BRUCE A. MILLER v. KELLY A. GALLAGHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0340-10T1

BRUCE A. MILLER,

Plaintiff-Respondent/

Cross-Appellant,

v.

KELLY A. GALLAGHER,

Defendant-Appellant/

Cross-Respondent.

_________________________________________________

December 2, 2011

Submitted September 21, 2011 - Decided

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-0118-06.

Richard A. Renza, Jr., attorney for appellant/cross-respondent.

Bruce A. Miller, respondent/cross-appellant pro se (Lisa M. Radell, on the brief).

PER CURIAM

In this Family Part matter, defendant Kelly A. Gallagher appeals from the provisions of an August 3, 2010 order that granted plaintiff Bruce A. Miller's motion to modify residential custody of the parties' youngest child, and from a provision in the September 24, 2010 order, denying her motion for reconsideration. Miller cross-appeals from a separate provision in the same September 24, 2010 order, denying his motion for reconsideration of a provision in the August 3, 2010 order which denied an award of child support. We reverse the order modifying residential custody and determine that the issue asserted in Miller's appeal is moot.

The relevant facts and procedural history necessary for our consideration of this appeal are as follows. Miller and Gallagher were divorced by order dated December 15, 2006. At the time of the divorce, the parties' three children were minors, S.M., born in 1991, Z.M., born in 1994, and M.M., born in 1999. In 2008, by consent order, legal custody of S.M. was transferred to Miller, and the parties were to share joint legal custody with equal parenting time of Z.M. and M.M. Also in 2008, the court terminated Miller's spousal support obligation. In April 2010, Miller filed a motion seeking sole legal and physical custody of Z.M., increased parenting time of M.M., child support, and other relief. A cross-motion was filed by Gallagher, seeking joint custody of Z.M., sole legal and physical custody of M.M., retroactive alimony reinstatement, and other relief.

On June 1, 2010, the trial court granted Miller's request for sole custody of Z.M., and modified his parenting time of M.M, pending a plenary hearing. The trial court denied Gallagher's request for alimony, finding she presented no changed circumstances warranting reinstatement. Regarding M.M.'s custody, the court found Miller presented a prima facie change in circumstances and ordered a hearing. On July 8, 2010, the Family Part conducted an in-camera interview of M.M. and a plenary hearing. On August 3, 2010, the judge concluded that: the parties shall have joint custody of M.M., with Miller as the parent of primary residence; the parenting time schedule for M.M. should continue as set forth in the June 1, 2010 order; and Miller's request for child support was denied.

In granting modification of M.M.'s custody, the judge found the circumstances resulting in the change in custody of the two older children raised significant concerns that M.M. ultimately would face similar difficulties were she to principally live with Gallagher. The trial judge questioned Gallagher's parental fitness because she had "essentially thrown out the older two children which in the court's view evidences instability of environment." In contrast, the trial judge held Miller's home environment was more stable in that he was remarried and had custody of the two older siblings. Further, "in the court's view, the child [M.M.] require[d] substantial periods of time with her siblings." Finally, the judge addressed the parent's employment responsibilities, finding"it is undisputed that Ms. Gallagher's employment responsibilities require her to work late on more than an occasional basis. It is also clear that on many occasions, [M.M.] has been left alone." The trial court set Gallagher's parenting time as every other week Thursday to Monday, concluding, "a home base" was preferable to the current "week on and week off" residential arrangement, which was favored by M.M.

Since Miller would now have primary custody of M.M., the judge determined there would be child support due and owing from Gallagher to Miller "anywhere between $150 to $200," but declined to enter such an order, finding the equities demand that Gallagher not be obligated to pay child support since her spousal support had been eliminated.

On September 24, 2010, each party's motion for reconsideration was denied.

On appeal, Gallagher argues that the trial court erred in its August 3 order by: denying her motion to reinstate alimony; failing to hold a hearing regarding custody of Z.M.; and modifying the custody and primary residence for M.M. She also appeals the September 24 order denying her motion for reconsideration.

In his cross-appeal, Miller asserts the trial court erred by denying his motion for reconsideration of its August 3 denial of his request for child support.

In our review, because of Family Part judges' special expertise in family matters, we do not second guess their findings and the exercise of their sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). If the judge's factual findings are "supported by adequate, substantial, credible evidence" and the judge's conclusions are based on a proper understanding of the relevant law, we may not disturb the order. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (noting that deference is not afforded to determinations based on a "misunderstanding of the applicable legal principles").

In any custody determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). In our review of a trial court's custody determination, the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal unless his or her findings could not reasonably have been reached on sufficient credible evidence present in the record. See Beck v. Beck, 86 N.J. 480, 496 (1981).

To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances that affects the welfare of the child such that her best interests would be better served by modifying custody. Mimkon v. Ford, 66 N.J. 426, 438 (1975); Hand, supra, 391 N.J. Super. at 105; Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

A judge must consider a request for modification in accordance with the procedural framework established by the Supreme Court in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Under Lepis, the first question is whether the party seeking modification has made a prima facie showing of a substantial change in circumstances. Id. at 157; Hand, supra, 391 N.J. Super. at 105. If a prima facie showing is made, then Lepis requires the judge to consider whether discovery is needed and to define its scope. Lepis, supra, 83 N.J. at 157-58; R. 4:10-2; R. 5:8-1 to -6. Following discovery, if there is a genuine dispute of fact regarding the welfare of the child, then a plenary hearing must be held. Lepis, supra, 83 N.J. at 159; Hand, supra, 391 N.J. Super. at 105.

