On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County.
Michels, McElroy and Coleman. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant Patricia Mastropole appeals from an order of the Chancery Division which (1) modified the judgment of divorce to require a joint custody arrangement for the one child born of her marriage to plaintiff Salvatore Mastropole; (2) reduced the amount of child support plaintiff was to pay her to $35 a week; (3) awarded her counsel fees and costs of $1,000 and (4) directed that the amount of arrearages in alimony and support be established by agreement of counsel or at a summary hearing.
Plaintiff and defendant were married on May 19, 1962 and one child, Salvatore, was born on June 19, 1969. Shortly after Salvatore was born, plaintiff and defendant separated. Salvatore remained with his mother. On November 11, 1974 plaintiff and defendant were divorced. The judgment of divorce incorporated by reference a separation agreement executed by the parties on February 15, 1974. The agreement, in pertinent part, provided that defendant would have custody of Salvatore, who was then 4 1/2 years old, and that plaintiff would have the right of visitation on Sundays and for one entire month each year. While the parties originally agreed that plaintiff was to pay defendant a lump sum of $100 a week for alimony and child support, the judgment modified this to specify that plaintiff was to pay $50 a week for alimony and $50 a week for child support. In June 1978, about 3 1/2 years after the entry of the divorce judgment, defendant moved to enforce her litigant's rights under R. 1:10-5, claiming that plaintiff had failed to comply with the alimony and child support provisions of the judgment. The trial judge determined from the affidavits that the amount of arrearages owed as of June 10, 1978 was $1,300 and ordered plaintiff to pay defendant a lump sum of $500 by July 15, 1978,
to be credited against the total amount due, and beginning July 7, 1978 the sum of $25 a week until the balance due on the arrearages was paid in full. The trial judge also ordered defendant to continue to make the alimony and child support payments required by the judgment.
In March 1979 plaintiff moved to modify the judgment. Specifically, he sought to transfer sole custody of Salvatore to himself and to reduce the amount of alimony that he was required to pay defendant. Plaintiff claimed in his supporting affidavit that he was a self-employed contractor and that he had an income of between $2,000 and $2,500 a month. Additionally, he pointed out that he was now the father of a five month-old-child which was born as the result of his new marriage. Plaintiff's new wife also filed an affidavit, claiming that defendant had left Salvatore alone on various occasions and that Salvatore had told her in a telephone conversation that he was afraid of his mother and did not wish to live with defendant any longer. Rene Avila filed an affidavit claiming that she was acquainted with and had been a guest in defendant's home on many occasions and that she had observed defendant scream at Salvatore for no apparent reason. She also claimed that Salvatore would eat alone and on occasion would be locked in his room when people came to visit defendant.
Defendant opposed any change in custody or reduction in alimony -- denying the charges leveled against her. She also claimed that plaintiff was still not complying with the alimony and child support provisions of the judgment notwithstanding the fact that his financial condition had improved substantially since the prior court order establishing arrearages.
The trial judge ordered the Passaic County Probation Department and Passaic County Diagnostic Center to investigate the custody issue and set the matter down for a plenary hearing on the issues of custody and arrearages. In the meantime, the trial judge continued sole custody with defendant. Since plaintiff's present wife is related to a member of the Passaic County
Probation Department, the probation investigation was conducted by the Bergen County Probation Department but the diagnostic report was prepared by the Passaic County Diagnostic Center. Following a plenary hearing during which the trial judge interviewed Salvatore in camera , the trial judge modified the custody provisions of the judgment even though he found that there was no proof that defendant was an unfit mother. On the contrary, the trial judge found that defendant was a good parent and that Salvatore was being brought up well. The trial judge then, on his own motion, ordered what he characterized as "a shared living arrangement" or, as it is more commonly referred to, joint custody of the child. Under the court-ordered arrangement, plaintiff would have overnight visitation with Salvatore on alternating weekends from Friday afternoon at about 5:00 p.m. until Sunday at about 8:30 p.m., as well as during the week from Tuesday afternoon through Thursday morning for those weeks following the weekends which Salvatore spent with his mother. Since the trial judge changed custody, he also reduced to $35 a week plaintiff's obligation to pay child support, awarded defendant attorney's fees and costs of $1,000 and directed that the amount of arrearages be established by agreement of counsel or at a summary hearing. This appeal followed.
