On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1247-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Maven.
Defendant Brian Steele appeals from those provisions of a Family Part order that: denied his motion to modify the parenting-time schedule the parties agreed upon in their matrimonial settlement agreement (MSA); denied his request for an order compelling plaintiff Alexi Steele to schedule the children's non-emergency medical appointments at times when he could attend; denied his request for counsel fees; and granted plaintiff's request for counsel fees. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
After six years of marriage, the parties divorced. Their September 15, 2007 dual judgment of divorce (JOD) incorporated their MSA, which provided for joint legal custody of their two children, then ages four and one, with plaintiff as the parent of primary residence and defendant as the parent of alternate residence. The parties also agreed defendant would exercise parenting time every weekend from 3:30 p.m. Saturday through 7:00 p.m. Sunday, and on the first weekend of each month from 3:30 p.m. Friday through 7:00 p.m. Sunday.
More than three years after the divorce, in February 2011, defendant filed a motion to modify the parenting-time schedule and require plaintiff to give him advance notice of the children's medical appointments. Defendant certified that the children resided with their maternal grandparents three nights each week while the plaintiff worked as a waitress those evenings. According to defendant, in 2008 the children spent one or two nights each week with their grandparents, and in 2010 the children spent three nights each week with their grandparents. The children also spent nights with plaintiff's friends. Defendant attached to his certification a December 14, 2010 text message from plaintiff acknowledging that she worked four nights each week; asserted that in December 2010 the children spent only ten days at home with their mother; and claimed the "unstable lifestyle" was "taking an emotional and physical toll on both the children who are only [seven] and [five] years old." Defendant also alleged the children "are in a minimum of three different homes per week and sometimes four different homes."
In addition to seeking modification of the MSA parenting-time schedule, defendant sought to compel plaintiff to schedule the children's medical appointments at times he would be available to attend. He alleged that because plaintiff was not keeping him informed about the children's medical treatment and medications, she violated the MSA provision requiring them to consult each other about the children's illnesses, health, and welfare.
In a certification opposing defendant's motion, plaintiff explained that when she and defendant were divorced, she worked as a waitress from 4:00 p.m. to between 10:00 p.m. and 2:00 a.m. three days each week; and a double shift, day and night, on Sunday. She asserted that defendant was well aware of her schedule, and knew that she had to place the children in her parents' care while she worked. She explained that the amount of child support and alimony she received from defendant was based on her ability to work. She pointed out that in August 2011, defendant was no longer obligated to pay alimony, but at that time they were supposed to recalculate his child support obligation. Plaintiff also asserted that defendant had "never before expressed an interest in having the children more than [the MSA] calls for," and "ha[d] not wanted the children for all the time the MSA grant[ed] him." Those circumstances caused plaintiff to surmise that defendant was seeking more overnights to minimize his child support obligation when it was recalculated.
Plaintiff also explained that of the three nights their grandmother cared for them, the children spent one night at home and two nights at their grandparents' house. At times, due to severe weather, the boys stayed overnight with their grandparents all three nights that plaintiff worked. Plaintiff further explained that her parents had decorated a room for the children exactly like their room at home; the children chose where to sleep; and the children enjoyed sleeping at their grandparents' house. When the children slept at their grandparents' house, plaintiff took them to school in the morning. Occasionally, plaintiff slept at her parents' home. Plaintiff also explained that her parents have been an integral part of her family life. Defendant visited plaintiff at her parents' house frequently after they started dating, and had his own key. He ate, showered, and eventually lived there. Defendant and plaintiff married in her parents' yard, and the parties moved in with plaintiff's parents after the wedding so that they could save money to purchase their own home. After the first child was born, plaintiff spent most days with the child at her parents' home. "All of the boys' birthday parties were held at [plaintiff's] parents' house."
Plaintiff emphasized that since entering into the MSA, defendant had never expressed any interest in changing the parenting schedule. Plaintiff also asserted that the children "stopped wanting to go to the defendant's house" after he remarried and he and his second wife had a child. Plaintiff pointed out that defendant's proposed modified parenting-time schedule "clearly relies on the defendant's wife baby-sitting for the children many hours per week while the defendant is at work." Plaintiff asserted that defendant's proposed schedule "involves his wife watching the boys and getting them on and off the school bus at times when I am available to do so." Plaintiff proposed a modified parenting-time schedule that would assure that defendant, not his second wife, would be available to spend time with the parties' children.
Plaintiff denied that she withheld medical information from defendant. She explained that when she took the children to the doctor, she would text defendant afterwards.
Defendant submitted a reply certification in which, among other things, he denied plaintiff's accusation that he had expressed no interest in additional parenting time. He stated that he constantly requested additional parenting time, and when the plaintiff agreed, he took advantage of it. He also denied plaintiff's specific accusations about his motives. Defendant explained that he filed a motion, in part, because he wanted to have one of their children enrolled in a kindergarten enrichment program. ...