Opinion
DOCKET NO. A-6042-12T4
02-17-2015
JOSHUA SCHWAGER, Plaintiff-Appellant, v. CHANA AHUVA SCHWAGER, Defendant-Respondent.
Brian E. Fleisig argued the cause for appellant (The Fleisig Law Firm LLC, attorneys; Mr. Fleisig, of counsel and on the briefs). Richard H. Weiner argued the cause for respondent (Aronsohn Weiner Salerno & Bremer, P.C., attorneys; Cipora Winters and Dennis F. Feeney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1833-11. Brian E. Fleisig argued the cause for appellant (The Fleisig Law Firm LLC, attorneys; Mr. Fleisig, of counsel and on the briefs). Richard H. Weiner argued the cause for respondent (Aronsohn Weiner Salerno & Bremer, P.C., attorneys; Cipora Winters and Dennis F. Feeney, on the brief). PER CURIAM
Plaintiff Joshua Schwager appeals the June 26, 2013 Family Part order permitting defendant Chana Ahuva Schwager to relocate from New Jersey to Ohio with the parties' two minor children. Plaintiff also challenges a September 25, 2012 interim order that permitted the removal on a temporary basis pending a plenary hearing, and an October 4, 2012 order denying his application to vacate that interim order. For the reasons that follow, we reject plaintiff's arguments and affirm the orders.
I.
The parties married in a religious ceremony in 2004 and in a civil ceremony in 2005. They have twin children, born in July 2009. Both parties possess Masters' degrees in Business Administration. When the parties married, plaintiff worked for Merrill Lynch and defendant was employed by Lehman Brothers. When Lehman Brothers sought bankruptcy protection, defendant maintained her employment with its successor company, LAMCO, earning approximately $300,000.00 in annual salary.
Shortly after the marriage, plaintiff lost his job and tried unsuccessfully to create various businesses. From 2008 until the complaint for divorce three years later, plaintiff had no earned income. According to plaintiff, he stayed home with the children and was their primary caretaker.
Plaintiff filed a complaint for divorce in June 2011. In June 2012, defendant was terminated from her employment, effective December 31, 2012. She was to receive her base salary and medical benefits through December 31, 2012, and would then receive, in January 2013, a $93,750 bonus and a $112,500 severance payment.
The divorce trial proceeded before Judge Terry Paul Bottinelli on August 6, 8, 10, 15, and 17, 2012, and September 4, 5, and 6, 2012. After expert evaluations regarding issues of custody and parenting time were concluded, the parties reached a settlement that would be incorporated in the Dual Final Judgment of Divorce (DJOD). Based upon the joint recommendation of their experts, the parties agreed that defendant was to be the Parent of Primary Residence (PPR) and plaintiff would be the Parent of Alternate Residence (PAR). A DJOD was formally entered on September 25, 2012.
On September 21, 2012, defendant advised the court and plaintiff by letter that she had received a job offer in Cleveland, Ohio. Defendant was given seven days to accept the offer. Defendant sought leave to file an Order to Show Cause (OTSC) for permission to move to Cleveland with the children should plaintiff not consent to the move and defendant's proposed parenting plan. When plaintiff did not consent, the court entered an order on September 25, 2012, allowing defendant to temporarily remove the children to Cleveland so that she could accept the job offer, pending a final hearing. The order permitted plaintiff to move to dissolve the temporary relief on two days' notice.
Plaintiff promptly moved by OTSC to vacate the September 25, 2012 order. Judge Bottinelli heard argument on the OTSC on October 3, 2012. He denied plaintiff's application the following day, concluding that there was no bad faith on the part of defendant, and that plaintiff was not surprised by defendant's decision to relocate to Cleveland. In making that determination, the judge recognized that "there are various competing issues . . . here, not the least of which is the fact that in this economy if one gets a good paying job, one does not [] lightly turn that job down." Citing Morgan v. Morgan, 205 N.J. 50 (2011), Judge Bottinelli recognized the changing landscape of jobs, commutes, and parental obligations. "People get jobs. They have to commute to jobs. Sometimes people commute cross [sic] country to jobs. And it's a problem. It's difficult. But you've got to go where you can make [] money for your family." Here, the move would "enable [] defendant to have that job that she was offered, which is going to pay her in excess of $200,000."
The judge next found that as far back as August 6, 2012, the first day of the divorce trial, defendant made plaintiff aware that she was considering relocating to Cleveland. The judge also noted that although he permitted defendant to temporarily relocate with the children to Cleveland, he included a parenting plan under which plaintiff would have comparable parenting time with the children. The judge further determined that it was "beyond dispute that the primary caretaker of the children is and has been the defendant."
