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Swicinski v. Maul

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 17, 2008

SCOTT SWICINSKI, PLAINTIFF-RESPONDENT,
v.
ELIZABETH J. MAUL, (F/K/A ELIZABETH WELHAM), DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-18-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 10, 2008

Before Judges Parrillo and Baxter.

Defendant Elizabeth Welham, now known as Elizabeth Maul, appeals from a July 16, 2007 order that extended plaintiff Scott Swicinski's parenting time with the parties' son for one additional night.*fn1 We affirm.

I.

The parties, who were never married, have a son who was born on June 2, 2003. When their child was six weeks old, the court entered an order that awarded joint legal custody but designated defendant as the primary residential parent. The order also provided that plaintiff would be entitled to parenting time every Sunday between 10:00 a.m. and 6:00 p.m., and between 6:00 p.m. every Monday through 6:00 p.m. the next day. Because that schedule was cumbersome and involved four round-trips in each three-day period, the parties voluntarily modified that schedule so that plaintiff's parenting time would begin on Sunday morning and conclude on Monday at 6:00 p.m.

When the parties' son was three and one-half years old, plaintiff filed a motion to increase his parenting time. He did not present any reasons for doing so other than his desire to spend more time with his son. In particular, he requested that his parenting time be modified to include alternate Saturdays. Defendant opposed that November 17, 2006 motion and argued that plaintiff had not shown any changed circumstances that would justify an expansion of his parenting time. Defendant also argued that awarding plaintiff alternate Saturdays would unfairly interfere with her ability to enjoy an uninterrupted weekend with her son. The court denied plaintiff's motion for an increase in his parenting time. The judge reasoned, "parenting time was fixed by [the] order entered July 29, 2003. [Plaintiff] has not shown a change in circumstances to warrant a change in his parenting time . . . . He simply voices his desire to spend more time with [his son]. For this reason, the court will deny the plaintiff's request for modification in parenting time." A confirming order was entered on December 1, 2006.

Six months later, on June 4, 2007, plaintiff renewed his motion to modify his existing parenting time by the addition of alternate Saturdays. In contrast to the motion he filed in November 2006, he supported his June 2007 motion with a certification in which he presented a change of circumstances. The judge described those changed circumstances as follows:

The plaintiff certifies that he currently exercises parenting time with [his son] every Sunday through Monday. He states that there have been changed circumstances since the entry of the parenting time order [in July 2003] and that [that] order addressed only immediate relief and immediate problems. He states that since the entry of the order, he has purchased his own home that [his son] can come to think of as his second home. He also states that since the entry of the initial order, both parties have married . . . and relocated, and that he currently has to drive 50 minutes to the exchange point. The plaintiff argued that only spending every Sunday through Monday with [his son] is not sufficient to formulate an appropriate bond . . . . He states that [his son's] interests would be better served by having more time between the long one and one-half hour drives between the parties' homes.

Defendant opposed plaintiff's June 2007 motion and argued that plaintiff's request for additional parenting time was already denied by the court in its December 1, 2006 order and plaintiff presented no changed circumstances since the time of that order. She continued to object to plaintiff's request for alternating Saturdays because it would deprive her of the opportunity to spend weekends with her son. After considering the submissions from the parties, the court granted plaintiff's request for additional parenting time; however, the judge specified that the increased parenting time was to occur as a Monday overnight every week rather than on alternate Saturdays as plaintiff had proposed.

In a written opinion accompanying the July 13, 2007 order, the judge explained his reasons for doing so:

Despite the defendant's contention that the Court found in connection with its December 1, 2006 order that no changed circumstances existed, the Court, in fact, made no such finding. The opinion is quite clear in that it states that the defendant had not shown changed circumstances but had simply requested more time without giving reasons. The Court did not actually find that there were no changed circumstances. [The parties' son] is now 4 years old. At the time of the July 23, 2003 order he was less than two months old. This fact alone almost constitutes changed circumstances since parenting time with a baby clearly needs to be structured differently than parenting time with a 4-year old. Moreover, the plaintiff now has his own home, has remarried and wants [his son] to have a relationship with his new wife. The totality of these circumstances warrants a review of the parenting time arrangement. As is well known, custody and parenting time orders are always subject to review. Wilke v. Culp, 196 N.J. Super. 487, 494 (App. Div. 1984).

The defendant's only substantive argument that she offers in opposition to the plaintiff's request for additional parenting time on alternating Saturdays is that this would deprive her of every weekend with [her son]. However, adding alternating Saturdays would merely deprive her of one Saturday every other week. Under the current parenting time arrangement, it appears that the parties have deviated from the days set forth in the Court's July 23, 2003 order. In fact, the July 23, 2003 order actually granted the plaintiff more parenting time than he currently has, as under that order he had one overnight per week and one day from 10am through 6pm. As the defendant's only substantive opposition to the plaintiff's request is her concern for her weekends with [her son], the Court finds that this issue can be adequately addressed by granting the plaintiff an additional overnight which would not fall on a weekend. Thus, the plaintiff's parenting time shall be extended through Tuesday morning until either drop-off at school or 9:00 a.m., as applicable. The defendant's concern that weeknight parenting time would be disruptive once [the parties' child] enters kindergarten is not convincing . . . .

[T]he issues in the motion before this Court are so narrow and there is such little substantive opposition that the Court does not find that a hearing is necessary. See Hand v. Hand, 391 N.J. Super. 102 (App. Div. 2007).

On appeal, defendant argues that the July 16, 2007 order expanding plaintiff's parenting time should be reversed because plaintiff's June 4, 2007 motion to the trial court was in essence a motion for reconsideration of the December 1, 2006 order. She further argues that because plaintiff failed to satisfy the standard for reconsideration that was established in D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the court was obliged to deny the June 2007 motion. She argues that a motion for reconsideration is not designed to give the moving party a "second bite at the apple" and that such motion should be denied where the moving party presents information that was available and could have been presented at the time the initial motion was decided. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

II.

A trial court's decision concerning custody or visitation rights is addressed to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Levine v. Bacon, 152 N.J. 436, 442 (1998). We have carefully reviewed all of defendant's submissions and understand her desire to spend as much time with her son as possible. We have also considered her argument that plaintiff could have presented the arguments he raised in June 2007 at the time he filed his original motion in November 2006. We nonetheless determine that the judge was correct when he concluded that the change in the parties' son's age between the time of the July 23, 2003 order and the June 2007 order alone constitutes a change in circumstances. We agree that parenting time with a baby should be structured differently from parenting time with a four-year old child. We are satisfied that the judge did not abuse his discretion when he so concluded.

We have also considered defendant's argument that the judge erred when he reached that conclusion without having conducted a plenary hearing. There is no absolute right to a plenary hearing. A plenary hearing should generally be ordered if the terms of visitation are disputed and a hearing would assist the court in resolving the issues presented. P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999). It stands to reason that if the hearing would not be helpful to resolving the issues, a judge is not required to hold one. Defendant has not provided reasons why a plenary hearing would have been helpful to the resolution of the issues before the court. Under those circumstances, we reject her argument that the judge erred when he decided plaintiff's motion without conducting such a hearing.

Affirmed.


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