Opinion
DOCKET NO. A-5537-13T1
06-09-2015
KEITH REPACK, Plaintiff-Respondent, v. SHANNON KEAVY, Defendant-Appellant.
Brian P. Latimer, attorney for appellant. Law Offices of Jef Henninger, attorneys for respondent (Mr. Henninger, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-333-12. Brian P. Latimer, attorney for appellant. Law Offices of Jef Henninger, attorneys for respondent (Mr. Henninger, on the brief). PER CURIAM
Defendant Shannon Keavy appeals from a July 24, 2014 Family Part order which in pertinent part (1) established a schedule of parenting time leading to joint residential custody; (2) ordered plaintiff Keith Repack's surname be added to the parties' child's surname (Keavy); (3) appointed a parenting time coordinator and required the parties to equally share her costs; and (4) determined child support began as of the date of the filing of the motion for support. We affirm the judge's order as to the starting date for child support payments, and we remand to the Family Part to hold a plenary hearing on the change of custody, to consider the issue of changing the child's name using the strong but rebuttable presumption in favor of the parent with residential custody, and to address the parties' share of costs of the parenting time coordinator after obtaining each party's complete financial information.
I.
Repack and Keavy had a dating relationship and had one daughter, born in August 2011. The parties were no longer together when the child was born. Repack filed a complaint in the Family Division two weeks after the child's birth, requesting parenting time and visitation. However, at the hearing on his motion, Repack denied paternity. The court ordered a paternity test, which established his paternity in November 2011.
As the parties have filed numerous motions, we only relate the procedural history pertinent to this appeal.
On October 13, 2011, Keavy filed a counterclaim for child support and sole custody. After the positive paternity test, Repack amended his complaint requesting that he be listed on the child's birth certificate as the father, and that his surname be added to the child's current surname. He also sought joint legal and residential custody. Repack filed another amended complaint on April 11, 2012, requesting more involvement in the child's life.
After hearing oral argument, the Family court entered an order on May 14, 2012 providing that the parties share joint legal custody of the child and that Repack be listed on the birth certificate as the father. Repack was ordered to pay $183 per week in interim child support. In order to accommodate Keavy's breast-feeding schedule, the court gave Repack weekly parenting time of three days in three intervals for a total of eight hours each day as well as an additional day on alternating weeks. The court found no evidence supporting Keavy's claim that Repack was not a fit parent.
On September 26, 2012, the court ordered the parties to participate in a best interests evaluation with Dr. Mary Merla-Ramos, stating that "[t]he cost of the evaluation shall be split 50/50, with [Repack] responsible for 80 [percent] and [Keavy] responsible for 20 [percent]." The court entered an order on January 29, 2013 requiring each of the parties to make an appointment with Dr. Merla-Ramos within five days.
The court later clarified in August 2013 that it intended the parties to split the cost equally.
On December 20, 2013, Dr. Merla-Ramos completed the evaluation. Dr. Merla-Ramos found that the parties had a very contentious relationship, but that the child had strong bonds with both parents. She observed that the distrust between Repack and Keavy made it "virtually inconceivable that they will be able to effectively co-parent [the child] without interventions and support from licensed professionals with experience in dealing with high conflict families." She recommended that a parenting coordinator be appointed to assist the parties with negotiating, communicating, and complying with any court-ordered parenting plan.
Dr. Merla-Ramos opined that at the time of her report, sharing residential custody equally would not be appropriate due to the parties' acrimony, but that such a plan should be "the ultimate goal as both parents want to play an active role in [the child's] life and are competent in their parenting role." Dr. Merla-Ramos recommended a plan to gradually increase overnight visitation where Repack would have two overnight visits each week when the child turned three, and that the goal of sharing time equally should be achieved when the child reached school age. Additionally, Dr. Merla-Ramos recommended that Repack's surname be included in the child's surname to help foster her identification with her father.
After hearing oral argument, on March 19, 2014, the court granted Repack's request for overnight visitation and again ordered Keavy to list Repack as the father on the birth certificate. At a subsequent case management conference in April, the court proposed a parenting schedule and scheduled a hearing about changing the child's surname. Repack was ordered to provide accurate financial information, and Keavy was ordered again to list Repack as the father on the birth certificate.
After the parties submitted pre-hearing briefs on the issue of adding Repack's surname, the court notified the parties that the hearing would not occur. On July 24, 2014, the court issued its order and statement of reasons, which required that Repack's surname be added to the child's surname, but let the parties decide whether to hyphenate both surnames.
The court also named both parties "joint residential and legal custodians" and set a parenting schedule, which gave Repack increased, but less than fifty percent, parenting time until the end of 2014. Beginning on January 3, 2015, the parties were to share residential custody equally. The court also appointed a parenting time coordinator to facilitate the change and ordered the parties to share her cost equally. The court denied Keavy's request that child support run from the date of the child's birth, and began Repack's obligation on the date Keavy filed the petition about two months later. The court set arrears but did not recalculate child support. The court found that the parties' financial submissions were not sufficient to determine the financial circumstances of the parties without additional proof. This appeal followed.
