July 22, 2013
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-807-09.
David Perry Davis, attorney for appellant.
Irene S. Clopton argued the cause for respondent (Felsenfeld and Clopton, attorneys; Ms. Clopton, on the brief).
Before Judges Ashrafi and Guadagno.
Plaintiff-ex-husband appeals from the Family Part's order of August 31, 2012, by which the court interpreted a provision of the parties' divorce agreement affecting custody of their son. After their divorce, the parties shared approximately equal time with the child. When the child reached school age, the parties cross-moved for primary residential custody. The Family Part concluded that the terms of their property settlement agreement entitled defendant-ex-wife to become the parent of primary residence because she lived in a higher-rated school district.
We conclude that the Family Part erred in changing the custody and parenting arrangement without holding an evidentiary hearing to determine the parties' intent as to the disputed provision of their agreement, and also without permitting oral argument on the cross-motions contesting the intent of that provision. We reverse and remand for further proceedings.
The parties were married in 2005 and have one child, born in December 2005. They lived together for about fifteen months. After they separated, both parties established residences in East Windsor Township, husband in his parents' home and wife in an apartment. They informally followed a shared parenting arrangement.
Their judgment of divorce was executed and filed almost three years after the parties' separated, on December 9, 2009, and it incorporated a property settlement agreement that husband and wife had negotiated with the assistance of counsel for each party. The parties divided up their property and debts in simple terms, according to whichever party possessed the asset or had incurred the debt. Both waived any claim to alimony. The most prominent provisions of the agreement pertained to custody of and financial arrangements for the child, who was then almost four years old.
The parties agreed to joint legal custody and mutual determination of "all major issues relating to the health, education and general welfare of the child." With respect to the parenting time arrangement, the agreement stated in its paragraph 4A:
WIFE shall be entitled to parenting time on Tuesday after school until Monday before school every week. On alternating weeks, HUSBAND shall be entitled to parenting time on Monday after school until the following Tuesday before school.
This provision gave husband eight nights and wife six nights with the child every two weeks. The reference to "school" in paragraph 4A apparently meant "pre-school" or daycare because the child was not of school age yet and the next paragraph attempted to anticipate the circumstances when the child would begin to attend school. Paragraph 4B of the agreement stated:
Both parties agree that when the child attends school the choice of school shall depend upon the residence of the parent who resides in a more competitive and highly rated school. The parent who resides in the choice school district shall be deemed the parent of primary residence for purposes of school enrollment only. Otherwise, the parties shall in all other respects have shared legal custody of the child and shall have equal right to make all necessary decisions concerning welfare of the child.
When the child began kindergarten in 2011, both parents were still living in East Windsor Township. The child was enrolled in an elementary school in that district and the parenting time arrangement continued. During the school year, however, wife entered into a relationship with a man, eventually became engaged to him, and moved to Mountain Lakes. Her fiancé had previously contracted to buy a home in Mountain Lakes, and he added her to the deed.
The distance between Mountain Lakes and East Windsor Township is approximately sixty-six miles, and it takes about one hour and twenty minutes to travel without traffic delays. The parties were soon disputing whose responsibility it was to transport the child between the two towns. In July 2012, wife informed husband that she was enrolling their son in a Mountain Lakes school in accordance with the quoted provision of their property settlement agreement. Husband attempted but could not prevent the change by contacting the schools.
On July 31, 2012, husband filed a pro se motion in the Family Part seeking to keep the child in the East Windsor elementary school that he had attended the previous year and awarding husband physical custody every Monday through Friday while school was in session. He also sought child support from wife and other forms of relief. Husband requested oral argument on his motion. On August 16, 2012, wife, through counsel, filed opposition and a cross-motion. She sought an order awarding her primary residential custody, child support, and other forms of relief. Wife also requested oral argument on her cross-motion.
The court did not hold oral argument. After reviewing the parties' submissions, the court placed an oral decision on the record on August 31, 2012, without the parties or their attorneys in attendance. The court cited the language of paragraph 4B of the property settlement agreement we quoted earlier regarding a more "highly rated school." The court noted that wife had presented information from an internet website named "Greatschools, " which ranked the Mountain Lakes elementary school that the child would attend higher than the East Windsor Township school he had attended. Husband had not presented any similar evidence. The court concluded that primary residential custody must be granted to wife "based on the clear language" of the property settlement agreement.
The court also ordered the parties to attend mediation to discuss revising their parenting time, and directed that husband pay $169 per week in child support to wife. An order was entered the same day disposing of husband's motion and wife's cross-motion as the court's oral decision indicated.
