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Marchese v. Grande

Superior Court of New Jersey, Appellate Division

November 15, 2013

JAMES L. MARCHESE, Plaintiff-Appellant,
v.
REBECCA L. GRANDE, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 16, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0765-04B.

August J. Landi, attorney for appellant.

Respondent has not filed a brief.

Before Judges Ostrer and Hayden.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff James L. Marchese appeals from a January 13, 2012 Family Part order denying his motion to change the court-ordered custody arrangement and a March 9, 2012 Family Part order denying his motion for reconsideration. Plaintiff sought to have sole custody of his two children instead of the other parent, defendant Rebecca L. Grande having sole custody. Finding twice that plaintiff presented no proof of changed circumstances warranting a change in custody, the judge denied both motions. For the reasons that follow, we affirm.

We glean the following facts from the record provided. Plaintiff and defendant were married in 1997. Two sons were born of the marriage, one in 2000 and the other in 2002. The couple divorced in 2004. A trial to determine the custody of the children took place over twenty-two days and resulted in an order on June 19, 2008, granting defendant sole custody. Plaintiff did not appeal this order.

Plaintiff brought a motion to change custody based on changed circumstances. At the hearing on January 3, 2012, plaintiff argued that custody should be changed because defendant (1) was being evicted for the second time; (2) had tried to have one of their sons falsely diagnosed with autism; (3) failed to provide him with ongoing medical and educational information on the children; (4) tried to have plaintiff put in jail for violating a final restraining order; and (5) had pled guilty to a second-degree felony that would likely result in jail time. The judge rejected plaintiff's claim of changed circumstances as unsupported by any evidence showing that the children's custody should be altered. He observed, for instance, that because defendant had not yet been sentenced, whether her sentence would be custodial was not yet determined. The judge ordered the parties to mediate some of the issues the parties raised in their moving papers.

Plaintiff moved for reconsideration, contending that he demonstrated a prima facie case of changed circumstances and that a plenary hearing was necessary. Plaintiff asserted that defendant's guilty plea to a felony demonstrated a lack of moral and ethical character, which was needed to raise teenage boys. The judge denied plaintiff's motion for reconsideration on March 9, 2012, reiterating that plaintiff failed to demonstrate a prima facie case of changed circumstances. The judge noted that defendant had not been incarcerated but was on probation on a third-degree charge. The judge also noted that, contrary to plaintiff's original claim, defendant's housing was not in jeopardy. The judge concluded that plaintiff's assertions were not sufficient to uproot the children from the home they had known for six years. This appeal followed.

On appeal, plaintiff raises the following:

POINT I: PRESENTED WITH A PRIMA FACIE SHOWING OF HARM TO THE CHILD, IT IS AN ABUSE OF DISCRETION ...

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