CYNTHIA ESPOSITO v. RALPH ESPOSITO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3298-04T13298-04T1

CYNTHIA ESPOSITO,

Plaintiff-Respondent,

v.

RALPH ESPOSITO,

Defendant-Appellant.

 

Submitted November 30, 2005 - Decided

Before Judges Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-325-96.

Michael D. Mark, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant Ralph Esposito appeals from a January 25, 2005 order of Judge Daniel of the Family Part, which denied defendant's request to transfer residential custody of the parties' two minor sons to him, and his request to enroll the children in the Highland Park school system. We affirm.

The parties were married on November 30, 1985, and had two children: Joseph, now age sixteen, and Michael, now age thirteen. When the parties were divorced by order of August 13, 1996, the court awarded them joint legal and residential custody of the children. Defendant was awarded parenting time with the children overnight each Monday and Thursday, and alternate weekends from Friday through Sunday evening.

Plaintiff relocated to Highland Park in 1997 where the boys attended public school. Within a year, defendant also moved to Highland Park. Plaintiff later remarried and in June 2001 moved to Maplewood, where she enrolled the boys in the Maplewood-South Orange school system. After that occurred, defendant asked the court to compel the children to remain in the Highland Park school system. By order of August 3, 2001, Judge Donohue denied defendant's application.

The boys remain in the Maplewood-South Orange school system, where Joseph has experienced behavioral problems. That being so, defendant moved for a change in residential custody and, again, to have the boys transferred to the Highland Park school system.

Judge Daniel, after interviewing the children and conducting a plenary hearing in which he considered the testimony of plaintiff, defendant, and Dr. Mathias Hagovosky, a court-appointed psychologist, denied defendant's application. In a lengthy decision from the bench, the judge concluded that defendant had not demonstrated a substantial change in circumstances that warranted modification of the existing custody order. He found that the best interests of the children were being met by the current parenting arrangement.

Our scope of review of a trial court's fact-finding function is limited. Findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Deference is especially appropriate when, like here, "the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Because of the Family Part's special jurisdiction and expertise in family matters, we accord deference to a Family Part judge's fact-finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

 
Given the scope of review, and having reviewed the record in depth, we are satisfied that defendant's arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(A)&(E). We affirm substantially for the reasons expressed by Judge Daniel in his thoughtful and thorough decision on January 21, 2005.

Affirmed.

(continued)

(continued)

3

A-3298-04T1

December 15, 2005