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Fleury v. Fleury

Superior Court of New Jersey, Appellate Division

May 29, 2013

MARY FLEURY, n/k/a MARY ZECCARDI, Plaintiff-Respondent,
v.
ANDREW FLEURY, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-320-11.

Andrew Fleury, appellant pro se.

Mary Fleury, respondent pro se.

Before Judges Axelrad and Sapp-Peterson.

PER CURIAM

Defendant appeals from the November 18, 2011 trial court order denying his motion seeking reconsideration of the court's July 1, 2011 order granting plaintiff's request, as part of her final judgment of divorce (FJOD) by default, to change the surname of the minor child born of the marriage to her maiden surname. The trial judge, although fully aware that plaintiff's divorce complaint had not sought this relief and that defendant was entitled to notice and an opportunity to be heard, nonetheless granted the relief to plaintiff. Defendant also appeals that portion of the September 26, 2011 order denying his request to stay enforcement of the child support order.

We are satisfied defendant's application to stay enforcement of the child support order is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we reverse the order changing the surname of the minor child to plaintiff's maiden name and remand to the trial court for further proceedings.

The parties were married on January 31, 2008.[1] Their son was born in 2009. The parties separated in June, 2010. Pursuant to a custody order signed on February 7, 2011, the parties were granted joint legal custody of their son, and plaintiff was designated as the parent of primary residence. The court also ordered defendant to attend drug counseling, comply with drug treatment recommendations, submit to random drug testing, and visit his son at plaintiff's residence. Plaintiff filed a complaint for divorce on May 20, 2011. Defendant was properly served but did not file an answer to the complaint. Plaintiff thereafter sought an order entering default judgment.

During the hearing on her application, plaintiff made an oral request to resume her maiden name and to change her son's surname to her maiden surname name. She stated the change was necessary as a safety precaution because defendant was a drug addict who owed money to many people and she wanted to shield their son from his father's creditors. She advised the court that defendant had been arrested in March 2011 and recently lost his leg in a motorcycle accident. She indicated she rarely heard from defendant, although he had called two weeks earlier to inquire about the divorce proceedings, and he had only seen their son four times since the separation. When the judge asked if the child's paternal grandparents took interest in him, plaintiff testified defendant's family lived in Pennsylvania and aside from visiting their grandson for his second birthday in April 2011, they did not routinely visit or call him.

The court granted plaintiff's request, stating:

With regard to your son, ma'am, it's a little bit more difficult. There is no request in the pleading that I do that, number one. Number two, Mr. Fleury does have standing to object . . . .
And given the circumstances of this case, the lack of pleading notwithstanding, I am going to go ahead and grant your application to change the child's name as well with the understanding, ma'am, that procedurally it's a reach and should your now ex-husband decide that he wants to be heard on that, then we may have to give him that opportunity. It doesn't sound like he cares, number one, and number two, if he does care, I ...

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