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Leibowitz v. Leibowitz

April 3, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-912-06E.

Per curiam.


Submitted March 16, 2009

Before Judges Lisa and Sapp-Peterson.

The parties are the parents of a daughter, A.L., who was born on January 9, 1998. The record on appeal is fragmented and incomplete. As a result, our recitation of the background facts and the particular facts and circumstances underlying the appeal, will be somewhat general. The marital status of the parties is unknown. Defendant lives in South Dakota. According to him, he has lived there continuously since 1999. Divorce proceedings were apparently instituted both in New Jersey and in South Dakota. However, neither action resulted in a judgment of divorce. In his appellate brief, defendant states that "[t]he parties were allegedly married in Virginia in May of 1999."

A.L. has lived with her mother for her entire life. This appeal results from defendant's motion of March 31, 2008, in which he sought (1) email and video visitation with A.L. two times per week, (2) a parenting plan, (3) summer visitation for four weeks, and (4) change of custody arrangements if plaintiff violates the court order to allow phone visitation. Defendant requested oral argument and requested permission to conduct argument by telephone because of his residence in South Dakota.

To provide perspective for this motion, we comment briefly, to the extent that the record allows, on prior proceedings. Defendant apparently made several previous similar applications. Although we do not have a copy of the order, it appears that on January 12, 2006, an order was entered granting residential custody of A.L. to plaintiff. Defendant subsequently sought a change in custody. A plenary hearing was conducted on October 12, 2006, in which defendant was permitted to participate by telephone. The parties were referred to mediation to address parenting and custody issues. According to defendant, no specific arrangements were made for the mediation process, and it apparently never occurred. On January 22, 2008, defendant again filed a motion for change of custody to him. Another plenary hearing was conducted (with defendant again participating by telephone) on February 22, 2008. In an amplification of his reasons for the decision on the appeal now before us, see R. 2:5-1(b), Judge Hyland, based upon a review of the file, summarized the results of the February 22, 2008 hearing as follows:

The Defendant confirmed that he has been residing in South Dakota for nine years and that he may not have seen his ten year old daughter for approximately four years. The Defendant presented no testimony of substance that addressed the factors set forth in N.J.S.A. 9:2-4, and his application was denied. However, the Plaintiff provided the Defendant with his daughter's cell phone number and stated that he could also communicate via e-mail. The Plaintiff also stated that the Defendant could have summer vacation time with the minor child in New Jersey, and could visit with the minor child at anytime in New Jersey.

Defendant then filed the present motion. In support of the motion, on the pro se "FORM B CERTIFICATION IN SUPPORT OF A MOTION" defendant entered "see enclosed certification." That was apparently a reference to a certification dated January 13, 2008, which presumably had been previously filed in connection with his earlier motion of January 22, 2008. In the certification, defendant stated that plaintiff refused to allow A.L. to see him and interfered with email or video conferencing efforts. He also made other allegations regarding plaintiff, additional children she has from other relationships, plaintiff's living arrangements and behavior, and the like. As we stated, the previous application was the subject of a plenary hearing. The results of that proceeding have not been appealed.

In disposing of the present motion, Judge Hyland stated that "[w]ith the exception of the video visitation request, the Defendant's application did not present anything that was not already addressed in the two prior plenary hearings." The judge therefore found it unnecessary to conduct a hearing and disposed of defendant's motion on the papers. He entered an order on April 30, 2008 as follows:

1. Defendant's application is denied. Relief requested has been previously adjudicated.

2. Defendant may have computer camera visitation if defendant provides all equipment to plaintiff.

From our review of the materials furnished to us as the record on appeal, we conclude that defendant's motion of March 31, 2008 essentially sought the same relief that had been previously adjudicated after plenary hearings were conducted. Defendant provided no evidence of substantial change in circumstances that would warrant further consideration of previously adjudicated issues. Under these circumstances, we find no mistaken exercise of discretion or legal error in the judge's disposition of the motion, or in his determination to decide the motion on the papers. Defendant's arguments on appeal are legally ...

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