NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0061-22
T.K.,1
Plaintiff-Respondent,
v.
R.K.,
Defendant-Appellant. _________________________
Submitted February 13, 2024 – Decided March 8, 2024
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0950-09.
August J. Landi, Jr., attorney for appellant.
Law Offices of Steven P. Monaghan, LLC, attorneys for respondent (Kristin Stoop Pallonetti, 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). Defendant R.K. appeals from the July 29, 2022 Family Part order, which
denied a plenary hearing regarding custody and parenting time because the judge
found no change in circumstances. Following our review of the record and
applicable legal standards, we affirm.
I.
Defendant and plaintiff T.K. were married in June 2006. They share a
minor child, C.K., born in June 2008. C.K. was diagnosed with autism spectrum
disorder, pervasive developmental disorder, and attention-deficit/hyperactivity
disorder. In August 2009, the parties divorced and incorporated into their final
judgment of divorce their marital settlement agreement (MSA). The parties
agreed to joint legal and shared residential custody of C.K. Plaintiff was
designated as the parent of primary residence and defendant as the parent of
alternate residence. The MSA provided they would jointly make all major
decisions concerning C.K.'s health, safety, education, welfare, and religious
upbringing.
Shortly after the parties divorced, disagreements arose regarding C.K.'s
education and medical decisions. In 2011, defendant moved for custody, to
become the parent of primary residence, and to remove C.K. from a "special
needs preschool program," which was denied. The motion judge ordered "an
A-0061-22 2 independent evaluation of [C.K.] regarding his [Individualized Education Plan]
and enrollment in the special needs program." Thereafter, a plenary hearing was
ordered regarding "educational-decision-making authority" and other ancillary
relief. After a parenting coordinator was appointed in 2013 to assist the parties
with education and medical disputes, the coordinator recommended "a change
from joint legal custody to sole legal custody . . . in favor of [plaintiff ]" or
alternatively, that plaintiff "make all medical and academic decisions for [C.K.]"
In 2014, the parties settled, agreeing to "resume joint legal custody" of C.K. and
that "custody decisions shall be discussed . . . via email only."
In 2019, plaintiff moved for: a modification of parenting time; a custody
neutral assessment (CNA); defendant's attendance in a therapeutic program; a
review of the Division of Child Protection and Permanency's (DCPP) file; C.K.
to be interviewed; and other related relief. The DCPP had become involved
regarding C.K.'s welfare. Plaintiff maintained defendant was "regularly leaving
[their] son in his car for several hours at a time while he worked," and was
"repeatedly taking [C.K.] out of [s]tate" without informing her. Defendant filed
a cross-motion to: deny plaintiff's requested relief; receive a right of first
refusal; restrain and sanction plaintiff for not abiding by their parenting time
agreement; receive legal fees; and for other related relief.
A-0061-22 3 In September, a new motion judge heard the motions and found the parties
had demonstrated "a sufficient showing of changed circumstances and that the
current arrangement may no longer [be] in the best interest[s] of the child." The
judge ordered "the parties' issues of custody and parenting time [be] referred to
mediation" and a CNA be completed. Based on plaintiff's allegation, the judge
further ordered the DCPP to provide its report and summary to the court. The
parties were to comply with the MSA and attend co-parenting therapy because
of the "high level of hostility between the parties" and lack of improvement with
the parenting time coordinator.
In December, the CNA report was submitted. The judge permitted the
parties and counsel to review the CNA but barred its release. Plaintiff and her
counsel reviewed the CNA before the hearing, while defendant and his counsel
reviewed it the day of the hearing. At the hearing, the judge confirmed the
parties reviewed the CNA, that she had reviewed the "in-depth and
comprehensive report," and advised it "raise[d] a lot of concerns for the child
and [defendant]'s behavior toward[] the child." The judge advised the
recommendations would be ordered and if the parties had "any questions," they
could "raise them." When asked if he had any questions, defendant responded
A-0061-22 4 "I am not agreeing to this." After further inquiry, his attorney responded there
were no questions.
The judge awarded temporary sole custody to plaintiff pending further
order and directed the DCPP to become "re-involved" with the family.
