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Bruce A. Miller v. Kelly A. Gallagher

December 2, 2011

BRUCE A. MILLER, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
KELLY A. GALLAGHER, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
RICHARD A. RENZA, JR., ATTORNEY FOR APPELLANT/CROSS-RESPONDENT. BRUCE A. MILLER,
RESPONDENT/CROSS-APPELLANT



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-0118-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2011

Before Judges Lihotz and St. John.

In this Family Part matter, defendant Kelly A. Gallagher appeals from the provisions of an August 3, 2010 order that granted plaintiff Bruce A. Miller's motion to modify residential custody of the parties' youngest child, and from a provision in the September 24, 2010 order, denying her motion for reconsideration. Miller cross-appeals from a separate provision in the same September 24, 2010 order, denying his motion for reconsideration of a provision in the August 3, 2010 order which denied an award of child support. We reverse the order modifying residential custody and determine that the issue asserted in Miller's appeal is moot.

The relevant facts and procedural history necessary for our consideration of this appeal are as follows. Miller and Gallagher were divorced by order dated December 15, 2006. At the time of the divorce, the parties' three children were minors, S.M., born in 1991, Z.M., born in 1994, and M.M., born in 1999. In 2008, by consent order, legal custody of S.M. was transferred to Miller, and the parties were to share joint legal custody with equal parenting time of Z.M. and M.M. Also in 2008, the court terminated Miller's spousal support obligation. In April 2010, Miller filed a motion seeking sole legal and physical custody of Z.M., increased parenting time of M.M., child support, and other relief. A cross-motion was filed by Gallagher, seeking joint custody of Z.M., sole legal and physical custody of M.M., retroactive alimony reinstatement, and other relief.

On June 1, 2010, the trial court granted Miller's request for sole custody of Z.M., and modified his parenting time of M.M, pending a plenary hearing. The trial court denied Gallagher's request for alimony, finding she presented no changed circumstances warranting reinstatement. Regarding M.M.'s custody, the court found Miller presented a prima facie change in circumstances and ordered a hearing. On July 8, 2010, the Family Part conducted an in-camera interview of M.M. and a plenary hearing. On August 3, 2010, the judge concluded that: the parties shall have joint custody of M.M., with Miller as the parent of primary residence; the parenting time schedule for M.M. should continue as set forth in the June 1, 2010 order; and Miller's request for child support was denied.

In granting modification of M.M.'s custody, the judge found the circumstances resulting in the change in custody of the two older children raised significant concerns that M.M. ultimately would face similar difficulties were she to principally live with Gallagher. The trial judge questioned Gallagher's parental fitness because she had "essentially thrown out the older two children which in the court's view evidences instability of environment." In contrast, the trial judge held Miller's home environment was more stable in that he was remarried and had custody of the two older siblings. Further, "in the court's view, the child [M.M.] require[d] substantial periods of time with her siblings." Finally, the judge addressed the parent's employment responsibilities, finding "it is undisputed that Ms. Gallagher's employment responsibilities require her to work late on more than an occasional basis. It is also clear that on many occasions, [M.M.] has been left alone." The trial court set Gallagher's parenting time as every other week Thursday to Monday, concluding, "a home base" was preferable to the current "week on and week off" residential arrangement, which was favored by M.M.

Since Miller would now have primary custody of M.M., the judge determined there would be child support due and owing from Gallagher to Miller "anywhere between $150 to $200," but declined to enter such an order, finding the equities demand that Gallagher not be obligated to pay child support since her spousal support had been eliminated.

On September 24, 2010, each party's motion for reconsideration was denied.

On appeal, Gallagher argues that the trial court erred in its August 3 order by: denying her motion to reinstate alimony; failing to hold a hearing regarding custody of Z.M.; and modifying the custody and primary residence for M.M. She also appeals the September 24 order denying her motion for reconsideration.

In his cross-appeal, Miller asserts the trial court erred by denying his motion for reconsideration of its August 3 denial of his request for child support.

In our review, because of Family Part judges' special expertise in family matters, we do not second guess their findings and the exercise of their sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). 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").

In any custody determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). In our review of a trial court's custody determination, the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal unless his or her findings could not reasonably have been reached ...


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