L.P. VS. J.H. (FM-14-0136-09. MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1967-18T4
L.P.,
Plaintiff-Respondent,
v.
J.H.,
Defendant-Appellant.
_______________________
Submitted April 20, 2020 – Decided June 16, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0136-19.
Gomperts Penza McDermott & Von Ellen, LLC,
attorneys for appellant (Joseph M. Freda, III, of counsel
and on the brief).
Respondent has not filed a brief.
PER CURIAM
In this post judgment custody dispute, defendant J.H. appeals from the
Family Part's November 30, 2018 order denying his motion to change the
residential custody of his son from his former wife, plaintiff L.P., to defendant.1
Defendant's motion also sought the appointment of a custody expert, the
preparation of a custody evaluation, and an in-camera interview of the child.
Defendant further sought the suspension of "[p]laintiff's parenting time with
[their son] pending a full custody evaluation/risk assessment and well check,
and other related relief."
The Family Part judge denied the motion after concluding that defendant
failed to make "a prima facie showing that the current custodial arrangement
[was] not in the best interest of the child or children in issue." On appeal,
defendant contends that the judge "committed harmful error by denying
defendant's request for a court-appointed custody evaluation" as had been
recommended by the parties' parent coordinator and by not conducting the in-
camera interview of the child. We affirm substantially for the reasons expressed
by the motion judge.
The facts taken from the motion record are summarized as follows. The
parties were married in December 2000. They were divorced on December 3,
2009. They have two children, a daughter born in 2002 and a son in 2007. Prior
1
We refer to the parties by their initials to protect the privacy interests of their
children. R. 1:38-3(d).
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2
to their divorce, on July 30, 2009, the parties entered into a consent order that
resolved the custody and parenting time issues arising from the divorce. The
parties' property settlement agreement, that was made part of their judgment of
divorce, incorporated the July 30, 2009 consent order.
The consent order awarded joint legal custody to the parties with plaintiff
being designated as the parent of primary residence. It also established a
parenting time schedule for defendant. In the order, the parties agreed that if
they had any disagreements regarding custody or parenting time, they would
consult with Dr. Sharon Ryan Montgomery as a parent coordinator before
seeking relief from the court.
In or about 2017, problems between the parties developed. Defendant
filed a motion seeking custody of the parties' son after the boy expressed a desire
to live with defendant, when plaintiff was relocating to a new town. Prior to
oral argument, in an attempt to address those problems, and as contemplated in
the 2009 custody and parenting time order, the parties' engaged Dr. Montgomery
to address parenting issues despite major hostility between the parties.
In Dr. Montgomery's notes from an October 30, 2017 meeting with the
parties, she observed that the parties' son was reported by defendant to have
expressed a dislike of plaintiff's fiancé. According to plaintiff, the relationship
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3
was good. The doctor recognized that the daughter had no contact with
defendant, but the parties "could not agree on the contributing factors or how it
came about." She also noted that the daughter was being treated by Dr. Jessica
Auth, her individual therapist at Short Hills Associates in Clinical Psychology,
who addressed the strained relationship the daughter had with defendant.
Prior to oral argument, plaintiff relocated with the children and her fiancé
to the new town. After oral argument on November 28, 2017, the motion judge
denied the relief in a November 29, 2017 order that also directed the parties to
cooperate with the recommendations of the professionals providing therapy.
Moreover, it stated that the judge would appoint medical professionals to
provide reunification therapy for defendant and the parties' daughter an d family
therapy for the parties and their children. The parties agreed that Dr.
Montgomery would recommend therapists.
In December 2017, plaintiff advised Dr. Montgomery that she would no
longer participate with defendant and the doctor once her retainer was depleted,
as she did not have the funds to pay for further services. On February 13, 2018,
defendant wrote to plaintiff asking that they review the original July 2009
custody and parenting time established in the consent order. Plaintiff said she
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did not want to have contact with defendant and that he should "stop
unnecessarily contacting" her.
Despite plaintiff's initial refusal to speak to him or to continue with Dr.
