RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0950-22
D.Q.,1
Plaintiff-Appellant,
v.
F.Q.,
Defendant-Respondent. ________________________
Submitted March 12, 2024 – Decided April 22, 2024
Before Judges Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2404-21.
D.Q., appellant pro se.
F.Q., respondent pro se, has not filed a brief.
PER CURIAM
1 We use initials to refer to the parties and the minor child to protect their privacy and preserve the confidentiality of these proceedings. R. 1:38- 3(d)(13). Plaintiff D.Q. appeals from a September 28, 2022 amended final
restraining order (AFRO), which denied her application for sole custody and
termination of defendant F.Q.'s parenting time, finding no change in
circumstances. Following our review of the record and applicable legal
standards, we affirm.
I.
The parties were married and share a daughter, G.Q., born in 2016. The
parties thereafter separated. Plaintiff has maintained that, in 2020, defendant's
girlfriend sexually and physically assaulted G.Q. during defendant's parenting
time. Defendant has continuously refuted the allegations.
After plaintiff filed a non-dissolution application, on August 24, 2020,
the court held a telephonic conference due to the COVID-19 pandemic. The
parties resolved the disputed issues of custody, parenting time, and child
support. The memorializing order provided the parties agreed to: joint
custody of G.Q.; designation of plaintiff as the parent of primary residence;
defendant's alternating weekend parenting time without his girlfriend present;
follow "all recommendations made by the [Division of Child Protection and
Permanency (DCPP)]"; and child support. In November, after plaintiff filed an
application for child support and custody, the court ordered: defendant's
A-0950-22 2 payment of child support arrears; continued "joint legal custody" of G.Q.; and
defendant to have parenting time "every other Saturday and Sunday from
[10:00 a.m. to 5:00 p.m.]"
In April 2021, after a hearing, the court denied plaintiff's application to
modify custody and "suspend all parenting time and/or modify custody,"
finding plaintiff had not shown a substantial change in circumstances. The
court had reviewed the submitted DCPP report regarding the sexual and
physical assault allegations against G.Q. and found the "allegations of abuse
were unfounded or not established." The parties were ordered to provide
updated financial information for a child support modification and "work
[-]related [childcare] costs." In June, the court reviewed the financial
information submitted and imputed income to defendant, ordering him to pay
slightly increased child support and 36% toward extracurricular expenses.
On June 22, plaintiff filed a complaint under the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35, and obtained a temporary restraining
order. Thereafter, a final restraining order (FRO) was entered against
defendant for plaintiff's protection. On July 15, 2022, the court heard
plaintiff's AFRO application, ordering defendant to timely pay child support,
and denying plaintiff's request for the court's recusal. The court further
A-0950-22 3 ordered the parties not to disparage each other, referencing plaintiff's prior
AFRO that limited the parties' communication.
On August 26, plaintiff again moved for an AFRO, seeking "full
custody" of G.Q., child support enforcement, and a plenary hearing.
Specifically, plaintiff sought enforcement of the child support ordered but did
not request a child support modification. On September 28, the court held a
hearing with the parties appearing self-represented. At the hearing, plaintiff
withdrew her request to address child support and argued to terminate
defendant's custody and parenting time.2 In clarifying plaintiff's requested
relief, the court had the following exchange:
THE COURT: Okay. So . . . , this is your application for a couple different things; one . . . that you had requested for was child support. So I ran the child support arrears. The child support arrears are $123.00.
....
PLAINTIFF: Your Honor, he paid me $553 and $250 so it was not $123.
THE COURT: Okay. But it is now.
2 It appears a later order was issued on October 7, 2022 addressing child support arrears, but documents regarding this action were not provided.
A-0950-22 4 PLAINTIFF: I understand that. When I tried reaching the courts and left a message to let them know that I don't need child support[,] I never got a call back.
THE COURT: What do you mean that you don't need child support?
PLAINTIFF: I didn't need . . . to address . . . child support.
THE COURT: . . . I just wanted to make sure that there wasn't something we were missing.
PLAINTIFF: We were able to agree on that.
THE COURT: Now, you also have an application that you want to be named sole legal custodian.
THE COURT: Okay. And what's the basis -- because remember, when we have an application for a modification of custody which is what this is, it's considered a modification. You have the burden of proof to show that it's in the best interest[s] of the child and that there has been changed circumstances since the legal custodial order was entered as to why it should be changed.
The court provided plaintiff the opportunity to clarify her requested relief.
A-0950-22 5 While defendant had telephone conversations with his daughter, he had
not seen her for approximately one-and-a-half years prior to the hearing.
Throughout the hearing, plaintiff maintained she continually facilitated a
relationship between defendant and G.Q., stating, "I've never denied him, our
daughter . . . I would be wrong for that," and "I try to get her to communicate
with him because I said, 'Your dad loves you.'"
The court found plaintiff had not demonstrated a change in
circumstances to modify custody and parenting time, reasoning "the [DCPP]
ha[d] not found [plaintiff]'s allegations of abuse of [G.Q.] to be valid" and
"[t]he prosecutor's office ha[d]n't done anything" regarding the allegations.
Further, the court found plaintiff did not "have a basis to terminate
[defendant's] parental rights." The court ordered supervised parenting time to
occur in the courthouse on Saturdays, which previously was not possible
because of the COVID-19 pandemic.
On appeal, D.Q. contends: the child support order is unreasonable
because a modification was warranted; and the court failed to analyze the child
custody statutory factors pursuant to N.J.S.A. 9:2-4(c) and make the requisite
factual findings.
A-0950-22 6 II.
"We accord deference to Family Part judges due to their 'special
jurisdiction and expertise in family [law] matters.'" Gormley v. Gormley, 462
N.J. Super. 433, 442 (App. Div. 2019) (alteration in original) (quoting Cesare
v.
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RECORD IMPOUNDED
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-0950-22
D.Q.,1
Plaintiff-Appellant,
v.
F.Q.,
Defendant-Respondent. ________________________
Submitted March 12, 2024 – Decided April 22, 2024
Before Judges Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2404-21.
D.Q., appellant pro se.
F.Q., respondent pro se, has not filed a brief.
PER CURIAM
1 We use initials to refer to the parties and the minor child to protect their privacy and preserve the confidentiality of these proceedings. R. 1:38- 3(d)(13). Plaintiff D.Q. appeals from a September 28, 2022 amended final
restraining order (AFRO), which denied her application for sole custody and
termination of defendant F.Q.'s parenting time, finding no change in
circumstances. Following our review of the record and applicable legal
standards, we affirm.
I.
The parties were married and share a daughter, G.Q., born in 2016. The
parties thereafter separated. Plaintiff has maintained that, in 2020, defendant's
girlfriend sexually and physically assaulted G.Q. during defendant's parenting
time. Defendant has continuously refuted the allegations.
After plaintiff filed a non-dissolution application, on August 24, 2020,
the court held a telephonic conference due to the COVID-19 pandemic. The
parties resolved the disputed issues of custody, parenting time, and child
support. The memorializing order provided the parties agreed to: joint
custody of G.Q.; designation of plaintiff as the parent of primary residence;
defendant's alternating weekend parenting time without his girlfriend present;
follow "all recommendations made by the [Division of Child Protection and
Permanency (DCPP)]"; and child support. In November, after plaintiff filed an
application for child support and custody, the court ordered: defendant's
A-0950-22 2 payment of child support arrears; continued "joint legal custody" of G.Q.; and
defendant to have parenting time "every other Saturday and Sunday from
[10:00 a.m. to 5:00 p.m.]"
In April 2021, after a hearing, the court denied plaintiff's application to
modify custody and "suspend all parenting time and/or modify custody,"
finding plaintiff had not shown a substantial change in circumstances. The
court had reviewed the submitted DCPP report regarding the sexual and
physical assault allegations against G.Q. and found the "allegations of abuse
were unfounded or not established." The parties were ordered to provide
updated financial information for a child support modification and "work
[-]related [childcare] costs." In June, the court reviewed the financial
information submitted and imputed income to defendant, ordering him to pay
slightly increased child support and 36% toward extracurricular expenses.
On June 22, plaintiff filed a complaint under the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35, and obtained a temporary restraining
order. Thereafter, a final restraining order (FRO) was entered against
defendant for plaintiff's protection. On July 15, 2022, the court heard
plaintiff's AFRO application, ordering defendant to timely pay child support,
and denying plaintiff's request for the court's recusal. The court further
A-0950-22 3 ordered the parties not to disparage each other, referencing plaintiff's prior
AFRO that limited the parties' communication.
On August 26, plaintiff again moved for an AFRO, seeking "full
custody" of G.Q., child support enforcement, and a plenary hearing.
Specifically, plaintiff sought enforcement of the child support ordered but did
not request a child support modification. On September 28, the court held a
hearing with the parties appearing self-represented. At the hearing, plaintiff
withdrew her request to address child support and argued to terminate
defendant's custody and parenting time.2 In clarifying plaintiff's requested
relief, the court had the following exchange:
THE COURT: Okay. So . . . , this is your application for a couple different things; one . . . that you had requested for was child support. So I ran the child support arrears. The child support arrears are $123.00.
....
PLAINTIFF: Your Honor, he paid me $553 and $250 so it was not $123.
THE COURT: Okay. But it is now.
2 It appears a later order was issued on October 7, 2022 addressing child support arrears, but documents regarding this action were not provided.
A-0950-22 4 PLAINTIFF: I understand that. When I tried reaching the courts and left a message to let them know that I don't need child support[,] I never got a call back.
THE COURT: What do you mean that you don't need child support?
PLAINTIFF: I didn't need . . . to address . . . child support.
THE COURT: . . . I just wanted to make sure that there wasn't something we were missing.
PLAINTIFF: We were able to agree on that.
THE COURT: Now, you also have an application that you want to be named sole legal custodian.
THE COURT: Okay. And what's the basis -- because remember, when we have an application for a modification of custody which is what this is, it's considered a modification. You have the burden of proof to show that it's in the best interest[s] of the child and that there has been changed circumstances since the legal custodial order was entered as to why it should be changed.
The court provided plaintiff the opportunity to clarify her requested relief.
A-0950-22 5 While defendant had telephone conversations with his daughter, he had
not seen her for approximately one-and-a-half years prior to the hearing.
Throughout the hearing, plaintiff maintained she continually facilitated a
relationship between defendant and G.Q., stating, "I've never denied him, our
daughter . . . I would be wrong for that," and "I try to get her to communicate
with him because I said, 'Your dad loves you.'"
The court found plaintiff had not demonstrated a change in
circumstances to modify custody and parenting time, reasoning "the [DCPP]
ha[d] not found [plaintiff]'s allegations of abuse of [G.Q.] to be valid" and
"[t]he prosecutor's office ha[d]n't done anything" regarding the allegations.
Further, the court found plaintiff did not "have a basis to terminate
[defendant's] parental rights." The court ordered supervised parenting time to
occur in the courthouse on Saturdays, which previously was not possible
because of the COVID-19 pandemic.
On appeal, D.Q. contends: the child support order is unreasonable
because a modification was warranted; and the court failed to analyze the child
custody statutory factors pursuant to N.J.S.A. 9:2-4(c) and make the requisite
factual findings.
A-0950-22 6 II.
"We accord deference to Family Part judges due to their 'special
jurisdiction and expertise in family [law] matters.'" Gormley v. Gormley, 462
N.J. Super. 433, 442 (App. Div. 2019) (alteration in original) (quoting Cesare
v. Cesare, 154 N.J. 394, 413 (1998)). Our scope of review of Family Part
orders is limited. Cesare, 154 N.J. at 411. A judge's findings "are binding on
appeal so long as their determinations are 'supported by adequate, substantial,
credible evidence.'" Gormley, 462 N.J. Super. at 442 (quoting Cesare, 154
N.J. at 411-12). We review orders concerning modification of child support or
parenting time under an abuse of discretion standard. See J.B. v. W.B., 215
N.J. 305, 325-26 (2013); see also Jacoby v. Jacoby, 427 N.J. Super. 109, 116
(App. Div. 2012). An abuse of discretion occurs where the trial court's
decision is "made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis." Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v.
Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
However, while "a family court's factual findings are entitled to considerable
deference, we do not pay special deference to its interpretation of the law."
A-0950-22 7 Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016) (quoting D.W. v. R.W.,
212 N.J. 232, 245 (2012)).
"Where there is already an agreement affecting custody and parenting
time in place, it is presumed it 'embodies a best interests determination.'" A.J.
v. R.J., 461 N.J. Super. 173, 182 (App. Div. 2019) (quoting Todd v. Sheridan,
268 N.J. Super. 387, 398 (App. Div. 1993)). "In custody cases, it is well
settled that the court's primary consideration is the best interests of the
children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). The
focus is on the "safety, happiness, physical, mental and moral welfare of the
child[ren]." Sacharow v. Sacharow, 177 N.J. 62, 82 (2003) (quoting Fantony
v. Fantony, 21 N.J. 525, 536 (1956)).