The initial December 2012 return date for the final hearing on defendant's removal application was adjourned at plaintiff's request. When the hearing commenced on March 20, 2013, plaintiff sought another adjournment to obtain new counsel, which the court denied.
The judge denied the adjournment request because: (1) plaintiff's earlier counsel was allowed to withdraw on the condition that there be no further delays; (2) defendant flew in that morning and needed to fly back to Cleveland the next night; and (3) defendant paid her expert witness a non-refundable $7500 fee to testify the next day.
Defendant testified that the DJOD designated her as the PPR. Plaintiff had parenting time on Sundays, Tuesdays, and Thursdays as well as on alternate weekends. Those arrangements were reached by agreement between herself and plaintiff and were based on the joint recommendation of their parenting experts Dr. Fridman and Dr. Weintraub.
Defendant then testified to her employment history with Lehman Brothers where she earned $374,000 in 2010 and approximately $333,000 in 2011. In 2012, she earned $387,500, with a base salary of $225,000. During those years, plaintiff was not earning a salary. Defendant was terminated in June 2012, and she would stop receiving a salary as of January 1, 2013. She would then no longer be able to support herself or her family if she did not find replacement employment. She began a job search in June 2012, upon learning that her job was terminated. After searching for months for jobs in New Jersey, New York, Connecticut, and Pennsylvania, she was forced to look outside those regions. She chose to look in Cleveland because her family was located there, and because she had started her career and still had contacts there. Plaintiff, both parties' experts, and the court were made aware of her contemplated move to Cleveland during the divorce proceedings.
Defendant received a job offer from a bank in Cleveland on September 21, 2012. The job would pay her $165,000.00 per year with a signing bonus of $40,000.00. She would also receive an annual discretionary bonus that was to be determined at a later date. After receiving temporary permission from the court, she accepted the job offer. On October 22, 2012, defendant moved to Cleveland with the children, where she rented a home for $1000 per month. Her new home was more spacious than the parties' marital home in Passaic, New Jersey. She sold the marital home for $360,000, at a loss of $24,000.
Defendant's testimony continued on April 22, 2013. She testified that the education opportunities for the children in Cleveland were equal to, if not better than, those in Passaic. The tuition rate was discounted, and the children also received a scholarship, because defendant's father was employed by the school they attended. According to defendant, the children were very happy living in Cleveland.
Defendant next testified that she had complied with all alimony and other court-ordered financial obligations. That included a monthly stipend of $300 for plaintiff's monthly trip to Cleveland. In contrast, Plaintiff had not been complying with his $400 weekly child support obligation. At the time of the hearing, plaintiff was $6000 in arrears.
As of May 14, 2013, plaintiff was in total arrears of $7200.
Defendant's employer was aware of the parenting time schedule, and permitted her to take off one Friday and Monday each month to travel to Passaic with the children. She testified that she was "not trying to keep the kids from [plaintiff]. The kids deserve to see [plaintiff]. [Plaintiff] deserve[s] to see the kids as often as possible" within the confines of the parenting plan. It was also important that the children maintain continued communication via Skype with plaintiff.
Morton Fridman, M.D., a psychiatrist who had performed hundreds of "best interest" evaluations, testified for defendant. During the pendency of the divorce litigation, he conducted a best interest evaluation of the parties' children "regarding issues of custody and parenting time." After Dr. Fridman met with plaintiff's expert Dr. Weintraub during the divorce litigation, they had jointly concluded that defendant should have primary residential custody of the children.
Dr. Fridman was again retained by defendant to consider the relocation issue. He testified that the reasons she gave for moving to Cleveland were sound and in the best interest of the children. He further opined that defendant was not moving to distance herself from plaintiff. Rather, she viewed positively the children's relationship with plaintiff.
Dr. Fridman then addressed the court-ordered parenting schedule that was currently in place. The schedule allowed plaintiff to see the children every other weekend, with one weekend being exercised in Ohio and the other in New Jersey. It also included two midweek visits of about three hours. He opined that this plan was a reasonable alternative to the schedule that existed before the move, and that it enabled plaintiff to maintain a "warm, close relationship with the children."
In his report, Dr. Fridman recommended that plaintiff move to Cleveland. Plaintiff declined to do so, stating that: (1) he had a car sales opportunity in Passaic; (2) he had the support of the Jewish community in Passaic; and (3) the Orthodox Jewish community in Cleveland had heard propaganda against him. Dr. Fridman did not find these reasons persuasive. He found that because plaintiff was not working, he could obtain employment in Cleveland as easily as he could in Passaic.