Montgomery, the parties participated in a conference call with the doctor in an
attempt to address some issues. According to defendant, plaintiff was not
cooperative and conducted the telephone conference in the presence of their son
over a telephone speaker.
In May 2018, the son stated he wanted to live with defendant as he had a
terrible relationship with plaintiff's fiancé. According to defendant, this
"triggered the false allegations [p]laintiff's fiancé[] made about" defendant and
their daughter.
In response and after the New Jersey Division of Child Permanency and
Placement (Division) became involved with the family, and criminal charges
were asserted against each other by defendant and plaintiff's fiancé, plaintiff
said she did not want to have contact with defendant and that he should only
contact her if there was an emergency regarding their son. As a result, Dr.
Montgomery wrote to the parties stating that she could no longer proceed in her
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role as parent coordinator and recommended that the children be evaluated by a
court appointed or an agreed upon evaluator to assess each parents' concerns.2
In his ensuing July 2018 motion, defendant contended in a supporting
certification that plaintiff refused to comply with the November 2017 order. He
noted that despite that order, plaintiff terminated the daughter's participation in
the court ordered therapy, which was contrary to the recommendations of the
mental health providers involved, Dr. Auth and another doctor who provided
psychiatric treatment and also worked at Short Hills Associates in Clinical
Psychology. Defendant also described how matters became worse between him
and plaintiff after her fiancé made accusations to the Division that defendant
"sexually abused [their] daughter and that [he] attempted to 'run over' [the]
fiancé with [his] car." Defendant vehemently denied these allegations.
In a June 26, 2018 letter to defendant, the Division advised that it
completed an assessment based upon a report made to the agency on May 21,
2018. The Division also stated it would not be providing services to the family,
but it identified certain evaluations that needed to be completed for the children.
Specifically, it stated that an evaluation of the daughter's "behavioral health
2
After the motion was filed, Dr. Montgomery indicated that she would be
willing to continue in her role as a parent coordinator.
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needs" should be performed, a missed mental health provider appointment
should be rescheduled, and a well check for both children was needed.
According to defendant, he had conversations with representatives of the
Division who stated it was "clear that [the Division] had some significant
concerns about [p]laintiff's household, and especially with [p]laintiff's fiancé"
that related to his "leering" at their daughter. Moreover, referring to the
Division's June 26, 2018 letter, he noted that it was concerned about services
not being provided to the children.
Defendant also described an incident on June 29, 2018, two days after he
filed his criminal complaint against plaintiff's fiancé, during which a tire on his
vehicle was slashed while he was at one of his son's baseball games. He
explained that people "witnessed [p]laintiff and her fiancé[] . . . near [his] car."
According to defendant, "[t]his [was] not a coincidence."
Defendant contended that plaintiff did "not view [him] as a co-parent,"
and he described an incident in which he was notified by the school that his son
was having certain physical pains and needed to be seen by a doctor. Although
defendant left work to immediately go to the school, plaintiff had taken the son
to the hospital, but she refused to communicate with defendant as to the child's
status. He also described other incidents that were communicated to him by his
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son where the plaintiff's fiancé and his mother's conduct apparently di sturbed
the child. Defendant attributed these various incidents to plaintiff being
emboldened by the court's November 2017 order denying his application for
relief.
Plaintiff filed a certification in opposition to defendant's motion, denying
defendant's allegations. It was plaintiff's contention throughout her opposition
that defendant was trying to control their son and alienate him from plaintiff and
their daughter. Plaintiff's certification reviewed the entire history of problems
that the parties experienced with parenting time and the animosity that existed
between the two of them, much of which occurred prior to the court's November
2017 order. She also requested that child support be paid through probation,
and she sought the equitable distribution of defendant's pension.
In her certification, plaintiff also confirmed that both children were
enrolled in their new schools, experienced success in their studies, and were
otherwise thriving in their new environment. She detailed the son's involvement
in school, extra-curricular activities, and sports.
Plaintiff also explained that defendant had called the Division on three
different occasions, subjecting the children to unnecessary investigations.
Plaintiff also made veiled accusations against defendant, stating that he was
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avoiding having the judge interview their daughter, who was then sixteen years
old, "[b]ecause if the [c]ourt hear[d] what [the daughter] ha[d] to say, . . .
defendant [would] be recognized for what he ha[d] done to her" and that he
"alone is responsible for the demise of his relationship with his daughter."
According to plaintiff, defendant "abandoned [their] daughter many years ago."
She also explained that contrary to defendant's contentions, their daughter was
and has always been involved with "a child advocacy center," which "has
performed a risk assessment," and there was no need for a full custody
evaluation which the court had rejected in the November 2017 order as well.
Plaintiff also explained in detail problems with defendant's participation
in reunification therapy and with effectuating parenting time. Plaintiff stated
that defendant used the parent coordinator "to try and control [her] parenting
time with both of [their] children and [he was] very intent on splitting up [the
children], even carelessly."
Referring to the call to the Division asserting allegations against
defendant, plaintiff stated that they were referred to the children's advocacy
center after a "disturbing call was made to [the Division] by a third party
regarding . . . [d]efendant's behavior. [Plaintiff did] not wish to share this
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information, as [she] truly fear[ed] the repercussions that [would] happen if . . .
[d]efendant . . . [saw] the phone call and what initiated same . . . ."
Defendant then filed a reply certification reasserting his original
contentions and challenging the statements made by plaintiff. He also addressed
issues mentioned by plaintiff, such as child support and the distribution of his
pension.
After considering the parties written submissions, the Family Part judge
entertained oral argument on November 30, 2018, before placing his decision
on the record. At the outset, he stated that "the legal standard for custody
determinations is whether there [was] a prima facie showing that the current
custodial arrangement [was] not in the best interest[s] of the child or children in
issue, and [that he had] concluded after carefully reading all the papers . . .
that . . . defendant" did not make "out a prima facie showing."
The judge found that despite the parties' animosity, the current
arrangement seemed "to be going well." He observed that there was no evidence
that their son had any trouble in school, that he had difficulties making friends,
or engaging in activities as a result of the plaintiff's move to her new home since
the time he addressed the issue of relocation in the November 2017 order. The
judge acknowledged that defendant wanted to spend more time with his son but
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"that [was] not a basis for concluding that [the son's] best interests [were] not
being served by the current custodial arrangement."
Addressing Dr. Montgomery's suggestion for an evaluation, the judge
stated, he "just [did not] think subjecting either child to further evaluations and
poking and prodding by experts [was] warranted at [the] time, absent that sort
of prima facie showing." He noted that the mere fact that the son indicated to
one parent that he wanted to live with defendant was not sufficient evidence.
He concluded that "[t]here [was] really just nothing in this record indicating that
[the son was] at risk, that he's having troubles of any kind, it's just not there."
For that reason, the judge found there was no purpose in "ramp[ing] up" the
matter.
Addressing defendant's relationship with his daughter, the judge observed
that if defendant pursued some type of reunification therapy with his daughter
in his motion, the judge would have had "no problem" with that request had it
been made. Turning to the Division's recommendation that he review its
records, the judge stated that he did not perceive any need to see those
documents. According to the judge, "[i]f there were things happening since
[plaintiff's relocation] . . . that cause[d him] concern, . . . then [he] would have
[had] a basis to look at" those records. Moreover, in light of the fact that, as
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defendant's counsel confirmed, the Division did not have "any concerns for the
safety of either child" under the present custodial arrangement, there was no
need to take any action.
The judge concluded that there was "not enough showing for [him] to
warrant" reviewing the statutory factors in making a custody determination as
argued by defendant. Further, there was no need to interview the parties' son.
In closing, the judge noted that while there was a high degree of conflict between
the parties that was separate and apart from the children thriving under the
current custodial arrangement, albeit their being subjected to the negative impact
of their parents' issues. This appeal followed.
