JAMES CIARLO v. GISSELL CIARLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5802-04T35802-04T3

JAMES CIARLO,

Plaintiff-Respondent/

Cross-Appellant,

v.

GISSELL CIARLO, now known

as GISSELL HASBUN,

Defendant-Appellant/

Cross-Respondent.

__________________________________________

 

Submitted: August 30, 2006 - Decided September 6, 2006

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-122-03.

David S. Rochman, attorney for appellant/cross-respondent.

Aronsohn Weiner & Salerno, attorneys for respondent/cross-appellant (Gerald R. Salerno, of counsel; Lorraine R. Breitman, on the brief).

PER CURIAM

Gissell Hasbun, formerly known as Gissell Ciarlo (mother), appeals from that part of the May 16, 2005 post-divorce judgment order that denied her request for the following relief: (1) a change in residential custody of the parties' children; (2) a plenary hearing; and (3) attorney's fees. James Ciarlo (father) cross-appeals from the provision of the same order that denied his application for: (1) an award of child support from mother; and (2) for a modification of the current parenting time schedule between the parties. The judge directed the parties to pursue a consent order on this later issue. We affirm.

The parties were divorced by a dual judgment in July 2003, after six years of marriage. Two children were born of the marriage: Sabrina, now age seven and James, now age five. Prior to the entry of the judgment, the parties entered into a consent order, which provided for joint legal custody of the two children with primary physical custody to father.

After filing for divorce, father, who was then unemployed, moved in with his parents. At the time the divorce proceeding commenced, mother had physical custody of the children. She was employed by a family business, along with her mother and sister. The three women lived in close proximity to each other. The maternal grandmother and aunt helped with the care of the children. However, the family business failed. The maternal grandmother and aunt relocated to Missouri and Florida, respectively. Accordingly to the mother, it was necessary for her to return to school to train for another job. For that reason, she consented to the children being in their father's custody. She then went to school to become a hairstylist.

Mother has married Scott Liebling, an attorney. She was expecting a third child when she moved for modification of the agreement seeking primary physical custody, or in the alternative to set the matter for a plenary hearing. In a supporting certification, she alleged, among other things, that:

[At the time of the divorce trial]

Because I had no ability to provide for the children, I felt that it was best at that juncture that he become the "primary care provider." This is a decision that I regret to this day. More importantly, it is a decision which was made not only in haste but, in an interim basis, as it was always our tacit agreement that upon the stabilization of my situation that the children would return to me as primary care provider.

. . .

In light of my impending nuptials and my cohabitation with Mr. Liebling, I have the wherewithal and economic means to adequately care for the rearing of our children. Not only do I have the ability to provide them with the necessities such as shelter, food and clothing, but more importantly, I have the ability and intend to quit my job and be with my children on a full time basis.

. . .

[Father] has recently advised that he intends to move out of his parents home uprooting the children as he is engaged to be married and apparently will be moving into his fiancée's home. Moreover, neither of our children has yet to enter the first grade.

. . .

Since [father] is currently removing himself from his former life including the safety net of his parents' home, I suggest to the court that there has been a substantial change in circumstances in both that of my life and that of [father]. Particularly as enumerated above, each of us are currently moving. Further, my pending nuptials afford me the luxury of quitting my job, so that I may remain home as the primary caregiver. I would remind the court that our youngest is four and our oldest is six.

. . .

As a result of my pending nuptials to Mr. Liebling, he has afforded me the ability to quit my job. The same cannot be said for [father].

. . .

While I recognize that financial status is not the be all that ends all in custody matters, I will also bring to the court's attention that Mr. Liebling, as a result of his educational endeavors and his work history has significant means to provide a very nice lifestyle for the children. As a result, not only will the children's basic needs be attended to, but there is enough money to allow me to quit my job, provide the children with an environment which they have never experienced in the past. Mr. Liebling and myself currently live in a beautiful five bedroom, 4800 square foot home with a finished basement with plenty of bedrooms for the children. In fact, Mr. Liebling currently has two children with whom he has a shared parenting arrangement with his ex-wife. I believe our children will benefit from the integration of my family with that of Mr. Liebling.

