April 27, 2009
STEPHEN DEAK, JR., PLAINTIFF-APPELLANT,
TRACY DEAK, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1232-03E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Fuentes and Gilroy.
Plaintiff Stephen Deak, Jr. appeals from the order of the Family Part denying his motion seeking physical custody of his six-year-old daughter. We affirm.
The parties were married on December 23, 2000. Their daughter was born approximately two years later in September 2002. The trial court dissolved the marriage through a final judgment of divorce (JOD) entered on February 23, 2004. The JOD incorporated by reference a property settlement agreement (PSA) through which the parties agreed to joint legal custody of their child, with defendant having physical custody. The PSA also designated Dr. Kenneth Suckerman as an individual authorized to design a reasonable parenting time schedule for plaintiff.
In April 2007, plaintiff filed a motion seeking residential custody of his daughter. By order dated June 8, 2007, Judge Hyland denied the motion, finding that plaintiff had not established a prima facie case of changed circumstances warranting a modification of the child's custodial arrangement. Plaintiff did not appeal this decision.
On September 20, 2007, plaintiff again filed a motion seeking residential custody of his daughter. On February 8, 2008, Judge Hyland denied the motion without oral argument. After noting that plaintiff had filed the identical motion five months before, Judge Hyland again found a lack of changed circumstances warranting the relief sought. The court also directed that plaintiff: (1) submit a parenting time vacation schedule; and (2) use, when washing the child's clothes, a detergent sensitive to her skin. Lastly, the court awarded defendant $787.50 as counsel fees.
Following plaintiff's appeal, Judge Hyland submitted a memorandum of opinion pursuant to Rule 2:5-1(b), through which he articulated the factual and legal bases for his rulings. Plaintiff now argues that the court erred in denying his motion without oral argument or conducting an evidentiary hearing.
We discern no basis to interfere with the court's decision here. We agree with Judge Hyland that plaintiff did not establish a basis for modifying the custodial arrangement both parties agreed to in the PSA. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 151 (App. Div.), certif. denied, 178 N.J. 34 (2003). As to the denial of oral argument on plaintiff's second change of custody motion, we are satisfied that the court acted within its discretionary authority.
Ordinarily, a party making a dispositive motion is entitled to oral argument upon request. R. 1:6-2(d). The motion judge retains the discretionary authority, however, to deny oral argument provided that the reasons for such denial are stated on the record, or, as is the case here, such reasons are otherwise readily ascertainable by the reviewing court. Raspantini v. Arocho, 364 N.J. Super. 528, 531-32 (App. Div. 2003). From this record, it is apparent to us that the court denied oral argument because plaintiff's second motion was substantively and factually identical to the one he had filed five months earlier.
Granting oral argument under these circumstances would have unduly consumed the strained resources of the Family Part.
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