Husband moved for a stay, which the Family Part denied. Then, we declined to hear husband's application for a stay on an emergent schedule. The child apparently attended the first grade at a Mountain Lakes elementary school during the past school year.
On appeal of the August 31, 2012 order, husband argues that the Family Part erred in ignoring the parties' requests and deciding without oral argument a substantive issue that involved interpretation of the parties' property settlement agreement and custody of the child. He also argues: that the court erroneously interpreted the property settlement agreement as permitting a change in the child's school enrollment after he had already begun kindergarten in East Windsor Township; that the court erroneously relied on unauthenticated hearsay information to determine the higher-rated school; and that it violated case law in making a change in primary residential custody and parenting time without conducting an evidentiary hearing to determine the child's best interests.
We agree that the Family Part should have permitted oral argument and subsequently held an evidentiary hearing. Oral argument should have been permitted especially because the parties' agreement was ambiguous as to an intent to modify the near-equal parenting time arrangement when the child began school. Moreover, an evidentiary hearing was essential to determine as a factual matter the parties' intent regarding the disputed provisions of the agreement, and also to confirm that the agreement was consistent with the best interests of the child.
In custody cases, the court's primary consideration is the best interests of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); Hand v. Hand, 391 N.J.Super. 102, 105 (App. Div. 2007). Normally in custody disputes, the court must consider and apply the factors listed in N.J.S.A. 9:2-4(c) to determine the best interests of the child. In Fawzy v. Fawzy, 199 N.J. 456, 476 (2009), however, the Court stated that "when matrimonial litigants reach a settlement on issues regarding child custody, support, and parenting time, as a practical matter the court does not inquire into the merits of the agreement. It is only when the parents cannot agree that the court becomes the default decision maker."
On appeal of the Family Part's decision on custody and parenting time, our standard of review usually requires that we "uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). Here, however, the trial court did not make a decision on the basis of evidence presented to prove the best interests of the child in accordance with N.J.S.A. 9:2-4(c). It did not hold an evidentiary hearing, made no credibility determinations, and resolved no disputed facts by weighing competing evidence. Our standard of review is broader than the typical custody dispute. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).
As in Fawzy, supra, 199 N.J. at 476, the trial court interpreted and applied the parties' agreement. Matrimonial settlement agreements are "'essentially consensual and voluntary in character, . . . [and are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J.Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). Contractual in nature, matrimonial agreements are generally to be enforced as the parties intended. Pacifico v. Pacifico, 190 N.J. 258, 265-66 (2007).
Here, the court decided legal questions that are generally subject to plenary review. See Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. & Physical Therapy, 210 N.J. 597, 605 (2012). Although we recognize that "'the law grants particular leniency to agreements made in the domestic arena, ' thus allowing 'judges greater discretion when interpreting such agreements, '" Pacifico, supra, 190 N.J. at 265 (quoting Guglielmo v. Guglielmo, 253 N.J.Super. 531, 542 (App. Div. 1992)), that consideration does not change the nature of the task the trial judge undertook in this case.
Thus, because the Family Part did not conduct an evidentiary hearing, and further because its decision was based entirely on its interpretation of the parties' agreement, our standard of review is plenary.
The parties disputed the meaning and intent of paragraph 4B of their property settlement agreement, which provided that, "when the child attends school, " the parent of primary residence would be determined by "the residence of the parent who resides in a more competitive and highly rated school." Wife contended that her residence in Mountain Lakes provides a more competitive and highly-rated school for the child than husband's residence in East Windsor. Husband argued that the purpose of paragraph 4B was to determine the choice of school for the child when he first began school, and since both parents resided in the same school district when the child enrolled in kindergarten in 2011, the issue of comparative rating of schools did not surface.
Husband argued that the child cannot "bounce" from school district to school district from year to year depending on a comparison each time one of the parents moves. Also significant, he argued that wife's cross-motion in the Family Part disingenuously omitted the part of paragraph 4B that stated the school ranking would determine primary residence of the child "for purposes of school enrollment only." He contended the parties did not anticipate and did not intend that the school choice would permit one parent to move a considerable distance from the other and consequently to interfere with the near-equal parenting time schedule they had agreed upon.