Defendant first contends that the trial judge erred in changing the status quo and on his own motion imposing a joint custody arrangement. She argues that plaintiff did not carry his burden of showing changed circumstances which would justify modification of the initial custody determination. She also claims that joint custody would not be feasible in view of the antipathy that she and plaintiff have for each other and their refusal to communicate with each other concerning the child. Recently our Supreme Court placed its imprimatur upon the concept of joint custody. Beck v. Beck , 86 N.J. 480 (1981). However, in doing so, it noted that such custodial arrangements
"will prove acceptable in only a limited class of cases" and outlined the factors that courts should consider when contemplating an award of joint custody. Id. at 488, 497-501. The Supreme Court pointed out that "before embarking on a full-blown inquiry into the practicability of a joint custody arrangement, the court must determine whether the [child] has established such [a] relationship with both parents that [he] would benefit from joint custody." Id. at 497.
The primary consideration, of course, is what is in the best interests of the child -- that is, what will "protect the 'safety, happiness, physical, mental and moral welfare of the child.'" Id. at 497 (quoting Fantony v. Fantony , 21 N.J. 525, 536 (1956)). However, even though the relationship between the child and both of his parents may be such that it could reasonably be concluded that the child would benefit from joint custody, the party seeking a modification of the initial custody determination must show a change of circumstances warranting modification. Beck v. Beck, supra 86 N.J. at 496, n. 8; Mimkon v. Ford , 66 N.J. 426, 438 (1975); M.P. v. S.P. , 169 N.J. Super. 425, 431 (App.Div.1979); Sheehan v. Sheehan , 51 N.J. Super. 276, 287 (App.Div.1958), certif. den. 28 N.J. 147 (1958). In Sheehan v. Sheehan we stated that:
There is no doubt that a judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances, In re Erving , 109 N.J. Eq. 294 (Ch.1931); Casteel v. Casteel , 45 N.J. Super. 338 (App.Div.1957), and that the party seeking modification bears the burden of proof. 17A Am.Jur., Divorce & Separation , § 838; 27 C.J.S. Divorce § 317(5).
The primary consideration of the court in matters of this type is the welfare of the children. The basic issue is a change in the circumstances which would affect the welfare of the children. In order to determine whether the circumstances have so changed since the original judgment as to warrant a modification, a court must have some knowledge or information as to the circumstances which existed on the date of the original judgment. This is for the twofold purpose of (1) acquainting the court with the facts which existed at the time that the original judgment was entered, so that he may ascertain what motivated the original judgment and determine whether there has been any change in circumstances, and (2) aiding the court in evaluating the bona fides of the person who seeks a modification upon the grounds of change in his status of fitness. Such evidence has a vital and essential bearing upon the welfare of the child. [51 N.J. Super. at 287-288]
Here, the record reveals that plaintiff failed to sustain his burden of proof. There has been no showing made of changed circumstances affecting the welfare of Salvatore which would justify or warrant the trial judge's interfering with the initial order of sole custody and replacing it with a joint custody arrangement. Salvatore has been in the sole custody of his mother since she and plaintiff separated shortly after Salvatore's birth. The relationship between Salvatore and his mother has been a stable and a happy one, and Salvatore has developed into a happy, normal, well-adjusted child. Moreover, the trial judge found defendant to be both a fit and good parent. The only change that has occurred since the initial custody determination is that plaintiff has recently remarried and has established a home with his third wife which could accommodate Salvatore. In our view, neither the changes in plaintiff's marital status or living arrangement nor plaintiff's bare assertion that he could take better care of Salvatore than defendant justified the major change in Salvatore's lifestyle which the trial judge ordered.
Furthermore even if we were to assume that plaintiff has shown changed circumstances sufficient to warrant some modification of the existing custody determination, we are firmly convinced from our review of the record that the trial judge erred in awarding joint custody. The standards established by our Supreme Court in Beck v. Beck, supra 86 N.J. at 497-501, for an award of joint custody have not been met. The initial inquiry must be whether the child has established such relationships with both parents that he would benefit from joint custody. This is dependent upon a finding "that the child recognize[s] both parents as sources of security and love and wish[es] to continue both relationships." Id. at 497-498. The proofs show that Salvatore at best was ambivalent as to how he felt about his father. He wanted to stay with his mother. However, the trial judge suggested that he might like to stay overnight at his father's during the week. Salvatore was not
particularly enthusiastic about this arrangement, as appears from the following ...