MICHAEL FISCHER v. KIM FISCHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0345-09T20345-09T2

MICHAEL FISCHER,

Plaintiff-Respondent,

v.

KIM FISCHER (n/k/a PAYNE),

Defendant-Appellant.

Argued March 22, 2010 - Decided June 9, 2010

 
Motion for Reconsideration Granted July 9, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0260-01.

Amy Sara Cores argued the cause for appellant (Hoffman, Schreiber & Cores, attorneys; Ms. Cores, on the brief).

Michael Fischer, respondent, argued the cause pro se.

PER CURIAM

Defendant Kim Fischer, now known as Kim Ann Payne, appeals from a trial court decision denying her custody of the two children born of her marriage to plaintiff Michael Fischer. For the reasons that follow, we affirm.

The parties divorced January 3, 2001. The children, both sons, are fourteen and twelve, and were initially in defendant's custody. In February 2006, defendant encountered problems with drug use and mental health issues which brought her to the attention of the Division of Youth and Family Services (Division). In order to avoid the initiation of formal proceedings for removal, she placed all of her children with their respective fathers, including the two children whose custody is now at issue.

Accordingly, on March 3, 2006, plaintiff obtained temporary residential custody of the children by way of order to show cause. Defendant was directed in that order to "participate in all services per [Division] case plan[s]" dated February 28, 2006 and March 3, 2006.

The next order issued on April 4, 2006, when plaintiff was granted custody and defendant was granted supervised visitation. Modification of the limited visitation afforded to defendant was made contingent upon her completion of substance abuse treatment and the "receipt of a favorable report." Defendant has since successfully addressed her drug problem. Around that time, she was also diagnosed as suffering from bipolar disorder and has since sought treatment and stabilized.

On October 5, 2007, the trial court denied defendant's first application to regain custody of the children. Nonetheless, defendant's parenting time was expanded via a consent order entered on the same day; other issues not relevant to this appeal were decided as well. The court's ruling was grounded in part upon the absence of changed circumstances as to the welfare of the children since the entry of the April 4, 2006 order. On March 20, 2008, the court ordered unsupervised visitation as a result of additional post-judgment litigation.

On July 10, 2009, the court denied defendant's second application to regain custody of the children. That decision was also made without a plenary hearing. The court stated in a written opinion that it was "not satisfied that Defendant has demonstrated significant changed circumstances to warrant a change in custody. The children are stable in their home life. There is no reason to change custody. The court will slightly adjust parenting time to lengthen the period of Defendant's weekend visitation."

Thereafter, defendant sought reconsideration of the decision. Defendant asserted that plaintiff was lying to the court when he said that the children were thriving under his care and attached report cards to illustrate that they were getting below-average grades in several essential subjects. She stated that her home-schooled daughter tested above her grade level "in most subjects," and that the children's schoolwork would improve if they came to live with her.

The request for reconsideration was denied on August 28, 2009. The court reiterated that the positive developments in defendant's life, including her improved financial position after a recent marriage that allowed her to stay at home full-time, did not constitute a "basis for a modification of custody" or "a substantial change of circumstances that would warrant the removal of the children from [plaintiff] to be placed with [defendant] as the primary custodial parent."

Findings of fact made by the Family Part are reviewed with particular deference in view of the "special expertise in the field of domestic relations" attributed to the matrimonial courts. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). The standard of review on matters of custody and parenting time is similarly deferential; the conclusions of trial judges regarding child custody will not be lightly disturbed on appeal. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003) (citation omitted). See also DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976).

Defendant contends that the trial court abused its discretion "by failing to recognize that [she] had established a prima facie" changed-circumstances case. Additionally, she claims that the "court erred as a matter of law in continuing a custody award" which was the product, essentially, of an order to show cause proceeding during which no plenary hearing was conducted.

First, we do not agree that any error was committed by the trial court in failing to find a prima facie case of changed circumstances. Defendant's life and circumstances have happily changed for the better, but that alone does not suffice given that the children have resided with plaintiff for several years. The only alleged change relating to the children is the younger child's problems in school. But, as the trial judge noted in his findings, both children have had problems with reading that predate their placement with plaintiff. It is therefore not so clear that the younger child's academic problems are the product of any shortcomings of plaintiff as a parent, or that his academic struggles even constitute a change in circumstances.

As the court said, the children have enjoyed a stable life in plaintiff's home for some time. Their school performance may not be what either parent would like, but transferring custody of the children for that reason alone would be a change made based on sheer speculation. Neither do we agree that a prima facie case was established because defendant has a bigger house than plaintiff and can spend more time with the children because she is in a better financial position. Hence we concur with the trial judge that no prima facie case was established.

Finally, the merits of the custody order entered in this case are not diminished simply because it did not result from an actual plenary hearing. Plaintiff initially obtained legal custody of the children on March 3, 2006, by way of order to show cause, only after defendant voluntarily placed the children with him in light of the Division's involvement. The order scheduled March 30, 2006, as the return date for additional proceedings; there must have been a delay as the next order is dated April 4, 2006. That order states that the March 3, 2006 order shall "continue in full force and effect" and indicates that the parties were both present in court April 4. The order also states that the court marked into evidence a Division report, which was reviewed by the court and the parties. Custody was continued in plaintiff and defendant's visitation continued to be "100% supervised." When a mutually agreeable third party was not available to supervise visitation, it was to be supervised by the Division. Under these circumstances, there is no impropriety, technical or otherwise, in the enforcement of that custody order for years despite the absence of a plenary hearing. The children have lived with their father now for four years, and defendant has not established a basis for a change in the status quo that relates to their welfare, as opposed to her life circumstance. See Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993).

 
No plenary hearing as to a child's status on a post-judgment application is required unless a prima facie case of changed circumstances is established by the moving party. See Abouzahr v. Matera-Abouzahr, supra, 361 N.J. Super. at 152. Such hearings should not be routinely required just because none were ever previously conducted. There must be a showing of changed circumstances. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) (where affidavits do not raise a genuine issue of material fact, an "inflexible rule" requiring a plenary hearing on each post-judgment application would "impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants"). To hold otherwise would undermine our system, which encourages amicable settlements in this highly sensitive area. We find this hypertechnical argument to be lacking in merit.

Affirmed.

(continued)

(continued)

7

A-0345-09T2

July 16, 2010