II.
On appeal, Keavy raises several issues. She challenges the award of shared residential custody and the changing of the parenting time schedule without a hearing, the requirement to add Repack's surname to the child's surname, and the financial decisions made by the court without having the parties' financial information, including the decision to split the costs of the parenting time coordinator equally, and to set child support at the date she filed the motion, rather than the date of the child's birth.
We reject Repack's argument that Keavy's appeal should be dismissed, because she failed to provide transcripts for all prior hearings. No transcript was required here as the July 24, 2014 order at issue did not result from a hearing. R. 2:5-3(a). Repack has not demonstrated or even explicitly alleged any specific prejudice from Keavy's failure to provide transcripts for hearings concerning orders not subject to this appeal.
We accord substantial deference to decisions by the family courts due to their special jurisdiction and expertise in the area of family law. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We will defer to a family court's fact-finding so long as its determinations "are supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413). We also accord great deference to the discretionary decisions of the family courts. Ibid. In contrast, legal conclusions of these courts are subject to plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995)).
When material facts are in dispute, a judge must hold a plenary hearing to determine and resolve the dispute. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). "'[D]isputes implicating the welfare of a child and involving conflicting contentions and opinions of lay and expert affiants must be submitted to a plenary hearing.'" Milne, supra, 428 N.J. Super. at 201-02 (quoting Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982)). However, not every custodial determination requires a plenary hearing. See Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
III.
Keavy's first claim is that the court erred by establishing joint legal and residential custody without a plenary hearing. She argues that the court inappropriately determined contested material facts and relied on an expert's opinion without giving Keavy the opportunity to cross-examine the expert. Furthermore, she maintains the court failed to recognize that the expert acknowledged the acrimony between the parties and did not support such an early transition to joint residential custody.
Keavy also contends in her brief that a different judge should hear the case on remand. We will not consider this argument as it was not properly presented in a point heading. R. 2:6-2(a)(5); Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011). Even if the request were properly presented, Keavy fails to demonstrate any potential bias, or even articulate a cogent reason to remand the case to a different judge.
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A trial court's opinion on custody is entitled to great weight on appeal. Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994). In making a custody determination, the court primarily considers the best interests of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). To reach its decision, the court must consider the factors set forth in N.J.S.A. 9:2-4(c). Hand, supra, 391 N.J. Super. at 105.
Under limited circumstances, it is appropriate to award joint residential custody, but before such an award, a court must engage in a searching in-depth inquiry. Beck v. Beck, 86 N.J. 480, 497 (1981). In a proper situation, a joint custodial arrangement will best serve the interests of the child. Id. at 488. However, joint legal and residential custody arrangements create unique difficulties and the necessary elements will only be present in a limited number of cases. Ibid. There is no presumption in favor of joint legal and residential custody. Ibid.
Once custody has been set, a party seeking to change custody must demonstrate changed circumstances that affect the welfare of the child. See Hand, supra, 391 N.J. Super. at 105. If there is a genuine and substantial factual dispute regarding a child's welfare, then a plenary hearing is necessary. Ibid. Although bare allegations of changed circumstances on immaterial issues are insufficient to require a hearing, Id. at 111-12, absent exigent circumstances, a change in custody should not be ordered without a full plenary hearing. Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009); Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005). In particular, it is generally error to change from a sole custodial arrangement to a joint custodial arrangement without a hearing. See P.T. v. M.S., 325 N.J. Super. 193, 217 (App. Div. 1999).
Repack argues that the challenged order was the initial residential custody determination rather than a change in custody, but the record does not support this claim. See Pascale, supra, 140 N.J. at 595-600 (explaining the differences between legal custody and residential custody). While the parties were given joint legal custody in 2012, the parenting time schedule realistically meant that the child resided with Keavy most of the time for the first three years of her life. Nothing approaching a joint residential custody arrangement existed until the July 2014 order. See Id. at 596-97 ("Although there is no established norm for [joint residential custody], experts cite common schedules for a child within a joint physical custody framework as spending three entire days with one parent and four entire days with another parent or alternating weeks or even years with each parent.")
In fact, the actual change to full joint residential custody did not actually occur on the date of the July order. The order gradually increased Repack's parenting time, and only finalized joint residential custody on January 3, 2015. Although no prior court order designated a primary caretaker, the fact that the child was with Keavy for the great majority of hours of the week demonstrates that Keavy was the primary caretaker. See id. at 598-99 (outlining the minor day-to-day tasks for which primary caretakers have primary responsibility). Thus, we find here that the court erred in ordering a change in residential custody without a plenary hearing in the absence of exigent circumstances. Faucett, supra, 411 N.J. Super. at 119; Entress, supra, 376 N.J. Super. at 133. Accordingly, we must remand this case to the trial court for a plenary hearing on the custody issue.
