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Ali v. Ali

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 8, 2009

TEHMINA ALI, PLAINTIFF-RESPONDENT,
v.
SHAUKAT ALI, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-307-1999.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2009

Before Judges Lyons and Kestin.

Defendant, Shaukat Ali, appeals from an October 24, 2008, order which, among other things, denied his application to change the custody of his minor son from plaintiff, Tehmina Ali, to him. We affirm.

The relevant facts and procedural history necessary for our consideration of this appeal are as follows.

Plaintiff and defendant were divorced by order dated December 31, 2002. At the time of the divorce, two of the parties' three children were minors, a daughter born in 1987, and a son born in 1993. Plaintiff was awarded custody of the minor children and defendant was required to pay child support. The custody of the minor son is the subject of this appeal. Since the parties' divorce, defendant has filed multiple motions in the Family Part, challenging various aspects of the judgment of divorce. Adverse rulings in the Family Part have similarly led to multiple appeals to us.

In this particular matter, defendant filed a motion on September 24, 2008, seeking to change the custody of his minor son from plaintiff to him. Defendant filed an extensive certification in support of his application. The certification primarily outlines plaintiff's failings regarding her efforts to ensure the son receives the appropriate religious training and defendant's efforts to provide that to him. The certification is noteworthy in that it has over a hundred paragraphs. Approximately one-third of the paragraphs relate to plaintiff's alleged failings between the time period of 1998 and 2002, the time of the divorce. The balance of the certification relates to time frames following the divorce. Few issues, if any, are raised in the certification, other than matters surrounding the son's religious education. Defendant argues that, based on plaintiff's failure to provide diligent efforts to assure their son's proper religious education, custody should be changed and granted to him.

In response, plaintiff did not file a certification, but a letter brief from her counsel, arguing that the claims regarding the son's religious education are years old, do not demonstrate a change in circumstances and, if the court were so inclined to find a genuine issue of material fact, the case should be referred to mediation pursuant to Rule 5:8-1.

The motion court stated that the problem of the son's religious training is one that has: been a long standing problem, a problem going back, according to [defendant's] certification, back to 1997 and 1998 because of the fact that it's a long standing problem, it is something that has not arisen recently, the court finds that it's not a substantial change of circumstances warranting a change of custody or even a hearing.

The court went on to note that the certification addressed the issue of religious education solely and not all of the other factors that a court must consider in making a custody determination. The motion court, therefore, ordered that plaintiff shall provide religious upbringing to the son of the marriage as it was during the marriage, but the court found there to be no genuine issue as to the custody of the son and that custody should continue with plaintiff.*fn1

The issue on appeal, therefore, is whether there was a sufficient showing for a change of custody.

We recently had occasion to review the law regarding a change in custody. In Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007), we stated:

In custody cases, it is well settled that the court's primary consideration is the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court must focus on the "safety, happiness, physical, mental and moral welfare" of the children. Fantony v. Fantony, 21 N.J. 525, 536 (1956). See also P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) ("In issues of custody and visitation '[t]he question is always what is in the best interests of the children, no matter what the parties have agreed to.'") (internal quotation marks omitted and alteration in original) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997). Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c). V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000).

A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children. Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute.

Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976); see Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary," and noting that "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application"). See also R. 5:8-6 (requiring the court to "set a hearing date" if it "finds that the custody of children is a genuine and substantial issue").

In this case, defendant, in his motion to change custody, asserted that plaintiff has not diligently and conscientiously attended to the minor son's religious education. Plaintiff, through counsel, denied the claim that a custody change is warranted.

Defendant argues that pursuant to Rule 1:6-2(a), because plaintiff had not filed a responding certification, his certification must be accepted as true and, therefore, the change in custody should follow. That is not necessarily the case. Courts, as stated above, are principally concerned with the best interests of the child. A court is charged with focusing on the safety, happiness, physical, mental and moral welfare of the child in determining custody matters. Fantony v. Fantony, supra, 21 N.J. at 536. The certification from defendant, even if accepted as true, demonstrates, as the motion court said, a long standing, on-going problem with religious education between the parties. It does not set forth in sufficient detail a genuine issue of material fact concerning the son's overall safety, happiness, physical, mental and moral welfare. There is nothing to indicate that plaintiff has in any way compromised the general overall well-being and the best interests of this minor child. That is what the motion court concluded.

As we also said in Hand v. Hand, Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion. See Cesare v. Cesare, 154 N.J. 394, 413 (1998). We recognize "[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954). [Hand v. Hand, supra, 391 N.J. Super. at 111.]

The motion court in this case did precisely that. It carefully reviewed defendant's submission and plaintiff's argument in light of the applicable law and correctly concluded there was no need for a plenary hearing because defendant failed to establish a prima facie case that circumstances subsequent to the divorce judgment were adversely affecting the overall welfare of the child. What the motion court did was to emphasize, once again, plaintiff's obligation to provide religious training consistent with what was being provided prior to the divorce and to order plaintiff to provide same.

As in Hand, the motion court determined, therefore, that defendant failed to prove even on a prima facie basis, that it was in the best interests of the child to change custody. The court's determination was supported by substantial credible evidence in the record and was consistent with controlling legal principles. See Cesare v. Cesare, supra, 154 N.J. at 411-12.

Because defendant's proofs were insufficient to warrant a plenary hearing, we find no abuse of discretion by the motion court and affirm the order under review substantially for the reasons stated by the motion court. Our decision, of course, is without prejudice to defendant's right to seek relief if supported by an adequate showing that plaintiff does not "provide religious upbringing for the son of the marriage as it was during the marriage," as required by the October 24, 2008, order.

Affirmed.


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