July 17, 2013
GIRISH G. HEMRAJANI, Plaintiff-Appellant,
NAAHID G. HEMRAJANI, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1629-06.
Girish G. Hemrajani, appellant, argued the cause pro se.
Respondent has not filed a brief.
Before Judges Graves and Ashrafi.
Plaintiff Girish Hemrajani and defendant Naahid Hemrajani were married in 1998 and divorced in the State of Georgia in June 2005. One daughter, now age twelve, was born of the marriage. The judgment of divorce together with the parties' divorce agreement (Agreement) was registered in New Jersey on April 20, 2006. Plaintiff appeals from a January 14, 2011 order. For the reasons that follow, we affirm.
Pursuant to paragraph 29 of the Agreement, defendant has "primary physical custody of the child" subject to plaintiff's right to "have every reasonable opportunity to visit and spend time with the child and to have the child visit him." The Agreement further provides that plaintiff has "the right to have the child visit with him on alternate weekends" and "for two separate two-week periods" during the summer. Additionally, paragraph 30 of the Agreement states: "It is the agreement of the parties that neither will remove the minor child from the United States without the prior written consent of the other party. Wife shall provide to husband, instanter, a copy of the minor child's passport."
Paragraph 27 of the Agreement, provides that the parties are equally responsible for their daughter's unreimbursed medical and dental expenses:
Husband and wife shall each be responsible for and shall pay one-half (1/2) of any and all expenses of the child for medical and/or dental treatment that is not covered under the aforesaid insurance so long as the obligation to maintain such insurance continues for the wife. Each party shall provide to the other documentation evidencing said uncovered expenses prior to each parties' obligation to pay said uncovered expenses.
In 2006, defendant asked the court to modify the travel restriction in the Agreement, so that she could travel with the child outside of the United States without plaintiff's consent. In an order dated September 22, 2006, the court denied defendant's motion, reasoning as follows:
As per the final judgment and decree of divorce of June 15, 2005 entered in the Superior Court of Georgia, the parties negotiated the issue of international travel with respect to their child and entered into a consensual agreement. Defendant . . . has not shown a change of circumstances. The court previously ruled that absent such a change . . . the previously negotiated agreement would not be modified. Thus, defendant-movant's motion to allow for international travel of the child against plaintiff-respondent's wishes is denied.
In November 2010, defendant filed a motion requesting sole legal and physical custody of their daughter, and again requested the removal of the travel restriction in the Agreement. At that time, the parties' daughter was ten years old, and defendant certified plaintiff had not visited the child "since February 2005, when she was just four years old." Defendant also asked the court to compel plaintiff to exercise visitation with his daughter and, if he failed to do so, to require him to pay the "related costs [defendant incurs] for times that were his to spend with [his daughter]." In addition, defendant asked the court to enforce paragraph 27 of the Agreement and to order plaintiff to reimburse her for 50% of their child's "counseling and medical bills since 2005" in the amount of $1592.67.
In response to defendant's motion, plaintiff certified he did not exercise visitation because he is "extremely afraid of defendant and what she can do in a fit of rage." He also said, "I intend to use the visitation that the courts have provided to me as appropriate." With regard to defendant's request for reimbursement of the child's medical costs, plaintiff claimed that some of the expenses "predate the divorce decree" and that defendant's insurance would have covered the expense "if she stayed within the network."
During oral argument on January 14, 2011, both parties appeared pro se and testified. With regard to the child's unreimbursed medical expenses, defendant testified that she paid $3050 out-of-pocket for the child's psychological counseling. Defendant stated she chose an out-of-network psychologist because the doctor was recommended by both the child's pediatrician and defendant's cousin, who is also a doctor.
In an order entered that same day, the court denied defendant's motion for sole legal custody and for enforcement of the parenting time provisions in the Agreement. However, the court modified paragraph 30, and authorized defendant "to travel with the child anywhere in the world, without the consent of plaintiff" provided defendant give plaintiff thirty-days notice of her travel itinerary and advise plaintiff "as to the vaccinations or other precautions which defendant will take in preparation for travel with the child."
The court determined that circumstances had changed since the parties entered into their Agreement on June 14, 2005: "plaintiff has not exercised any in-person visitation with the child since the date of the divorce, in spite of his joint legal custody and visitation rights with the child, and defendant's repeated entreaties to the plaintiff to exercise his visitation rights"; "plaintiff's repeated objections to defendant's proposed plans to travel to India with the child lack a substantial basis, as shown by his consent to defendant traveling with the child to India in December, 2010"; and "plaintiff does not suggest any risk of defendant absconding with the child." Additionally, the court granted defendant's motion for reimbursement of plaintiff's 50% share of the child's counseling expenses, finding defendant "acted in the best interests of the child in engaging an out-of-network psychologist to treat the child."
In a supplemental submission pursuant to Rule 2:5-1(b), the court stated:
The demonstrated cost of [the child's] psychotherapy treatment in 2007 and 2008 was $4500, $3050 of which was paid by defendant, and $1450 of which was paid by defendant's health insurance provider. Since defendant's decision to utilize an "out-of-network" psychologist was reasonable, and believed to be in [the child's] best interests, and since plaintiff was on notice of defendant's claim for reimbursement, the court directed plaintiff to reimburse defendant 50% of $3050, or $1525, consistent with clause 27 of the parties' Agreement.
Plaintiff raises four arguments on appeal: (1) there was "no change of circumstances to warrant a change in the travel restrictions under [paragraph] 30 of the [Agreement]"; (2) the "Agreement was not signed by the defendant in good faith"; (3) the removal of the travel restriction in the Agreement "can cause irreparable harm to the minor child"; and (4) and the trial court erred in its calculation of the "amount due to the defendant for the psychotherapy expenses." We conclude from our review of the record that these arguments are without merit, Rule 2:11-3(e)(1)(E), and require only the following comments.
Our scope of review of a "trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Reversal is warranted only when a mistake must have been made because the trial court's factual findings are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Reese v. Weis, 430 N.J.Super. 552, 567 (App. Div. 2013) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Moreover, "[t]he basic contractual nature of matrimonial agreements has 'long been recognized.'" Sachau v. Sachau, 206 N.J. 1, 5 (2011) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). "As a general rule, courts should enforce contracts as the parties intended." Ibid. "Similarly, it is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties." Ibid. Nevertheless, the incorporation of a property settlement agreement "into a divorce decree does not render it immutable." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999). "Courts have continuing power to oversee divorce agreements, and the discretion to modify them on a showing of changed circumstances, that render their continued enforcement unfair, unjust, and inequitable." Ibid. (internal citations omitted).
In the present matter, the trial court's findings and conclusions are amply supported by sufficient credible evidence, and the court correctly determined that plaintiff's failure to exercise "any in-person visitation with the child since the date of the divorce" constituted a change of circumstances that warranted modification of the parties' Agreement. Accordingly, we find the January 14, 2011 order was a reasonable exercise of judicial discretion.