February 22, 2012
CRAIG P. STATT, PLAINTIFF-RESPONDENT,
KAREN KNOX-STATT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-1-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2012
Before Judges Harris and Koblitz.
Defendant Karen Knox-Statt*fn1 appeals the provisions of the December 23, 2010 order which deny her application for sole custody of the parties' daughter and termination of plaintiff Craig Statt's visitation. She also appeals the February 4, 2011 order denying reconsideration. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The parties were married in May 1, 2001 and divorced on June 13, 2008. Their daughter Kelly*fn2 was born in November 2001.
At the time of the divorce, the parents were awarded joint legal custody, with Karen having primary residential custody. They agreed that Craig would exercise parenting time with his daughter every Wednesday after school until Thursday morning and every other weekend. Craig subsequently relocated to Pennsylvania and remarried. Craig wrote Karen a letter dated May 22, 2009, stating that he wished to see his daughter only one week per year. After relating in general terms the extensive custody litigation between the parties and its toll on the child, the letter states in part:
It is clear in my mind that court and another custody battle is not in anyone's best interest therefore it is with a very heavy heart that I have decided to change this environment by dramatically reducing my custody and visitation of [Kelly]. It is my hope that once the conflict between the parents end that the quality of life for [Kelly] will improve.
I have no desire to abandon and relinquish all right to visitation of my daughter. In fact I want to be very much a part of her life. However until the relationship can improve between myself and Karen I feel this is the best chance for [Kelly] to find stability if I reduce visitation to (at least) one week a year and some holidays. I would like to continue to be in contact with [Kelly] via phone, email, mail and some school events.*fn3
Craig acknowledges that he has not seen his daughter since May 9, 2009, and maintains that he plans to file a motion seeking a modification of custody. Karen claims that after this lengthy separation, it would be harmful to Kelly to spend time with her father.
On appeal Karen raises the following issues:
POINT I: WHETHER THE LOWER COURT RESPECTFULLY ERRED IN DENYING THE MODIFICATION OF THE CURRENT CUSTODY ORDER AGAINST THE BEST INTEREST AND PERMANENT WELFARE OF THE PARTIES' MINOR CHILD [KELLY].
POINT II: WHETHER THE LOWER COURT ERRED IN NOT GRANTING A RECORD HEARING IN THIS CUSTODY MATTER.
We note that Karen did not seek oral argument in either her original motion or her motion for reconsideration and therefore we do not fault the motion judge for not scheduling such argument. See R. 1:6-2(d) and R. 5:5-4(a). She did seek an evidentiary hearing in her motion for reconsideration in the event the judge chose not to reconsider his earlier decision. However, a request for a hearing, a form of relief that could have been sought in Karen's original motion, should not be requested for the first time in a motion for reconsideration.
See R. 4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401- 02 (Ch. Div. 1990)) (explaining that reconsideration is appropriate when "a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application."
We affirm the motion judge's orders substantially for the thoughtful written reasons given by Judge John R. Rauh. Judge Rauh stated, "It appears that although [Craig] has not exercised his visitation time recently, he is committed to being a presence in his daughter's life. It is not in the best interests of the child to terminate [Craig's] custody and visitation rights at this time." In general, the law recognizes the importance of a child developing and maintaining a close relationship with both of his parents. N.J.S.A. 9:2-4; McCown v. McCown, 277 N.J. Super. 213, 218 (App. Div. 1994). In McCown, supra, we said:
Children should have equal access to both parents, [Beck v. Beck, 86 N.J. 480, 486 (1981)], the severance of the ties to either parent is contrary to the child's best interest. Id. at 487. The child should be able to recognize both parents as sources of security and love and should wish to continue both relationships. Id. at 498.
To put it succinctly, the wife is divorced from the husband--not the child from the parents--or either of them.