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Anthony Hall v. Grace Wilson


August 17, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1497-06.

Per curiam.


Submitted August 13, 2012

Before Judges Ashrafi and Hayden.

Defendant Grace Wilson appeals from an order of the Family Part dated July 29, 2011, that modified the parenting time schedule for the parties' daughter. We affirm.

The final judgment of divorce was entered on August 10, 2006, in the Family Part, Union County. Neither party was represented by an attorney for the divorce. The copy of the divorce judgment attached to defendant's appellate submissions is essentially a one-page document. The judgment makes reference to prior orders, which defendant has not provided for our review. It appears from the record available to us that the parties have one child, a daughter now ten years old, and that defendant mother is the parent of primary residence. She and the child live in Mercer County. Plaintiff Anthony Hall, who did not file opposition to this appeal, lives in Pennsylvania.

On May 8, 2009, the Family Part entered an order modifying the parenting schedule. Plaintiff father was granted parenting time every other Friday starting at 7:00 p.m. to Sunday at 6:00 p.m. The order instructed the parties to observe strictly the times designated. The drop-off and pick-up location was to remain in Westfield. The order also provided for a summer parenting schedule alternating between odd and even numbered years. The father would have two weeks in July and two weeks in August, the specific weeks changing in alternate years but never being four consecutive weeks.

Apparently confused by the alternating summer schedule, the father declined to pick up his daughter on July 2, 2011, when his two weeks were scheduled to begin. Instead, he called the mother on July 15, 2011, demanding that she bring the child for his two weeks of parenting time. The mother refused because it was not the father's scheduled summer time according to the May 8, 2009 order. The father then made repeated telephone calls to the mother, which she did not answer. He went to the Kenilworth Police Department to seek her arrest. The police contacted the mother and learned about the parenting schedule in effect. They directed the father to the Family Part to present his issues.

On July 18, 2011, the father filed a pro se order to show cause in the Family Part asserting that the mother had violated a visitation order and that he had no contact with his daughter for six weeks. In his certification in support of the order to show cause, the father claimed that "[o]n my weekend to pick my daughter up [defendant] never showed." He also said he feared "there is something wrong with my ex-wife, if my daughter is okay or not." He alleged that the mother was violating a court order on visitation and that she was not answering the telephone when he tried to contact her.

The Family Part converted the order to show cause to a motion to enforce litigant's rights and scheduled it to be heard on July 29, 2011. The mother filed a responding certification explaining the terms of the May 8, 2009 order and the father's failure to abide by the summer schedule. She stated that he had cursed and yelled at her on the telephone; so, she hung up and declined to answer his many "harassing" calls. She also stated that her daughter was routinely available to talk to her father on the telephone but that he had first declined to pick her up on July 2, 2011, and then turned down an opportunity to speak to the daughter on the telephone that day.

At the hearing conducted in open court on July 29, 2011, both parties appeared without attorneys. The judge discussed the parenting schedule, listening to the concerns and requests of each party. The father did not seem to understand that the May 8, 2009 order had set a specific schedule for him to spend time with his daughter during the summer months. His desire was to have his daughter for his annual family reunion, which he said usually occurred near the end of July. The judge proposed a modification of the parenting schedule so that the father would have the daughter every year during the last fourteen days of July straight through the first fourteen days of August, that is, four consecutive weeks. The mother did not object to that schedule in the future; she only declined to make the daughter available immediately in contravention of the existing May 8, 2009 order. The judge agreed with the mother's position that the existing order should not be immediately modified, especially because the father would have the opportunity to have parenting time with his daughter later in the summer. The judge ordered that the new summer schedule with four consecutive weeks would take effect in 2012.

The father then complained about his drive from Pennsylvania, stating that the 7:00 p.m. pick-up time on Fridays was too late in the day and that his daughter was usually asleep by the time he returned to his home in Pennsylvania. The judge proposed a 5:00 p.m. drop-off and pick-up. The mother objected because she would not have enough time to get to Westfield from Mercer County after her workday. She conceded, however, that she did not have a job. She said she hoped to get a teaching job in the future. The judge stated that she could return to court and ask for a different time when she obtained employment and had a specific schedule that interfered with the 5:00 p.m. time.

The judge also denied the father's request to have parenting time with his daughter immediately that weekend after the father declined to drive to Mercer County to pick her up that evening.

On appeal, the mother argues that the judge should not have modified the parenting schedule set by the May 8, 2009 order without giving her an opportunity to retain an attorney and without good reason.

There is nothing presented on this record to suggest that the mother was likely to obtain the services of counsel. The history of litigation in the case demonstrates that the parties represented themselves, and the mother was again compelled to appear on her own behalf, which she did. She has not presented any evidence to show that an attorney was ever available to represent her in this matter. We find no abuse of discretion in the Family Part's denial of the mother's alleged request for an adjournment, which is not part of our appellate record, especially under circumstances where the father was claiming that his daughter was being improperly withheld from contact with him.

With respect to the modification of the parenting schedule, the objective of the Family Part is to protect the best interests of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Here, the judge was attempting to resolve the parties' dispute so that the child could maintain relationships with both parents. In reviewing decisions of the Family Part, we are particularly deferential to the trial judge's knowledge and direct contact with the case and parties. See Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998). We do not substitute our judgment, even if it would have been different, for that of the Family Part judge unless there was a mistake of law or an abuse of the judge's discretionary authority to adjudicate parenting time disputes.

The Family Part judge listened to the parties' contentions and made decisions within the discretion granted to him. The mother did not object at the time of the July 29, 2011 hearing to the father having four consecutive summer weeks with the child beginning in 2012. Her objections pertained to the daughter's tutoring schedule during the summer, which the judge attempted to address as best as possible under the circumstances of the parents living in different states. The mother's current challenge to the ruling regarding the summer schedule is not supported by the factual record established in the trial court. If the four consecutive weeks present a substantial problem after their first implementation in 2012, she is not precluded from making an application to the court for adjustment of the schedule.

With respect to the 5:00 p.m. drop-off and pick-up time, the mother argues that she does not have sufficient time to drive to Westfield after the end of a workday. The judge did not bar her from returning for adjustment of the time if and when she obtains employment.

The issue might also be resolved by adjustment of the location for exchange of the child. Since the driving time was a significant concern of both parties, we do not know why the father insisted on Westfield as the point of exchange and the mother did not suggest a point closer to her current residence in Mercer County. Westfield appears to require substantial driving time by both parties on each exchange of the child. Mercer County appears to be a comparable distance to the father's home in Pennsylvania as is Westfield in Union County. A safe location to exchange the child closer to the mother's residence may be a fair solution that would allow drop-off and pick-up at or near 5:00 p.m.

It would be best for the parties to resolve such issues without the need to return to court, perhaps submitting a consent order for modification of the terms of the July 29, 2011 parenting time order. Nevertheless, the Family Part is available to resolve disputes that they cannot reasonably resolve on their own, including the specific requirements of the parenting time exchange.

Because the mother appeals one ruling of the Family Part that she did not dispute at the time of the hearing, and a second one that she disputed but the Family Part had discretion to decide, we reject the mother's appeal without suggesting that her arguments are unjustified. Our affirmance of the July 29, 2011 order is without prejudice to the mother making an application in the Family Part and presenting evidence that would support a modification of that order, especially if she has obtained employment and the parenting schedule interferes with her job requirements.



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