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Walden v. Payne


January 29, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-1364-01A.

Per curiam.


Submitted January 12, 2010

Before Judges Grall and LeWinn.

Plaintiff Emma J. Walden appeals from the denial of her motion to modify defendant Daryl S. Payne's parenting time with their daughter. Defendant has not filed a brief on appeal. Because the evidence, viewed in the light most favorable to plaintiff, was inadequate to permit modification of the order in effect, we affirm.

The child whose best interest is at issue was born in 2000. The record provided on appeal does not indicate when the first order governing her custody and parenting time was entered, but it is clear that the child resides with plaintiff and has parenting time with defendant. Plaintiff filed this application to modify the parenting arrangement set forth in an order apparently entered on October 7, 2008. A hearing on her application was held on December 22, 2008.

Plaintiff and defendant testified at the hearing. Plaintiff has not included the October 7 order in her appendix, but the trial judge outlined the parenting time provided in that order at the outset of the hearing on December 22, 2008. According to the judge's description, defendant's parenting time generally is on Saturdays from 8:00 a.m. to 6:00 p.m., with exceptions for designated Sundays, Christmas Eve and Christmas Day.

The parties' testimony disclosed the following facts. In addition to the daughter born of his relationship with plaintiff, defendant has three adult children. He is married to and lives with their mother. His marital and residential status were the same when he and plaintiff were dating. Defendant also presently has a "girlfriend," and she has a son. When defendant has parenting time with the parties' daughter, he and his daughter spend time with defendant's wife and the child's half-siblings, and they also spend time with defendant's girlfriend and her son.

Plaintiff does not "approve of" defendant's exposing their daughter to his girlfriend and her son while he is still married to another woman. She believes supervised visitation is appropriate because the circumstances under which defendant is exercising his parenting time are "not acceptable" to her and defendant will not alter his conduct to honor her views. She did not testify about any untoward conduct on the part of defendant, his girlfriend or her child or about any adverse effect of defendant's parenting time reflected in the child's behavior, demeanor, health, school work or activities.

Defendant explained his circumstances. His "marriage has been over for a long time," but, due to economic necessity and for the sake of their three children, he and his wife have stayed together. Defendant is confused by plaintiff's objection to his use of parenting time because his circumstances were similar when he and plaintiff had a relationship and they spent time together with each other's children. Plaintiff did not dispute those assertions.

The record makes it clear that plaintiff raised the same objection to defendant's exercise of parenting time in the presence of his girlfriend prior to the entry of the October 7 order. On December 22, 2008, plaintiff advised the judge that she "brought this same issue up" when the parties were before him in October. She further testified that defendant continued the same pattern even though she believed that the judge had "told him that [his conduct] is not in the best interest of" their daughter.

Correspondence included in plaintiff's appendix on appeal confirms that her objection is one of long standing.*fn1 That material includes letters dated October 9, 2007 and December 22, 2008 that are signed by plaintiff and addressed to the trial judge, and letters dated July 25, 2007 and July 3, October 25, and November 16, 2008, signed by plaintiff and addressed to defendant. In each of those letters, plaintiff protests defendant's decision to exercise his parenting time in the presence of his girlfriend.

At the conclusion of the hearing, the judge ruled. His decision, stated in full, is as follows: "Your application to modify visitation and [for] supervised visitation is denied. Thank you very much. Have a pleasant holiday."

The legal principles governing modification of an order addressing custody and parenting time are clear. Modification is permitted because the law recognizes that "the conditions which would satisfy the best interests of the child during all of its minority [cannot] be conclusively determined in one decree." Borys v. Borys, 76 N.J. 103, 111 (1978). Nonetheless, a parent cannot obtain a modification simply because that parent does not like the arrangement in place. The focus of every judicial determination about custody and parenting time is "on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

To obtain a modification of an arrangement for parenting time specified in a court order, the parent must establish that circumstances have changed since the order in place was entered. The parent must also establish that, as a result of the new circumstances, the present arrangement is adversely affecting the welfare of the child. See Beck v. Beck, 86 N.J. 480, 496 n.8 (1981); Hand, supra, 391 N.J. Super. at 105; Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

Under those standards, the parent seeking the change must establish: 1) the present schedule for custody and parenting time under the current order; 2) the circumstances that changed after that order was entered; and 3) the adverse effect of the new circumstances and current parenting arrangement on the child's best interest. Sheehan, supra, 51 N.J. Super. at 287-88. In presenting the relevant evidence to the trial judge, the parent should understand that the judge must disregard "[c]onclusory allegations" about changes in circumstances and their impact on the child. See Lepis v. Lepis, 83 N.J. 139, 159 (1980) (discussing the inadequacy of unsubstantiated allegations on an application to modify support). Testimony or other evidence establishing facts to support the allegations is essential. Hand, supra, 391 N.J. Super. at 112; see Giangeruso v. Giangeruso, 310 N.J. Super. 476, 482 (Ch. Div. 1997). We are aware of no published decision in which a court has approved restrictions on parenting time that does not include overnights solely on the basis of the custodial parent's "moral" objection to contact with the other parent's exposing the child to his or her dating partner. Compare DeVita v. DeVita, 145 N.J. Super. 120 (App. Div. 1976) (affirming, over a dissent, an order disapproving overnight visitation on that ground) with Giangeruso, supra, 310 N.J. Super. at 481-82 (concluding that restrictions on exercise of parenting time in the presence of a significant other required a greater showing of harm regardless of the wishes of the parties six- and nine-year-old children); Kelly v. Kelly, 217 N.J. Super. 147, 154-55 (Ch. Div. 1986) (denying request to restrict father's overnight visitations based on mother's moral objections to his cohabitation).

In ruling on an application to modify parenting time, the judge must consider the evidence and decide whether the parent seeking a new arrangement has met the legal standards discussed above. That task requires the judge to discuss the evidence, resolve factual disputes and state why the parent seeking the change established or failed to establish a reason for altering the parenting arrangement. R. 1:7-4.

Once the trial judge has rendered a decision, this court has a very limited role. See Hand, supra, 391 N.J. Super. at 111; DeVita, supra, 145 N.J. Super. at 123. Decisions "concerning the type of custody arrangement [are left] to the sound discretion of the trial court." Pascale v. Pascale, 140 N.J. 583, 611 (1995). We must defer to the trial court's factual findings and to the expertise of a judge of the Family Part in such matters. Hand, supra, 391 N.J. Super. at 111. If the judge's factual findings are "supported by adequate, substantial, credible evidence" and the judge's conclusions are based on a proper understanding of the relevant law, we may not disturb the order. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (noting that deference is not afforded to determinations based on a "misunderstanding of the applicable legal principles").

The deficiencies of the decision rendered in this case are sufficiently apparent to obviate the need for any elaboration. We suspect that this appeal would not have been filed if the judge had explained why plaintiff was not entitled to relief.*fn2

Given the evidence presented, the law did not permit the judge to modify the October 7 order. At the outset of this brief hearing, plaintiff candidly acknowledged that she had "brought this same issue up" when the parties were last before the judge. She presented no testimony about a change in defendant's conduct or any new evidence about risk of harm to the best interest of the child that she perceived. In short, plaintiff did not establish a prima facie case of change in the circumstances warranting the judge's further consideration of her request to limit the child's contact with her father to supervised visitations. As we have noted in the past, supervised visitation is an "extreme" measure. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.), certif. denied, 178 N.J. 34 (2003).


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