Our review of a Family Part judge's determination in custody and
parenting time matters is limited. "Family Part judges are frequently called upon
to make difficult and sensitive decisions regarding the safety and well-being of
children." Hand v. Hand, 391 N.J. Super 102, 111 (App. Div. 2007). "[B]ecause
of the family courts' special jurisdiction and expertise in family matters,
[we] should accord deference to family court factfinding." N.J. Div. of Youth
& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare,
154 N.J. 394, 413 (1998)). Our narrow review is based upon the fact "we have
'invest[ed] the family court with broad discretion because of its specialized
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knowledge and experience in matters involving parental relationships and the
best interests of children.'" N.J. Div. of Child Prot. & Permanency v. A.B., 231
N.J. 354, 365 (2017) (alteration in original) (quoting N.J. Div. of Youth and
Family Servs. v. F.M., 211 N.J. 420, 427 (2012)).
"[W]e defer to [F]amily [P]art judges 'unless they are so wide of the mark
that our intervention is required to avert an injustice.'" Ibid. (quoting F.M., 211
N.J. at 427). However, "[w]e owe no special deference to the . . . judge's legal
determinations." Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div.
2016). "Notwithstanding our general deference to Family Part decisions, we are
compelled to reverse when the [judge] does not apply the governing legal
standards." Ibid. (citation omitted).
"In custody cases, it is well settled that the court's primary consideration
is the best interests of the children." Hand, 391 N.J. Super. at 105 (citing
Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). In making the determination, a
judge "must focus on the 'safety, happiness, physical, mental and moral welfare'
of the children." Ibid. (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
"In issues of custody and visitation, '[t]he question is always what is in the best
interests of the children, no matter what the parties have agreed to.'" Ibid.
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(alteration in original) (quoting P.T. v. M.S., 325 N.J. Super. 193, 215 (App.
Div. 1999)).
"A party seeking to modify custody must demonstrate changed
circumstances that affect the welfare of the children." Ibid. (citing Borys v.
Borys, 76 N.J. 103, 115-16 (1978)). Custody orders are subject to revision based
on the changed circumstances standard. Eaton v. Grau, 368 N.J. Super. 215,
222 (App. Div. 2004).
"Modification of an existing child custody order is a 'two-step process.'"
Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015) (quoting R.K. v. F.K., 437
N.J. Super. 58, 62 (App. Div. 2014)). "[A] motion for a change in custody . . .
will be governed initially by a changed circumstances inquiry and ultimately by
a simple best interests analysis," R.K., 437 N.J. at 62 (second alteration in
original) (quoting Baures v. Lewis, 167 N.J. 91, 116 (2001), overruled on other
grounds, Bisbing v. Bisbing, 230 N.J. 309 (2017)), using "the same standard that
applie[d] at the time of [an] original judgment of divorce." Ibid. (second
alteration in original) (quoting Gonzalez-Posse v. Ricciardulli, 410 N.J. Super
340, 350 (App. Div. 2009)).
"First, a party must show 'a change of circumstances warranting
modification' of the custodial arrangements." Costa, 440 N.J. Super. at 4
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(quoting R.K., 437 N.J. Super. at 63). Only if the party makes that showing is
that party then "entitled to a plenary hearing as to disputed material facts
regarding the child's best interests, and whether those best interests are served
by modification of the existing custody order." Ibid. (quoting R.K., 437 N.J.
Super. at 62-63). A Family Part judge's determination regarding a change of
circumstances is subject to our review for an abuse of discretion. Ibid.
Applying these guiding principles, we conclude that the Family Part judge
here properly exercised his discretion when he found that defendant failed to
establish a change of circumstances. There was no evidence presented that the
parties' son's best interests were not being served by the current custodial
arrangement, although the record was replete with proof that the parties continue
to maintain a heightened state of animosity towards each other. As to the son,
however, he was thriving in school and there was no evidence that he suffered
either psychologically or physically or that he was not enjoying life to its fullest.
Defendant's reliance upon suggestions made by the parenting coordinator
for an evaluation or by the Division suggesting that its records be reviewed were
insufficient to establish a change of circumstances under the appropriate
standard. The evidence here established that the parties' daughter, and not the
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son, suffers from significant issues that were not addressed by defendant in his
motion.
Without meeting the required threshold, the judge properly refused to
order a custody investigation and hearing on the issue .
Affirmed.
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