JOSEPH MARRONE v. GERALDINE MARRONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2311-04T52311-04T5

JOSEPH MARRONE,

Plaintiff-Respondent,

v.

GERALDINE MARRONE,

Defendant-Appellant.

_____________________________

 

Argued October 11, 2006 - Decided October 31, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM 12-43988-89.

Geraldine Marrone, appellant, argued the cause pro se.

Joseph Marrone, respondent, argued the cause pro se.

PER CURIAM

Defendant, Geraldine Marrone a/k/a Geraldine Toth Marrone, appeals from the Family Part order of December 3, 2004, denying her motion for a change in residential custody of the parties' son, Dustin. We affirm in part; and dismiss in part. We briefly state the relevant portion of this matter's long, tortuous procedural history.

Plaintiff, Joseph Marrone, and defendant were married in September 1981, separated in 1989, and divorced in 1993. One child, Dustin, was born of the marriage on March 28, 1988. Pursuant to the terms of the final judgment of divorce, the parties shared joint legal custody of Dustin with defendant designated as the parent of primary residence. Motions and cross-motions ensued primarily concerning plaintiff's parenting time and defendant's interference therewith. On March 7, 2003, an order was entered holding defendant in contempt and imposing sanctions of $5,000 against defendant and her counsel, and directing defendant pay $6,500 in counsel fees and costs. After we granted defendant's motion for leave to appeal, we reversed the sanctions against defendant and counsel, but left the finding of contempt and the imposition of counsel fees intact. See Marrone v. Toth, A-3451-02T1 (September 22, 2003).

In the interim, on April 23, 2003, plaintiff filed a motion for increased parenting time and enforcement of the then-parenting schedule. Following a multi-day hearing, the trial judge again found defendant in contempt because she had interfered with court-ordered parenting time for plaintiff to take their son to a physician in order to obtain a second opinion concerning a growth on his face and for disrupting plaintiff's March 14, 2003 parenting time. However, no sanctions were imposed. On August 28, 2003, the trial judge rendered an oral opinion directing that the residential custody of Dustin be changed from defendant to plaintiff. A confirming order was entered on October 28, 2003. Defendant appealed, presenting seventeen issues for this court's consideration. On August 20, 2004, this court issued a sixty-seven page opinion affirming the Family Part's order of August 28, 2003, directing a change in the residential custody of Dustin. See Marrone v. Toth, A-2074-03T04 (August 20, 2004).

In November 2004, defendant filed a motion for change of residential custody. On December 3, 2004, the motion judge denied defendant's motion stating:

There has been no demonstration of a change of circumstances sufficient to warrant a change in custody as ordered by the Court on October 28th of 2003, as affirmed by the Appellate Division on August 20th of 2004.

Everything that was before the Court now was before the Court then. You have four reports that are snapshots, snapshots in time. Not only that, but I read the reports, they're not substitutes for the trial court's ability to see the witnesses, to cross-examine, to assess demeanor and credibility.

In fact, one of the reports actually says, we know there was a custody hearing, but we do [not] know what happened there and we [are] not going to second guess the trial court. We [are] making recommendations because some other judge told us to do so, but we do [not] have all the information. That [is] exactly right. The recommendations of the family placement review board and those counselors affiliated with them, did that which they were told to do, but they are not substitutes for the trial in this matter and then the affirmance by the -- by the Appellate Division.

And more importantly, as I know Judge Stolte placed on there, they [are] not binding, they [are] just recommendations. And all of those reports have the caveat[,] which is we were [not] involved in the custody proceeding, we [are] looking at a snapshot. So that [is] why we temper our opinion, and that [is] why they [are] not binding. None of the issues that were raised are new. They were litigated in 2003 and affirmed in 2004.

Dustin has continued to express his strenuous opposition to living with his father, I understand that, I do [not] think that [has] changed. The Court, I [am] going to repeat, did review the reports that were submitted for the child placement review board. They are not binding on this Court, they [are] just recommendations[,] and those caveats are quite clear in the reports. We do [not] have all of the information, we [are] only looking at a snapshot in time, so please understand . . . that [is] all we [are] doing. One hour with each of these people as opposed to a [fourteen]-day trial before Judge Ferencz.

Moreover, unlike the trial court, the child placement review board did [not] take testimony, there was no hearing. So, therefore, there was no opportunity to assess demeanor and credibility as was before the Court in 2003 when the Court made a decision. You may disagree with it, but the Court made a decision[;] the Appellate Division affirmed that decision.

I [am] not the Supreme Court of New Jersey. You do [not] come to me to re-litigate a case just because the trial court made a decision that somebody did [not] like and the Appellate Division made a decision that somebody did [not] like.

Based upon the review -- this Court's review of everything that [is] before it, there [has] been no showing of changed circumstances to warrant a change in custody.

On appeal, defendant argues:

POINT I.

THE FAMILY COURT AND TRIAL COURT ERRED BY REFUSING TO CONSIDER THE CREDIBLE EVIDENCE PROVIDED BY THE STATE'S AGENCIES RECOMMENDING CUSTODY OF DUSTIN BE RETURNED TO APPELLANT.

POINT II.

APPELLANT HAS NEVER BEEN IN CONTEMPT OF ANY COURT ORDERS AND THEREFORE THE SANCTIONS OF THE TRIAL COURT MUST BE REVERSED.

POINT III.

THE AUGUST 2004 APPELLATE COURT DECISION WAS CONTRARY TO EXISTING APPELLATE LAW, AND NOW SUPREME COURT LAW, AS JUVENILES INVOLVED IN JUVENILE FAMILY CRISIS SITUATIONS WERE DISTINGUISHED FROM THOSE FOUND TO BE DELINQUENT. DUSTIN SHOULD NOT HAVE BEEN PLACED IN JUVENILE DETENTION HALL/SHELTER.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). It is against these standards that we address plaintiff's arguments.

Defendant first challenges the trial court's order of December 3, 2004, denying her motion for a change in residential custody of the parties' son. We have reviewed the record in its entirety and conclude that the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by Judge Mayer in her thoughtful oral opinion of December 3, 2004. We also note as a practical matter that the custody issue is moot, Dustin having turned the age of majority on March 28, 2006, and according to representation of the parties at oral argument, presently resides with defendant. See N.J.S.A. 9:2-4 (addressing custody issues of "minor children" after parents have separated or dissolved their marriage).

We dismiss defendant's arguments raised under Points II and III. We are satisfied that those arguments were previously addressed on prior appeals, or could have been addressed on prior appeals, from earlier decisions of the Family Part, and defendant may not re-litigate the issues in the present appeal. If an issue has been determined on the merits in a prior appeal, it cannot be re-litigated in a later appeal in the same case. State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971). "It is not our function on . . . this appeal to allow a collateral review of the first decision of this Division, but only to adjudge whether it has been complied with." Deverman v. Stevens Builders, Inc., 35 N.J. Super. 300, 302 (App. Div. 1995). If defendant was dissatisfied with prior decisions of this court, in whole or in part, defendant's remedy was to seek Certification to the Supreme Court, Rule 2:12-3, not to collaterally attack the prior decisions of this court through a subsequent appeal.

Affirmed in part; dismissed in part.

 

The order below refers to appellant as Geraldine Marrone. At oral argument, appellant advised the court she refers to herself as Geraldine Toth Marrone.

(continued)

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A-2311-04T5

October 31, 2006