December 26, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-110-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 5, 2012
Before Judges Axelrad and Haas.
In this post-judgment matrimonial matter, defendant appeals from the grant of summary judgment in favor of plaintiff, the effect of which was to deny his motion to change custody. Defendant argues there were material factual issues and a plenary hearing was warranted. We disagree and affirm.
The parties have a litigious history. We recite only the relevant facts and procedural history. The parties were divorced in May 2008. The incorporated property settlement agreement (PSA) designated plaintiff as the Parent of Primary Residence (PPR), with defendant having parenting time every other weekend with their then seven and one-half-year-old son L. Plaintiff filed an order to show cause in November 2010, seeking a temporary suspension of defendant's parenting time due to an incident that occurred when the child was in defendant's care, and L's nose was hurt while he was playing with defendant's fiancee's seven-year-old son. Plaintiff brought L to the emergency room. She characterized the injury as a broken nose and suggested he was terrified of the situation. The application was denied by the Family Part judge on November 17, 2010.
Two days later, counsel for defendant sent plaintiff a letter advising that defendant was desirous of extending his parenting time with L; had retained Dr. Gary Glass, a psychiatrist, to conduct an evaluation of the custody and parenting arrangements; and requested she meet with Dr. Glass at no expense to her.
On December 2, 2010, through counsel, plaintiff filed another order to show cause, requesting defendant's fiancee and her children, who live with defendant, not be present during his parenting time. Defendant filed opposition, supported by his and his fiancee's certifications. Plaintiff filed a responding certification. The judge signed the order to show cause, and set the matter down for a hearing on December 23, 2010, but denied any temporary relief. On the return date, the judge entered an order directing the parties to attend mediation to discuss parenting time issues and denying all other relief. The agreement was memorialized by a court order on February 18, 2011.
Dr. Glass rendered a report with a number of recommendations on April 10, 2011. He stated he met with and evaluated defendant, his fiancee, and L, and reviewed voluminous records, including school and medical records and correspondence from the parties and their attorneys. Dr. Glass acknowledged plaintiff had not contacted him. He noted he videotaped his session with L, and the videotape was available. Dr. Glass reported that L speaks with his therapist on a monthly basis, including about "how he can spend more time with" defendant. L expressed to him that plaintiff is aware he wants to spend more time with defendant and "agrees and is trying to determine how it will happen." He found L to be relatively well-adjusted considering the tension between his parents, but was concerned that plaintiff's manipulations and the continuing hostility between the parties would scar him if the conduct did not cease.
Dr. Glass was concerned that plaintiff had moved and refused to provide defendant with her new address, instead requiring he pick up L at a friend's home or at a rest stop on the Parkway. He found it outrageous defendant was not allowed to know where his son lived. He further noted the November 2010 emergency room records reflected that L "appears in no apparent distress" and had only a "contusion that is superficial of the nose[,]" not any hint of a fracture as represented by plaintiff or any indication that L was frightened for his safety. The psychiatrist felt plaintiff had blown a minor incident out of proportion in a manner designed to meet her needs that was not beneficial to L. He also noted that a letter from L's school reflected he had been absent eleven days, two of which were unexcused, including one noted as a family vacation, and was tardy on three occasions, which indicated plaintiff "puts her needs ahead of her son's."
Dr. Glass recommended: (1) plaintiff promptly provide defendant with her residential address and land line phone number; (2) authorize in writing L's school, doctors, and therapist to provide defendant with all information and documentation regarding L; (3) the previous weekend and holiday visitation schedule be promptly reinstated as there was no evidence L suffered a broken nose or was intentionally hurt in any manner; (4) defendant have the opportunity to meet with L's counselor "to share his experiences with L"; (5) the parties meet with a neutral therapist to improve their relationship concerning L and, in essence, "go forward"; (6) L additionally spend two uninterrupted periods over the summer of ten days with defendant and seven days with plaintiff, without the weekend visitation of the other; (7) the parties establish alternating schedules for major holidays; and (8) most importantly, during the parenting sessions among the parties, L, and the counselor, they should develop a communication system to interact civilly outside of the court system. Pertinent to this appeal, Dr. Glass did not recommend a change of custody.
On June 7, 2011, defendant filed a motion to change custody and designate him as the PPR or, alternatively, "[o]rdering that the recommendations of Dr. Glass's report be followed by the parties." Defendant certified, in part, that plaintiff had refused to let him see L for over six months, which plaintiff disputed in her responding certification. The court scheduled the matter for oral argument on July 29, 2011, which it then converted to a plenary hearing scheduled for September 23, 2011, and re-scheduled to November 17, 2011. The court ordered immediate visitation and compliance with the mediation agreement in the interim.
On or about November 8, 2011, plaintiff filed a notice of motion for summary judgment entering as an order Dr. Glass' recommendations, with which plaintiff certified she complied. She noted that nowhere in Dr. Glass' report did he recommend a change of custody. Plaintiff certified: (1) she provided defendant with her address and phone number, which she reiterated; (2) she wrote the letter to L's school, therapist, and pediatrician, and defendant has already gotten medical records; (3) she complied with the visitation schedule; (4) she believes L's counselor would meet with defendant, particularly if there were a court order and, in fact, defendant and his fiancee were invited to therapy with him and did not attend; (5) she suggested Dr. John McInerney as a neutral therapist, noted defense counsel indicated he might have done something for defendant or his fiancee's family and, if so, advised she would waive any conflict or use a therapist suggested by the court; (6) she agreed with the extended visitation suggestion in the summer; (7) she requested the court holiday schedule become part of the order; and (8) "certainly agree[d]" to work in parenting sessions with developing a civil communication system.
