Opinion
DOCKET NO. A-0033-13T3
04-29-2015
JENNIFER TEDESCHI, f/k/a SUTTER, f/k/a FERRAGINE, Plaintiff-Respondent, v. ROBERT FERRAGINE, Defendant-Appellant.
Robert Ferragine, appellant pro se. Carluccio, Leone, Dimon, Doyle & Sacks, L.L.C., attorneys (Jonathan Z. Petro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0954-08. Robert Ferragine, appellant pro se. Carluccio, Leone, Dimon, Doyle & Sacks, L.L.C., attorneys (Jonathan Z. Petro, of counsel and on the brief). PER CURIAM
In this post-judgment divorce matter, defendant appeals from three Family Part orders. Having considered defendant's contentions in light of the applicable legal principles, we affirm in part, reverse in part, and remand for further proceedings.
I
Plaintiff and defendant were married on June 10, 2000, and divorced on June 5, 2008. They have two sons, presently twelve and thirteen years of age. In their property settlement agreement the parties agreed, among other things, to share joint legal custody of the children and designated plaintiff as the primary caretaker.
After the divorce, plaintiff married a man who lives in Massachusetts. On August 20, 2012, the court granted plaintiff permission to remove the children to that state and adjusted defendant's parenting time schedule. Thereafter, on October 19, 2012, May 15, 2013, and July 19, 2013, the court entered orders on comprehensive motions filed by the parties that covered an array of issues. The court also entered on order on August 7, 2013 that corrected the July 19, 2013 order. Defendant appeals from various provisions in the May 15, 2013, July 19, 2013 and August 7, 2013 orders. The provisions he appeals predominately pertain to parenting time and child support.
It is not disputed that, due to difficulties the Toms River Post Office encountered during Hurricane Sandy, the parties did not receive a copy of the October 19, 2012 order until April 2, 2013.
Specifically, defendant is appealing paragraphs one, two, fourteen, seventeen, and twenty of the May 15, 2013 order; paragraphs one, two, three, four, five, seven, nine, ten, eleven, and twelve of the July 19, 2013 order; and the sole paragraph in the August 7, 2013 order. Although in his notice of appeal defendant contended he was appealing paragraphs one, two, three, and four of the October 19, 2012 order, his brief expressly states he is appealing the aforementioned paragraphs in the May 15, 2013, July 19, 2013 and August 7, 2013 orders.
II
"The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. Accordingly, this court will intervene only when convinced that the trial judge'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.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, questions of law are reviewed de novo. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
After carefully considering the record and the briefs, we conclude that, but for three issues that are addressed below, defendant's arguments are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Turning to the three issues defendant raises that do have merit, paragraph twenty of the May 15, 2013 order amended "prior court orders . . . to provide that defendant's parenting time end at 5:00 p.m. on Saturday, as opposed to 12:00 noon on Sunday." Defendant appeals this provision, arguing the court erred by reducing his parenting time. We agree.
"Orders defining a parent's right with respect to contact with his child are subject to future revision depending on a showing of changed circumstances." Finamore v. Aronson, 382 N.J. Super. 514, 522 (App. Div. 2006) (citing Voit v. Voit, 317 N.J. Super. 103, 121 (Ch. Div. 1998)). "Modification of the order may be appropriate if the moving party shows the modification requested is in the best interests of the child." Ibid. (citing Todd v. Sheridan, 268 N.J. Super. 287, 398 (App. Div. 1993; Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981)).
Here, the trial court reduced defendant's parenting because defendant was "keeping a scorecard to benefit himself, instead of trying to cooperate for the best interests of [the children]." This finding does not elucidate and the record did not reveal what circumstances had changed and why it was in the best interests of the children to warrant cutting back defendant's parenting time. Accordingly, we are constrained to reverse paragraph twenty in the May 15, 2013 order.
In paragraph one of the July 19, 2013 order, the court directed defendant to pay child support in the amount of $196 per week from August 20, 2012 to December 31, 2012, and $188 per week starting on January 1, 2013. The court ordered the reduction in child support as of January 1, 2013 because plaintiff was earning $43,000 annually at that time. However, the record indicates plaintiff was earning $43,000 as of September 1, 2012. Therefore, defendant's child support should have been established at $188 per week effective September 1, 2012. See Use of Child Support Guidelines, Pressler and Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2671 (2015). On remand, the court shall enter an order establishing defendant's child support obligation at $188 per week as of September 1, 2012, and direct plaintiff to reimburse defendant for his overpayment by a date deemed appropriate by the trial court.
The July 19, 2013 order actually states "December 31, 2013," but the August 7, 2013 order amends and corrects the reference to "December 31, 2013" in the July 19, 2013 order to "December 31, 2012."
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The trial court denied defendant's request to change venue from Ocean County to Monmouth County, finding defendant failed to show good cause for a change in venue. Defendant contends the court erred because neither party lives in Ocean County. We agree.
Rule 4:3-3(a) provides in pertinent part:
In actions in the Superior Court a change of venue may be ordered . . . in Family Part post-judgment motions, if both parties reside outside the county of original venue and application is made to the court by either party to change venue to a county where one of the parties now resides.Neither party lives in Ocean County. Plaintiff lives in Massachusetts and defendant lives in Monmouth County. The venue of this matter properly belongs in Monmouth County. On remand, the trial court shall enter an order transferring venue to Monmouth County.
Finally, paragraph one of the July 19, 2013 order directed the probation department to conduct an audit of defendant's child support payments and credit him for any overpayments he made as of August 20, 2012. Defendant contends the probation department is mandating that he pay child support through that department. He requests a reversal of that paragraph in the July 19, 2103 order, even though it does not order that he pay through the probation department. However, this issue was not raised below, and typically we do not consider questions or issues that were not presented to the trial court unless the issue concerns jurisdiction or substantially implicates the public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). This issue here meets neither criterion to warrant our review.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION