A.C. VS. J.M.L.M. (FV-07-1680-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5257-18T3

A.C.,1

Plaintiff-Respondent,

v.

J.M.L.M.,

Defendant-Appellant.

Submitted November 2, 2020 - Decided December 21, 2020

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1680-15.

Townsend, Tomaio & Newmark, LLC, attorneys for appellant (Jennifer M. Cornelius, of counsel and on the brief; Angela K. Halverson, on the brief).

Respondent has not filed a brief.

PER CURIAM

1 Pursuant to Rule 1:38-3(d)(9) and (10), we identify the parties by initials to protect their privacy. Defendant appeals from the provisions in the June 20, 2019 amended final

restraining order (FRO) that required the parties to enroll their children in the

West Orange school district and denied defendant's requests for a modification

of his parenting time and a change in the children's surname. Because we

conclude the court failed to conduct the required analyses regarding a change of

circumstances and the best interests of the children, we reverse and remand for

such findings. We affirm the court's ruling denying a change in the children's

surname.

The parties, never married, are parents of two children – X.C., born in

March 2013, and V.C., born in June 2014. Shortly after V.C.'s birth, plaintiff

filed an application for an order establishing custody, parenting time, and child

support.2 In February 2015, the court granted plaintiff a FRO against defendant.

Plaintiff was granted temporary custody of the children.

In June 2016, defendant filed an application to modify a December 15,

2015 order.3 Defendant sought an increase in parenting time, a decrease in his

2 We have not been provided with any order relating to that application. 3 That order is not provided in the record. A-5257-18T3 2 child support obligation and to change the children's surname. It appears the

parties were in court in October 2016 and resolved some of their issues.4

On June 15, 2017, the parties executed a consent order memorializing

their prior agreement and resolving the remainder of their issues (consent order).

Under the order, plaintiff was established as the parent of primary residence and

defendant as parent of alternate residence. 5 They share joint legal custody. The

parties had an alternate week parenting time schedule: on "week one" defendant

had custody from Monday at 7:00 a.m. to Thursday at 7:00 p.m. On "week two"

defendant had custody from Tuesday at 7:00 a.m. to Thursday at 7:00 p.m. 6

The consent order stipulated that X.C. would attend Pre-K in the West

Orange School District for the 2017-2018 school year. The party exercising

parenting time was responsible for transporting X.C. to and from school. The

parenting exchanges were at the West Orange police station.

On August 8, 2017, defendant sent a text message to plaintiff asking if she

had enrolled X.C. in Pre-K as per the consent order. Plaintiff replied that she

4 The record does not contain any order or transcript regarding that proceeding or settlement. 5 During this time, plaintiff resided in West Orange and defendant lived in Kearny. 6 Defendant worked on Fridays, Saturdays, and Sundays. A-5257-18T3 3 had submitted the application and the child was on a waitlist. Plaintiff also said

the school might not have availability until October or later. After learning that

X.C. was on a waitlist, defendant enrolled the child in Pre-K in the Kearny

school district. Plaintiff reiterated her desire for the child to attend school in

her district. Defendant replied that he enrolled the child in Kearny because he

did not want X.C. to fall behind in school.

The following August, defendant enrolled V.C. in Pre-K in Kearny and

X.C. started kindergarten. Plaintiff did not object or take any action.

On March 5, 2019, defendant filed a motion seeking to modify the consent

order and for the following relief: (1) finding plaintiff in violation of litigant 's

rights for her failure to adhere to the parenting time schedule; (2) naming him

as parent of primary residence and modifying the current parenting time

schedule to give him an additional overnight; (3) memorializing that the children

shall attend school in his school district; (4) changing the surnames of the

children to his surname; and (5) compelling plaintiff to pay his counsel fees and

costs and reducing said amount to judgment.

The application was listed on the DV docket. At the initial hearing, in

April 2019, the trial judge found no merit in defendant's assertion that plaintiff

was violating his rights and insufficient evidence to grant defendant an

A-5257-18T3 4 additional overnight. The judge also denied defendant's application to change

the children's surname.

