Opinion
DOCKET NO. A-3596-10T1
03-06-2012
HEATHER HOLST-KNUDSEN f/k/a HEATHER MIKISCH, Plaintiff-Appellant, v. ERIK MIKISCH, Defendant-Respondent.
Mark H. Sobel argued the cause for appellant (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Mr. Sobel, of counsel and on the brief; Dennis F. Feeney, on the brief). Erik Mikisch, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Ashrafi and
Fasciale.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FM-07-293-09.
Mark H. Sobel argued the cause for appellant
(Greenbaum, Rowe, Smith & Davis LLP,
attorneys; Mr. Sobel, of counsel and on the
brief; Dennis F. Feeney, on the brief).
Erik Mikisch, respondent, argued the cause pro se.
The opinion of the court was delivered by
ASHRAFI, J.A.D.
Plaintiff Heather Holst-Knudsen appeals from a February 9, 2011 order denying in part her post-divorce motions and granting the cross-motion of defendant Erik Mikisch to reduce his child support payments. We affirm the order in part and reverse it in part. Because the trial court did not make sufficient findings of fact as to child support and the proposed change of the child's surname, and because it did not apply controlling law to those issues, we reverse and remand those parts of the order.
I.
Holst-Knudsen and Mikisch were married in 2000. Their daughter was born in 2005. They divorced in December 2008. The final judgment of divorce incorporated a marital settlement agreement, negotiated with the assistance of counsel, which established detailed parenting arrangements and financial support obligations for the child. Two years after the divorce, Holst-Knudsen moved to enforce the child support provided by the divorce judgment, to require that Mikisch make payments through the Probation Department by means of wage garnishment, to modify the parenting schedule, and to change the child's surname to a combination of both parents' names, "Mikisch Holst-Knudsen." Mikisch filed pro se opposition and also a cross-motion to reduce his child support obligation.
The marital settlement agreement provided that the parents would have joint legal custody of their daughter and that Holst-Knudsen would be the parent of primary residence for the child. The agreement laid out a complex parenting time schedule in contemplation of Mikisch living outside New Jersey. He was granted parenting time on the third weekend of each month and an escalating schedule of summer parenting time: four non-consecutive weeks in the summer of 2010, five consecutive weeks in the summer of 2011, and six consecutive weeks in the summer of 2012 and future years. The agreement also required that the parties be flexible on the parenting schedule and "make every effort to insure that the Husband has unhampered contact with the Child."
Shortly before the divorce, Mikisch moved to South Carolina to take a position as vice president of sales and marketing for an internet media and marketing company. His salary was $140,000 at the time of the marital settlement agreement. Holst-Knudsen was also employed, apparently lucratively, but our record does not reveal the amount of her income. The parties waived any claim for alimony.
As to child support, the agreement acknowledged that its payment schedule deviated from New Jersey's Child Support Guidelines. See Child Support Guidelines, Pressler & Verniero Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2567-78 (2012). The agreement provided a schedule for escalating obligations of Mikisch for payments every other week directly to Holst-Knudsen. He was to pay $425 per week through August 2009, then $450 per week through August 2010, and $525 per week after that time. The agreement also provided for future payment by means of wage garnishment if Mikisch did not make timely direct payments to Holst-Knudsen.
According to Mikisch, in January 2009, just one month after the divorce, his South Carolina employer reduced his annual salary to $19,500. He claimed that the salaries of other employees were similarly reduced. In March 2009, he resigned from that company and began seeking other employment. In August 2009, Mikisch relocated to California in search of employment. At some point, he obtained an executive position with another internet start-up company, but with only an expectation of future income rather than a current salary. He claimed he submitted about 180 applications for employment over a two-year period, but he only managed to find income-producing work sporadically and was paid through contractual and commission agreements rather than a steady salary.
After ten months in California, Mikisch returned to New Jersey to focus his job search on the East Coast. To facilitate that effort and his time with their daughter, Holst-Knudsen allowed Mikisch to stay at the former marital home from May to September 2010. Mikisch claimed that he cared for their daughter at that time in lieu of paying child support. Holst-Knudsen responded that a nanny was employed to care for the child at all times. In September 2010, Mikisch returned to California and began living with a woman, whom he subsequently married.
