NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0196-22
J.M.,1
Plaintiff-Appellant,
v.
A.M.,
Defendant-Respondent. __________________________
Submitted December 12, 2023 – Decided March 19, 2024
Before Judges Sumners and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1364-15.
Harriet Kellman Gordon, attorney for appellant.
Heymann & Fletcher, attorneys for respondent (Alix Claps, on the 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). In this post-judgment matrimonial dispute, plaintiff J.M. appeals from the
trial court's denial of reconsideration of its June 29, 2022 order compelling that
plaintiff's parenting time be supervised at plaintiff's sole expense , and denying
plaintiff's request to appoint counsel for the parties' minor child C.M. 2 Plaintiff
argues the court committed error by not holding a plenary hearing. She argues
for the first time on appeal that the court erred by failing to recuse itself. We
affirm, essentially for the reasons set forth in the trial court's cogent statement
of reasons. We summarize the facts and add the following additional comments.
I.
After eight years of marriage, the parties divorced in March 2016. The
divorce was memorialized in an amended final judgment of divorce, which
incorporated a marital settlement agreement. The parties have two minor
children together, C.M. and E.M. Since 2016, the record shows plaintiff has
been in a relationship with her fiancé, J.S.
Since the divorce, the parties have repeatedly litigated the children's
custody. On April 23, 2021, the trial court heard defendant's emergent
application seeking temporary suspension of plaintiff's parenting time and
2 We identify the parties and child in this matter by initials and pseudonyms to protect the confidentiality of court records relating to child custody. R. 1:38- 3(d)(13). A-0196-22 2 barring J.S.'s contact with the minor children. Defendant sought relief after an
incident where J.S. allegedly put C.M. in a chokehold and lifted her off the
ground. The trial court granted the application, making findings of fact.
The court issued three orders modifying the April 23 order, on April 29,
June 9, and August 13, 2021. The orders relaxed the restrictions on plaintiff's
parenting time, but they each maintained the prohibition against J.S.'s contact
with the children. The orders contained other mandates for the parties including:
compliance with DCPP strictures; therapy for the parties as well as their children
and partners; use of a co-parenting coordinator; and conditioning further contact
between J.S. and the children on a therapist's recommendation.
The children enrolled in therapy with a licensed counseling agency in
early May 2021, but stopped attending once plaintiff filed a complaint against
the agency. On November 5, 2021, the trial court appointed Joseph P. Cadacina
Esq. as guardian ad litem (GAL) for both children. The court further ordered
that the parties equally share the GAL costs. In the same order, the court
directed the parties to retain a new co-parenting therapist.
On May 9, 2022, defendant again sought emergent relief, seeking sole
legal and residential custody of the minor children and suspension of plaintiff's
A-0196-22 3 parenting time. The court denied the application, finding the children were not
under immediate threat of irreparable harm.
A week later, defendant moved to hold plaintiff in violation of litigant's
rights for failing to comply with prior orders by permitting contact between the
children and Striharsky. Defendant sought the same relief as in his May 9
motion, alleging the following violations: plaintiff permitted C.M. to
communicate with J.S. via text; J.S. was present when plaintiff exercised her
parenting time; plaintiff left the children unsupervised in J.S.'s care; and plaintiff
instructed the children to lie about their contact with J.S.
Plaintiff opposed the motion, alleging that C.M. fabricated the choking
incident. Plaintiff conceded that C.M. used her phone to text J.S., however she
claimed that she did not encourage the communication. She denied living with
J.S. and explained that J.S.'s direct contact with the children was due to her
needing assistance for car trouble on multiple occasions. She also alleged that
defendant violated prior court orders by purposefully delaying the children's
therapy and "biasing their understanding of the parties' situation prior to therapy
sessions."
On June 29, 2022, the court found plaintiff violated the April 23, 2021,
April 29, 2021, June 9, 2021, and August 13, 2021 "unambiguous" orders
A-0196-22 4 prohibiting contact between the children and J.S. It rested its findings on
plaintiff "conced[ing] . . . the alleged violations . . . occurred," and also found
plaintiff's "cursory explanations" for the violations were unjustified. The court
ordered continued restraints—prohibiting contact between the children and J.S.
"until the minor children are re-enrolled in therapy and their therapist
recommends potential reunification." The court also noted any additional non -
compliance would result in sanctions.
On the issue of custody and parenting time, the court found it would not
be in the best interest of the children to transfer sole legal and physical custody
to defendant, but that "maintaining the current parenting time arrangement
[would] also be inimical to the minor children's best interests." It partially
granted defendant's request to require supervised parenting time and ordered the
supervisors to serve at plaintiff's sole expense. Additionally, the court restrained
both parties "from communicating with the minor children regarding the . . .
litigation," from "making disparaging comments to the . . . children regarding
the other party . . . [and] from directing the . . . children to misrepresent or lie
regarding any interactions with [J.S.]"