Defendant opposed the motion and filed a cross-motion compelling defendant to complete the evaluation process with Dr. Glass and comply with the recommendations in his final report. He provided a three-page supplemental letter from Dr. Glass dated November 30, 2011, noting concerns since his last evaluation: (1) plaintiff still would not consent to be evaluated by him; (2) claiming she "'cooperated' to the letter of the law, barely, but certainly not with the spirit of the best interest of the child" by making L leave the Friday evening after Thanksgiving to return to her in the middle of a birthday party for him and his step-brother; (3) attaching a warning letter from the school that L had accumulated six absences; and (4) defendant brought to his attention that plaintiff allowed L to get a permit for hunting and weapons without his awareness or consent, which was a decision in which both parents should be involved.*fn1
Based on these events, Dr. Glass felt it imperative he be given the opportunity to evaluate plaintiff because of his concern that she continued to make independent decisions not conducive to L's best interests. He concluded:
In my initial report I did not recommend a change in primary custody but rather an approach to improving communication and coparenting. My information at this point forces me to believe that [plaintiff] is not willing or not able to co-parent with [defendant] and that perhaps a change of primary custody is required to insure the best interests of [L].
By order of December 23, 2011, the judge granted plaintiff's summary judgment motion on the papers, requiring she continue to abide by Dr. Glass' recommendations, and denied defendant's motion. In a written statement of reasons, the judge set forth the parties' positions and responses. He noted plaintiff's response that visitation is no longer a problem, she attached L's hunter/trapper identification card and explained he did not have a gun permit or access to guns, and the absences were medically-related and she sent in medical slips each time. The judge concluded:
On the return date of the motion I indicated that the lack of visitation raised serious concerns about the Plaintiff's continued status as parent of primary residence. Those concerns although not completely eliminated have been remedied to the extent that a hearing is not warranted. In other words the motion is granted and the cross motion denied.
This appeal ensued.
On appeal, defendant argues that, affording him all favorable inferences as the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), Dr. Glass' supplemental report raised genuine issues of material fact that should have precluded summary judgment. He further argues the judge erred in not making specific findings of fact to support his decision to abandon conducting a plenary hearing on the parenting and custody issues, and a plenary hearing was warranted in L's best interests.
"The touchstone for all custody determinations has always been 'the best interest[s] of the child.'" Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009) (alteration in original) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)), certif. denied, 203 N.J. 435 (2010). A party seeking to modify custody has the burden to demonstrate changed circumstances affecting the welfare of the child. M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979).
We defer to the trial judge's determination as to whether to schedule a plenary hearing. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). "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." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). See also 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"); R. 5:-6 (requiring the court to "set a hearing date" if it "finds that the custody of children is a genuine and substantial issue").
While the judge's stated reasons are not a paradigm of the findings required by R. 1:7-4, if we consider them within the context of the parties' positions reflected in their certifications and accurately highlighted in the judge's statement, and Dr. Glass' reports, we are satisfied there is a sufficient basis for the order. Defendant asked for alternative relief, which included directing plaintiff to accept and comply with Dr. Glass' recommendations.
Dr. Glass' initial report did not recommend a change of custody. Although plaintiff's compliance with his recommendations may not have been perfect, the supplemental report does not raise genuine and substantial factual disputes regarding her compliance and fitness to parent mandating a plenary hearing. It is clear the psychiatrist was annoyed by plaintiff's continuing failure to participate in his evaluation process. We note, however, that defendant retained Dr. Glass completely on his own without a court order. Although it may have been helpful for plaintiff to have met with Dr. Glass, she was not legally required to do so.
As the judge was involved in the matter from the outset of the order to show cause, we are satisfied he had a feel for the case, which is apparent from his interim orders mandating immediate visitation and the parties' compliance with the mediated parenting time arrangement. We are not convinced an evidentiary hearing would have served any purpose at that juncture, as it most likely would have consisted primarily of nit-picking by both parties. Accordingly, we discern no error in the judge's decision to grant summary judgment.
We are hopeful both parties were able to rise above this petty behavior and develop a communication system to move forward and interact civilly, taking into consideration L's desires and his relationship with defendant's fiancee and children. If it became necessary to avail themselves of the judicial process, the parties would always have that opportunity as visitation and custody is subject to continuing review. See Mimkon v. Ford, 66 N.J. 426, 438 (1975) ("[A]ll orders concerning custody and visitation . . . [are] subject to modification at any time on showing of changed circumstances"); Finnamore v. Aronson, 382 N.J. Super. 514, 523 (App. Div. 2006) ("Orders defining a parent's right with respect to contact with his child are subject to future revision depending on a showing of changed circumstances" and "[m]odification of the order may be appropriate if the moving party shows the modification requested is in the best interests of the child.").