Defendant was ordered to: "complete a [therapeutic program]"; cooperate with
the Guardian Ad Litem (GAL) appointed; "undergo a comprehensive
psychological evaluation"; and then have "[t]herapeutic [s]upervised" visitation
with C.K. Defendant's completion of the ordered services was a "threshold"
requirement, and the judge stated that from "the court's perspective, the
paramount issue [wa]s safety of the child, best interests of the child," and there
was "a lot that [defendant] ha[d] to do before . . . hav[ing] unfettered, open
parenting time with that child." The judge ordered a "status update" in seventy-
five days to provide time for: the GAL to get involved, defendant "to do what
he need[ed] to do" and the submission of a GAL report. The judge ordered the
GAL "to more closely examine the concerns, interview the parties who provided
letters during the assessment process, perform an in-depth review [of C.K.'s]
treatment and school records, and communicate with any involved mental health
professionals for" C.K. The GAL was to "provide recommendations regarding
issues of legal custody and time sharing" and the cost of the GAL was allocated
A-0061-22 5 between the parties. As defendant failed to pay the GAL's retainer for several
months and complete the threshold programs, the matter was not heard.
On November 17, 2020, defendant moved for: modification of the January
2020 order barring the release of the CNA; a due process violation finding; a
meeting with the GAL; and a case management conference (CMC). Plaintiff
cross-moved for: a denial of defendant's requested relief; defendant to be
ordered to complete the psychological evaluation; and counsel fees. The judge
denied defendant's motion, finding his prior and current counsel were "aff orded
the opportunity to review the CNA." Further, the judge noted reconsideration
of the order was out of time and that the ordered reunification requirements had
not occurred because defendant failed to pay the GAL's retainer for
approximately eight months. The judge partially granted plaintiff's relief,
ordering defendant to submit his psychological evaluation in camera and
awarding counsel fees.
In a letter dated May 13, 2021, the GAL advised the court that, with the
assistance of a reunification therapist, a full weekend visit with defendant had
been arranged at the end of April. During that weekend, defendant called the
police about "his rights" to remove a "tracker" plaintiff had installed in C.K.'s
phone. The GAL reported defendant took C.K.'s phone several times, including
A-0061-22 6 "at one point . . . pinn[ing C.K.] down and forcibly remov[ing] the phone from
his pocket." The GAL explained that although prior efforts to reunite C.K. and
defendant had restored their relationship and alternate weekend parenting time
was initiated, the GAL felt the process was "almost back to square one" after the
incident. Based on C.K.'s "justified fear of spending extended periods of time"
with defendant, the GAL was "forced to revert back to the old schedule" and
suggested two daytime visits with C.K. at defendant's home. The GAL conveyed
that after the daytime visits, the reunification therapist and the GAL would
reevaluate the possibility of "resuming a single overnight" visit. The GAL
represented that defendant failed to avail himself of the visitation opportunities
and had voluntarily chosen not to exercise his parenting time with C.K.
In July, defendant filed a motion seeking: reinstatement of the MSA
parenting schedule; a plenary hearing; a due process violation finding; sealing
of the CNA from further consideration; a GAL meeting with the parties; a CMC;
and counsel fees. Plaintiff cross-moved for: a denial of defendant's motion;
review of the CNA; enforcement of prior orders; counsel fees; and other
equitable relief.
On December 9, a different motion judge denied defendant's motion,
finding it was "essentially a motion for reconsideration packaged as an initial
A-0061-22 7 motion" and defendant "failed to prove a change [in] circumstances" on the
merits. The judge required "gradual[] reinstate[ment]" of defendant's parenting
time based on the child's best interests. Specifically, the judge found defendant
chose not to exercise further parenting time offered to him, refused to engage in
the reinstatement plan, and continued to rehash arguments previously presented.
The GAL was directed to work with the parties to "gradually resume
unsupervised overnight visitation," and a CMC was scheduled in three months.
Defendant appealed, which we dismissed on March 8, 2022 as interlocutory.
On March 9, at a CMC, the judge ordered the matter "closed" with an
accompanying oral statement of reasons. The judge determined that
"[defendant] ha[d] [not] followed any of the recommendations," there "were [no]
material facts in dispute . . . justifying a plenary hearing," and a motion to
address future changes could be filed in the ordinary course. Defendant moved
for leave to appeal, which we denied as the appeal was from a final order.
On May 17, defendant again moved to: schedule a plenary hearing;
enforce daily communication with C.K.; vacate prior court orders; vacate the
GAL's and attorney's fees awarded; release the CNA; and deny plaintiff's fee
request. On July 14, plaintiff cross-moved, requesting: denial of defendant's
motion; the continued denial of a plenary hearing; the continued denial of a
A-0061-22 8 CMC; the judge review the CNA; the GAL to continue providing
recommendations; the parties continue to follow the CNA and the GAL's
recommendations; enforcement of prior orders awarding fees; award of fees; and
any equitable and just relief.
On July 29, after argument, the judge issued a twenty-page order and a
statement of reasons. The judge denied without prejudice defendant's request
for a plenary hearing, finding no genuine issue of material fact existed. The
judge reasoned defendant had "voluntarily chose[n] to make himself unavailable
for the unsupervised, overnight weekend parenting that he s[ought] to re -
establish" and "gave up participating" in reunification. Further, the ju dge
ordered defendant to "continue with the process" of reunification. The judge
denied defendant's other ancillary requested relief. Plaintiff's requested relief
was granted except for the demand that the CNA report to be reviewed.
On appeal, defendant contends the trial court erred in: not ordering a
plenary hearing; denying a plenary hearing on procedural grounds; failing to
establish present circumstances; and off-loading judicial responsibility to the
GAL.
A-0061-22 9 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).
A decision concerning custody and parenting time rests in "the sound
discretion of the trial courts." Pascale v. Pascale, 140 N.J. 583, 611 (1995); see
Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003)
("Judges of the Family Part are regularly called upon to make exceedingly
difficult and delicate decisions as to the best interest[s] of the children, and we
are obliged to give deference to both their findings and the exercise of their
sound discretion."). We review a judge's decision on a motion to modify custody
without conducting a plenary hearing for abuse of discretion. Costa v. Costa,
440 N.J. Super. 1, 4 (App. Div. 2015).
A-0061-22 10 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). "A party seeking to modify custody must demonstrate
changed circumstances that affect the welfare of the children." Ibid. "Where
there is already a judgment or an agreement affecting custody in place, it is
presumed it 'embodies a best interests determination' and should be modified
only where there is a 'showing [of] changed circumstances which would affect
the welfare of the child[].'" 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));
see also Lepis v. Lepis, 83 N.J. 139, 157 (1980). To determine whether the
requisite changed circumstances exist, the court must consider the circumstances
that existed at the time the current 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). Then, the court can "ascertain what
motivated the original judgment and determine whether there has been any
change in circumstances." Id. at 288. The party seeking to change a judgment
or agreement involving a custodial arrangement bears the burden of
demonstrating the status quo is no longer in a child's best interests. See Bisbing
v. Bisbing, 230 N.J. 309, 322 (2017).
A-0061-22 11 Once the moving party makes a prima facie showing of changed
circumstances, only then is the moving party 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 . . . order." Faucett v.
Vasquez, 411 N.J. Super. 108, 111 (App. Div. 2009). Stated differently, a
plenary hearing is not required unless the parties' submissions demonstrate
"there is a genuine and substantial factual dispute regarding the welfare of the
children." Hand, 391 N.J. Super. at 105; see also Lepis, 83 N.J. at 159; R. 5:8-
6 (requiring the court to "set a hearing date" if it "finds that the custody of
children is a genuine and substantial issue").
"[A] judgment involving the custody of minor children is subject to
modification at any time upon the ground of changed circumstances." Innes v.
Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan, 51
N.J. Super. at 287). However, "not every factual dispute that arises in the
context of matrimonial proceedings triggers the need for a plenary hearing."
Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995). "[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). "Without such a
A-0061-22 12 standard, courts would be obligated to hold hearings on every modification
application." Lepis, 83 N.J. at 159.
We also review orders denying reconsideration for abuse of discretion.
