Opinion
DOCKET NO. A-5174-11T4
02-15-2013
FRANK TRIBUZIO, Plaintiff-Appellant, v. CAROLINA TRIBUZIO, Defendant-Respondent.
Weinberger Law Group, LLC, attorneys for appellant (Komal S. Ullah, on the brief). Goldstein and Bachman, P.A., attorneys for respondent (Howard A. Bachman, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1500-06A.
Weinberger Law Group, LLC, attorneys for appellant (Komal S. Ullah, on the brief).
Goldstein and Bachman, P.A., attorneys for respondent (Howard A. Bachman, of counsel and on the brief). PER CURIAM
In this post-judgment matrimonial matter, plaintiff Frank Tribuzio appeals from those parts of the May 8, 2012, order of the Family Part that: designated his ex-wife, defendant Carolina Tribuzio, parent of primary residence for their child; set a parenting time schedule; and ordered the child's enrollment in public school in defendant's town of residence, or, alternatively, in a parochial school of plaintiff's choice and expense, but within a limited geographic area of defendant's home.
The parties were married in 2002, and a son was born in 2003. Pursuant to an amended dual judgment of divorce (JOD) filed on November 15, 2006, the parties shared joint legal custody of their son, with plaintiff being the "primary residential custodial parent." Defendant had parenting time from 7:00 p.m. Sunday through 11:00 a.m. Wednesday, i.e., three overnights to plaintiff's four. The JOD further provided:
The above time sharing arrangement is based on Wife's employment in a Restaurant. If Wife changes jobs to a more traditional time schedule, the parties can renegotiate the time sharing with the child. If they can't work out time sharing, they will mediate same through the Courts. . . .
[(Emphasis added).]
On December 12, 2011, defendant filed a motion seeking modification of the parenting time schedule and designation as the child's parent of primary residence. The record does not include the motion or supporting exhibits, nor does it include any order fixing a plenary hearing. Nonetheless, on May 1, 2012, the judge conducted a plenary hearing.
Defendant testified that she met plaintiff when they both worked in a restaurant in Manalapan. She was the manager, and defendant was a waiter. After they married and their son was born, they paid plaintiff's sister $500 a month to provide daycare at plaintiff's parent's house in Manalapan. Defendant generally worked from 11:00 a.m. until 10:00 p.m., with longer hours on the weekend.
After the divorce, the couple generally followed the parenting time schedule contained in the JOD. Plaintiff resided with his parents in Manalapan, and defendant had her own apartment nearby. Her relationship with plaintiff's parents was good and "they allow[ed] [defendant] to come to their house . . . every day" in the morning to see the parties' son.
Sometime in 2008, without any court order, the parties agreed that defendant would "have an extra night" and keep the child until Thursday morning. Also in 2008, the parties enrolled their son in kindergarten at a parochial school in Old Bridge. The school was about twenty miles from Manalapan.
In June 2009, defendant remarried and, in May 2011, she moved into her current home in Ocean Township (Ocean) with her new husband. They owned two restaurants, one in Wall Township and the other in Ocean, "not even a mile" . . . from defendant's home. Defendant worked only at the Ocean restaurant and had flexible hours, working Thursday, Friday and Saturday nights. She chose these nights to fit the agreed-upon parenting time schedule.
However, defendant testified that her new home is about thirty miles from her the child's school, requiring a thirty-five to forty-minute commute each way. On Mondays, she made two round trips to Old Bridge so the child could attend soccer practice in the evenings. As per their prior agreement, plaintiff and defendant shared the cost of their child's parochial school tuition through the second grade. Thereafter, plaintiff insisted on the child's continued attendance at the school and agreed to pay the entire cost of tuition.
Defendant testified that plaintiff, who had also remarried, lived with his wife and two very young children in Englishtown. Plaintiff worked in a restaurant in Marlboro and was not home Thursday, Friday or Saturday evenings. On those nights, their son was at home with plaintiff's wife. When at his father's house, because of space constraints, the child shared a room with his younger half-sister, plaintiff's daughter.
In December 2011, defendant filed her motion for modification of custody and other relief after her the child "complain[ed] about [plaintiff's] house being crowded . . . ." Plaintiff then revoked his agreement to permit the child to stay with defendant on Wednesday nights. Defendant proposed that she be the primary residential parent from Sunday morning through Friday morning, and that plaintiff have parenting time from after school on Friday through Sunday morning. Defendant believed the child was getting older, spending too much time in the car commuting and should attend "school where he lives, where he can make friends."
Plaintiff testified that his current home is close to his parents and other members of his extended family, all of whom provide support to the parties' child. Plaintiff's current work schedule at the restaurant was Monday and Thursday through Saturday, from 4:00 p.m. to midnight. Although he usually worked Sundays too, plaintiff testified that he changed his schedule to attend the child's soccer games. The child was active in the soccer league in Old Bridge, had many friends and was doing well in school. Plaintiff saw no reason to "uproot" the child. Plaintiff disputed the 2008 modification to the extent that he stated defendant did not always exercise parenting time on Wednesday nights.
In an oral opinion placed on the record on May 7, after recounting the testimony, the judge found that sometime in 2008, the parties agreed to modify the original parenting time schedule contained in the JOD such that defendant had the child through Thursday. The judge found that schedule "seemed to be going well." Plaintiff reverted to the original schedule "to spite . . . defendant" after she filed the motion in December 2011.
The judge noted both parties were "excellent parents." Despite plaintiff's assertion that any change in circumstances was wholly the result of defendant's decision to move to Ocean, the judge concluded that defendant's actions were not "malicious," and she did not file her motion out of "ill will." The judge concluded:
[Defendant's] life is at a position right now where she can afford . . . the attention that [the parties'] needs at this age, perhaps, a little better than [plaintiff] can, in light of the fact that [plaintiff] has . . . two new children . . . at home. His work schedule is not quite as flexible as . . . [defendant's], and so while [defendant] may have created this situation, I think . . . the best interests of the child . . . would be to have mom be the parent of primary custody.The judge continued:
[P]laintiff shall exercise parenting time every weekend, beginning on Friday after school, until Sunday at 7 p.m., and one dinner visit during the week every week on Wednesday from [4] p.m. until [7] p.m.The judge also ordered that the child be enrolled in a public school in Ocean; alternatively, at plaintiff's choice and at his expense, in a parochial school, but no further from defendant's home than the distance between plaintiff's residence and the son's current parochial school in Old Bridge. An order reflecting the judge's decision was entered on May 8.
Plaintiff filed this appeal and, thereafter, sought a stay in the Family Part, which was denied on August 3, 2012. We denied plaintiff's motion for a stay pending appeal on September 11, 2012.
Plaintiff contends that defendant failed to demonstrate substantial changed circumstances justifying modification of the parenting schedule, designation of defendant as the parent of primary residence and change of schools. He also argues that the judge failed to consider or appropriately apply the statutory factors contained in N.J.S.A. 9:2-4(c). We disagree and therefore affirm.
We set forth some general principles that inform our review. The scope of our review of the Family Part's order is limited. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "[a] reviewing court should 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)) (alteration in original).
And, while we owe no special deference to the judge's legal conclusions, Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we "'should not disturb the factual findings and legal conclusions of the trial judge unless . . . 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' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We "reverse only to 'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark.Id. at 48 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (alteration in original).
"More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children." Parish, supra, 412 N.J. Super. at 52-53 (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)). N.J.S.A. 9:2-4(d) provides that "[t]he court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child." See Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) ("In issues of custody and visitation the question is always what is in the best interests of the children, no matter what the parties have agreed to.") (internal citations and alterations omitted)). The statute contains a non-exhaustive list of factors the court should consider in making "an award of custody." N.J.S.A. 9:2-4(c).
"In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child." N.J.S.A. 9:2-4c.
"'[A] judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.'" Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)). "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children[,]" Hand, supra, 391 N.J. Super. at 105, and that party "bears the burden of proof . . . ." Innes, supra, 391 N.J. Super. at 500 (citation omitted).
Here, in 2008, the parties had effectively modified the original parenting schedule contained in the JOD. Defendant had custody of their son for an additional day, i.e., from Sunday through Thursday. The judge found that schedule was working well, and, indeed, the JOD reflected the parties' recognition that modification was appropriate if defendant's work schedule permitted. The judge also concluded that plaintiff's sole motivation in returning to the original schedule was the filing of defendant's motion.
We will not disturb the judge's conclusion that there was sufficient change in circumstances affecting the child's welfare such that modification was appropriate. In large part, the order entered simply recognized what was the informal modification already in place. Under the circumstances, the judge appropriately conducted a plenary hearing to determine what was in the child's best interest.
Plaintiff also argues that defendant failed to carry her burden and demonstrate that formal modification was in the child's best interests. In particular, plaintiff contends the judge failed to apply and appropriately consider the statutory factors governing any award or modification of custody. We disagree.
It is true that in contested custody cases, "the court is required to make a record of its reasons for its custody decision and must reference the pertinent statutory criteria with some specificity." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (quotation and citation omitted). The judge "should reference the . . . statutory scheme at least generally." Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). However, "[t]he best-interest analysis is an additional requirement 'superimposed upon an analysis of the statutory scheme.'" Kinsella, supra, 150 N.J. at 317 (quoting Terry, supra, 270 N.J. Super. at 119).
In this case, the judge did not explicitly cite the statutory factors contained in N.J.S.A. 9:2-4(c). Nonetheless, the judge's oral opinion clearly reflects appropriate consideration of them.
For example, with regard to the first factor, i.e., "the parents' ability to agree, communicate and cooperate in matters relating to the child," the judge found that plaintiff and defendant "remained civil towards each other" and were "exceptional parents," who were "going to make [any schedule] work."
As to the second factor, i.e., "the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse," the judge concluded that plaintiff became "angry" when defendant filed her motion and that his opposition was "just . . . a knee jerk reaction."
Regarding the third factor, "the interaction and relationship of the child with its parents and siblings," the judge found that, while the child had a good relationship with plaintiff and plaintiff's other children, plaintiff's work schedule meant that he spent less time with the child during parenting time.
The judge also addressed the seventh and eighth factors, i.e., "the needs of the child," and the "stability of the home environment offered." The judge found that defendant "ha[d] the time" and was "at a position . . . where she [could] afford [the child] the attention that he need[ed][,]" while plaintiff's home now included two very young children whose needs also required attention. In ordering a change in school, the judge addressed the child's educational needs.
In deciding the appropriate custodial arrangement, the judge must consider the child's best interests, which are the "primary and overarching consideration." Kinsella, supra, 150 N.J. at 317 (citing Fantony v. Fantony, 21 N.J. 525, 536 (1956)). We are confident that the judge's decision in this case reflected an earnest and thoughtful consideration of not only the statutory factors, but, also, what was in the child's best interests.
We note that neither party suggested the judge should interview the child, who was then nine-years old. Rule 5:8-6 specifically permits such an interview, and we have noted that "[i]nformation obtained from such an interview is relevant in custody disputes because the Legislature has determined that the court should consider 'the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.'" Uherek v. Sathe, 391 N.J. Super. 164, 167 n.1 (App. Div. 2007) (quoting N.J.S.A. 9:2-4(c)).
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We therefore affirm the order under review.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION