K.L. VS. F.T.M. (FD-09-1737-12, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0652-16T4
K.L,1
Plaintiff-Respondent,
v.
F.T.M.,
Defendant-Appellant.
_____________________________
Argued May 30, 2018 – Decided July 9, 2018
Before Judges Moynihan and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FD-09-1737-12.
F.T.M., appellant pro se.
Nirmalan Nagulendran argued the cause for
respondent (Miller, Meyerson & Corbo,
attorneys; Nirmalan Nagulendran, of counsel
and on the brief).
PER CURIAM
1
We use initials to protect the identity of the child.
Defendant F.T.M. appeals from the June 29, 2016 trial court
order amending the parenting time schedule of the parties' then
five year-old child, L.M.-L., and from the court's September 21,
2016 order denying his motion for reconsideration.2 The trial
court, following a plenary hearing, amended the parenting time
schedule for the parties' then one-year-old set forth in a December
6, 2012 consent order that provided defendant with diurnal time
Monday through Friday, the third weekend of every month except in
July and August, and two non-consecutive weeks in July and August.
The new court-set schedule allows defendant parenting time on
alternate weekends and twice-weekly "dinner parenting time." The
summer, spring break and holiday parenting time schedule remain
unchanged.
2
In his merits brief, defendant makes mention of his appeal of
the denial of his request for custody, expressed in the court's
March 14, 2016 order. Defendant did not cite that order in his
original or amended notices of appeal or case information
statements as one from which he appealed. We have made clear "it
is only the judgment or orders designated in the notice of appeal
which are subject to the appeal process and review." 1266
Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456,
459 (App. Div. 2004). We decline to consider an order if the
appellant "did not indicate in his notice of appeal or case
information statement that he was appealing from the order." Fusco
v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 460-61,
461 n.1 (App. Div. 2002). Further, although mentioned in the
brief, it was not argued; as such we will not consider the custody
issue. Noye v. Hoffmann-La Roche, Inc., 238 N.J. Super. 430, 432
n.2 (App. Div. 1990) (referring to matters not argued in the brief
as "abandoned").
2 A-0652-16T4
Defendant argues:
POINT I
TRIAL COURT EGREGIOUSLY ABUSED DISCRETION IN
REDUCING FATHER'S PARENTING TIME FROM SHARED
PARENTING OF 50% OR MORE OF THE TIME TO EVERY
OTHER WEEKEND AND 2 WEEK NIGHT DINNERS,
CAUSING THE CHILD TO LOSE CONTINUITY WITH
FATHER, AND GIVING MOTHER'S FAMILY AND
SURROGATES DE FACTO CUSTODY TO WATCH CHILD
WHEN MOTHER CANNOT; THIS WAS NOT IN THE
CHILD'S BEST INTERESTS TO REDUCE FATHER'S
PARENTING TIME WHEN CHILD HAD BEEN CARED FOR
BY FATHER DURING DAYS AND MANY EVENINGS SINCE
BIRTH.
POINT II
TRIAL COURT EGREGIOUSLY ABUSED DISCRETION BY
RELYING UPON MOTHER'S FALSE ALLEGATIONS THAT
FATHER NEVER CONSULTED WITH HER ABOUT HIS
RELOCATION FROM JERSEY CITY, N.J. TO OAK
RIDGE, N.J. WHEN COURT BELIEVED MOTHER AND NOT
FATHER, WHERE FATHER HAD SECOND RESIDENCE IN
JERSEY CITY, N.J. TO CARE FOR CHILD DURING
DAYS SINCE CHILD WASN'T IN SCHOOL FULL TIME;
MOTHER COMMITTED BAD FAITH ACT TO REDUCE
FATHER'S PARENTING TIME ON FALSE ALLEGATIONS
AND SHOULD HAVE BEEN DENIED ANY RELIEF
WHATSOEVER, SINCE IT WAS NOT IN CHILD'S BEST
INTERESTS.
POINT III
THE TRIAL COURT'S JUNE 29, 2016 ORDER AND
SEPTEMBER 21, 2016 ORDER (ALONG WITH THE MARCH
14, 2016 CUSTODY ORDER) AND FINDINGS SHOULD
BE REVERSED FOR NOT ORDERING A CUSTODY EXPERT
INTO THE CASE AND NOT REVIEWING EVIDENCE OF
COMPARISONS BETWEEN THE DIFFERENCE OF THE OAK
RIDGE, NEW JERSEY AND JERSEY CITY, NEW JERSEY
LIFESTYLES AND SCHOOL SYSTEMS FOR PURPOSES OF
CUSTODY DETERMINATION.
3 A-0652-16T4
POINT IV
FURTHER PROCEEDINGS IN THIS MATTER SHOULD BE
CONDUCTED BEFORE A DIFFERENT JUDGE.
We affirm.
In the context of determining child custody – which we have
held akin to determining parenting time – the Legislature found
and declared that "the public policy of this State [is] to assure
minor children of frequent and continuing contact with both parents
[after divorce] and that it is in the public interest to encourage
parents to share the rights and responsibilities of child rearing
in order to effect this policy." N.J.S.A. 9:2-4. Both parties
have a fundamental right to "the custody, care and nurture of
the[ir] child." Watkins v. Nelson, 163 N.J. 235, 245 (2000)
(quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). As
neither has a right that is superior to the other, "the sole
benchmark" to a determination of the parenting time issue is the
best interests of the child, Sacharow v. Sacharow, 177 N.J. 62,
80 (2003); that is, what will protect the "safety, happiness,
physical, mental and moral welfare of the child," Beck v. Beck,
86 N.J. 480, 497 (1981) (quoting Fantony v. Fantony, 21 N.J. 525,
536 (1956)), "no matter what the parties have agreed to." P.T.
v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting
Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div.
4 A-0652-16T4
1997)). A judgment that incorporates the parties' agreement
regarding custody or visitation may be modified if the party
seeking modification shows both changed circumstances and the
agreement is no longer in the best interests of the child.
Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.
2003); see also Finamore v. Aronson, 382 N.J. Super. 514, 522-23
(App. Div. 2006).
Modification of a prior agreement is appropriate when there
is a change in circumstances warranting it, i.e., a development
that affects the welfare of the child. See Sheehan v. Sheehan,
51 N.J. Super. 276, 287 (App. Div. 1958). In evaluating whether
the requisite changed circumstances exist, a court must consider
the circumstances that existed when the prior parenting time order
was entered. Id. at 287-88. After considering those facts, a
court can then "ascertain what motivated the original judgment and
determine whether there has been any change in circumstances."
Id. at 288.
The changed circumstances here are obvious. The agreement
established parenting time when L.M.-L. was an infant. Her current
school schedule impacts her daily life. No longer can she spend
her weekdays with a parent. The trial court properly recognized
a plenary hearing was necessary to determine the child's best
interests in light of these changed circumstances.
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Generally, in our limited scope of review, we will not disturb
the factual findings of the trial court. N.J. Div. of Youth &
Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Because of the
family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court
factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Those
findings will be upheld when they are supported by adequate,
substantial and credible evidence. G.L., 191 N.J. at 605.
"Deference is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility.'" Cesare, 154
N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J.
108, 117 (1997)). We will set aside those findings only if they
are so "manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice." Ibid. (quoting Rova Farms Resort, Inc.
v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). We owe no deference,
however, to the trial court's "interpretation of the law and the
legal consequences that flow from established facts." Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We see no reason to disturb the trial court's credibility
determination that defendant "lied to th[e] [c]ourt." Despite
defendant's contentions that the court based its finding that he
was incredible on "false information" and "one false [a]llegation"
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— that he unilaterally moved from Jersey City to Oak Ridge without
informing plaintiff — the court found defendant was not direct and
forthright in answering its question regarding when he moved to
Oak Ridge, and that his testimony on that issue varied. That
determination is entitled to our deference.
Defendant's argument that the trial court "made no relevant
findings to support the significantly reduced parenting time
schedule [it] imposed," is belied by his other averments that we
now review. Defendant argues that the judge erred in finding his
move to Oak Ridge was "unilateral" because plaintiff knew he had
moved. We determine that argument to be meritless. Defendant
admitted he moved to Oak Ridge without consulting plaintiff, making
that choice unilateral. Plaintiff's knowledge of the move – no
matter how or when learned – does not change the unilateral nature
of defendant's decision.
The court's determination undermined defendant's contention
that he was going to keep residence at a rented-out Jersey City
apartment so that L.M.-L. did not have to travel forty-five minutes
from Oak Ridge to Jersey City on school days. The court concluded,
"I don't know if you'll actually go through with it. [The rented
apartment] was a point of income for you . . . ."
The court considered defendant's move and his failure to
communicate with plaintiff regarding their child – evidenced by
7 A-0652-16T4
defendant's responses to the court's examination – as factors in
amending the parenting time schedule. The trial court's findings
corresponded to some of the best interests factors required to be
considered: the parents' communication and cooperation abilities;
the needs of the child; and the geographical proximity of the
parents' homes.
Defendant asserts that the court failed to consider the
difference in living environment between Jersey City and Oak Ridge,
where defendant lives in a five-bedroom home shared by "his fiancé
and several other children that [L.M.-L.] had become accustomed
to being with and playing with." First, the argument is at odds
with defendant's assertion that he would keep the Jersey City
apartment so L.M.-L. could attend school there. Moreover, we
perceive no, or at least scant and conclusory, evidence regarding
the difference in lifestyles and schools between the two
municipalities. See N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 278 (2007) (holding evidence not presented to the
trial court fell outside the scope of appellate review).
The same holds true for the argument defendant raises for the
first time that plaintiff's work schedule results in L.M.-L. being
cared for – not by her mother – but by "surrogates, . . . her
parents and extended family." Defendant argues he, a retired
tactical unit police officer, is available to care for L.M.-L. at
8 A-0652-16T4
any time. Although potentially related to the best interest
standard, we see no evidence in the record to support his averment.
We find unavailing defendant's argument that the trial court
erred by not appointing an expert. Rule 5:3-3(a) provides the
trial judge with the discretionary authority to appoint a mental
health expert to perform parenting/custody evaluations of the
parties and child whenever the court concludes that "disposition
of an issue will be assisted by expert opinion." Defendant made
no request for an expert; thus there was no "demonstration of good
cause therefor." Pressler & Verniero, Current N.J. Court Rules,
cmt. 1 on R. 5:3-3 (2018). We will not address this issue because
defendant did not raise it before the trial court. Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, we see
no request in the record by defendant to present his own expert,
see R. 5:3-3(h); we therefore will not entertain defendant's
contention made at oral argument that he was willing to pay for
an expert but the judge declined.
A decision concerning parenting time is committed to the
sound discretion of the judge. See Abouzahr, 361 N.J. Super. at
157 (according deference to the trial court's "exceedingly
difficult and delicate" exercise of discretion on custody and
parenting time matters). As such, the decision of the trial court
is reviewed for an abuse of that discretion. Schweizer v. Mac
9 A-0652-16T4
Phee, 130 N.J. Super. 123, 127 (App. Div. 1974) (stating the
proposition of law that reversal of discretionary decisions only
follows in cases of a clear abuse of that discretion). An abuse
of discretion occurs where the "decision [was] made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." United States v.
Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
We disagree with defendant that the trial court did not apply
the best interests test in determining parenting time. The court's
opinion demonstrates a reasoned weighing of evidence against best
interests factors to support its conclusion.
We reviewed plaintiff's remaining challenges to the denial
of his motion for reconsideration and determine they lack
sufficient merit to warrant discussion in our opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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