DAVID BROWER v. MARY BROWER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4632-11T3

DAVID BROWER,

Plaintiff-Appellant,

v.

MARY BROWER,

Defendant-Respondent.

February 25, 2013

Argued January 15, 2013 - Decided

 
Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2142-03.

Peter J. Bronzino argued the cause for appellant.

Victoria L. Rehrer argued the cause for respondent (Rehrer & Rehrer, attorneys; Ms. Rehrer, on the brief).

PER CURIAM

Plaintiff David Brower appeals the May 11, 2012 Family Part order denying his motion for a change in the residential custody of his son, who was born in 1999, and currently lives with his mother, defendant Mary Brower, now known as Mary Carr. We affirm principally for the reasons stated by the judge in her initial written decision and her supplemental findings made pursuant to Rule 2:5-1(b).

The child has resided with defendant at least since the parties' divorce in 2004. Defendant is the parent of primary residence and plaintiff the parent of alternate residence. The parents are to be praised for the fact that despite their inability to agree on parenting related issues over the years, the child nonetheless does well in school and appears to be emotionally well-adjusted.

Plaintiff's certification in support of his motion alleged that the child expressed a desire to live with him, and that because defendant was currently undergoing a divorce and the child would be changing schools as a result, this would be the ideal point in time to transfer custody. Defendant's response outlined some of the ongoing conflicts regarding visitation, and expressed great concern that plaintiff had directly involved the child in the question of where he should live.

The judge found that plaintiff's motion papers did not establish a change in circumstances requiring either oral argument or a plenary hearing with regard to change in custody. The judge further found that plaintiff did not demonstrate that leaving the child with his mother would harm him in any fashion. Because the judge acknowledged the parties' inability to effectively communicate, she appointed a parenting coordinator to attempt to resolve these issues. Her May 11, 2012 order also included language specifically requiring the parties to insulate their child from their disputes. Lastly, the judge directed that neither party was to disparage the other in the presence of the child.

In a supplemental statement of reasons pursuant to Rule 2:5-1(b), the court explained that oral argument had been denied because the court found "that there were no materially disputed issues that needed to be elucidated through oral argument." The court specifically stated that although plaintiff's request was for a change in custody, "at the heart of the plaintiff's request was a need to have additional parenting time with the child, which the court found to be reasonable." In accord with Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010), the judge stated that "oral argument would do nothing more than cause these parties to incur unnecessary counsel fees." On appeal, plaintiff alleges the following:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD A PLENARY HEARING BECAUSE THE PLAINTIFF HAS SHOWN SEVERAL CHANGED CIRCUMSTANCES

POINT II

THE TRIAL COURT ERRED IN DENYING A PLENARY HEARING AND MAKING A DECISION BASED ON CONFLICTING AFFIDAVITS

POINT III

THE TRIAL JUDGE ERRONEOUSLY FAILED TO CONSIDER THE PREFERENCE OF THE MINOR CHILD WHICH IS A CHANGE OF CIRCUMSTANCE

POINT IV

THE TRIAL JUDGE ERRONEOUSLY FAILED TO INTERVIEW THE MINOR CHILD

POINT V

THE TRIAL COURT ERRED IN FAILING TO DETERMINE THE FACT THAT THE DEFENDANT IS GOING TO MOVE THE MINOR CHILD A CHANGE IN CIRCUMSTANCE

POINT VI

THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE CHANGE IN THE CHILD'S AGE AND THE INABILITY OF THE PARTIES TO COOPERATE A CHANGE IN CIRCUMSTANCES

POINT VII

THE TRIAL COURT ERRONEOUSLY DENIED ORAL ARGUMENT EVEN THOUGH IT WAS EXPRESSLY REQUESTED BY THE PLAINTIFF

During oral argument, plaintiff urged that the child's preference warranted either an interview or a plenary hearing. Plaintiff also contended that the relocation to a different school and the parents' inability to agree on where the child should live constituted changed circumstances such that oral argument, an interview, or a plenary hearing on the issue of custody was necessary.

We agree, for the reasons stated by the Family Part judge, that these grounds do not establish changed circumstances requiring the court to do anything further. Unless motion papers raise "substantive issues," there is no need for oral argument. Palombi, supra, 414 N.J. Super. at 285. Mere disagreement as to facts which are ultimately immaterial does not warrant either oral argument or a plenary hearing. Ibid.

We also share the judge's opinion that no further proceedings of a more intrusive, more time-consuming, and expensive nature were required. See ibid. The certifications did not establish substantive issues or conflicts in material facts requiring oral argument or a plenary hearing. See Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div.), certif. denied, 187 N.J. 81 (2006).

Insofar as plaintiff's claim that at a minimum, the child should have been interviewed in camera, the Family Part judge reasonably exercised her discretion in denying the request. See R. 5:8-6. Such interviews should not be granted in cases where the movant's proofs fall short of the applicable changed circumstances standard. See Mackowski v. Mackowski, 317 N.J. Super. 8, 15 (App. Div. 1998) (Kestin, J. concurring).