted a five page certification contesting the plaintiff's claims.

Judge Marino held a hearing August 6, 2010. She found that the defendant "has resided with the children for eight years in Montana, that the parties agreed that jurisdiction would transfer to Montana and that there's really no good reason that it should not." The judge also noted that defendant indicated she's "going to . . . register the case in Montana . . . [I]f she doesn't register this matter in Montana . . . then [plaintiff] can file a motion here because [New Jersey] still ha[s] jurisdiction until [Montana] take[s] jurisdiction."

With respect to travel expenses, Judge Marino noted that, "it appears that the agreement was to divide them. It appears . . . [the airline tickets] have been purchased each year well in advance." On August 13, 2010, the court entered an order granting in part the defendant's motion, "[t]o confirm that jurisdiction of this matter has transferred to Montana" and adding that "the defendant shall attempt to register this matter for jurisdiction in Montana pursuant to the parties' consent order; if Montana accepts jurisdiction, then all issues in this matter shall proceed in Montana; if Montana denies jurisdiction either party may petition this court for a determination of proper jurisdiction of this matter pursuant to the UCCJEA." The order also granted plaintiff's motion to compel defendant to reimburse him for her share of the children's summer expenses and required defendant to reimburse the plaintiff in the sum of $2,672.81. In a written statement of reasons appended to the order, Judge Marino noted, in part:

Husband demonstrates that he has maintained a pattern of purchasing the children's airline tickets in the September preceding, his summer parenting time with the children. Husband further demonstrates that he has notified wife of same almost immediately following his purchase of the tickets. Wife contends that she should not be responsible for half of the summer travel expenses incurred by husband as she has chosen to drive to New Jersey to pick up the children, thus incurring her own travel expenses.

Here, the consent order is clear that the parties agreed to equally split the costs of the children's travel relating to husband's summer parenting time. Husband has demonstrated a good faith effort to comply with the agreement. Wife, however, now attempts to unilaterally modify the agreement by asking the court to consider her expenses in driving the children. The court shall not consider same. Wife's unilateral choice to drive the children after being aware of ...


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