"A custody arrangement adopted by the trial court, whether based on the
parties' agreement or imposed by the court, is subject to modification based on a
showing of changed circumstances, with the court determining custody in
accordance with the [child's] best interests." Bisbing v. Bisbing, 230 N.J. 309, 322
(2017). The moving party must first show "a change of circumstances
warranting modification" of the extant custody and parenting time order.
Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015) (quoting R.K. v. F.K.,
437 N.J. Super. 58, 63 (App. Div. 2014)). After a change in circumstances is
A-0950-22 8 demonstrated, "the party is '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); see also Lepis v. Lepis, 83 N.J. 139, 159 (1980).
Courts evaluate changed circumstances based on facts existing at the time the prior
agreement or order was entered. See Beck v. Beck, 239 N.J. Super. 183, 190 (App.
Div. 1990); see also Donnelly v. Donnelly, 405 N.J. Super. 117, 127-29 (App. Div.
2009).
III.
We first address plaintiff's contention that the court erred in failing to
address defendant's child support obligation and "that a modification is
warranted." A review of the record demonstrates plaintiff withdrew her
request to address child support at the hearing by stating, "I d[o]n't need . . . to
address the child support," "I tried reaching the courts and left a message to let
them know that I don't need child support," the child support "was brought
current," and "[w]e actually worked some of [G.Q.'s] childcare out." At no
time during the hearing did plaintiff request the court address any child
support issues. Also, plaintiff had only requested enforcement of child support
in her FRO modification application.
A-0950-22 9 During the hearing, the court sought clarification from plaintiff
regarding the relief requested by asking, "what do you want me to order for
you?" and "what [is it] that you want the [c]ourt to order to happen[?]" The
record reflects the court copiously requested the parties' positions, offering
ample opportunity to be heard. Plaintiff maintained her request to terminate
defendant's parental rights based on allegations that defendant's girlfriend
abused G.Q. Plaintiff also reiterated she wanted defendant "to be no part of"
and "removed from [their] daughter's life."
For these reasons, we conclude plaintiff clearly withdrew her child
support enforcement request and did not seek a modification; thus, her
argument that the court erred is procedurally defective and not properly before
us. We generally decline to consider questions or issues not presented below
when an opportunity for such a presentation is available unless the questions
raised on appeal concern jurisdiction or matters of great public interest. See
N.J. Div. of Youth & Fam. Servs. v. H.B., 375 N.J. Super. 148, 186 (App. Div.
2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). We
only comment that plaintiff is not foreclosed from seeking to enforce or
modify child support if a warranted change in circumstances is presented. See
Jacoby, 427 N.J. Super. at 116.
A-0950-22 10 We next reject plaintiff's contention that the court failed to provide
adequate factual findings and an analysis of the child custody statutory factors
set forth in N.J.S.A. 9:2-4(c). The record reflects plaintiff repeatedly
requested sole custody and to prevent defendant from having any contact with
G.Q. On appeal, plaintiff frames her requested relief below as a "modification
of parenting time . . . and visitation." As the court correctly stated, when
addressing any modification of custody or parenting time, plaintiff had "the
burden of proof to show that [it is] in the best interest[s] of the child and that
there has been changed circumstances since the legal custodial order was
entered as to why it should be changed."
In determining whether plaintiff made a prima facie showing of changed
circumstances to modify custody, the court listened extensively to plaintiff's
assertions that the DCPP and the prosecutor's office failed to properly
investigate allegations of abuse against G.Q. The court found it was
unsubstantiated that defendant "physically abuse[d] [their] daughter" as the
agencies charged with investigating the allegations made no findings of abuse.
Additionally, the court found, even accepting as true all of plaintiff's
allegations and all hearsay statements, there was no basis for a hearing to
address plaintiff's request "to terminate [defendant's] parental rights." The
A-0950-22 11 court ordered supervised parenting time and declined to modify custody,
finding plaintiff had not established a "basis . . . to terminate parental rights or
to not allow [defendant] have a supervised parenting session." We discern no
reason to disturb the court's well-reasoned decision, which is amply supported
by the record.
To the extent that we have not addressed plaintiff's remaining
arguments, it is because they lack sufficient merit to be discussed in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0950-22 12