IV.
Keavy also contends that the court abused its discretion by allocating the parent coordinator's fees equally because there was a genuine dispute over the parties' ability to contribute. A family court has the authority to appoint experts so long as the expert opinion will assist the court's determination on an issue. R. 5:3-3(a). When the court appoints an expert, it has discretion to direct who pays the costs. R. 5:3-3(i). In determining how to allocate fees, a judge may take into account the same factors outlined in Rule 5:3-5(c) governing awards of attorney's fees. See Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006) (citing Rule 5:3-5(c) in the context of allocating expert fees in an action for divorce). Such decisions are reviewed on the basis of whether the trial court abused its discretion. Goldman v. Goldman, 275 N.J. Super. 452, 463-64 (App. Div.), certif. denied, 139 N.J. 185 (1994). A trial court misuses its discretion by making a decision without a rational basis, inexplicably departing from established policies, or resting its decision on an impermissible basis. US Bank Nat. Ass'n v. Guillaume, 2 09 N.J. 449, 467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
The family court acknowledged the inadequacy of the parties' financial submissions to determine present ability to pay child support. In light of the insufficiency of financial information, the court did not adequately explain its decision to order the parties to equally share the costs of the parent coordinator and we are unable to discern the reason from the record. We find that where the court recognized that it had insufficient information to determine the parties' ability to pay, it was a mistaken use of discretion to determine that the parties equally share the coordinator's fees. Thus, we reverse and remand for the court to determine the party's share of the parent coordinator's cost after reviewing the parties' complete financial submissions and to provide the reasons for its determination. See R. 1:7-4
V.
As to Keavy's additional financial contentions, we find them without sufficient merit for discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that Keavy failed to appeal the September 26, 2012 order to equally share the costs of Dr. Merla-Ramos' report, and such an appeal would now be untimely. Additionally, we perceive no abuse of discretion in the court's decision, based upon the contested paternity in the first few months after the child's birth, to use the date that Keavy filed for child support to begin Repack's support obligation
VI.
Keavy also contends that the court erred in ordering that Repack's surname be added to the surname Keavy chose for the child. If two parents are involved in a dispute over a child's name, the court must consider the best interests of the child. Gubernat v. Deremer, 140 N.J. 120, 139 (1995). This test should not be applied in a way that equates the father's interests with the child's interests. See id. at 140. There is no preference for a paternal surname, and the best interest of the child is considered free of any gender-based notions of parental rights. Id. at 141.
In determining the child's best interests, the court should consider a number of factors, including: length of time that the child used a surname; "identification of the child as a member or part of a family unit"; potential emotional consequences from having a name different than the custodial parent; and any preference the child has. Ibid. To enhance predictability in applying this test, the Court established a strong but rebuttable presumption in favor of the surname chosen by the custodial parent. Id. at 144.
The Gubernat court held that the father had not rebutted the presumption in favor of the custodial parent. Id. at 146. The Court pointed out that there was no empirical evidence that the use of the paternal surname was essential to maintaining the father-child relationship. Id. at 147. In Ronan v. Adely, 182 N.J. 103 (2004), the Court remanded the matter because the trial court had not used the "strong presumption" in favor of the custodial parent required in Gubernat.
Recently, in Emma v. Evans, 215 N.J. 197 (2013), the court addressed a name dispute in a case involving a married couple who agreed that the child would have the father's surname, but later divorced. The mother, as the residential custodian of the child, petitioned the family court for permission to use a hyphenated name. The Court distinguished this case from Gubernat, and ruled that, where the parties initially agreed upon the name and the issue was renaming the child, "neither parent should benefit from a presumption in favor of his or her choice of names." Id. at 222. However, in a footnote, the Court stated that the Gubernat analysis should continue in cases involving circumstances similar to those presented in Gubernat. Ibid.
In this case, the trial court acknowledged the Gubernat presumption but incorrectly stated that "this presumption was abandoned in Emma[.]" Here, the facts are similar to Gubernat, and not to Emma. The parties did not agree on the name of the child, Repack denied paternity and only after paternity was established did he seek to be listed on the birth certificate. Unlike in Emma, this is not a renaming of an originally agreed upon surname. Thus, Keavy was entitled to a heavy presumption in favor of the name she chose for the child. The trial court failed to apply the presumption in favor of the primary custodian of the child and we are convinced that failure to give the presumption had the potential to skew the ensuing analysis. Accordingly, we are constrained to remand to the court to perform the Gubernat analysis while bearing in mind the strong but rebuttable presumption in favor of the custodial parent. Id. at 144.
Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION