On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-39-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011
Before Judges Fuentes and Harris.
Defendant Melanie Whyte applied to the Family Part for modification of a property settlement agreement (PSA) incorporated into a final judgment of divorce. After failing to achieve her goals, Whyte renews her substantive arguments in this appeal, claiming that changed circumstances and the best interests of the child compel modification of both the parenting time and child support provisions set forth in the PSA. She further challenges the Family Part's award of attorney's fees to plaintiff Bradley Rosenthal on the ground that the court failed to weigh the relevant factors set forth in Rule 5:3-5(c). We affirm in part, and reverse and remand in part.
Whyte and Rosenthal were married in March 2002. They had one daughter, Mia (a pseudonym), together in March 2005. The parties eventually separated and a final judgment of divorce was entered on September 29, 2008.
The judgment incorporated a PSA, which was executed on July 8, 2008. Section 2.1 of the PSA provided that the parties would share joint legal custody of Mia, with Whyte as the parent of primary residence and Rosenthal as the parent of alternate residence. The PSA contemplated that Whyte would move with Mia to upstate New York, where they currently reside. Rosenthal remained living in, and coincidently working for, Cape May County. The roundtrip driving distance between the two parents' residences is over five hundred miles.
The PSA provided that Rosenthal could see Mia one weekend each month, plus specified holidays, as well as enjoy extended parenting time over the summer. Section 2.3 set forth the summer parenting time schedule, in which Mia would reside with Rosenthal for one continuous month plus one additional week to be chosen by him. Rosenthal elected to have five weeks of
continuous parenting time during the summers of 2008 and 2009.
Section 3.1 of the PSA provided that Rosenthal would pay $132 per week in child support -- "based upon a New Jersey Child Support Guidelines calculation" -- beginning on the date Whyte departed from the marital residence. Pursuant to Section 3.3 of the PSA, the parties agreed to "waive all rights to receive support from each other whether in the form of alimony or otherwise." The agreement also noted that Rosenthal had consented to the removal of Mia out of state so that Whyte could pursue a business venture "at the considerable expense of his future relationship with his child," but that in return, "[h]usband does not wish to be held responsible for [Whyte's] financial support in the event that venture fails."
Rosenthal's 2010 five-week summer parenting time with Mia was scheduled to commence on June 19, 2010, one day before Father's Day. On June 17, 2010, however, Whyte e-mailed Rosenthal to inform him that she was withholding his parenting time with Mia.
On June 23, 2010, Whyte filed a notice of motion with the Family Part requesting modification of the final judgment of divorce (1) "as it pertains to parenting time for the parties' minor child to more conform with her best interests" and (2) to change "the child support for the parties' minor child to comport with the incomes of the parties as the result of a change of circumstances for each."
In an attached certification, Whyte outlined a series of incidents that occurred during the summers of 2008 and 2009, which she claimed warranted a modification of parenting time. She alleged that Rosenthal failed to adequately protect Mia from insect bites during his 2009 summer parenting time, despite receiving a letter from Whyte's prior attorney regarding the subject. She also claimed that Rosenthal demonstrated a lack of care for Mia's general health and heart condition, by failing to inform Whyte of Mia's becoming sick while under his care and by expressing an unwillingness to take her to previously scheduled medical appointments. In the summer of 2009, Whyte also learned that Rosenthal had taken Mia to Lake George without informing her of the trip. The "most serious incident," however, took place during the Memorial Day weekend of 2010. One day after dropping Mia off with Rosenthal at an agreed-upon location in New York, Whyte received a telephone call from a United States ...