NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0147-21
DENISE MORIN, n/k/a DENISE LAMBRECHT,
Plaintiff-Appellant/ Cross-Respondent,
v.
MICHAEL MORIN,
Defendant-Respondent/ Cross-Appellant. _________________________
Argued August 2, 2022 – Decided August 15, 2022
Before Judges Geiger and Rose.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0701-11.
Kathleen Pasquarello Stockton argued the cause for appellant (Stockton Family Law, LLC, attorneys; Kathleen Pasquarello Stockton and Jessica A. Beardsley, on the briefs). Howard S. Mendelson argued the cause for respondent (Davis & Mendelson, LLC, attorneys; Howard S. Mendelson and Andrew T. Parsinitz, on the briefs).
PER CURIAM
In this post-judgment dissolution matter, plaintiff Denise Morin, now
known as Denise Lambrecht, appeals from an August 13, 2021 Family Part order
that denied her application for child support for the parties' then fifteen-year-old
daughter. Defendant Michael Morin cross-appeals two aspects of the same order
that denied his requests for a plenary hearing to address the child's best interests
and for an award of counsel fees relating to his successful opposition of
plaintiff's application for child support. We affirm in part, reverse in part, and
remand.
We take the following facts from the record. The parties were married in
September 1996. Three children were born of the marriage. The children were
born in February 1998, January 2000, and April 2006, respectively. The two
older children were declared emancipated effective May 31, 2019. The child
support order in dispute relates to the youngest child, M.M., who is now sixteen.
In January 2012, the parties entered into a property settlement agreement
(PSA), that resolved the issues of spousal support, custody and parenting time,
child support, equitable distribution, counsel fees, and related issues. The
A-0147-21 2 parties were divorced on February 7, 2012. The final judgment of divorce
incorporated the terms of the PSA by reference.
The PSA provided for joint legal custody of the children, with co-equal
parenting time in a true shared parenting arrangement. Consequently, neither
party was designated as parent of primary residence (PPR) or parent of
alternative residence (PAR). The parties enjoyed parenting time on alternate
weekends and a split weekday schedule. Holidays were shared in accordance
with the Gloucester County Holiday Schedule. Each party also enjoyed two
non-consecutive weeks of vacation parenting time each year. A licensed social
worker was utilized as the parenting coordinator, with the cost equally shared.
As to child support, Article 3.1 of the PSA provides:
The parties acknowledge that they shall be exercising a co-equal parenting time plan, and that each party shall be servicing and providing for the children's controlled expenses within each of their households. Under a current child support guideline calculation, and offsets for controlled expenses pursuant to Wunsch- Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009), the parties acknowledge that a nominal or otherwise negative figure would be due to one or the other party if he or she was named "PPR" for child support purposes. Accordingly, given the co-equal parenting time arrangement, and each party's respective earnings and earning potential, neither party shall be obligated to pay child support to the other at this time.
A-0147-21 3 The parties shall equally share the responsibility for purchasing controlled expenses, such as clothing, shoes, coats, school supplies, and the like, on an informal and unstructured basis.
Article 3.2 of the PSA provides that the parties shall share specified
extraordinary expenses incurred on behalf of the children, including work-
related day care, uncovered medical expenses, and extracurricular activities.
The PSA further provides that plaintiff maintained the medical, dental, vision,
and prescription insurance coverage for the children, with the parties to equally
share the cost of that coverage. The PSA also contains sections governing
college expenses and life insurance. Article VI provides that "[t]he parties shall
each be responsible for his or her own counsel fees incurred in connection with
the negotiation and entry of [the PSA]."
The parties have engaged in motion practice since the divorce was
granted. An April 22, 2020 consent order suspended plaintiff's child support
obligation to defendant effective July 11, 2019. It further provided that "neither
party will be obligated to pay child support to the other for the unemancipated
child, [M.M.] consistent with the attached N.J. Child Support Guidelines Shared
Parenting Worksheet (Exhibit "A")." Nevertheless, "either party may make a
subsequent application for child support upon a change in circumstances."
Finally, the order recited that there was "an issue in dispute between the parties
A-0147-21 4 relating to custody and parenting time" with M.M. and "that either party may
seek to modify the prior Agreement and [o]rder as it relates to custody and
parenting time" by application to the court.
Defendant subsequently moved to enforce litigant's rights, specifically the
terms of the PSA regarding co-equal, true, shared parenting time with M.M. He
claimed plaintiff had not required M.M. to attend parenting time with him since
April 8, 2020. Defendant further claimed plaintiff alienated M.M.'s affections
for him. Defendant also sought sanctions, an award of counsel fees relating to
the motion, and an award of compensatory parenting time for the parenting time
lost since April 8, 2020. Defendant requested the appointment of a licensed
professional counselor to address the reparation of the relationship between
M.M. and defendant and that M.M. continue her personal therapy sessions with
Nina Kardos, LCSW.
Plaintiff cross-moved for a modification of the custody and parenting time
arrangement, and requested a plenary hearing to determine the best custody and
parenting time arrangement for M.M. She also requested appointment of a
neutral reunification/family therapist and guardian ad litem for M.M., with costs
to be shared equally by the parties. Finally, plaintiff sought an award of counsel
fees and costs related to the motion. Plaintiff argued that it was M.M.'s decision
A-0147-21 5 not to spend parenting time with defendant. Plaintiff noted defendant's anger
issues and alleged that during defendant's parenting time on April 8, 2020, things
were so out-of-hand, she was forced to call the police to do a wellness check to
ensure M.M. was safe. Plaintiff contended that upon her return home, M.M.
expressed her desire to not spend time with defendant.
Following oral argument, the court issued a twenty-page June 12, 2020
order with an embedded statement of reasons. The court noted that the parties
"are unable to determine the best interests of the child." The court recognized
that M.M., who was then fourteen years old, was "old enough to have a voice
regarding parenting time, or at least to have her opinion be given weight in
custodial determinations." The court stated that defendant's text messages
seem to confirm that he has an emotionally unhealthy relationship with the child in the sense that the text messages reflect him resorting to name-calling and guilting the child into attending parenting time on several occasions. However, this alone is not enough for this court to determine M.M. may cease visitation with her father.
The court agreed to appoint a parenting time/best interest evaluator "to
assess the suitability of the parties for parenting M.M. and propose a parenting
time schedule which is in the best interests of the child." A plenary hearing
would follow the submission of the evaluator's report.
A-0147-21 6 The court ordered that M.M. continue to receive personal therapy services
from Ms. Kardos, but declined to appoint a guardian ad litem or other expert. It
"encouraged" defendant "to work with Ms. Kardos in building or mending some
bridges with M.M. so that some minimum parenting time could take place" in
the interim.
The court ordered that defendant have five hours of parenting time on
Father's Day with a third-party present. It declined to compel plaintiff to require
M.M. to attend parenting time with defendant and deferred that issue to the
plenary hearing. The court also deferred defendant's requests for compensatory
parenting time and to hold plaintiff in violation of litigant's rights sanctions,
pending the outcome of the plenary hearing. Defendant's request to impose
sanctions was denied without prejudice.
As to the cross-applications for an award of counsel fees and costs, the
court noted that defendant sought fees in the amount of $4,174 and costs of $376.
The court declined to award counsel fees to either party, without prejudice to
the results of the plenary hearing.
The court subsequently entered a March 4, 2021 order with embedded
statement of reasons. The court noted that Gregory W. Joseph, Psy.D.
performed a best interests evaluation and issued his report on December 16,
A-0147-21 7 2020. During the hearing on January 12, 2021, the parties agreed to follow the
recommendations of Dr. Joseph without exception. However, the parties could
not agree on the language of the order. The court presented two options to the
parties, either: (1) consent to the court preparing an order requiring them to
follow the letter and spirit of Dr. Joseph's recommendations; or (2) proceed to a
plenary hearing. The parties agreed to the entry of on an order prepared by the
court reflecting Dr. Joseph's recommendations. The operative paragraphs of the
March 4, 2021 order stated:
1. Shared legal custody.
2. The parenting time arrangement should remain unchanged with the understanding that [defendant's] parenting time will gradually be restored under the direction of a reunification therapist as described in #3 below. Additionally, outside of the reunification work and in light of M.M.'s age and maturity, ample flexibility in adhering to the schedule should be afforded to reasonably accommodate M.M.'s preferences in accord with the consent of both parties.