Mikisch had stopped making child support payments in March 2009. According to Holst-Knudsen, he had paid nothing through the time of argument in the trial court on her enforcement motion, January 28, 2011. According to Mikisch, he made a few payments, including compensating the child's nanny and paying other expenses of the child, for which he sought credit against his child support arrears. Holst-Knudsen referenced the provisions of the marital settlement agreement that required him to share in expenses of the child, and she claimed he owed much more than he had paid. Mikisch did not expressly dispute that he was more than $41,000 in arrears on child support payments at the time of the cross-motions.
After he moved out of New Jersey, Mikisch did not consistently exercise his parenting time as scheduled by the parties' agreement. He said he could not afford the cost of travel to New Jersey every month. Holst-Knudsen financed several trips for Mikisch to spend time with their daughter, and she allowed him to use her car while he was in New Jersey and also paid for hotel accommodations on some occasions. In addition, she paid for the child's trips out of state, accompanied by her nanny, to spend time with Mikisch. In her motion, Holst-Knudsen claimed that the parenting schedule should be reduced because the child was emotionally harmed by Mikisch's failure to spend parenting time with her as the parties had contemplated in their agreement. After Mikisch filed opposition and his cross-motion to reduce child support, Holst-Knudsen filed reply papers that included a certification from the nanny accusing Mikisch of indulging in excessive drinking of alcohol and other misdeeds while with the child.
In support of his cross-motion to reduce child support, Mikisch submitted his own factually-detailed certification explaining his job search and the sources of his sporadic income. He also submitted a case information statement (CIS); his 2009 tax returns, W2s, and 1099s indicating retirement account distributions; a series of bank statements; and a few paystubs from his temporary positions. The 2009 tax return showed wages, salary, and similar income totaling less than $10,000 and an adjusted gross income of $48,106, which included an early IRA distribution of more than $41,000. For 2010, Mikisch had not yet filed a tax return, but his CIS declared net annual income of $12,800.
The CIS, however, contained no information accounting for his shelter, food, or other common expenses. It listed transportation and a few other personal expenses totaling $4,900 per month, including a child support obligation of $3,000 per month to Mikisch's older child from a prior marriage. It also indicated that Mikisch's only asset of note was a motorcycle, although other financial documents indicated he had a Bank of America savings account and Merrill Lynch and Fidelity retirement accounts. At oral argument on the cross-motions, Mikisch stated that his savings account had a balance of $200 and that he had been compelled to withdraw the funds from his retirement accounts. He also claimed he had no personal shelter expenses because he was living with his new wife, her residence did not have a mortgage debt, and she paid the other expenses.
The judge ruled orally on the cross-motions and subsequently issued the February 9, 2011 order from which the appeal is taken. Holst-Knudsen received a credit of more than $30,000 toward her continuing obligation to Mikisch from equitable distribution of their marital property. After that and other adjustments, Mikisch's child support arrears were fixed at $28,339.50. He was ordered to pay $100 per week towards the arrears through the Essex County Probation Department.
Prospectively, his child support obligation was reduced from $525 per week to $250 per week. The court indicated the reduction would be "temporary" and would apply only until Mikisch obtains gainful employment, at which time Holst-Knudsen may move to reinstate the child support terms of the marital settlement agreement. The court stated that the reduction was based upon its finding of changed circumstances as documented by Mikisch's 2009 federal tax return and the declarations in his certification. Although future child support would be made payable through the Probation Department, the court made no reference to wage garnishment in its order or its oral decision.
The court denied Holst-Knudsen's motion to eliminate monthly weekend parenting time but granted her request to reduce summer parenting time to two weeks each in July and August, non-consecutive, instead of the five consecutive weeks in the summer of 2011 provided by the parties' agreement. The court also required that Mikisch furnish itineraries and full contact information to Holst-Knudsen when he exercises parenting time, and also give two weeks notice if he intends to exercise his monthly parenting time and thirty days notice before summer parenting time.
The court denied Holst-Knudsen's motion to change the child's surname, stating that she had not shown good cause for the change. The court also granted Holst-Knudsen attorney's fees for the enforcement motion, ordering Mikisch to pay $6,650 within thirty days.
II.
A.
Holst-Knudsen argues on appeal that Mikisch did not present reliable evidence to support the trial court's finding of changed circumstances and to modify child support that was agreed in the marital settlement agreement. See Lepis v. Lepis, 83 N.J. 139 (1980). She contends that his financial documents "fell woefully short of the Lepis first stage requirement to establish a prima facie showing of changed circumstances," and that his CIS was incomplete and inaccurate, lacking an itemization of expenses and assets. Mikisch responds that he explained in his certification the efforts he had made to find employment, and that his 2009 tax returns and related tax forms, as well as the paystubs and other documents he submitted, provided ample evidence to find permanently changed financial circumstances. He also asserts his CIS was accurate to the extent the financial information was then available to him.
The Family Part's findings of fact are binding on appeal when supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Furthermore, the Family Part is granted discretion in awarding financial support in a matrimonial action where the child support guidelines are not applicable. Pascale v. Pascale, 140 N.J. 583, 593-94 (1995). "If consistent with the law, such an 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.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). We will not disturb the court's decision to modify support obligations because of changed circumstances unless we conclude there was an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); cf. Innes v. Innes, 117 N.J. 496, 504 (1990) ("The modification of alimony is best left to the sound discretion of the trial court.").
Initially, we reject Holst-Knudsen's contention that the court erred in finding changed circumstances in accordance with Lepis, supra, 83 N.J. at 151. In Larbig, supra, 384 N.J. Super. at 23, we held:
There is . . . no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation. Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented, which we do not disturb absent an abuse of discretion.
Unlike the circumstances of Larbig, where the husband had control over the income he received through his own business entity, id. at 22-23, Mikisch's income derived from independent employers, and he documented a substantial decrease of his wages that had lasted for two years. See Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29 (App. Div. 2009) ("[A] self-employed obligor . . . [is] in a better position to present an unrealistic picture of his or her actual income than a W-2 earner." (quoting Larbig, supra, 384 N.J. Super. at 23)); Aronson v. Aronson, 245 N.J. Super. 354, 360-61 (App. Div. 1991) (husband allowed income from his dental practice to diminish after divorce). Mikisch also presented documents to show that he had withdrawn funds from his retirement accounts to supplement his income. The trial court did not abuse its discretion in finding that Mikisch's financial circumstances had changed from the time of the divorce and that the change was permanent enough to warrant modification of his child support obligation.
We agree with Holst-Knudsen, however, that the court erred when it fixed the new child support amount at $250 per week without obtaining additional financial evidence. Mikisch had the burden of showing the changed circumstances that warranted modification. Lepis, supra, 83 N.J. at 157. That showing required "examination of the child's needs and the relative abilities of the spouses to supply them," id. at 152, in light of the "guiding principle" of the best interest of the child, id. at 157. See N.J.S.A. 2A:34-23 (listing factors to be weighed when assessing child support). Mikisch's CIS and other documentation contained significant gaps in explaining his financial circumstances.
The "fairness of a child support award is dependent on the accurate assessment of a parent's net income." Caplan v. Caplan, 182 N.J. 250, 265 (2005) (quoting Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2516 (2005)). When parties' financial ability is disputed, a "reliable indicia" of financial information should be disclosed. Lepis, supra, 83 N.J. at 157; see Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991) ("judge erred in reducing defendant's support obligation without obtaining the full financial picture of the parties"). Here, reliable CIS information, complete income tax returns, and sworn explanations of Mikisch's sources of income and sustenance were essential to determine the appropriate amount of child support. See Loro v. Colliano, 354 N.J. Super. 212, 226 (App. Div.), certif. denied, 174 N.J. 544 (2002); Isaacson v. Isaacson, 348 N.J. Super. 560, 585-86 (App. Div.), certif. denied, 174 N.J. 364 (2002). A CIS submitted in support of a motion to reduce child support must contain "a complete and detailed accounting of the parties' respective financial circumstances." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 5:5-2 at 2092 (2012); see Gulya, supra, 251 N.J. Super. at 253 ("This mandate is not just window dressing.").
During the motion hearing, the judge commented about the "inconsistencies" in the papers submitted by Mikisch. Because Mikisch claimed essentially no ability to pay and had not paid child support for almost two years, the judge should either have demanded complete and accurate financial information or conducted a hearing where evidence under oath could have been considered in resolving disputed factual issues. See Loro, supra, 354 N.J. Super. at 226 (whether a plenary hearing is necessary depends on the adequacy of documentary submissions and is within the sound discretion of the trial court).
Before determining the appropriate amount of child support, the court must first make clear findings of fact regarding the parties' income and ability to support the child. Id. at 220. Included in those findings would be whether Mikisch had made sufficient effort to produce income comparable to that of his prior positions and qualifications, and whether his reported earnings and assets were all that he had. Through those determinations, the court would then impute income to Mikisch according to his ability and earning history and the opportunities to earn income. See Dorfman v. Dorfman, 315 N.J. Super. 511, 516-17 (App. Div. 1998).
The court fixed future child support at $250 per week without determining whether the child support guidelines would now be applicable, and it did not complete a guidelines worksheet. The required approach to determining child support is to use the guidelines for the combined net income of the parties up to the maximum amount covered by the guidelines, and then to consider the factors delineated in N.J.S.A. 2A:34-23a in fixing the actual amount of child support. Caplan, supra, 182 N.J. at 266. Assessing the parties' financial ability and the child's needs without reliable information and without utilizing the child support guidelines was procedural error that may be equated to abuse of the court's discretionary authority. See Lepis, supra, 83 N.J. at 157.
We reverse the part of the February 9, 2011 order that fixed future child support at $250 per week and remand for further proceedings to determine an appropriate amount.
B.
We also find error, albeit minor, in the court's failure to address wage garnishment in its order. Paragraph 4.5 of the marital settlement agreement provided: "in the event the Husband[] fails to pay or is late paying three consecutive bi-weekly child support payments, future child support payments will be made through probation via wage garnishment." The court ordered that Mikisch pay child support through the Probation Department. It may not have ordered wage garnishment because Mikisch was not receiving a steady paycheck. Because Holst-Knudsen was entitled to the relief she sought, the court should have ordered wage garnishment for future implementation. The Probation Department could institute wage garnishment without further action by the court if it becomes available.
C.
Holst-Knudsen contends that the trial court erred as a matter of law when it denied her motion to eliminate Mikisch's once-monthly parenting time and to reduce his summer parenting time permanently to one week each in July and August. She asserts that the court was required to hold a plenary hearing pursuant to Rule 5:8-6 and to make findings of fact in accordance with N.J.S.A. 9:2-4 regarding the best interest of the child. Mikisch responds that the court's order only altered the schedule and informational prerequisites for his exercising of parenting time. It did not affect issues of custody, and therefore, neither the cited rule nor the cited statute applied to the court's decision.
Rule 5:8-6 is titled "Trial of custody issue" and requires a prompt evidentiary hearing "[w]here the court finds that the custody of children is a genuine and substantial issue."
N.J.S.A. 9:2-4c lists the factors the court must consider in making a custody decision in a contested case:
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.Subsection f of the same statute provides that "[t]he court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents."
Holst-Knudsen initially made two arguments for reduction of parenting time. She claimed that the child was emotionally affected when Mikisch failed to exercise his available weekend time and that a lengthy summer stay was inappropriate because of his sporadic contact with the child and the instability of his living arrangements. In its decision, the trial court addressed both concerns. It ordered that Mikisch give two weeks notice if he intended to exercise his monthly parenting time, and it limited the summer schedule to two weeks each in July and August upon thirty days notice. The notice provisions would allow Holst-Knudsen to make her own plans and would also avoid last-minute explanations to the child about the failure of her father to come for her. Emotional disturbance of the six-year-old child could be avoided by not informing her too early of her father's parenting time schedule. The court's decisions were consistent with the parties' intent in entering into their marital settlement agreement, which expressed a need for flexibility and sought to provide Mikisch with "unhampered" parenting time with his daughter.
We recognize that resolution of parenting time disputes "must be dictated exclusively by concern for the child's best interests and not by the conflicting desires . . . of the parents." Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982). When parenting time is contested, the court must determine the child's best interest employing many of the same factors contained in N.J.S.A. 9:2-4c that apply to a custody dispute. V.C. v. M.J.B., 163 N.J. 200, 228 (2000). Nevertheless, we defer to the trial court's discretion in resolving parenting time disputes. See Sacharow v. Sacharow, 177 N.J. 62, 80 (2003); Pascale, supra, 140 N.J. at 611.
On appeal, Holst-Knudsen emphasizes the nanny's certification accusing Mikisch of drinking alcohol to excess, driving erratically, and other misconduct in the presence of the child. The time period of those accusations, however, precedes in part the parties' marital settlement agreement and the previous occasions when Holst-Knudsen facilitated Mikisch's parenting time, including by paying his expenses. In addition, the motion record contains Holst-Knudsen's emails to Mikisch encouraging him to exercise his parenting time. Although those emails occurred during or after the time period discussed in the nanny's certification, they did not make reference to the concerns expressed by the nanny. It appears, therefore, that the nanny's accusations were raised in this dispute more as an afterthought than any long-held concern of Holst-Knudsen about the child's safety.
Perhaps the trial court should have been more explicit in making findings of fact and providing reasons for its decision on parenting time, but its failure to do so may have been caused by the limitations of time in a busy motion day and by the primary focus of the cross-motions on the child support dispute. Considering the grounds and concerns originally raised by Holst-Knudsen for modification of the parenting time schedule, we find no abuse of discretion in the modifications granted and those denied by the court.
D.
Holst-Knudsen asserts the court erred in denying her motion to change the child's surname to Mikisch Holst-Knudsen. She argues that the trial court did not follow the controlling law of this State as established in Gubernat v. Deremer, 140 N.J. 120 (1995).
Our standard of review does not require any deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We conduct plenary review of questions of law. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).
In Gubernat, the Supreme Court held that when parents who are not raising a child together do not agree about the child's name, the court must resolve the dispute under the best-interest-of-the-child standard with a "strong presumption" that the name selected by the "custodial parent" is in the child's best interest. Gubernat, supra, 140 N.J. at 144. The non-custodial parent bears the burden of proving by a preponderance of the evidence that the custodial parent's choice is not in the child's best interest. Id. at 145.
The Court in Gubernat defined the term "custodial parent" as the "the parent primarily charged with making custodial decisions in the child's best interest," id. at 123, or alternatively, as the parent "who exercises physical custody or sole legal custody," id. at 144. The strong presumption in favor of the custodial parent's choice is not irrefutable. Id. at 145. The Court envisioned rebuttal of the presumption by evidence such as use of the non-custodial parent's surname for a period of time, the child's "comfort with the continuation of that surname," and frequent contact of the child with the noncustodial parent. Id. at 144-45.
The trial court should "examine scrupulously all factors relevant to the best interests of the child," id. at 145, including the length of time the child used one surname, the identification of the child as a member of a family unit, the potential anxiety or embarrassment the child might experience if the child bears a surname different from the custodial parent, and any preference the child expresses if sufficiently mature, id. at 141. See also Staradumsky v. Romanowski, 300 N.J. Super. 618, 620-21 (App. Div.) (applying the Gubernat presumption to the custodial mother's choice of first and last names of child), certif. denied, 151 N.J. 467 (1997); J.S. v. D.M., 285 N.J. Super. 498, 499-500 (App. Div. 1995) (applying the Gubernat presumption to affirm denial of father's motion to change child's surname to his).
In Ronan v. Adely, 182 N.J. 103, 108-09 (2004), the Supreme Court confirmed that a presumption applies in favor of the choice made by the primary caretaker parent. The trial court had denied the mother's request to change her child's surname to both parents' names, "Adely Ronan," on the ground that the parties had not mutually agreed to the change and the child had been known by the father's surname for more than two years. Id. at 105. The Supreme Court reversed, reiterating that the court was required to presume the primary caretaker mother's choice was in the child's best interest and the father bore the burden of overcoming that presumption. Id. at 111.
In Ronan, supra, 182 N.J. at 104, 111, the Supreme Court used a revised designation for the parent with primary responsibility for the child, changing the phrase "custodial parent" to "primary caretaker parent."
Recently, another panel of this court addressed the name change issue and reached a conclusion that we do not adopt. In Emma v. Evans, _ N.J. Super. _, _, _ (App. Div. 2012) (slip op. at 2, 7), the panel held that the presumption established by Gubernat does not apply to children born to married parents. The panel's careful analysis in Emma, id. at _ (slip op. at 7-15), has much to commend a possible variation from strict application of a Gubernat presumption in all cases. But we do not read the Supreme Court's holdings as making a distinction between children born out of wedlock and those born to married parents.
The Supreme Court also did not view joint legal custody of the child as a significant factor in applying a presumption in favor of the primary caretaker parent. The fathers in both Gubernat, supra, 140 N.J. at 125, and Ronan, supra, 182 N.J. at 105, had been awarded joint legal custody of the child.
In Gubernat, supra, 140 N.J. at 126-41, the Court's historical exposition of surnames included reference to traditional common law treatment of children born out of wedlock. Id. at 131-32. But the Court did not make such a distinction in reaching its holding that a presumption applies where the parents do not agree. Instead, the Court acknowledged that its decision would affect "society's longstanding, customary expectation that children of married parents bear the paternal surname," id. at 145, thus strongly implying that the Court's holding applies to previously married parents. Moreover, in Ronan, supra, 182 N.J. at 108, the Court stated explicitly that the standard for changing a surname established in Gubernat applies "whether the child is born in or out of wedlock."
The panel in Emma gave as one of its reasons for dispensing with a presumption the fact that a child born "in wedlock" was originally named "by a marital partnership . . . undoubtedly with the intent that the designation remain permanent." _ N.J. Super. at _ (slip op. at 13). Although it is reasonable to assume that married persons have jointly chosen the child's full name at the time of birth, and that they have no expectation then that circumstances will change, the same may be true for unmarried parents, and yet the Gubernat presumption is the law of this State as to them.
The distinction drawn in Emma may unfairly disadvantage a divorced parent who has undertaken primary caretaking responsibility for a child. The other parent may have abandoned the child born during the marriage, or the parental relationship may have deteriorated. In those circumstances, the Gubernat presumption would seem to apply fairly in favor of the parent who has raised and cared for the child born in wedlock. Placing an initial burden on a parent to prove that his or her choice is in the child's best interest may encumber that choice by reviving fixed beliefs about tradition and custom, the primacy of maintaining the child's identification with the other parent, or speculation about future problems for the child. See Gubernat, supra, 140 N.J. at 140-42.
We find more merit in another reason expressed in Emma for distinguishing some cases from the Gubernat analysis. If the parties entered into a detailed settlement agreement that addressed parenting issues, perhaps the parents should be on equal footing in determining a significant matter such as the child's name. Emma, supra, _ N.J. Super. at _ (slip op. at 13). The Supreme Court might choose to consider a different ordering of proofs in cases that include negotiated parenting agreements. Detailed agreements pertaining to the custody and care of a child are not limited to divorce cases but may also be executed by unmarried parents. See N.J.S.A. 9:2-4d.
If the parties have expressed a position in their agreement regarding the child's name, the usual standards would apply for enforcement of that agreement, or modification because of changed circumstances or other good cause. If the agreement is silent with respect to the child's name, as it is in this case, then the Supreme Court might consider whether the parties should be on neutral ground rather than proceeding with a presumption in favor of the caretaking parent's choice. It may be that omission of an express position on the child's name at the time of a settlement agreement was purposeful; it may indicate the parents' joint acceptance of the child's existing name. It may also be that the omission means the parents could not reach agreement, or, in all likelihood, they did not consider the issue at all. In any case, the Supreme Court may consider whether a presumption should apply where the parties have expressed their agreement on other issues pertaining to their child but have not specifically addressed the question of the child's name.
Parenthetically, we note that disputes about a child's surname may have overriding importance for some parents. The tragic aftermath of Gubernat mandates that the family court attend carefully to any motion to change a child's name and make a decision in the best interest of the child with a record of the reasons for that decision. Ronan, supra, 182 N.J. at 111.
See Clifford Levy, Father Kills His Son, 3, Then Himself, N.Y. Times, May 16, 1995, http://www.nytimes.com/1995/05/16/nyregion/ father-kills-his-son-3-then-himself.html?pagewanted=all&src=pm.
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In this case, the court gave the following explanation for denying Holst-Knudsen's motion:
The parties divorced two years ago. There was something [sic] with regard to the name and, you know, it could have been done. There's joint legal custody. That was the decision of the parties at that time. Clearly, if Ms. Holst-Knudsen remarries or changes her name again, we're not going to change the child's name again. I don't see necessarily that there's any good cause shown for that particular change and . . . I'm going to deny that.The court appears to have expressed some of the same concerns we and the panel in Emma have discussed. It vaguely made reference to the marital settlement agreement but did not clarify what conclusion it drew. Nor could it have done so without making more explicit findings of fact as to the best interest of the child.
The court's reasoning was a departure from the holdings of Gubernat and Ronan; it assumed that Holst-Knudsen must show good cause for the name change. As we have explained, the court must presume Holst-Knudsen's choice is in the child's best interest because she has been the primary caretaker for the child, and Mikisch must bear the burden of rebutting that presumption.
We reverse the court's denial of the motion to change the child's surname to a combination of both parents' names and remand to the Family Part to reconsider the motion in accordance with the standards and analysis established in Gubernat and Ronan.
Reversed and remanded. 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