August 3, 2010
CHERYL S. SHANKS, PLAINTIFF-RESPONDENT,
EDUARDO M. ARRIETA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1072-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2010
Before Judges Axelrad and Sapp-Peterson.
Defendant, Eduardo M. Arrieta, appeals from an August 25, 2008 order denying his motion for a change of custody of his son, born to him and his former spouse, plaintiff, Cheryl S. Shanks, and also failing to include a provision requiring that plaintiff surrender the minor child's passport. We affirm that part of the court's order denying a change in custody but exercise our original jurisdiction to reflect the trial court's direction that the minor child not be removed from the United States.
The parties were married in 2003 and divorced in 2006. The parties' son was born in 2004. Under the judgment of divorce (JOD), plaintiff was designated as the parent with primary physical custody over the minor child. Both prior to and subsequent to the entry of the JOD, the parties entered into a number of consent orders that addressed custody issues. The first, a Consent Order for Custody and Parenting Time dated May 11, 2006, provided that the parties would share joint legal custody with plaintiff designated as the residential parent. In January 2007, the court filed a second consent order that addressed defendant's parenting time.
Notwithstanding the consent orders entered, the parties apparently continued to have disputes that led defendant to move for an order changing physical custody of their son. Plaintiff also filed opposition as well as a cross-motion seeking additional relief. The court entered a July 20, 2007 order denying defendant's change of custody application. The order also provided that "[n]either party shall make disparaging remarks about the other party, or discuss this litigation, to or in the presence of the parties' minor child."
On November 30, 2007, the parties appeared before a different Family Part judge before whom their case had been assigned for resolution of additional issues, including the ongoing role of the court-appointed custody evaluator the July 20 order permitted defendant and the child to consult or with whom they could undergo counseling. The court entered an order directing the parties to participate in family therapy. On June 13, 2008, defendant filed an order to show cause seeking the immediate surrender of physical custody of the parties' son to him, transferring primary residential and legal custody to him, and temporary support. The court conducted an ex parte hearing that included consideration of a two-page report issued by the Division of Youth and Family Services (DYFS). The court determined that the report did not indicate anything that would lead the court to conclude that the child was in any immediate harm and denied defendant's application.
On July 18, defendant filed a motion seeking temporary custody and support. Defendant filed a revised motion on July 30, seeking temporary custody and other relief. Plaintiff opposed the motion and filed a cross-motion that, among other relief, sought release of the results of the DYFS investigation for an in-camera examination and appointment of an individual therapist for the child. The court denied defendant's motion in its entirety. The court granted plaintiff partial relief, including the in-camera review of the DYFS investigation records and permitting plaintiff to have the child evaluated by "any qualified family therapist and if that therapist sees it necessary that he be involved with a therapist that specializes in early intervention, then Plaintiff shall follow such recommendation." The present appeal followed.
On appeal, defendant contends the court: (1) erred when it refused to order a temporary change of custody or, at the very least, order a plenary hearing; (2) prejudged the case; and (3) erred when if failed to order that plaintiff surrender the son's passport. We have carefully considered these arguments in light of the record and the applicable legal principles and we have concluded that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm and add only the following comments.
The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings and legal conclusions of the trial court unless we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981) (citations omitted). We accord deference to a Family Part judge's fact-findings based on the judge's "special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413.
However, our review here is plenary because the judge concluded that defendant had not made out a prima facie claim of changed circumstances. That is a question of law. Polhemus v. Prudential Realty Corp., 74 N.J.L. 570, 580 (E. & A. 1907); State v. Barts, 132 N.J.L. 74, 79 (Sup. Ct. 1944), aff'd, 132 N.J.L. 420 (E. & A. 1945); Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) ("The existence of a prima facie case . . . is a question of law that must be decided by the Court."); and "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A judgment involving custody of minor children may be modified at any time upon the ground of changed circumstances, and the party seeking modification bears the burden of proof.
Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citations omitted). The primary consideration is the happiness and welfare of the child, which means the "'safety, happiness, physical, mental and moral welfare of the child.'" Sheehan, supra, 51 N.J. Super. at 291 (citations omitted). Custody issues between parents are to be determined based on the best interests of the children, with weight given to the fourteen enumerated factors 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 plenary hearing is necessary when the submissions show that there is a genuine and substantial factual dispute regarding the welfare of a child and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute. Hand, supra, 391 N.J. Super. at 105; Lepis v. Lepis, 83 N.J. 139, 159 (1980); see also Rule 5:8-6 (requiring the family court to hold a hearing when the custody of children is a genuine and substantial issue). In cases where the need for a plenary hearing is not as obvious, the movant must make a prima facie showing that the plenary hearing is necessary. Hand, supra, 391 N.J. Super. at 106.
Here, there were no allegations of abuse, nor did defendant claim that the child displayed significant behavioral problems. Therefore, the facts did not clearly warrant a plenary hearing and the motion judge correctly required defendant to bear the burden of proving a prima facie showing of the necessity for a plenary hearing. Ibid. After considering the evidence before him, the motion judge found that defendant did not make a prima facie showing that there was a genuine and substantial factual dispute regarding the child's welfare, justifying a plenary hearing. The court acknowledged that plaintiff's daughter's boyfriend was living with plaintiff, had prior convictions from Florida six years earlier, one of which could arguably be viewed as a hate crime, maintained a website that depicted Hitler and other offensive matters, and cared for the child "eight hours every other week."
With respect to the allegation of neglect evidenced on a number of occasions when plaintiff purportedly turned over the son for parenting time with dirty fingernails and dirty diapers, while finding that the boyfriend was "not one that you would normally want to have live with you," the court noted that this was a choice made by plaintiff and the boyfriend's involvement with the child appeared to be limited. Nor did the court find dirty fingernails and, on three occasions, dirty diapers, a "substantial change in circumstances" warranting a plenary hearing.
We agree with the motion judge that plaintiff's choice of caregivers may be questionable. Nonetheless, defendant presented nothing in the record that suggests there was a genuine and substantial issue that the boyfriend impacted upon the "'safety, happiness, physical, mental and moral welfare of the child.'" Sheehan, supra, 51 N.J. Super. at 291 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). We also agree that dirty diapers and dirty fingernails, without more, are insufficient to establish neglect. The record did not reflect, for example, how long the diapers had been unchanged. Nor was there any physical evidence, such as a rash, suggesting a pattern of leaving the child unchanged for a considerable period of time. Consequently, the motion judge did not abuse his discretion in declining to order a plenary hearing.
We do agree that the August 25, 2008 order requires an amendment to include the language that neither party is to remove the child from the United States without the written agreement of both parties. The court, during the August 25, 2008 hearing stated: "[T]he child [is] not to be taken out [of] the country period. That means if you guys -- unless otherwise agreed. And so if you don't agree on it, then someone has got to file a motion." In plaintiff's brief, she "concedes that, in the interest of justice, paragraph [four] of the [o]rder entered [August 25, 2008] should be amended to state that '[t]he parties['] child shall not leave the United States without written agreement of the parties.'" The court did not specify, at the August 25, 2008 hearing, that the agreement must be in writing, only that there be an agreement and, in the absence thereof, a formal motion by the party seeking to remove the child from the United States. Therefore, we will exercise our original jurisdiction under Rule 2:10-5 and amend the order to reflect the court's direction that the child is not to be taken out of the United Stated unless otherwise agreed by the parties or by further court order.
Affirmed and modified for the entry of an amended August 25, 2008 order consistent with this opinion.
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