Granata v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016). A court
abuses its discretion "when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissi ble
basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
III.
Based on the record, we are unpersuaded the judge abused her discretion
in denying a plenary hearing on custody and parenting time issues as no material
issues of fact existed. Defendant presented no competent evidence of his
reunification efforts demonstrating a prima facie showing of changed
circumstances to alter the existing custody and parenting time plan in C.K.'s best
interests, much less a return to the status quo that existed before the MSA was
modified in January 2020. Because defendant failed to demonstrate a change in
circumstances occurred from the March 9, 2022 order to the order under appeal,
he was not entitled to a plenary hearing.
A-0061-22 13 Given defendant's candid admission that he did not comply with the court-
ordered reunification process, because he felt "brief visits . . . [we]re more
hurtful for the child" and the scheduled visits were "insufficient," we are
satisfied the judge properly denied the plenary hearing and ordered that
defendant and C.K. "undergo[] a reunification process." The necessity for
defendant to engage in reunification therapy for C.K.'s best interests is well -
supported by the record.
We reject defendant's contention that a plenary hearing is necessary to
establish the "present circumstances" and based on the passage of time. In
denying the plenary hearing, the judge accurately reasoned that the "court ha[d]
been continually involved with the same issues since 2019," defendant "chose
to make himself unavailable" for the reunification process, and his actions
required the order remain in the child's best interests. She concluded that
although defendant "gave up participating," the "GAL and the reunification
therapist remain[ed] ready, willing, and able to continue the developed plan."
The judge directed the "parties . . . to continue to cooperate with the reunification
protocol." We discern no reason to disturb the judge's well-reasoned decision.
We are further unpersuaded by defendant's argument that the "trial judges
. . . consistently off-load[ed] judicial responsibility and decision-making to the
A-0061-22 14 GAL." As an initial matter, defendant's argument is procedurally defective
because he failed to raise the argument before the court in his motion, and it is
therefore 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. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973); see also Zaman v. Felton, 219 N.J. 199, 226-27 (2014).
Nevertheless, we briefly address his contention. "In all cases in which
custody or parenting time/visitation is an issue, a [GAL] may be appointed by
court order to represent the best interests of the child or children if the
circumstances warrant such an appointment." Milne, 428 N.J. Super. at 199
(quoting R. 5:8B(a)). "Once appointed, the GAL provides 'services . . . to the
court on behalf of the child . . . [and] acts as an independent fact finder,
investigator and evaluator as to what furthers the best interests of the child.'" Id.
at 200 (alterations in original) (quoting In re M.R., 135 N.J. 155, 173 (1994)).
Defendant's contention that the GAL has served as a substitute for the
"court's exercise of its parens patriae obligation" is unsupported by the record.
After the CNA was completed in December 2019, a hearing was held on January
16, 2020. The judge advised the CNA's recommendations would be accepted
A-0061-22 15 and provided the parties an opportunity to object and ask questions. Defendant
accepted the custody and parenting time plan established in the January order
which provided for: therapeutic supervised parenting time, the DCPP's
reinvolvement, therapeutic program attendance, temporary sole custody to
plaintiff, a psychological evaluation of defendant, therapy for C.K. and plaintiff,
and the appointment of a GAL. The GAL was appointed for C.K. to:
"communicate with . . . mental health professionals for [C.K.]"; communicate
with "the therapeutic supervisor" and defendant; "provide recommendations";
and report to the court the progress in C.K.'s best interests. Relevantly,
defendant consented to the selected GAL, did not seek reconsideration, and did
not appeal. The record demonstrates, as the judge found, the GAL sought
defendant's reunification plan compliance in C.K.'s best interests, but he
voluntarily chose not to participate. Defendant's failure to comply with the
ordered reunification process is established by the record. Further, the unrefuted
history demonstrates the substantial need for a GAL for C.K.'s best interests.
Defendant's argument that judges offloaded judicial responsibility is meritless.
To the extent that we have not addressed any of the parties' arguments, it
is because they lack sufficient merit to be discussed in a written opinion. R.
2:11-3(e)(1)(E).
A-0061-22 16 Affirmed.
A-0061-22 17