Dr. Fridman summarized his recommendations and opined that defendant should remain in Cleveland with the children. He reasoned that defendant and the children clearly loved each other, defendant had and would continue to do a "wonderful job" raising the children and being their primary caregiver, she supports the family financially, she has family support in Cleveland, and the children are doing well and can be raised healthy and happy there. He recommended that if plaintiff chose to remain in New Jersey the current parenting time plan should remain in place.
Plaintiff, represented by new counsel, testified on May 14, 2013. He indicated that he was "devastated, shocked" when he first learned of defendant's plan to move to Cleveland on September 25, 2012. He contended that he would not have agreed to the parenting plan during the divorce proceedings had it not included the children remaining in Passaic. Allowing defendant to move to Cleveland permanently would, in his estimation, destroy his ability to have any continuous relationship with the children.
Plaintiff testified that he was not working but was living off loans for the past few months and help that he received from the Jewish community. He was also receiving assistance from Medicare Parts A, B, and D. However, when questioned on cross-examination regarding his ability to travel to Cleveland, he admitted receiving approximately $2 000 per month in alimony, $300 per month in travel expenses, and $7700 in equitable distribution. He claimed that medical complications, namely heart and lung issues, and narcolepsy, made the 450-mile drive to Cleveland difficult.
Plaintiff testified that once in Cleveland, he would stay with friends. However, he maintained that his lack of income, the refusal by the Jewish community to house him, and the requirement that he be within walking distance of a synagogue on Saturdays, made it untenable for him to travel to Cleveland despite the financial assistance he received from defendant. He also claimed to have met with different people in Cleveland in the fields of real estate, investments, banking, marketing, sales, legal, and accounting, in an effort to find employment there. He conceded that he did not send out any resumes; he merely tried to network.
Plaintiff expressed concern that there would be problems with the visitation schedule if the move to Cleveland became permanent. There had been times that he was not allowed to Skype with his children or defendant had cut the session short because she did not like the topic of conversation. He claimed that defendant was impeding his ability to relate to his children by referring to her father as the children's "daddy." There were also problems with the decision-making process regarding the children's education and that the school administration instead deferred to defendant's wishes.
Following summations by counsel, Judge Bottinelli entered an order granting defendant's request to relocate. In a comprehensive oral opinion the judge carefully analyzed the factors set forth in Baures v. Lewis, 167 N.J. 91 (2001) and found that the request was made in good faith and that the move would inure to the benefit of the children. The judge noted that defendant "testified convincingly concerning the move, the benefits, the downsides to the move, and her hopes that the children and [] plaintiff would continue to nurture a father/child relationship." In contrast, he found that plaintiff "was unfocused, rambling and deviated from the questions" during his testimony. Judge Bottinelli determined that plaintiff's testimony affirmed Dr. Fridman's opinion that plaintiff was "[e]asily distracted, circumstantial, tangential and rambling at times. He frequently veered off the topic at hand. Insight and judgment were compromised."
Regarding Baures factor one, the judge recognized that it was "beyond dispute that [] defendant is the sole income provider for not only herself and her twins, but also for her former husband." He noted that defendant's
desire to move to Cleveland was motivated by the reality that her efforts to find employment in the New York, New Jersey, Philadelphia, and Connecticut areas were unsuccessful. She detailed her efforts, which included updating and sending her résumé, collaborating with head hunters, reaching out to numerous business contacts, regularly submit[ing] postings on job websites, and [having] many meetings, one on one, to find a job.
She provided the [c]ourt with a four [-]page, single[-]spaced list documenting her efforts to find employment. Her efforts proved fruitful. And on September 21[], 2012, she received a job offer in the finance area [] in Cleveland, Ohio.
Regarding factor two, the court again recognized that defendant accepted employment in Cleveland after exhausting her search in the New Jersey area. Although plaintiff iterated concerns regarding defendant's motivation for the move, the judge found that plaintiff had not "documented his contention that [ ] defendant could get a job in the New York area, or that she has moved to Cleveland to get the children away from him. The evidence is to the contrary."
As to factor three, the judge found that the "history of the relationship between the [parties] has been one of tension for several years. [Defendant] provided for almost all of the financial needs of the family, and [plaintiff] would generally stay at home." During the "pretrial and post[-]trial proceedings, it was not unusual for [plaintiff] to be late to court and, on occasion, not show up at all." The judge recognized plaintiff's medical history, including a recent diagnosis of narcolepsy that affected his ability to function during the day.