A-0196-22 5 On August 26, 2022, the court denied plaintiff's motion for
reconsideration, requesting the court review its order of supervised parenting
time. This appeal followed.
II.
The decision of whether to deny a motion for reconsideration under Rule
4:49-2 is left to the trial judge's discretion. Branch v. Cream-O-Land Dairy, 244
N.J. 567, 582 (2021). We will not disturb denial of a motion for reconsideration
absent a clear abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). An abuse of discretion
arises "when a decision is 'made without rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted). We will
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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-0196-22
J.M.,1
Plaintiff-Appellant,
v.
A.M.,
Defendant-Respondent. __________________________
Submitted December 12, 2023 – Decided March 19, 2024
Before Judges Sumners and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1364-15.
Harriet Kellman Gordon, attorney for appellant.
Heymann & Fletcher, attorneys for respondent (Alix Claps, on the 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). In this post-judgment matrimonial dispute, plaintiff J.M. appeals from the
trial court's denial of reconsideration of its June 29, 2022 order compelling that
plaintiff's parenting time be supervised at plaintiff's sole expense , and denying
plaintiff's request to appoint counsel for the parties' minor child C.M. 2 Plaintiff
argues the court committed error by not holding a plenary hearing. She argues
for the first time on appeal that the court erred by failing to recuse itself. We
affirm, essentially for the reasons set forth in the trial court's cogent statement
of reasons. We summarize the facts and add the following additional comments.
I.
After eight years of marriage, the parties divorced in March 2016. The
divorce was memorialized in an amended final judgment of divorce, which
incorporated a marital settlement agreement. The parties have two minor
children together, C.M. and E.M. Since 2016, the record shows plaintiff has
been in a relationship with her fiancé, J.S.
Since the divorce, the parties have repeatedly litigated the children's
custody. On April 23, 2021, the trial court heard defendant's emergent
application seeking temporary suspension of plaintiff's parenting time and
2 We identify the parties and child in this matter by initials and pseudonyms to protect the confidentiality of court records relating to child custody. R. 1:38- 3(d)(13). A-0196-22 2 barring J.S.'s contact with the minor children. Defendant sought relief after an
incident where J.S. allegedly put C.M. in a chokehold and lifted her off the
ground. The trial court granted the application, making findings of fact.
The court issued three orders modifying the April 23 order, on April 29,
June 9, and August 13, 2021. The orders relaxed the restrictions on plaintiff's
parenting time, but they each maintained the prohibition against J.S.'s contact
with the children. The orders contained other mandates for the parties including:
compliance with DCPP strictures; therapy for the parties as well as their children
and partners; use of a co-parenting coordinator; and conditioning further contact
between J.S. and the children on a therapist's recommendation.
The children enrolled in therapy with a licensed counseling agency in
early May 2021, but stopped attending once plaintiff filed a complaint against
the agency. On November 5, 2021, the trial court appointed Joseph P. Cadacina
Esq. as guardian ad litem (GAL) for both children. The court further ordered
that the parties equally share the GAL costs. In the same order, the court
directed the parties to retain a new co-parenting therapist.
On May 9, 2022, defendant again sought emergent relief, seeking sole
legal and residential custody of the minor children and suspension of plaintiff's
A-0196-22 3 parenting time. The court denied the application, finding the children were not
under immediate threat of irreparable harm.
A week later, defendant moved to hold plaintiff in violation of litigant's
rights for failing to comply with prior orders by permitting contact between the
children and Striharsky. Defendant sought the same relief as in his May 9
motion, alleging the following violations: plaintiff permitted C.M. to
communicate with J.S. via text; J.S. was present when plaintiff exercised her
parenting time; plaintiff left the children unsupervised in J.S.'s care; and plaintiff
instructed the children to lie about their contact with J.S.
Plaintiff opposed the motion, alleging that C.M. fabricated the choking
incident. Plaintiff conceded that C.M. used her phone to text J.S., however she
claimed that she did not encourage the communication. She denied living with
J.S. and explained that J.S.'s direct contact with the children was due to her
needing assistance for car trouble on multiple occasions. She also alleged that
defendant violated prior court orders by purposefully delaying the children's
therapy and "biasing their understanding of the parties' situation prior to therapy
sessions."
On June 29, 2022, the court found plaintiff violated the April 23, 2021,
April 29, 2021, June 9, 2021, and August 13, 2021 "unambiguous" orders
A-0196-22 4 prohibiting contact between the children and J.S. It rested its findings on
plaintiff "conced[ing] . . . the alleged violations . . . occurred," and also found
plaintiff's "cursory explanations" for the violations were unjustified. The court
ordered continued restraints—prohibiting contact between the children and J.S.
"until the minor children are re-enrolled in therapy and their therapist
recommends potential reunification." The court also noted any additional non -
compliance would result in sanctions.