In addressing the school enrollment issue, the judge stated the children

should finish out the school year in Kearny and she would decide at a future

time what school the children would attend in the fall. The judge asked the

parties to submit "information that would lead [her] to conclude that one district

makes more sense, it's in the best interest of the children, than the other." She

explained:

Generally, when it comes to things like that, the Court looks at some objective measurement of statistics, or -- or rankings. All of that is subject to being challenged, and it doesn't mean it's written in stone. Because there is -- there is intangibles, as well, such as where are the kids most of the day? What's best for them. In terms of the transportation, how is that working?

And, as they get older, this stuff, you know, tends to evolve. Right now is not a bad time to address it. But, all things being equal, since the parties really do share equal custody, so to speak, as close as it can get without it being true equal custody, the -- the idea that one party is going to be inconvenienced by traveling, unless I'm not hearing something, is not going to be an overriding concern. Because one of the other parties is going to have to travel. That's not really going to be the issue.

It's really about what's best for the kids. And it's not just academics. What other things are available to them. What are the . . . extra[-]curricular activities. What other opportunities might they have in Kearny

A-5257-18T3 5 that they don't have in West Orange, or in West Orange they don't have in Kearny. Those are the kind of things that will be important for the [c]ourt to know. Okay?

At a subsequent hearing on June 5, 2019, defendant's counsel argued that

the children should attend school in Kearny because defendant has the children

for the majority of the weekdays. Although counsel conceded West Orange is a

better ranked school district, defendant contended that geography should be the

paramount consideration.

The judge told the parties she was dissatisfied with what was presented to

her. She stated: "[W]hat I didn't hear addressed is . . . the initial agreement,

since we were talking about agreements, was that they were going to go to [a]

West Orange school. So, nobody's talked about that. That was the initial

agreement." She instructed the parties to prepare supplemental submissions

addressing information about graduation rates, data about college admission,

and activities the children would pursue on weekends.

The judge held a final hearing on June 20, 2019. She stated that because

the parties essentially had a shared 50-50 custody arrangement, there was not a

parent of primary residence. In reviewing the supplemental submissions of the

parties, the judge again found them lacking. She said plaintiff only provided a

statement explaining the reasons the children should be in the West Orange

A-5257-18T3 6 school system. Although defendant submitted information about Kearny High

School and neighborhood opportunities, the court found the information was not

helpful.

The judge stated she had re-read the consent order and the parties' text

messages from 2017 regarding X.C.'s Pre-K enrollment. She found plaintiff had

not agreed to any modification of the order. Therefore, she found "there has not

been a material change that would allow that order to be amended, in the way

that the defendant is asking for it to be amended." Therefore, she ordered

plaintiff to enroll the children in the West Orange school district. The judge

denied any changes to the parenting time schedule, telling the parties they could

file a new application.

On appeal, defendant contends the court erred in failing to consider the

change of circumstances that have occurred since the execution of the consent

order to warrant a modification in parenting time and continued enrollment in

the Kearny school district. In addition, defendant asserts the court failed to

consider the best interests of the children in its determination of the school

enrollment issue and in denying a change of surname.

Because family courts "[have] special jurisdiction and expertise in family

matters, [we] should accord deference to family court factfinding." Cesare v.

A-5257-18T3 7 Cesare, 154 N.J. 394, 413 (1998). The trial court's findings of fact and

conclusions of law will only be disturbed if they are "manifestly unsupported by

or inconsistent with the competent, relevant and reasonably credible evidence."

Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

However, if the trial court "ignores applicable standards, we are compelled to

reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super.

295, 309 (App. Div. 2008). We always determine whether there is sufficient

credible evidence in the record to support the trial court's factual determinations.

Rova Farms, 65 N.J. at 484.

After conducting three hearings concentrating on which school district the

parties' children should attend, the court determined the provision in the consent

order should control. Defendant contends the court failed to consider the change

of circumstances that were sufficient to warrant a modification of the consent

provision regarding school enrollment.

Under the 2017 consent order, the parties agreed to enroll their oldest child

in Pre-K in the West Orange school district for the 2017-2018 school year.

However, after learning the child was on a waitlist for the program, defe ndant

enrolled X.C. in Pre-K in Kearny. The child completed the Pre-K year in Kearny

A-5257-18T3 8 and continued on to kindergarten there for the 2018-19 school term. The parties'

youngest son was enrolled in Pre-K in Kearny for 2018-19.

Plaintiff did not take any action to change the school situation. The matter

only came before the court when defendant filed an application in March 2019

for a change of parenting time and a memorialization of the school enrollment.

By that time, X.C. was close to finishing kindergarten; V.C. was completing the

Pre-K program.

Despite the court's considerable attention to the matter, it failed to apply

the best interests standard to the parties' circumstances. The consent order only

addressed the oldest child's school attendance and only applied to one year –

2017 to 2018. Clearly, the parties intended and needed to revisit the issue for

the following school year. At that time, both children would be attending school.

Furthermore, the court did not address the practicality of the custody

arrangement vis-a-vis the school location. Defendant had custody of the

children on most school nights, an important fact to consider in any analysis.

Generally, a party must demonstrate changed circumstances to warrant

relief from the provision of a consent order. Martindell v. Martindell, 21 N.J.

341, 353 (1956). If a movant shows a sufficient change of circumstances, the

A-5257-18T3 9 court engages in a "best interest analysis." Baures v. Lewis, 167 N.J. 91, 113

(2001).

Once a movant meets the prima facie burden to show a change of

circumstances, the court must then consider the agreement's terms "in the

context of the circumstances at the time of the drafting and to apply a rational

meaning in keeping with the 'expressed general purpose'" of the provisions.

Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). Where the movant has shown a

change in circumstances, the court must consider the modification in light of the

best interests standard articulated under N.J.S.A. 9:2-4.

Here, given the limited scope of the parties' consent order regarding the

children's school attendance, it is arguable that defendant did not even need to

demonstrate changed circumstances. Because the consent order did not address

either child's school attendance for the 2018-19 school term, the parties needed

to either agree on the children's school going forward or apply to the courts for

a resolution. When the children began school in Kearny in the fall of 2018, it

could be inferred the parties had come to an agreement. Indeed, it was defendant

who moved before the court near the end of the 2019 school year for an order

establishing Kearny as the children's school district.

A-5257-18T3 10 In the absence of an agreement, the trial court was required to conduct a

best interests analysis to determine the parties' parenting time issues and school

enrollment. With children of such a young age, there is little utility in comparing

college acceptance rates, scholarship opportunities, and extracurricular

activities. See Levine v. Levine, 322 N.J. Super. 558, 566-67 (App. Div. 1999)

(holding that where joint custodians cannot agree on a choice of schools, the

issue must be decided consistent with the child's "best interests" and, in that

context, "any evaluation of a school district is inherently subjective" and

involves "more than its teacher-student ratio or State ranking.").

We cannot properly review the court's decision without a fact-finding and

determination of what is in the children's best interests. Nearly nineteen months

have passed since the court's decision, and the children are yet in another school

term. We must therefore remand to the family court to develop a thorough

record. The court should determine whether the parties need to provide

additional written submissions. Thereafter, a plenary hearing should take place,

with testimony from the parties as to their current circumstances. The family

court judge should determine which school district is in the children's best

interests to attend. Once that determination is made, the court should consider

whether any modifications to the parents' parenting time is warranted.

A-5257-18T3 11 We briefly address defendant's appeal from the order denying a change in

the children's surname. "[I]n renaming disputes between parents who agreed on

a surname at birth but find themselves later in a dispute over whether to alter the

surname, the proper standard to apply is the best interests of the child." Emma

v. Evans, 215 N.J. 197, 221 (2013). The parent seeking to change the name of

the child bears the burden of showing by a preponderance of the evidence that

the name change is in the child's best interest. Id. at 222.

Defendant asserts it is in the best interests of the children to have his

surname because he is acting as their custodial parent. Even if defendant was

deemed the primary custodial parent, the Emma court instructed that courts

should not give presumption to a custodial parent's name choice. Id. at 221.

Because defendant did not proffer any other reason for the name change, we

agree with the trial court that he did not meet his burden of proof to support a

change of the children's surname.

Affirmed in part, reversed in part, and remanded to the trial court for

proceedings in accordance with this opinion. We do not retain jurisdiction.

A-5257-18T3 12