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Swangler v. Rodriguez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 19, 2008

MARTIN J. SWANGLER, PLAINTIFF-APPELLANT,
v.
ANA L. RODRIGUEZ, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-11-05M.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2008

Before Judges Skillman and Winkelstein.

Plaintiff appeals from an October 19, 2007 post-judgment order in this matrimonial action, which (1) denied plaintiff's application to be named as the parent of primary residence of the parties' child, Aries; (2) denied plaintiff's application for a second custody trial with discovery, depositions, and an in-camera interview of the child; (3) denied plaintiff's application to change his parenting time but "encourage[d] the parties to consider Dr. Rosenbaum['s] recommendation to permit the child to spend weekday overnights with the plaintiff"; and (4) granted plaintiff's application to enroll Aries in Catholic school so long as plaintiff pays the entire cost. Plaintiff presents the following arguments:

I. THE COURT ACTED UNDER A MISCONSTRUCTION OF LAW BECAUSE CHANGE OF CIRCUMSTANCES AFFECTING A CHILD'S WELFARE IS CAUSE FOR MODIFICATION OF THE ORIGINAL CUSTODY DECREE.

A. Defining the appropriate standard for custody modification cases.

B. Applying the legal principles to the instant case.

C. Motion judge acts under a "misconstruction" or misconception of the custody modification standard.

II. THE COURT PERPETUATED A MANIFEST DENIAL OF JUSTICE BECAUSE CASE LAW INDICATES THAT THE COURT IS AUTHORIZED TO DECREE PHYSICAL CUSTODY RESPONSIBILITIES TO BOTH PARENTS WHEN ALL OF THE CONDITIONS AND CRITERIA HAVE BEEN SATISFIED.

A. Examining the legal standard for joint physical custody.

B. Applying the foregoing principles to facts of the instant case.

C. Motion court errors cause a great injustice to the child and contradict public policy.

We reject these arguments and affirm the October 19, 2007 order substantially for the reasons set forth in Judge Cantor's opinion attached to the order. We agree with Judge Cantor that plaintiff failed to make a prima facie showing of changed circumstances since the March 2002 trial and entry of the three prior orders denying plaintiff's motions for a change in residential custody of Aries. Judge Cantor's conclusions regarding residential custody are fully supported by Dr. Rosenbaum's report. Plaintiff's arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20080619

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