3. Parenting time for Mr. Morin with M.M. should be gradually restored under the guidance of an experienced family reunification therapist with the active participation of M.M.[,] both parents, and stepparents as directed by the therapist. Participation in therapy is [to] be required with the express goal that M.M. and her father will work on restoring their relationship and resuming [defendant's] parenting time in a timely manner.
A-0147-21 8 Treatment should include parenting training for both parents with an emphasis on greater emotional awareness and tolerance by [defendant] and more consistent limits and expectations by [plaintiff]. Also, [defendant] should work with the family therapist on better modulation of his anger, improved patience, and more empathetic yet firm parenting responses.
The parents should work with the family therapist in addressing co-parenting issues with the goal of establishing consistent, shared rules and expectations between the two households with mutual reinforcement, replacing the currently contentious, fractured systems.
Restoring contact between M.M. and her father should receive top priority and proceed as swiftly as possible under the guidance and recommendation of the family therapist, with incremental increases in communication (by text, email, etc.) and parenting time as deemed appropriate by the therapist.
4. It is recommended that M.M. continue regularly scheduled individual therapy with Ms. Kardos in tandem with the family reunification therapy. Both parents should have regular contact with Ms. Kardos regarding M.M. progress and treatment goals. Bilateral communication should be restored between M.M.'s individual therapist and the family therapist.
5. Individual therapy is recommended for [defendant] to work on gaining greater insight, self-awareness, and emotional sensitivity as well as learning more effective means of modulating and expressing his anger. Bilateral communication should be established between [defendant's] individual therapist and the family therapist.
A-0147-21 9 6. The parties must adhere to New Jersey Children's Bill of Rights. This means they shall refrain from disparaging one another in M.M.'s presence. This also means both parents must severely restrict and closely monitor their discussions about the other parent when M.M. is nearby. Neither may coach or coerce M.M. with regard to custody and parenting time arrangements. The parties should caution family members, friends, professionals, and others from making disparaging comments or undermining the other parent’s role.
7. The parties are advised to complete online courses (ideally the same one(s)), in co-parenting to guide them in improving their interactions.
....
The parents are advised to work with a co-parenting coach or counselor in addition to, or in conjunction with, the courses recommended above.
Reunification therapy took place from February to July 2021, and was to
resume six months later as recommended by the reunification therapist.
Defendant's co-equal parenting time did not recommence during that period,
leading to further motion practice.
On May 4, 2021, plaintiff filed a motion to: (1) impose child support; (2)
require defendant to file a case information statement (CIS); (3) appoint an
attorney to represent M.M. pursuant to Rule 5:8A; (4) to schedule a hearing on
the best interests of the child; and (5) award plaintiff counsel fees and costs.
A-0147-21 10 In turn, defendant filed a cross-motion to: (1) enforce litigant's rights by
compelling plaintiff to follow the recommendations set forth in Dr. Joseph's
December 16, 2020 report; (2) enforce the PSA by designating the parties as co-
PPRs who shall enjoy true, co-equal, true, shared parenting; (3) schedule a best
interests of the child hearing; (4) sanction plaintiff for violating the March 2021
order and the PSA; and (5) award defendant counsel fees and costs.
By the time the motion was heard on August 13, 2021, M.M. was fifteen
years old and had not spent any overnights or other parenting time with
defendant in approximately seventeen months, except for two brief visits.
Following oral argument, the court issued an August 13, 2021 order with
an embedded statement of reasons. The court discussed the prior motion
practice and resulting orders. It noted that its custody and co-equal parenting
time rulings had been consistent in 2014 and 2016. The court recounted the
March 4, 2021 order that incorporated Dr. Joseph's recommendations. Shortly
thereafter, the parties filed the cross motions involved in this appeal.