Regarding factor four, Judge Bottinelli found that it was "not disputed that the children will receive [] educational, health and leisure opportunities at least equal to [those] available in the Passaic area." He found that there was no dispute "that the health care facilities and practitioners in Cleveland [were] excellent. In fact, [] plaintiff [had] his treating doctors in Cleveland and receive[d] care at the Cleveland Clinic, a noted facility." The judge determined that factor five did not apply.
Regarding factor six, the court was satisfied that the visitation and communication schedule submitted by defendant would allow plaintiff "to maintain a full and continuous relationship with the children." As to factor seven, it was "clear . . . that [defendant] has and will continue to foster the relationship with their father. Not only has this been confirmed by the testimony of [] defendant, but [it] was confirmed by Dr. Fridman that the position taken by [ ] defendant in discussing the matter with him has been consistent with her testimony." The judge found that there had been compliance with the schedule for months at that point, except for one occasion. "It has been demonstrated throughout the course of these proceedings that [ ] defendant is attempting to foster and promote the relationship . . . [between] her children [and] their father."
With respect to factor eight, the judge found that there would be no effect on plaintiff's family by the move to Cleveland. He next determined that factors nine and ten did not apply. Regarding factor eleven, the parties had similar educational degrees. Plaintiff was unemployed, and other than "email blasts" he had not made verified "efforts to support his family." The judge found that factor twelve was addressed "throughout this opinion." He then concluded:
Based on all of the aforementioned, the [c]ourt is satisfied that there is a good faith reason for the move to Cleveland. [The court is] satisfied that the move was no[t] inimical to the children's interest. The visitation schedule, as proposed by [] defendant, is acceptable. Upon consideration of the [eleven] Baures factors, the move to Cleveland by [ ] defendant with the two children is granted.The court implemented the parenting time plan proffered by defendant, noting that plaintiff had failed to submit any alternate plan.
The court then addressed defendant's severance pay and bonus anticipated to be paid in January 2013. It determined that those payments were for work performed in 2012 and therefore were "right[s] [] not acquired during the marriage." The "full amount of the bonus related to that period of time reflects post[-]complaint funding and is, therefore, fully exempt from equitable distribution." However, the court extended the term of alimony plaintiff was receiving from twenty-seven months to thirty months. This appeal followed.
II.
We first consider our standard of review. "[F]indings 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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We will not disturb the factual findings and legal conclusions of a 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." Rova Farms, supra, 65 N.J. at 484. In particular, family courts "possess special expertise in the field of domestic relations," and as such "appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 412-13.
An application for removal requires consideration of several principles. A parent must obtain consent of the other parent or judicial approval to remove children domiciled in this State to another state. See N.J.S.A. 9:2-2. The initial question to be resolved on a removal application is the "extant status of custody of the parties' children." Barblock v. Barblock, 383 N.J. Super. 114, 121 (App. Div.), certif. denied, 187 N.J. 81 (2006). If the custody situation is a "rare de facto 'shared parenting' arrangement, one in which each parent essentially performs an equal caretaking role," the court analyzes the removal application under the stricter change-of-custody test of O'Connor v. O'Connor, 349 N.J. Super. 381, 399- 400 (App. Div. 2002). Barblock, supra, 383 N.J. Super. at 122. Under that standard, "the party seeking the change in the custodial relationship must demonstrate that the best interests of the child[ren] would be better served by residential custody being vested primarily with the relocating parent." O'Connor, supra, 349 N.J. Super. at 398.
If, conversely, the physical custodial relationship among the parents is such that one parent serves as the primary caretaker and the other parent as the secondary caretaker, then the custodial parent's request to remove the children is governed by the two-part test established in Baures, supra, 167 N.J. at 122. Baures requires that removal be granted where the preponderance of the credible evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children's interests, i.e., the children will not suffer from it. Baures, supra, 167 N.J. at 118; Barblock, supra, 383 N.J. Super. at 121. This standard
accords particular respect to the custodial parent's right to seek happiness and fulfillment, guarantees regular communication and contact between the noncustodial parent and the child of a nature and quality to sustain that relationship, and incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move.
[MacKinnon v. MacKinnon, 191 N.J. 240, 257 (2007) (internal quotation marks and citations omitted).]
When the Baures analysis applies, the trial judge must evaluate whether the moving party has made a prima facie case by considering twelve factors, including:
(1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talent of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.The initial burden on the movant "is not a particularly onerous one." Id. at 118. Once the moving party makes a prima facie showing, the burden shifts to the non-moving party to "produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119.
[Baures, supra, 167 N.J. at 116-17.]
Here, Judge Bottinelli thoroughly analyzed the Baures factors and found that defendant made a prima facie case that the move was in good faith and would not be inimical to the children. His conclusions are unassailable. The judge's finding that defendant's acceptance of employment in Cleveland was crucial to the continued maintenance and well-being of the family is supported by the record and entitled to deference. Moreover, members of defendant's family reside in Cleveland and will be able to provide additional support for the children in making the transition. A new visitation schedule was structured that afforded plaintiff a reasonable alternative to the parenting time contained in the DJOD.
Despite plaintiff's discontent with the removal, he provided no evidence showing that the move was not in good faith or would be harmful to the children. Nor did he rebut defendant's evidence, including the expert opinion of Dr. Fridman that supported the move. Plaintiff's case largely relied on his contention that the children would suffer because they were farther from him and that he would get to see them less. To establish that relocation is not in the children's best interest, more than mere separation or change in parenting time must be shown. Morgan, supra, 205 N.J. at 64 (citing Baures, supra, 167 N.J. at 113, 117). Instead, the noncustodial parent must show that changed parenting time is detrimental to the child or that "for particular reasons, and in light of the unique facts surrounding his or her relationship with the child," the child will be unable to adapt to the relocation. Id. at 66 (citing Baures, supra, 167 N.J. at 120). Plaintiff produced no such evidence. Moreover, plaintiff, who lacks employment, a home, or family in New Jersey, has simply failed to demonstrate a valid reason why he cannot move to Cleveland, where he would then be able to exercise the exact parenting time that he bargained for in the DJOD.
Plaintiff argues that rather than applying the Baures analysis, the court erred in not applying the change of custody "best interests" analysis. In advancing this argument, plaintiff relies on the principle espoused in Shea v. Shea, 384 N.J. Super. 266, 271-72 (Ch. Div. 2005) that a plaintiff could contest custody where, as here, removal is sought soon after a negotiated custody settlement.
In Shea, the parties agreed upon their initial custody and parenting plan six months prior to incorporating it into their divorce judgment. Id. at 270. Due to their negotiated settlement, rendering a divorce trial unnecessary, the father had no opportunity to contest custody. Id. at 271. The father, alleging manipulation by the mother, sought a plenary hearing to allow him the opportunity to present evidence and testimony on the nature of the custodial relationship, and application of the best interests analysis. Id. at 273-74. The Family Part judge concluded that the father was entitled to a plenary hearing, and if he established that the mother had manipulated the Baures removal procedures, the court would apply the best interests standard instead of the Baures analysis. Id. at 273-274. Plaintiff thus relies on Shea to claim that this case should be reviewed using the best interests analysis because, like the father in Shea, he would never have agreed to the custodial arrangement if he knew defendant was planning to relocate a short time later.
We find plaintiff's reliance on Shea misplaced. Any claim that defendant manipulated the custodial relationship to gain an advantage in the removal action finds no support in the record. During the recent divorce proceedings both parties' experts jointly recommended that defendant be the PPR. Defendant had previously informed the experts of the possibility that she might relocate to Cleveland, and the judge also concluded that plaintiff knew of this potential relocation during the divorce proceedings. Plaintiff was well aware of defendant's ties to Cleveland, as she grew up there and had family there.
We further conclude that even if the "best interests" analysis applied here, our result would not be different. Defendant was the sole breadwinner, and she was motivated by financial need to relocate close to family in order to accept a favorable job offer that would provide support for the parties and their children. This financial necessity was heightened by plaintiff's failure to uphold his financial responsibilities under the DJOD, resulting in a substantial child support arrearage. Moreover, the unrebutted expert testimony of Dr. Fridman was that it was in the children's best interests to stay in Cleveland with their mother.
Plaintiff also challenges defendant's initial removal application, arguing that the OTSC was procedurally improper, that it denied him due process, and that in any event defendant had failed to establish such factors that would warrant granting exceptional relief under Crowe v. De Gioia, 90 N.J. 126 (1982). We disagree. Plaintiff was placed on notice of defendant's application. He was then given full opportunity to be heard before defendant and the children departed for Cleveland on a temporary basis. The judge was fully familiar with the matter, having presided over it since its inception in June 2011, through the divorce trial in August and September 2012. Moreover, analyzing injunctive relief in the context of family matters is appropriate because "[m]ore 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 v. Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010).