These competing arguments should have prompted the Family Part to schedule oral argument as both parties had requested. Rule 5:5-4(a) provides that the Family Part should ordinarily grant requests for oral argument on "substantive" motions. Clearly, the custody motions in this case were "substantive." Mackowski v. Mackowski, 317 N.J.Super. 8, 14 (App. Div. 1998). As in Filippone v. Lee, 304 N.J.Super. 301, 306 (App. Div. 1997), there were "no special or unusual circumstance[s] here warranting the court's dispensing with an entirely appropriate request for oral argument of a motion presumptively entitled to argument on request." Cf. Kozak v. Kozak, 280 N.J.Super. 272 (Ch. Div. 1994) (example of circumstances where oral argument was properly denied because the motion was frivolous, repetitive, and harassing). We are aware that the motions in this case were filed just a few weeks before the beginning of the school year, and a decision on the child's school attendance had to be made quickly. But "[t]he issues raised here involved a change of custody and the implications of such change on child support as well as other issues impacting the long-range relationship of the parties." Mackowski, supra, 317 N.J.Super. at 14. They warranted the court's consideration only upon full development of the parties' positions and a determination of whether disputed issues had to be resolved.
In Palombi v. Palombi, 414 N.J.Super. 274, 285-86 (App. Div. 2010), we stated that the Family Part has discretion under Rule 5:5-4(a) to dispense with oral argument "when there is no factual dispute between the parties, " and also "[w]hen the record presented to the court in support of a motion is deficient on its face" to warrant the relief requested. Our holding should not be used as a license to deny oral argument when factual and legal issues are in dispute. Even where the court is asked to interpret a document presented with the motion papers, such as the parties' property settlement agreement in this case, oral argument should not be denied if a party has a good faith basis to argue for a favorable interpretation and has requested oral argument to do so. Denial of oral argument "deprives litigants of an opportunity to present their case fully to a court." Mackowski, supra, 317 N.J.Super. at 14.
Our reading of the parties' agreement, and paragraph 4B in particular, leaves us uncertain as to how the parties intended to address a change in their shared parenting time arrangement if one party moved a considerable distance from the other. The agreement is not specific with respect to how the parenting time arrangement would be modified if the parent of primary residence, "for purposes of school enrollment only, " resided so far from the other parent that the near-equal shared parenting schedule of paragraph 4A could not continue. Although the agreement included no limitation on the location of either parent's residence, it also included no terms addressing the contingency of a major change in the shared parenting arrangement.
Even where one parent already has primary residential custody, "the relocation of a child by the joint legal, residential custodial parent to another in-state location may constitute a substantial change in circumstances warranting modification of the existing custodial and parenting-time arrangement." Schulze v. Morris, 361 N.J.Super. 419, 421 (App. Div. 2003). When such a change in circumstances occurs, a plenary hearing is required if the submissions on the motions show there is a genuine and substantial factual dispute regarding the welfare of the child. Hand, supra, 391 N.J.Super. at 105; Fusco v. Fusco, 186 N.J.Super. 321, 329 (App. Div. 1982).
Here, the parties disputed their intent at the time of the property settlement agreement as to how paragraph 4B would be applied. They also disputed whether the move was in the best interests of the child. They disputed the authenticity and reliability of website information assigning a higher rating to the Mountain Lakes school. These disputes required a plenary hearing, including the testimony of the parties regarding their intent at the time of the settlement agreement, and, ultimately, evidence establishing the best interests of the child. Focusing on the "safety, happiness, physical, mental and moral welfare" of the child, Fantony v. Fantony, 21 N.J. 525, 536 (1956), the Family Part should have heard oral argument to crystalize the issues to be decided and the positions of the parties, and then scheduled an evidentiary hearing to resolve factual disputes.
We reverse the order of the Family Part and remand for a plenary hearing. Our reversal of the underlying custody order renders moot the arguments as to the reliability of the website information, as well as the parties' contentions regarding ongoing child support, which must also be addressed at a hearing once custody and parenting time have been re-determined.
We have been informed in the course of this appeal that additional matters have developed since the appeal was filed that affect the Family Part's decision on custody and parenting time. We granted wife's motion for a limited remand to the Family Part to address information she had developed about the safety of the child. We denied wife's subsequent motion to dismiss this appeal as moot. We also rejected husband's motion to supplement the record with new information he had obtained pertaining to wife's current circumstances. Our holding in this case does not preclude the presentation of evidence in the Family Part that affects the status of the parties and the welfare of the child at the present time. The Family Part must determine an appropriate custody and parenting arrangement in the exercise of its parens patriae obligation to protect the child. See Fawzy, supra, 199 N.J. at 474-75 and n.3.
Finally, we find insufficient merit in husband's request to remand to a different Family Part judge to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for proceedings consistent with this decision. We do not retain jurisdiction.