The court recognized that despite the prior orders, defendant had still
exercised "virtually no parenting time with [M.M]" and reunification therapy
had "stalled." The court noted the parties continued to attack each other based
on "the same prior events that had little to do with their present parenting
A-0147-21 11 abilities." They once again asked for a best interests plenary hearing. Exhibiting
some frustration, the court stated:
But the court already knows what is in [M.M.'s] best interest: "Gradual restora[tion]" of [d]efendant's parenting time "under the direction of a reunification therapist." Gradual. Not instant. Five or so therapy sessions in as many months is insufficient to restore a parent-child relationship that has been strained for over a year. The goal was "co-equal parenting time" last time the parties appeared, and it remains so today. Thus, in this event, the court reaffirms its prior order(s), rejects the parties' request for a plenary hearing, and denies their additional prayers for relief.
The court then described the reunification therapist's findings. Noting that
M.M. had "no desire to work on the relationship" with her father "due to her
'previous experiences' and 'lack of trust[,]'" the reunification therapist concluded
that forcing M.M. to attend reunification therapy with defendant "risks
damaging rather than healing their relationship permanently." The court
concluded:
[M.M.] needs to address these emotional/psychological issues – either through individual therapy or reunification therapy. But the longer this goes on, the deeper the divide will become and the harder it will be to bridge that divide. This is why the consistent order of this court has been for the parties and the child to work on these issues in a therapeutic environment, all while keeping some form of healthy connection between [M.M.] and her father so the bond does not become irretrievably severed.
A-0147-21 12 The court denied plaintiff's application for child support because the
language of the PSA provided for co-equal parenting time and mutually waived
child support. Although it recognized that that the parties had "strayed from
their co-equal plan over the past year or so[,]" "the court [had] not formally
modified it." Moreover, "the parties are in the process of 'restoring' it through
'therapy.'" The court deemed the parenting arrangements then in place to be
"temporary . . . [a]nd temporary changes in circumstances, no matter their
significance, do not warrant judicial review of child support agreements."
Accordingly, the court declined to order defendant to submit a CIS.
The court also denied the mutual request for a best interests plenary
hearing. Characterizing plaintiff's demand as "oddly vague," the court
determined that a plenary hearing was not necessary given the conclusions of
the first and second custody evaluators and the concurrence of the reunification
therapist that the co-equal parenting plan remain unchanged. The court stated it
was "hardly prepared to subvert the views of professionals for the intuition of a
fifteen-year-old child." The court emphasized that "[t]he parties must continue
'reunification therapy' to 'restore' [d]efendant's 'co-equal parenting time.'" The
court denied plaintiff's application to appoint counsel to represent M.M. because
a plenary hearing would not be conducted.
A-0147-21 13 The court denied the parties' cross-applications for an award of counsel
fees and costs. The court noted plaintiff's applications for child support and a
plenary hearing were unsuccessful. The court found no evidence that defendant
had acted in bad faith. As to defendant's request for an award of counsel fees,
the count found defendant's application did not comply with Rule 4:42-9(b)
because it did not address the factors enumerated in RPC 1.5(a) or include an
itemized statement of services rendered.
The court reaffirmed its prior parenting time ruling with the understanding
that defendant's parenting time would be gradually restored. It ordered the
parties to enroll with a new reunification therapist by September 15, 2021, if the
prior reunification therapist declined to be involved. Lastly, the court found
defendant had not demonstrated that plaintiff violated Dr. Joseph's
recommendations, and declined to sanction plaintiff.
This appeal followed. On appeal, plaintiff argues:
THE COURT ERRED IN FINDING THAT THE DEFENDANT IS NOT REQUIRED TO PAY CHILD SUPPORT TO THE PLAINTIFF FOR THE BENEFIT OF THEIR MINOR CHILD.
a. The Minor Child Has a Right to Receive Support from Both of Her Parents.
b. There Was a Change of Circumstances Warranting a Recalculation of Child Support at
A-0147-21 14 the Time of the Motion Hearing Because the Child Had No Significant Parenting Time with the Defendant for Over a Year.
c. The Change in Parenting Time is no Longer a Temporary Change and therefore Child Support is Warranted.
In his cross-appeal, defendant argues:
POINT II
THE MOTION JUDGE ERRED BY NOT SCHEDULING A PLENARY HEARING TO ADDRESS AND EFFECTUATE M.M.'S BEST INTEREST AND/OR BY FAILING TO IMMEDIATELY RESTORE PARENTING TIME WITH DEFENDANT.
