ROSEANN K. PREZIOSI v. PAUL PREZIOSI

 
Original Wordprocessor Version
 
Original Wordprocessor Version
 
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
 
(NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4408-07T34408-07T3

ROSEANN K. PREZIOSI,

Plaintiff-Respondent,

v.

PAUL PREZIOSI,

Defendant-Appellant.

_______________________________

 

Submitted April 1, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2319-98.

Paul Preziosi, appellant pro se.

Roseann K. Preziosi, respondent pro se.

PER CURIAM

Defendant Paul Preziosi, appeals from a March 28, 2008 post-judgment Family Part order denying his motion seeking a decrease in child support and a modification of custody of the parties' two children. The court determined defendant failed to meet his evidentiary burden of demonstrating sufficient "changed circumstances" to alter the custody and child support provisions set forth in the March 5, 1999 Final Judgment of Divorce (FJOD). We glean these arguments presented on appeal from defendant's merits brief: defendant was denied a fair hearing on his application; the motion judge was prejudicial and discriminatory in his ruling; and plaintiff Roseann Preziosi failed to provide necessary discovery to analyze the parties' respective income positions. After consideration of the briefs, review of the record, and application of the law, we affirm.

The facts are as follows. The parties were married on August 26, 1990 and divorced on March 5, 1999. The FJOD awarded plaintiff sole custody of the parties' two children and granted defendant supervised visitation. The record leaves no doubt that a long-standing strained relationship existed between the parties. In the ten years following the entry of the FJOD, the parties had minimal interaction with one another and communicate only when necessary. However, defendant has a good relationship with the children. At this time, visitation is unsupervised and the frequency of contact, both by telephone and in-person visits, has increased.

In the FJOD, defendant was ordered to pay child support of $50 per week. In 2003, defendant was awarded Social Security Disability (SSD) as a result of health conditions including headaches, anxiety and clinical depression. Defendant's monthly SSD benefit totals $1616. Additionally, as a derivative benefit of the SSD award, each child receives a direct payment of $404 per month.

On March 14, 2008, citing his increased number of visits and strong relationship with the children, defendant moved for joint legal custody. He also requested modification of the receipt of the children's SSD benefits, suggesting a portion of the funds should be released to him to provide for the children when they are in his care. Defendant also filed an order to show cause, contending plaintiff prohibited the children from visiting him once she received his motion.

Advancing the motion return date to March 28, 2008, the motion judge addressed all issues raised by defendant's pleadings. The court ordered plaintiff to "cooperate" in facilitating "reasonable" unsupervised visitation between defendant and the children. However, the judge concluded defendant failed to demonstrate a substantial change in circumstances warranting a change in custody. Moreover, the parents do not communicate, which is essential to an award of joint legal custody. Finally, the court denied defendant's motion to allocate the children's SSD payment between the parents. This appeal ensued.

Our review of a trial court's factual findings 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) (citing, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Since a trial court "hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Id. at. 412 (internal quotations and citations omitted). Consequently, we do "not disturb the 'factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid.

"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978)); Grover v. Terlaje, 379 N.J. Super. 400, 409 (App. Div. 2005). Once the court determines a post-judgment event is a "changed circumstance" warranting reevaluation of a custody arrangement, the "best interests" of the child control the subsequent custody award. Beck v. Beck, 86 N.J. 480, 497 (1981) ("The paramount consideration in child custody cases is to foster the best interests of the child.").

Similarly, child support obligations are always subject to review and modification based on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 145-49 (1980); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970). The party seeking modification has the burden of showing such changed circumstances warrant relief from his current support obligations. Lepis, supra, 83 N.J. at 157.

We have reviewed the record, including the parties' briefs, all documents in the appendix and the transcript. We determine Judge Troiano gave defendant ample opportunity to present his position. Although unnecessary, the judge allowed defendant to read his pleadings into the record based on his insistence. Thereafter, defendant was permitted to supplement his statements with other relevant information, and to respond to plaintiff's comments. The judge asked each party questions to discern the status of the children's health, education and welfare. More importantly, in questioning plaintiff, the judge probed whether her asserted fears of defendant's neighborhood and his alleged erratic behavior were disclosed to the children.

The court's statements regarding defendant's mental health were factually based, as evidenced by his SSD award. They were not unfounded suggestions of defendant's "deficiencies" or "flawed abilities."

We reject as wholly unfounded the accusations that defendant was denied a fair hearing and that the judge's comments to plaintiff betrayed a certain bias against him. Suffice it to say, the judge's determination reflects an objective and studied application of the facts presented. The context of the court's comments was with respect to the children's understanding of their father's condition, which limits defendant's capacity to work or drive. Defendant's transportation limitations impact the time the children can see their father.

Judge Troiano's determination to deny defendant's request for joint legal custody is grounded on sufficient, credible evidence in the record and comports with the law. Other than the change in the nature and the amount of time defendant spent with the children, he provided no basis for his requested modification to allow him input in the day-to-day decisions affecting the children. Plaintiff has arranged for the children's schooling, medical care, religious education and activities. She has been and continues to be their principal caregiver. During this time, the children have flourished. They are healthy and excelling both academically and athletically.

Unfortunately, the parties' past impedes realization of a necessary requirement for joint legal custody, that is, the parents' ability to effectively communicate with one another for the benefit of the children and to cooperate in raising the children. Beck, supra, 86 N.J. at 498-99. Following our review, we unequivocally conclude Judge Troiano's determinations were grounded in the record and untainted by any improper consideration.

The natural child of a claimant entitled to SSD benefits, is also entitled to receive dependency benefits. 42 U.S.C.A. 402(d)(1)(C). The benefits conferred are payments to the dependent child, released to the custodial parent as representative of the child. Ibid.; Social Security Reg. No. 4-Subpart Q, 404.1604, 404.1605. While these payments are sent to plaintiff, she serves as representative payee of the funds for the child, akin to a trustee. The primary purpose of social security disability payments for dependent children is to meet the "current needs of the dependents" in "regular, periodic installments." Sheren v. Moseley, 322 N.J. Super. 338, 344 (App. Div. 1999).

In this matter, the SSD benefits paid to the children satisfies defendant's obligation to pay child support. See Herd v. Herd, 307 N.J. Super. 501, 504 (App. Div. 1998). Plaintiff, as the sole custodial parent, is responsible to provide for the children's needs which include, but are not limited to housing, utilities, transportation food, clothing and entertainment. Defendant is solely responsible for food and entertainment expenses incurred during his parenting time. No basis in law or fact warrants allocation of the SSD payment issued to the children.

 
Affirmed.

Defendant's brief did not contain appropriate point headings stating his legal points to be argued, but rather listed one or two word phrases. We have discerned the arguments from these sections. We mention the procedural deficiencies of the appellate pleadings in a later footnote.

As a matter of future guidance, we also comment on defendant's failure to comply with the necessary procedural rules governing appellate briefs. R. 2:8-2. Defendant's table of contents lacked point headings, Rule 2:6-2(a)(1), a table of citations, Rule 2:6-2(a)(2), and legal arguments with citations to the New Jersey reports, Rule 2:6-2(a)(5). The required statement of facts inappropriately included, among its forty-eight pages, argument in violation of Rule 2:6-2(a)(4). Finally, the appendix was not properly paginated. R. 2:6-1(b). Procedural errors of this type may serve as a basis to dismiss an appeal. See Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 284 (App. Div. 1984) (failure to comply with the rules on appeal is sufficient reason for dismissal of the appeal); State Highway Comm'r v. Union Paving Co., 33 N.J. Super. 85, 89 (App. Div. 1954)(same). In the interest of justice, we have overlooked these marked procedural deficiencies and addressed the merits presented by defendant's appeal. In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000).

(continued)

(continued)

8

A-4408-07T3

July 8, 2009