On the issue of custody and parenting time, the court found it would not
be in the best interest of the children to transfer sole legal and physical custody
to defendant, but that "maintaining the current parenting time arrangement
[would] also be inimical to the minor children's best interests." It partially
granted defendant's request to require supervised parenting time and ordered the
supervisors to serve at plaintiff's sole expense. Additionally, the court restrained
both parties "from communicating with the minor children regarding the . . .
litigation," from "making disparaging comments to the . . . children regarding
the other party . . . [and] from directing the . . . children to misrepresent or lie
regarding any interactions with [J.S.]"
A-0196-22 5 On August 26, 2022, the court denied plaintiff's motion for
reconsideration, requesting the court review its order of supervised parenting
time. This appeal followed.
II.
The decision of whether to deny a motion for reconsideration under Rule
4:49-2 is left to the trial judge's discretion. Branch v. Cream-O-Land Dairy, 244
N.J. 567, 582 (2021). We will not disturb denial of a motion for reconsideration
absent a clear abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). An abuse of discretion
arises "when a decision is 'made without rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted). We will
not overturn a determination of the trial court "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) (citations omitted).
Our review of family court decisions is limited. Hand v. Hand, 391 N.J.
Super. 102, 111 (App. Div. 2007). We accord deference to the family courts
due to their "special jurisdiction and expertise" in the area of family law. Cesare
A-0196-22 6 v. Cesare, 154 N.J. 394, 413 (1998). The court's findings are binding as long as
they are “supported by adequate, substantial, credible evidence.” Id. at 411-12
(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).
Pursuant to the plain error rule, where an error has not been brought to the
trial court's attention, the appellate court will not reverse on the ground of such
error unless the error is "clearly capable of producing an unjust result." R. 2:10-
2; see State v. Montalvo, 229 N.J. 300, 320 (2017).
We review a trial court's decision not to hold a plenary hearing by an abuse
of discretion standard. See Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div.
2015). It is well established "a plenary hearing is only required if there is a
genuine, material and legitimate factual dispute." Segal v. Lynch, 211 N.J. 230,
264-65 (2012). The burden is on the movant to make a "prima facie showing
that a plenary hearing is necessary." Hand, 391 N.J. Super. at 106.
III.
Plaintiff argues the trial court should have conducted a plenary hearing.
We disagree. The record shows the parties' dispute was not over a change in
custody, but rather a modification of plaintiff's parenting time conditions. Even
if we were to accept that the order reflected a change in custody, and we do not,
a plenary hearing would not be required as plaintiff failed to make a prima facie
A-0196-22 7 case showing that it was necessary. The trial court correctly noted that differing
versions of the choking incident were irrelevant to its findings. The incident
was the subject of the April 23, 2021 order, where the court initially prohibited
contact with J.S. The continued prohibitions in the April 29, 2021, June 9, 2021,
and August 13, 2021 orders reflect the court's finding that further contact
between the children and J.S. warranted close monitoring.
Plaintiff conceded she violated those orders by permitting such contact.
This alone is a sufficient basis for the court's order of third-party supervised
parenting time, and the court properly exercised its discretion to bar further
contact until recommended by a new therapist. We defer to the court's exercise
of discretion to proceed without a plenary. See Jacoby v. Jacoby, 427 N.J.
Super. 109, 123 (App. Div. 2012).
Plaintiff argues for the first time before us that the court should have
recused itself in accordance with Rule 1:12-1, because of "the systematic denial
of plaintiff's rights." "Whether a judge should disqualify himself must, in the
first instance, be left to his sound discretion." State v. Flowers, 109 N.J. Super.
309, 311-12 (App. Div. 1970). "Fundamental to any consideration of possible
judicial disqualification is a showing of prejudice or potential bias.” Id. at 312.
In addition, a party may motion for a judge's recusal under Rule 1:12-2.
A-0196-22 8 We note that we do not "consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation [was]
available unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest." Selective Ins. Co. of Am.
v. Rothman, 208 N.J. 580, 586 (2012). For completeness, we briefly address the
question. Our standard of review is whether the judge abused his discretion in
not recusing himself. Cf. P.M. v. N.P., 441 N.J. Super. 127, 140 (App. Div.
2015) (where a motion for disqualification was made "[w]e review de novo
whether the proper legal standard was applied." (quoting State v. McCabe, 201
N.J. 34, 45 (2010) (alteration in original))). We note the plaintiff did not raise
recusal below to allow the trial court a chance to address the question. Had
plaintiff done so, we discern no evidence of prejudice or bias in the record which
would warrant recusal.
In sum, the denial of reconsideration was proper. We find no abuse of
reasoned discretion by the court, which made factual findings supported by
adequate, substantial, and credible evidence in the record, and properly applied
the law. To the extent that we have not addressed any of plaintiff's remaining
arguments, we find they are so lacking in merit as to not warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E).
A-0196-22 9 Affirmed.
A-0196-22 10