POINT III
THE MOTION JUDGE ERRED BY DENYING DEFENDANT'S REQUEST FOR COUNSEL FEES AND BY FAILING TO ADDRESS THE FACTORS SET FORTH IN [RULE] 5:3-5(c) REGARDING AN AWARD OF COUNSEL FEES.
I.
Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). Appellate courts "review the Family Part judge's findings in
accordance with a deferential standard of review, recognizing the court's 'special
jurisdiction and expertise in family matters.'" Thieme v. Aucoin-Thieme, 227
N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at 413). Thus, "findings by
A-0147-21 15 the trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare, 154 N.J. at 412-13 (quoting Rova Farms Resort,
Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We will not "disturb the
'factual findings and legal conclusions of the trial judge unless [we are]
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice.'" Cesare, 154 N.J. at 413 (quoting Rova Farms, 65 N.J. at 484).
"We invest the family court with broad discretion because of its
specialized knowledge and experience in matters involving parental
relationships and the best interests of children." N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 427 (2012). However, we review de novo "the
trial judge's legal conclusions, and the application of those conclusions to the
facts[.]" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting
Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
II.
The Family Part has the statutory authority to modify child-support "from
time to time as circumstances may require." Spangenberg v. Kolakowski, 442
N.J. Super. 529, 535 (App. Div. 2015) (quoting N.J.S.A. 2A:34-23). "Our courts
have interpreted [N.J.S.A. 2A:34-23] to require a party who seeks modification
A-0147-21 16 to prove 'changed circumstances[.]'" Id. at 536 (alteration in original) (quoting
Lepis v. Lepis, 83 N.J. 139, 157 (1980)). Consideration of "changed
circumstances" includes changes in the parties' financial circumstances, whether
the change is continuing, and whether the parties' agreement "made explicit
provision for the change." Ibid. (quoting Lepis, 83 N.J. at 152).
Child support awards are governed by Rule 5:6A, and generally follow
the child support guidelines (guidelines), which "may be modified or
disregarded by the court only where good cause is shown." R. 5:6A.
"When reviewing decisions granting or denying applications to modify
child support, we examine whether, given the facts, the trial judge abused his or
her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v.
Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial court's 'award
will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly
contrary to reason or to other evidence, or the result of whim or caprice.'" Id. at
326 (quoting Jacoby, 427 N.J. Super. at 116). We are not bound, however, by
the trial judge's "'interpretation of the law' and do not defer to legal
consequences drawn from established facts." Jacoby, 427 N.J. Super. at 117
(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)).
A-0147-21 17 The annual number of overnight parenting times is a factor under the child
support guidelines shared parenting schedules. See Child Support Guidelines,
Pressler & Verniero, Current N.J. Court Rules, Appendices IX-A(14)(c)(2) and
IX-D to R. 5:6A, www.gannlaw.com (2022). The shared parenting schedules
apply when the children spend at least twenty-eight percent of the overnights
with the PAR. Appendix IX-A(14)(c)(2) to Rule 5:6A. Here, during the thirteen
months leading up to the filing of plaintiff's motion, M.M. had been spending
every overnight with plaintiff. Therefore, the shared parenting schedule did not
apply. Appendix IX-A(14)(c)(2) to Rule 5:6A.
The shared parenting schedules recognize that increasing the number of
overnights that the children spend with the PAR increases the PAR's "variable
costs (e.g., food, transportation, and some entertainment)" incurred by the PAR.
Appendix IX-A(13)(a)(2) to Rule 5:6A. In turn, it decreases the variable costs
incurred by the PPR. The converse also applies. Reducing the number of
overnights that the children spend with the PAR reduces the PAR's variable costs
and increases the PPR's variable costs.
The guidelines assume that thirty-eight percent of the spending on
children is for fixed expenses, thirty-seven percent is for variable costs, and
twenty-five percent is for controlled expenses. Appendix IX-A(14)(g)(1) to
A-0147-21 18 Rule 5:6A; accord Jacoby, 427 N.J. Super. at 119. Variable costs "are
apportioned based on each parent's percentage of overnights with child."
Appendix IX-A(14)(g)(3) to Rule 5:6A. Because M.M. was spending every
night with plaintiff and had almost no other parenting time with defendant,
defendant was not incurring any variable costs.
