Opinion
DOCKET NO. A-2671-12T1
05-09-2014
DANIEL A. COHEN, Plaintiff-Appellant, v. MEGHAN E. COHEN, Defendant-Respondent.
William H. Donahue, Jr., attorney for appellant. Jeffrey F. Dragon, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-437-08.
William H. Donahue, Jr., attorney for appellant.
Jeffrey F. Dragon, attorney for respondent. PER CURIAM
In this post-judgment matrimonial matter, plaintiff Daniel A. Cohen appeals from a January 4, 2013 Family Part order denying his application seeking residential custody of his two children, who were living with defendant Meghan E. Cohen. For reasons that follow, we affirm.
The parties' 2008 final judgment of divorce incorporated a property settlement agreement, which provided that the parties shared joint legal custody of their daughter, born in 1996, and their son, born in 2001. It also provided that defendant was the parent of primary residence. On May 5, 2010, the court entered a consent order modifying the parenting schedule and continuing joint legal custody with the children residing with defendant.
On October 17, 2012, plaintiff filed a motion seeking to become the parent of primary residence, or, in the alternative, to have a plenary hearing on the issue. Plaintiff also requested that a neutral custody evaluator be appointed to address the children's best interests, that the court interview the children directly to determine their preferences, and that the court grant him counsel fees.
In his moving papers, plaintiff contended that defendant's behavior toward the children was psychologically abusive. He asserted that defendant denigrated their son and made him feel less important than their daughter; she did not support their son's sports, school activities, or academics; and she failed to bring the son to the doctor when he was sick. Plaintiff also alleged that their son had stated that he would prefer to live with plaintiff. Plaintiff maintained the son felt his mother and his sister had formed an alliance against him, and his mother did not protect him from his sister's teasing. Plaintiff believed their son should reside with him as he was struggling in his academics, and he would be in a better school district.
Plaintiff also alleged that defendant had offered their daughter alcohol, and had become too emotionally dependent on their daughter, treating her as a best friend, which caused their daughter to have few friends her own age. When defendant dropped the children off for a visit, she referred to plaintiff's home as "Hell" and at times used pejorative terms in referring to plaintiff.
Defendant's reply certification stated that plaintiff repeatedly brought her to court to modify parenting arrangements because he was obsessed with having their son attend his alma mater high school located in his school district. Defendant stated that in prior motions, the court told plaintiff there would be no custody change for school district purposes, and now he was simply disparaging her to achieve that end. She vehemently denied abusing the children, and maintained that she had a good and supportive relationship with both of them.
On January 4, 2013, after reviewing the parties' certifications and hearing argument, Judge Steven J. Polansky denied plaintiff's motion in its entirety. The judge found that plaintiff had offered insufficient evidence to warrant a plenary hearing on changed circumstances, and, accordingly, a custody evaluation and interview were unnecessary. The judge further noted that there was no indication that their son would not get a good education in his current school district. This appeal followed.
On appeal, plaintiff argues that the trial judge erred by finding insufficient evidence to warrant a plenary hearing, by declining to appoint a neutral custody evaluator, and by denying the request to interview the children. We disagree.
In any custody or visitation determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court's focus must be "on the 'safety, happiness, physical, mental and moral welfare' of the" child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
A judge must consider a request for modification in accordance with the procedural framework established in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Under Lepis, the first question is whether the party seeking a modification has made a prima facie showing of a substantial change in circumstances. Id. at 157. To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances and that the changed circumstances affect the welfare of the child such that his or her best interests would best be served by modifying custody. Hand, supra, 391 N.J. Super. at 105.
In evaluating whether the requisite changed circumstances exist, the court must consider the circumstances that existed at the time the current custody order was entered. Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div.), certif. denied, 28 N.J. 147 (1958). After considering those facts, the court can then "ascertain what motivated the original judgment and determine whether there has been any change in circumstances[.]" Id. at 288. "In assessing a claim of changed circumstances deference is given to the length and stability of the existing custody relationship." M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979).
"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, supra, 391 N.J. Super. at 105 (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). "In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded. Only statements to which a party could testify should be considered." Lepis, supra, 83 N.J. at 159.
In general, since the Family Part has special expertise in family matters and has the opportunity to see and hear the witnesses first-hand, its fact-finding should be accorded particular deference on appeal. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However, we review the Family Part's interpretation of the law de novo without any special deference. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A decision concerning custody is up to the sound discretion of the judge. See Randazzo v. Randazzo, 184 N.J. 101, 113 (2005).
Applying the above principles, we perceive no reason to disturb the judge's decision. Here, the judge's determination that plaintiff failed to prove that a material change of circumstances affecting the children's well-being had occurred is supported by substantial credible evidence in the record and is consistent with the controlling legal principles.
Plaintiff provided no competent evidence supporting his contention that defendant was psychologically abusing the children. Plaintiff merely makes conclusory assertions that defendant treats their daughter with favoritism to the detriment of their son. This alone is not sufficient. We are also in accord with the judge that plaintiff has failed to show how keeping their son at his current school harms him such that custody should be modified to allow him to attend the school in plaintiff's district. Furthermore, plaintiff has not demonstrated that there is a genuine need, measured by changed circumstances, to engage the assistance of a custody evaluator or to grant the request for an interview with the children.
Thus, plaintiff has failed to satisfy his burden that any change since the 2010 consent order has affected the welfare of the children. See Hand, supra, 391 N.J. Super. at 105. Moreover, as the allegations of plaintiff do not establish changed circumstances, a plenary hearing is not warranted. See Lepis, supra, 83 N.J. at 159.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION