GEORGE CONDRY v. LAVONNE TRIPP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1025-04T11025-04T1

GEORGE CONDRY,

Plaintiff-Appellant,

v.

LAVONNE TRIPP,

Defendant-Respondent.

______________________________

 

Submitted October 24, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-01-03.

George Condry, appellant pro se.

No brief filed on behalf of respondent.

PER CURIAM

Plaintiff, George Condry, appeals the October 1, 2004 Family Part order that denied his August 24, 2004 motion seeking joint legal custody with defendant, LaVonne Tripp, of the parties' eight year old son, Jairus, a decrease in child support, and weekly overnight visitation with Jairus. Plaintiff contends he has been prevented from visiting his son for six years. We affirm in part and remand in part.

The Family Part, in its "memorandum of decision on the motion" dated October 1, 2004, concluded that the custody of Jairus was governed by the April 13, 2000 final judgment of divorce that granted custody of Jairus to defendant. We are satisfied that plaintiff has failed to demonstrate, over four years after the final judgment of divorce and six years since he last saw his son, a prima facie basis for the court to conduct an evidentiary hearing to consider a modification of the legal custody determination reflected in the final judgment of divorce. R. 5:8-6. Plaintiff fails to present any facts that support his reason for seeking joint legal custody of his son, i.e., "so that I will have a legal right to have him evaluated for any emotional damage or abuse he may possibly be enduring from domestic violence incidents in the home or around him."

Plaintiff's motion also sought a decrease in child support from the $79 per week established by order dated December 5, 2003, after a three year review, that was based on plaintiff's gross weekly income of $444. Plaintiff contends that he presently earns $16,640 per year as verified by two pay stubs dated April 21, 2005 and May 6, 2005 showing bi-weekly earnings in the amounts of $633.75 and $585 respectively.

The judge, in denying reduction of plaintiff's child support obligation, concluded that the most recent child support order of December 5, 2003 took into account any changes in the financial situation of both parties and insured that the child support order was in compliance with the Child Support Guidelines set forth in Rule 5:6A. The court further determined that defendant had failed to make a prima facie showing of changed circumstances required by Lepis v. Lepis, 83 N.J. 139 (1980), or that the court's December 5, 2003 child support order warranted reconsideration pursuant to Rule 4:49-2. The court was not convinced that enough time had elapsed to reconsider the order since it had been entered only one year prior. The court also concluded that, if anything, plaintiff's income was understated in the child support calculation compared to plaintiff's actual 2003 income.

We are satisfied that the judge's decision denying a change in the child support order of December 5, 2003 properly examined this request for relief based on the procedural guidelines established in Lepis. Lepis holds that "[t]he party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support . . . provision[] involved." Lepis, supra, 83 N.J. at 157. When the movant is seeking modification of child support, the guiding principle is the "best interests of the child[]." Ibid. The judge properly exercised his discretion in denying this relief based on plaintiff's failure to make a prima facie showing of changed circumstances.

Plaintiff, however, did make a prima facie showing that there was a genuine and substantial issue concerning his request for weekly overnight parenting time with his son. As we made clear in Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985), "the law favors visitation and protects against the thwarting of effective visitation rights." We are convinced, therefore, that plaintiff's contention that defendant prevented him from seeing his son for six years required the court to conduct a plenary hearing on the issue. See R. 5:8-6; see also Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998). Indeed, the court's reason for denial of plaintiff's request for parenting time relief, "The court is without knowledge as to the current state of the parties' relationship and cannot gather what schedule of visitation would satisfy plaintiff," in itself suggests the need for a plenary hearing.

We determined in Mackowski that the failure to conduct a plenary hearing was inconsistent with the requirements of Wilke, supra, 196 N.J. Super. at 501 (holding that the issue of parenting time should not be decided on the basis of conflicting affidavits or an inadequate record) and Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982) (concluding that the visitation issue cannot be properly resolved based on conflicting affidavits or an inadequate record). Mackowski, supra, 317 N.J. Super. at 11-12.

In Wilke, we reiterated the principle earlier enunciated in Daly v. Daly, 39 N.J. Super. 117, 123 (J. & D.R. Ct.), aff'd, 21 N.J. 599 (1956), "that the courts should endeavor that children of separated parents should be imbued with love and respect for both parents, and where children are in custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent." Wilke, supra, 196 N.J. Super. at 496.

We are satisfied that the parenting time issue raised here and its implication on the long term relationship between father and son warrants a full plenary hearing. The denial of a hearing prevented plaintiff an opportunity to present his case on that issue.

Accordingly, we affirm so much of the October 1, 2004 order that denied a change in legal custody of Jairus and denied a decrease in child support. We remand the issue of parenting time to the motion judge in order that a full plenary hearing can be conducted on plaintiff's request for weekly visitation. We do not retain jurisdiction.

Affirmed in part and remanded in part.

 

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A-1025-04T1

November 4, 2005