Our case law is clear. "Each parent has a responsibility to share the costs
of providing for the child while she remains unemancipated." Martinetti v.
Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Defendant's obligation to
"proper[ly] support" his unemancipated daughter "to the extent he is financially
able" continues, "even though [if there is currently] no relationship between
them." J.R. v. L.R., 386 N.J. Super. 475, 484 (App. Div. 2006); see also
Gormley v. Gormley, 462 N.J. Super. 433, 451 (App. Div. 2019) (stating that
"any injustice caused by the failure of a party's relationship with his or her child
is not remedied by a reduction in child support"); L.V. v. R.S., 347 N.J. Super.
33, 43 (App. Div. 2002) ("an ungrateful child does not relieve a parent of the
duty of support"). To that end, defendant's "continuing obligation to support the
child must be based upon an evaluation of the child's needs and interests and not
upon the conduct of the plaintiff." Martinetti, 261 N.J. Super. at 512. In any
event, the trial court did not find that plaintiff was alienating M.M.'s affections
A-0147-21 19 towards defendant or otherwise intentionally interfering with defendant's
parenting time.
"[E]nforcing the parental duty to support children is 'an inherent part of
the "best interests of the child" rubric which underlies our family courts.'" Colca
v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Monmouth Cnty.
Div. of Soc. Servs. v. G.D.M., 308 N.J. Super. 83, 88 (Ch. Div. 1997)).
Consequently, "a parent is obliged to contribute to the basic needs of an
unemancipated child to the extent of the parent's financial ability[.]" Ibid.
(alteration in original) (quoting Martinetti, 261 N.J. Super. at 513). Thus,
"children are entitled to be supported at least according to the standard of living
to which they had grown accustomed prior to the separation of their parents[.]"
Ibid. (quoting Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div.
1992)). Without child support from defendant, attaining those laudable goals is
clearly thwarted.
We recognize that parents may, as part of a PSA, agree to allocate the
financial obligation for child support, and deviate from the child support
guidelines, provided the terms of the agreement are fair and equitable, O.P. v.
L.G.-P., 440 N.J. Super. 146, 155-56 (App. Div. 2015), and the interests of the
child will not be prejudiced, Ordukaya v. Brown, 357 N.J. Super. 231, 239-41
A-0147-21 20 (App. Div. 2003). Stated another way, parents may agree to apportion the
responsibility to support their child but may not bargain away the child's right
to support. Blum v. Adler, 279 N.J. Super. 1, 4 (App. Div. 1994).
Like all child support orders, an agreement allocating the financial
responsibility to support the parties' child, which is incorporated into a divorce
judgment, is not immutable; it may be modified upon a showing of substantially
changed circumstances and related showing of need. Lepis, 83 N.J. at 146, 157;
Jacoby, 427 N.J. Super. at 116. A significant change in custody or parenting
time constitutes a change in circumstances warranting a modification in child
support, Winterberg v. Lupo, 300 N.J. Super. 125, 133 (App. Div. 1997);
Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 6 (App. Div. 1991) (superseded by statute
on other grounds), provided the change is not temporary and "some time" has
elapsed before the application to modify the responsibility to support is filed,
Koelble v. Koelble, 261 N.J. Super. 190, 196 (App. Div. 1991) (quoting Ohlhoff,
246 N.J. Super. at 7).
Applying these principles to the facts in this case, we find that an ongoing
substantial change in circumstances warranting a recalculation of child support
under the guidelines had occurred. Instead of the true, co-equal overnight
parenting time contemplated by the PSA, M.M. was no longer spending
A-0147-21 21 overnights at defendant's residence. Plaintiff did not move for child support at
the inception of the change. Instead, she waited thirteen months after overnight
parenting time ended before filing her motion. We do not view this change to
be temporary. No overnight parenting time had occurred for over a year, which
we find was a "reasonable period" under the circumstances. See Appendix IX-
A(13)(d) to Rule 5:6A (explaining that non-compliance with a parenting plan
"over a reasonable period" is a basis for adjusting child support to reflect the
level of parenting time "that is being exercised").
In the seventeen months preceding the entry of the August 13, 2021 order,
M.M. had not spent any overnights or other parenting time with defendant,
except for two brief visits. The trial court recognized that "the longer this goes
on, the deeper the divide will become and the harder it will be to bridge that
divide." Indeed, the bond between defendant and M.M. could "become
irretrievably severed." The goal of returning to overnight parenting time, much
less co-equal parenting time, remained uncertain and without any discernable
timetable. At oral argument before this court, the parties confirmed that the
absence of overnight parenting time continues. Thus, defendant has not had any
overnight parenting time with M.M. for approximately twenty-nine months.
A-0147-21 22 This ongoing, fundamental change in parenting time, with no realistic
expectation of reverting to co-equal parenting time in sight, constituted a
substantial change in circumstances warranting the imposition of a child support
order under the guidelines. We reach this conclusion because the shared
parenting schedule no longer applied, the respective child support obligations of
the parties were no longer equal, and the sole parenting schedules now applied.
We reverse the denial of plaintiff's motion to impose a child support obligation
on defendant and remand for the trial court to calculate the amount of the award
under the sole parenting schedules based on the information disclosed in current
CISs and exhibits, including their most recent tax returns, in the form set forth
in Appendix V of the rules. R. 5:5-4(a)(4). Any resulting child support
obligation shall be retroactive to May 4, 2021, the date plaintiff filed her motion.
Absent such relief, defendant, who incurs no variable costs, receives an unjust
windfall at the expense of plaintiff, who shouldered all the variable costs.
By so ruling, defendant is not unfairly prejudiced. Child support remains
modifiable based upon a showing of substantially changed circumstances.
Lepis, 83 N.J. at 157. In the event reunification therapy is successful in the
future and defendant regains overnight parenting time on at least twenty-eight
A-0147-21 23 percent of the overnights, he may seek a modification of child support under the
guideline's shared parenting schedules.
III.
In his cross-appeal, defendant argues the trial court erred by not
conducting a best interest plenary hearing. Given the court's familiarity with the
prior motion practice, the evaluations performed, and the recommendations of
the evaluators, the court did not misapply its discretion in declining to conduct
a plenary hearing. While the parties advised this court during oral argument that
a different judge recently awarded defendant non-overnight parenting time and
scheduled a plenary hearing, the facts before the motion judge did not warrant
compelling M.M. to participate in overnight parenting time, much less true, co-
equal parenting time.
We nevertheless recognize that substantial time has elapsed while this
appeal was pending. By the time the plenary hearing takes place, defendant will
presumably have exercised the recently ordered parenting time with M.M. The
facts developed during the plenary hearing will govern defendant's future
parenting time. If overnight parenting time is awarded to defendant, the trial
court shall consider the number of overnights defendant receives when
calculating child support.
A-0147-21 24 IV.
Defendant contends the court erred by denying his counsel fee application
and by failing to address the factors set forth in Rule 5:3-5(c). We disagree.
Notably, the PSA and prior orders provided that each party was
responsible for their own counsel fees. Defendant was only partially successful
on his cross-motion. Moreover, did not find that plaintiff violated Dr. Joseph's
recommendations. The court likewise declined to sanction plaintiff. While the
court granted defendant's request to enforce the co-equal parenting time
arrangement contemplated by the PSA and March 4, 2021 order, restoring that
arrangement would be gradual and under the direction of the reunification
therapist.
More fundamentally, as noted by the trial court, defendant's counsel fee
application was fatally deficient. Contrary to the mandatory requirements of
Rule 4:42-9(b), defendant's fee application was not "supported by an affidavit,
or certification [] of services" addressing "the factors enumerated [in] RPC
1.5(a)." The filing of an affidavit meeting the requirements of Rule 4:42-9 "is
ordinarily a prerequisite to an allowance under the rule." Pressler & Verniero,
cmt. 3.1 on R. 4:42-9(b). Nor had defendant submitted a current CIS. Without
this information, the trial court was unable to address the factors enumerated in
A-0147-21 25 Rule 5:3-5(c). Under these circumstances, defendant can hardly complain the
court failed to address those factors when his own conduct precluded such
consideration. We discern no abuse of discretion or error.
Affirmed in part, reversed in part, and remanded. We do not retain
jurisdiction.
A-0147-21 26