Mother requested oral argument.

Father is a full-time teacher who has taken on significant coaching and athletic director responsibilities. He has remarried and is living with his new wife and her three children. He opposed the motion and cross-moved for the following relief: (a) modification of the visitation/parenting time for the two children; (b) the establishment of holiday visitation schedule; and (c) an award of child support from mother. He also sought oral argument.

Judge Harold C. Hollenbeck decided the issue on the papers and issued a written opinion. The judge wrote:

The cornerstone of [mother's] argument is the assertion that the needs of the children are best met by a parent in the fortunate position of being able to stay at home, thus allowing a home more in the best interests of the children than that of a parent who works. While it is indeed a fortunate parent who is able to devote themselves solely to raising two step-children and a newborn, the Court is not convinced that this situation summarily means that [mother] is best able to raise two additional young children. Nor is the Court convinced that a working parent is less capable of providing a safe, stable home environment that meets the needs of the children. This is simply not the yardstick by which parental fitness is measured.

[Father] points out to the Court that the geographic proximity of the parental homes would make joint residential custody unworkable. [Mother] does not address this factor, but the Court notes that the distance between the homes, while perhaps workable for an alternate weekend parenting plan, would likely work a hardship on the children and the parties in a joint residential situation. Nor does [mother] address quality of time spent with the children, although [father] argues as before that [mother] has not exercised her full parenting time.

As noted above, although [mother] argues that [father's] employment responsibilities inhibit his ability to spend time parenting the children, the Court does not find [father's] employment situation dramatically different than a substantial percentage of the parent population. It would be too obvious to observe that a great number of children are raised by working parents, and there is no indication or argument that [father's] remarriage has made his situation untenable. In sum, the Court finds no indication that [father], along with his new wife and parents, are incapable of properly raising these children.

The Court also denies [mother's] alternative request for a plenary hearing. First, the Court notes that oral argument was not necessary in the instant application as no genuine issue of material fact was presented. Rule 5:5-4(a), Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982). Moreover, a plenary hearing is not mandated ipso facto by a motion. Barrie v. Barrie, 154 N.J. Super. 303 (App. Div. 1977)certif. denied, 75 N.J. 601 (1978). [Mother] is pregnant and now in a relationship that allows her to stay at home. [Father] continues to work as before and is moving into a new home with his new wife. As the Court finds no genuine issue of material fact, the Court denies the request for a plenary hearing.

With regard to [father's] application for child support from [mother], the Court denies same. The Court notes the parties' Dual Judgment of Divorce entered July 21, 2003 incorporating the Consent Order of May 6, 2003 and waiving child support payable to and from each party. Although that agreement was premised in part on [mother] being in school, there is no showing that her personal finances have changed. The agreement was also premised on the then established parenting plan, which has not yet been modified. Therefore, [father's] application for child support from [mother] is denied.

[Father] also requests that the Court modify the parties' agreement by setting specific times for [mother] to exercise her parenting time. The Court declines to do so. As noted above, there is no showing that the parties are unable to communicate effectively towards the entry of a consent order modifying the agreement. Both parties are represented by competent counsel, and it is through them that an agreement on this issue should be first attempted. Of course, resorting to the courts is always an option, but the parties are directed to use this channel first.

Thus, after reviewing the factors set by N.J.S.A. 9:2-4(c), the judge found that mother had failed to meet her burden of proof as the moving party pursuant to Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.) certif. denied, 28 N.J. 147 (1958).

Mother subsequently filed an appeal, contending that the judge erred in both the application of law and facts. She argues that: (1) the judge's analysis of N.J.S.A. 9:2-4 was applied in error where the court utilized the factors to determine whether a change in circumstances had been presented rather than for a determination of the best interests/welfare of the children relative to custody; and (2) "the denial of both parties' request for oral argument was clearly judicial error warranting a remand."

On cross-appeal, father contends that the judge erred by denying his request for child support from mother.

We affirm substantially for the reasons expressed by Judge Hollenbeck in his May 16, 2005 written opinion.

 
Affirmed.

(continued)

(continued)

8

A-5802-04T3

September 6, 2006