LAURA K. WOOD v. GREG VONLEE WOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2165-05T12165-05T1

LAURA K. WOOD,

Plaintiff-Appellant,

v.

GREG VONLEE WOOD,

Defendant-Respondent.

___________________________________________

 

Submitted: June 5, 2006 - Decided July 14, 2006

Before Judges A. A. Rodr guez and Fall.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, FM-09-759-06.

John A. Patti, attorney for appellant.

Schiffman, Abraham, Kaufman & Ritter, attorneys for respondent (Barry L. Kaufman, of counsel; Kit E. Calligaro, on the brief).

PER CURIAM

Laura K. Wood (the mother), and Greg Vonlee Wood (the father), were married in Florida in May 1999. One son, Brandon, was born of the marriage in February 2000. The parties filed for divorce and on June 11, 2001, entered into a written settlement agreement. The parties agreed that the father would be the primary residential parent and the mother would have "open, liberal and reasonable visitation, contact and access." Since reaching this agreement and a subsequent divorce by the Lake County (Florida) Circuit Court, both parties have moved out of Florida. The mother now resides in Raleigh, North Carolina. The father and the child have lived in Hoboken, New Jersey since 2002. Both parties are currently remarried.

In September 2005, while the mother lived in Georgia, she moved for "sole legal and physical custody" of the son, alleging various incidents of abuse or neglect. She sought the appointment of a guardian ad litem and child support payable through the Hudson County Probation Department. In support of her motion, she submitted a certification that alleged:

Mr. Wood has failed, refused, and neglected to care for the physical, moral, mental, and financial welfare of Brandon to his detriment in that he has placed the child in a dangerous situation by exposing the child to various female caretakers in the past.

Mr. Wood has exposed Brandon to an individual named Suzanne Martinson who has physically assaulted him (Brandon) by bitting him.

Despite the biting incident, Mr. Wood has kept Suzanne Martinson in the presence of Brandon for several months afterwards.

Mr. Wood has been unable or unwilling to provide Brandon with regular, diligent, and competent parental guidance, instruction, discipline, and companionship that he requires for his welfare, and therefore Brandon has consequently become disruptive, unhappy, and anxious.

Mr. Wood continues to engage in elicit [sic] relationships with women in the presence of Brandon and, upon information and belief, has on several occasions lived with persons of the opposite sex for several months, which behavior has adversely affected Brandon's physical wellbeing (i.e. biting incident) and his morals.

Mr. Wood has allowed Calvin W. Wood, the grandfather, to be in the presence of Brandon knowing well his history of sexual abuse of minors. This exposure has increased the risk of an assault to Brandon. Calvin W. Wood is currently serving a jail sentence at the Orange County Florida Jail for an aggravated stalking after an injunction and a battery associated with a Domestic Violence matter.

Brandon Paul Wood has missed over thirty (30) days of school during the last academic session. The reasoning behind the absences related to the fear that Calvin W. Wood was going to take or kidnap the child. This fear and incident has made lasting and permanent scars on Brandon.

On February 17, 2005, Brandon Paul Wood was admitted to St. Mary's Hospital in Hoboken for dehydration. This physical neglect has placed the child in an unsafe and unhealthy environment for no apparent reason.

Mr. Wood has denied "open telephonic communication" with Brandon. Mr. Wood has refused to allow me to call on weekends for a three (3) month period as he claimed that I was interfering with the his [sic] "time with his son and with his girlfriend."

Mr. Wood has medicated Brandon without being seen by a physician. He has allowed an out of state doctor, Dr. Bill Byrd of West Virginia, to prescribe medication to Brandon over the phone without ever seeing the child. This is a reckless manner to render prescriptions.

Mr. Wood does not actively participate in Brandon's schooling, thereby sending his the mother or his girlfriend to Brandon's school activities. This reinforces the notion that Mr. Wood is not in attendance for schooling and guidance regarding the same.

Mr. Wood constantly argues in the presence of Brandon. Brandon has been adversely affected by the constant arguing between Mr. Wood and his the mother which occurs every morning and every night. The aforementioned have caused Brandon to suffer emotional abuse.

. . .

Mr. Wood continually refuses to communicate vital information to me such as flight schedules, weekend information, and other information pertaining the whereabouts of Brandon.

The father opposed the motion and cross-moved for enforcement of the settlement agreement's custody provision. He filed a certification admitting that his former girlfriend Suzanne Martinson bit Brandon. He asserts that he immediately admonished her and that they are no longer together. The father lives with his the mother and is now married to Alissa Sugerman. He admits that his father, Calvin W. Wood, is a danger to Brandon because he received letters from Wood, in which Wood threatened to kidnap Brandon. Therefore, he has taken steps to protect his son, including his cooperation with the FBI to apprehend his father. Calvin W. Wood is now in custody awaiting trial. As for Brandon's medical care, the father certified as follows:

Brandon's doctors are at Hoboken Pediatrics. They have tended to his medical needs since Brandon has been living with me in New Jersey. Attached is a copy of his medical records. (Exhibit "L"). As is readily apparent, Brandon's vaccinations have been kept current and he has had well care and illness visits with his doctors. On one occasion (February 5, 2005), Brandon had been ill and after taking him to his doctor, I was advised to take him to the emergency room of the hospital. Brandon was diagnosed with viral gastroenteritis, a condition that caused dehydration (which plaintiff suggests as evidence of my neglect), and he was hospitalized overnight. (Exhibit "M").

The father indicated that the "Dr. Bill Byrd of West Virginia" mentioned in the mother's certification, is his uncle and that:

When plaintiff and I were living together, she often initiated phone calls to my uncle, Dr. Bird[,] to seek counsel on Brandon's illness. I only remember one time during plaintiff's phone calls that my uncle prescribed medication for Brandon without the benefit of seeing him, but I do not recall what condition Brandon was suffering at the time.

Judge Maureen Sogluizzo heard oral arguments and denied the mother's motion and a request for a plenary hearing. She made the following findings:

There should be a plenary hearing if something jumps out and says to me that there's a problem. I don't see it. I see these people as doing a very good job of co-operating.

I don't see anything here that shows me that [there exist circumstances that warrant the change of custody.] There [are] none. This child has stability. He has routine. He knows what to expect. He knows what time he's spending with mom. He knows what time he's spending with dad. He enjoys it.

Does he get a little bit testy when he's first with mom? Yeah, because it's unnatural for him and then he evens out. I dare say when he goes back with dad he has a couple of bad days, weeks after he comes back from mom's.

But I don't see that it needs a change of custody. I don't see it even needs a plenary hearing. So I'm going to deny the sole legal custody shift. I am denying the guardian ad litem. Obviously, I'm denying that there be any child support payable by [the father] to [the mother].

Judge Sogluizzo entered two orders on December 2, 2005. One denying the mother's motion for sole physical custody, to have a guardian ad litem appointed on behalf of the child, and child support. The second order granted the father's cross-motion, enforcing the custody arrangement set forth in paragraph 5a of the parties' dual judgment of divorce, and paragraph 8 of the parties' marital agreement that was incorporated into the judgment of divorce, and designating the father as the primary residential custodial parent subject to the mother's reasonable visitation rights. The judge also ordered that prior to either party filing an application regarding parenting time issues, they shall address the issue(s) with a jointly selected mediator.

The mother makes the following contentions on appeal: (1) the judge failed to hold a plenary hearing "where there were opposing certifications as to genuine issues as to material fact;" (2) the mother was denied a plenary hearing "despite the showing of a change of circumstances;" and (3) "should the court grant a plenary hearing, the motion judge should be recused from hearing this matter further." We are not persuaded by these contentions. We affirm substantially for the reasons expressed by Judge Sogluizzo in her December 2, 2005 oral opinion.

We agree with Judge Sogluizzo that the mother did not establish the need for an evidentiary hearing. The party who seeks to modify the parents' agreement regarding custody bears the burden of showing a change in circumstances and that the agreement is no longer in the best interests of the child. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); Voit v. Voit, 317 N.J. Super. 103, 106 (Ch. Div. 1998). That party must establish a prima facie case that there is a genuine issue as to a material fact before the court will consider further inquiry. Klipstein v. Zalewski, 230 N.J. Super. 567, 576 (Ch. Div. 1988) (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). Prima facie proof is "evidence that, if unrebutted, would sustain a judgment in the proponent's favor." Baures v. Lewis, 167 N.J. 91, 118 (2001); O'Connor v. O'Connor, 349 N.J. Super. 381, 397 (App. Div. 2002). Additionally, our Court Rules provide in relevant part that, "an issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inference therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(e).

A hearing is not required "when the material facts are not in genuine dispute." Lepis v. Lepis, 83 N.J. 139, 159 (1980). "[A] party must clearly demonstrate the existence of a genuine issue as to material fact before a hearing [becomes] necessary." Ibid. "A court should rely on the supporting documents and affidavits of the parties and only statements to which a party could testify should be considered." Ibid. Conclusory allegations would, of course, be disregarded. Ibid. Moreover, our experience has shown that, as the judge in Klipstein noted, "practically every dispute in matrimonial practice involves a factual dispute of some nature." Klipstein, supra, 230 N.J. Super. at 575. The requirement that the moving party make a prima facie demonstration therefore avoids "holding plenary hearings to resolve practically all motions." Ibid. (See Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.), certif. denied, ___ N.J. ___ (2006)).

Here, Judge Sogluizzo considered the written submissions of the parties and concluded that a plenary hearing was not necessary. The most serious allegations raised by the mother were that Martinson had bitten Brandon and that the paternal grandfather represented a danger to the child. The father admitted both allegations. The judge correctly determined that both allegations, as admitted, did not warrant a hearing or a change in custody. In the same vein, the mother's conclusory allegations that the father "has failed, refused and neglected to care for the physical, moral, mental and financial welfare of Brandon" and "does not actively participate in Brandon's schooling" were properly disregarded by the judge. We agree with Judge Sogluizzo's finding that the mother failed to make the required showing to warrant a plenary hearing. Therefore, modification of the custody terms of the parties' agreement is not warranted. Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981).

 
Affirmed.

(continued)

(continued)

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A-2165-05T1

July 14, 2006