Here the application was emergent, as defendant was only given seven days to accept the job in Cleveland. Normal motion practice, the procedure advocated for by plaintiff, would not permit timely consideration of the application. As the judge noted, there was no telling when or if defendant would be offered another job. The judge correctly concluded that forbidding defendant to relocate on a temporary basis, pending a final hearing, would potentially result in greater economic hardship to the family. Under the facts presented, we find no error in the court's initial determination or the procedure employed in addressing the application on an emergent basis.
Next, relying on Luedtke v. Shobert, 342 N.J. Super. 202 (App. Div. 2001), plaintiff argues that the court abused its discretion in denying him a one-month adjournment of the March 20, 2013 plenary hearing, as a result of which he went unrepresented by counsel during part of the removal proceedings. We disagree, and find the factual scenario in Luedtke clearly distinguishable.
In Luedtke, defendant's counsel sent defendant a letter informing her that he would no longer represent her in an upcoming custody hearing. Id. at 210. However, no copy of the letter was sent to the court or opposing counsel, in violation of Rule 5:3-5(d). Id. at 211. Thus, the court, opposing counsel, and the defendant were left "high and dry." Id. at 212. Accordingly, we remanded the case for a new custody hearing. Ibid.
Here, unlike Luedtke, plaintiff agreed to represent himself approximately four weeks prior to the March 20, 2013 hearing. Additionally, as the trial judge noted, "[t]here have been multiple requests for postponement of this case in all aspects. During the original proceeding for divorce, and subsequently, this case has been scheduled and rescheduled on many occasions at the request of [plaintiff]." Thus, plaintiff had a history of delays. In fact, the plenary hearing had previously been adjourned from December 6, 2012, to March 20, 2013, at plaintiff's request.
It is also important to note that rather than simply denying the untimely adjournment request made on the date the hearing was set to start, the judge offered plaintiff two options. Plaintiff could either (1) reimburse defendant and her expert for the fees and expenses incurred in appearing in court that day, and thereby secure a one-month adjournment; or (2) the hearing would begin with defendant and her expert's direct testimony only so that counsel could represent plaintiff and have time to prepare for cross-examination of those witnesses. However, plaintiff rejected both these alternatives.
A trial court's decision to grant or deny an adjournment is subject to an abuse of discretion standard. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 343 (App. Div. 2000). Absent an abuse of discretion, a trial court's denial of a request for an adjournment does not constitute reversible error. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). An appellate court will not interfere with the trial court's denial of an adjournment request "unless it appears that an injustice has been done." Rocco, supra, 330 N.J. Super. at 343-44.
The trial court fairly balanced plaintiff's request for counsel with the unnecessary expense that defendant would thereby incur were plaintiff's untimely adjournment application granted. The judge proposed an equitable solution, which plaintiff declined to accept. We find no abuse of discretion.
Finally, plaintiff argues that the trial court abused its discretion in calculating alimony and the $300 per month travel stipend he receives from defendant. He contends that because he is unemployed, has health issues, and wishes to continue to be a loving and caring father, these amounts are inadequate and should be recalculated.
Alimony orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Support obligations, whether in a "consensual agreement" or in a final judgment, can be modified to reflect "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 148 (1980). A trial judge's decision to modify alimony is a discretionary ruling that is not overturned on appeal "unless the court abused its discretion, failed to consider controlling legal principles[,] or made findings inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004) (citing Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002)). Appellate courts should be mindful of the "wide discretion which our law rightly affords to the trial judges who deal with these matters." Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009).
Here, the judge addressed defendant's severance package and concluded that because it was attributable to post-complaint work performed in 2012, it was exempt from equitable distribution. Nonetheless, recognizing this additional income, along with the lower cost of living in Cleveland, the judge increased the duration of plaintiff's alimony award from twenty-seven to thirty months. Such increase was within the "wide discretion" of the trial court and is supported by substantial credible evidence in the record. See Donnelly, supra, 4 05 N.J. Super. at 127-28. The trial judge was well aware of plaintiff's economic and health situations when he made his determination. Other than defendant's relocation with the children, plaintiff adduced no other evidence of changed financial circumstances since the entry of the DJOD that would warrant a recalculation of support. Additionally, plaintiff's bald assertion that he is entitled to more than $300 per month in travel expenses is completely lacking in factual support.
To the extent that we have not specifically addressed any of plaintiff's remaining arguments, we find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION