A.K. v. C.K.

 

(NOTE: The status of this decision is Published.)

                          RECORD IMPOUNDED

                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1391-16T2

A.K.,

           Plaintiff-Appellant,

     v.

C.K.,

          Defendant-Respondent.
_________________________________

           Argued June 5, 2018 – Decided June 19, 2018

           Before Judges Fisher and Natali.

           On appeal from the Superior Court of New
           Jersey, Chancery Division, Family Part, Bergen
           County, Docket No. FD-02-0173-16.

           A.K. argued the cause pro se.

           Angelo Sarno argued the cause for respondent
           (Snyder Sarno D'Aniello Maceri Da Costa LLC,
           attorneys; Angelo Sarno, of counsel and on the
           brief; Lydia S. LaTona, on the brief).

PER CURIAM
     The parties brief marriage produced one child, Sylvia, 1 who

was born in July 2015. The month after the child was born,

plaintiff    A.K.    (Adam)   filed     this   action    seeking    custody      and

parenting    time.   Defendant    C.K.       (Carol)   filed   a   counterclaim,

seeking sole legal custody, supervised parenting time for Adam,

and child support. Orders entered soon thereafter provided for

supervised parenting time and required mediation. A custody and

parenting-time      evaluation    was    conducted      by   the   Bergen    Family

Center, and a plenary hearing was conducted over the course of

three days in April 2016. The trial judge rendered her oral

decision on May 3, 2016, and entered an order two days later that

granted Carol temporary sole legal custody and residential custody

of Sylvia; Adam was permitted supervised parenting time twice a

week and ordered to undergo a psychological evaluation. He was

also ordered to cease videotaping parenting exchanges.

     A June 17, 2016 order appointed a supervisor of Adam's

parenting time. Four days later, plaintiff moved for modification

of the May 5 order to allow for joint custody and parenting time

or, alternatively, to allow plaintiff to bring evaluators and

therapists    to     supervised    parenting       time.     As    part     of   his

application, Adam sought the opportunity to elicit "new evidence


1
  The names of the parties and their child used in this opinion
are fictitious.

                                         2                                  A-1391-16T2
related to recent and past events in which [Carol] committed

blatant perjury on the witness stand during the previous plenary

hearing." On August 5, 2016, Adam filed another motion by which

he sought "full custody" based on his claim that Carol "is losing

touch with reality and will not show any co-parenting ability

going forward." These motions were denied on October 26, 2016, the

judge holding that Adam failed to demonstrate a substantial change

in circumstances since entry of the May 5 order.

     Adam appeals the October 26 order,2 arguing:

          I. THE TRIAL COURT PLAINLY ERRED BY FAILING
          TO FIND CHANGED CIRCUMSTANCES SUCH AS TO
          WARRANT MODIFICATION.

          II. THE TRIAL COURT PLAINLY ERRED IN FAILING
          TO CONSIDER THE PLAINTIFF'S EXPERT REPORTS
          PREVIOUSLY ORDERED ON MAY 3, 2016.

          III. THE TRIAL COURT ABUSED ITS DISCRETION BY
          PREJUDICING   FUTURE   APPLICATIONS   BY   NOT
          ENTERING A FINAL ORDER ON EXISTING APPLICATION
          BY DEFENDANT FOR COUNSEL FEES.

          IV. THE TRIAL COURT CEDED ITS RESPONSIBILITY
          BY ABDICATING DECISION-MAKING TO A PREVIOUS
          EVALUATOR OVER THE PREVIOUS JUDGE'S RULING
          WHICH DID NOT CHOOSE TO ADOPT RECOMMENDATIONS
          REGARDING [ONE-]YEAR WAITING PERIOD TO REMAIN
          SUPERVISED PRIOR TO APPLICATION BY PLAINTIFF
          TO COURT, WHICH WOULD HAVE BEEN ERROR BY THE
          COURT.


2
  To the extent it may colorably be argued that finality had not
been achieved regarding the issues presented as of that time, we
grant leave to appeal out of time in order to resolve these fully
submitted issues.

                                3                          A-1391-16T2
             V. THE TRIAL COURT ERRED IN FAILING TO ENFORCE
             EXISTING ORDERS OR ADDRESS OTHER ITEMS ON THE
             PLAINTIFF'S MOTION.

We find insufficient merit in these arguments to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E). Although it

may be that Adam made progress on the issues that prompted the May

5   order,    we   find   no   abuse   of   discretion   in   the   judge's

determination that there had yet to be a "substantial" change in

the circumstances between the entry of that order and the June 21

modification motion.

     Affirmed.




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