JUSTINE P. COLE v. JOSEPH R. COLE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0238-08T30238-08T3

JUSTINE P. COLE,

Plaintiff-Respondent,

v.

JOSEPH R. COLE,

Defendant-Appellant.

___________________________________________

 

Argued April 28, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1608-03-A.

August J. Landi argued the cause for appellant.

Peter C. Paras argued the cause for respondent (Paras, Apy & Reiss, P.C., attorneys; Mr. Paras, of counsel and on the brief; Michael J. Fleres, on the brief).

PER CURIAM

Defendant Joseph R. Cole appeals from the order of August 22, 2008, denying his motion to change custody and the parenting time schedule. We affirm substantially for the reasons set forth by the trial judge in his oral decision placed on the record and in his supplemental written opinion.

Plaintiff Justine P. Cole and defendant were married on April 30, 1994 and had three children together, born in 1996, 1998, and 2001. Plaintiff filed for divorce in 2003. In August 2005, the trial court conducted a two day plenary hearing in which it heard testimony from the parties and reviewed the report of a court appointed expert.

At the conclusion of the hearing, the trial court issued an order dated September 14, 2005, providing for joint custody of the children, but making plaintiff the primary residential custodian. Defendant was given parenting time on alternate weekends from 5 p.m. Friday until Monday morning, and every Tuesday from 4 p.m. to 7 p.m. during the school year. The parents equally shared parenting time during the summer by alternating weeks. The order further provided that the parents share equally in school vacations and alternate holidays, and each parent was provided with unlimited telephone access to the children provided it did not interfere with the other's parenting time. The order also appointed a parenting coordinator. By order dated March 30, 2007, an adjustment was made to the parenting schedule, allowing defendant to have lunch with the children on Tuesdays during the school year.

In May 2008, defendant filed the pendente lite motion that forms the basis of this appeal. In that motion, he sought sole legal and physical custody of the children, and plaintiff would have parenting time every other weekend and one night a week. However, he indicated that he would implement an alternating week parenting schedule, that would continue the summer pattern of alternating weeks with each parent. He also sought to prohibit plaintiff from placing the children in the residence of persons who smoke.

In his motion papers, defendant contended that plaintiff seeks to alienate the children from him. He made a number of general allegations that defendant was not abiding by the parenting schedule fixed by court order, including contentions that on multiple occasions defendant refused to allow court ordered parenting time or to permit the children to speak to him on the phone. He also expressed his concern that plaintiff was residing with her parents who are smokers, thereby exposing the children to secondhand smoke.

In her responsive certification, plaintiff countered these assertions, denying that she interferes with defendant's parenting time. She stated that the children were "well-adjusted, healthy and normal, both physically and emotionally," although she did indicate problems with the children when they returned from defendant's home. She complained that while she enforces rules at her home, defendant does not do so at his home and that he gives the children excessive gifts.

Before this motion was heard, the final judgment of divorce was entered on August 8, 2008. Thereafter, on August 22, 2008, after oral argument, the trial court denied the motion in an oral decision placed on the record that day and supplemented by a written opinion dated September 22, 2008. In particular, the trial court noted that while an alternating week schedule works well in the summer when life is more relaxed for the children, it would be disruptive during the school year when the children are busy with homework and extracurricular activities. While finding that the circumstances did not warrant a plenary hearing on custody, the trial court did indicate that the parties should explore an adjustment in the parenting time that would allow defendant an additional dinner during the week with the children. The motion was denied without prejudice.

In this appeal, defendant contends that the trial court's factual findings are not supported by competent, relevant and credible evidence and that its conclusions of law are insupportable based on the record; that the trial court is condoning plaintiff's "bad acts"; that the trial court erred in refusing to interview the children; and that the trial court "failed to protect appellant's fundamental liberty right to parent his children." He maintains that based on this record, the trial court should have scheduled a plenary hearing on the custody question and interviewed the children.

At the outset, we note that "[f]amily Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). As a result, we accord the factfinding of the family court judge deference. Cesare v. Cesare, supra, 154 N.J. at 413.

In order to have a custody award modified, a parent must show "changed circumstances that affect the welfare of the children." Hand v. Hand, supra, 391 N.J. Super. at 105. When faced with an application for change in custody, the court must conduct a hearing when "a genuine and substantial issue" regarding the custody of the children is presented. R. 5:8-6. During the course of the hearing, the children may be interviewed. Ibid. As we noted in Hand v. Hand, a plenary hearing is not always required:

[T]here [is] no need for a plenary hearing because plaintiff failed to establish a prima facie case that circumstances subsequent to the divorce judgment were adversely affecting the welfare of the children. See Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div.) (stating there was "no reason to . . . compel a plenary hearing that would only disrupt the lives of the parties and their children and be very unlikely to lead to a different outcome"), certif. denied, 187 N.J. 81 (2006); Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999) (emphasizing "that a plenary hearing is not necessary in every case where removal of children is at issue, but rather only where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children").

[Hand v. Hand, supra, 391 N.J. Super. at 111-12 (third alteration in original).]

After a careful review of the record, we concur with the trial judge that defendant has not made a sufficient showing that changed circumstances have occurred and that "a genuine and substantial issue" of custody is present. Certainly, the hostility between these parents does not benefit the children. In a divorce setting, oftentimes the greatest test of a parent's love for the children is to foster, in the face of adversity, the children's love for and relationship with the other parent and to work with the other parent in a civil manner to benefit the children. It is a circumstance that forces a parent to dig deep into himself or herself and put that love for the children ahead of the bitterness felt toward the former spouse. However, defendant's proposal to change custody will not accomplish that nor remedy any problem here.

If, indeed, parenting time is being denied, enforcement remedies should be sought. If defendant seeks additional parenting time, such as an additional weekday dinner as suggested by the trial judge, that relief can be requested from the trial court if the parties cannot agree. The record does not indicate that the circumstances here are so deleterious to the children that "a genuine and substantial issue" of custody is present.

Affirmed.

 

After defendant appealed this order, a consent order was entered on February 8, 2006, dismissing the appeal without prejudice and giving defendant the right to refile the appeal within forty-five days of the entry of the Final Judgment of Divorce. Defendant did not, thereafter, appeal the order.

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A-0238-08T3

June 5, 2009