To determine whether there is a prima facie showing of changed circumstances, a judge must consider the terms of the order he or she is asked to modify. The legal principles governing modification of an order addressing custody and parenting time are clear. Modification is permitted because the law recognizes that "the conditions which would satisfy the best interests of the child during all of [his or her] minority [cannot] be conclusively determined in one decree[.]" Borys v. Borys, 76 N.J. 103, 111 (1978). Nonetheless, a parent cannot obtain a modification simply because that parent does not like the arrangement in place. The focus of every judicial determination about custody and parenting time is "on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand, supra, 391 N.J. Super. at 105 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

Under these standards, the parent seeking the change must establish: 1) the present schedule for custody and parenting time under the current order; 2) the circumstances that changed after that order was entered; and 3) the adverse effect of the new circumstances and current parenting arrangement in a child's best interest. See Sheehan, supra, 51 N.J. Super. at 287-88. In presenting the relevant evidence to the trial judge, the parent should understand that the judge must disregard "[c]onclusory allegations" about changes in circumstances and their impact on the child. See Lepis, supra, 83 N.J. at 159 (discussing the inadequacy of unsubstantiated allegations on an application to modify support). Testimony or other evidence establishing facts to support the allegations is essential. See Hand, supra, 391 N.J. Super. at 112.

In ruling on an application to modify parenting time, the judge must consider the evidence and decide whether the parent seeking a new arrangement has met the legal standards discussed above. That task requires the judge to discuss the evidence, resolve factual disputes, and state why the parent seeking the change established or failed to establish a reason for altering the parenting arrangement. See R. 1:7-4.

In this matter, the trial judge considered the N.J.S.A. 9:2-4 factors and, of the fourteen factors applied, he found that eight were in equipoise, five favored custody change, and one favored no change. Of the five favoring custody change, the judge determined in two that M.M. "requires substantial periods of time with her siblings," in an additional two that Gallagher "has essentially thrown out the older two children," and in one that Gallagher's employment responsibilities cause her to work late and leave M.M. alone (which Gallagher disputed).

Miller, in seeking to modify custody, must demonstrate changed circumstances that affect M.M.'s welfare. Borys, supra, 76 N.J. 115-16; Sheehan, supra, 51 N.J. Super. at 287. His testimony acknowledged that M.M. was doing well in school, and that Gallagher was not unfit to provide care and custody for her. In large part, Miller presented only conclusory allegations about changes in circumstances and their impact on M.M. See Lepis, supra, 83 N.J. at 159. Miller did not establish by substantial credible evidence that circumstances have changed since the order in place was entered and, as a result of these new circumstances, the present arrangement is adversely affecting M.M.'s welfare.

The judge's decision did not state clearly his factual findings and correlate them with the relevant legal conclusions. Although the judge considered the N.J.S.A. 9:2-4 factors, he did not compare the facts as they were when the order sought to be modified was entered with the facts as they are at the time of the motion. Sheehan, supra, 51 N.J. Super. at 287-88. Not surprisingly, given the paucity of evidence submitted by Miller, the decision does not demonstrate how the purported changed circumstances affect M.M.'s welfare. See Beck, supra, 86 N.J. at 496 n.8; Hand, supra, 391 N.J. Super. at 105-06; Sheehan, supra, 51 N.J. Super. 287. Further, the decision was not supported by substantial credible evidence on the record.

Our ruling makes it unnecessary for us to address Miller's argument that the denial of his request for child support was erroneous. Those issues are moot in light of our holding reversing the decision that Miller shall be the parent of primary residence. See Hous. Auth. of New Brunswick v. Suydam Investors, L.L.C., 177 N.J. 2, 28 (2003).

Additionally, Gallagher contends that the judge abused his discretion by failing to conduct a plenary hearing to determine whether to reinstate Miller's alimony obligations and failing to hold a hearing regarding custody of Z.M. However, Gallagher did not appeal from the June 1, 2010 order denying the request for a change in spousal support and denying change of custody for Z.M. Defendant's notice of appeal states she is only appealing from an order dated August 3, 2010, as well as from the September 24, 2010 order, denying her motion for reconsideration of that order. "[I]t is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f)(1) (2012); see also 1266 Apt. Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b. 138 N.J. 41 (1994). Thus, Gallagher's challenge to the judge's denial of her motion to modify Miller's support obligations and Z.M.'s custody is not properly before us. See W.H. Indus., Inc. v. Fundicao Balancins, Ltd., 397 N.J. Super. 455, 458 (App. Div. 2008).

In her final argument, Gallagher requests a remand to a different judge based upon the trial judge's bias. We have carefully considered the record in this matter and find no evidence of bias. Bias cannot be inferred from adverse rulings against a party. Matthews v. Deane, 196 N.J. Super. 441, 444-47 (Ch. Div. 1984). We find no reason to remand the matter to a different judge. R. 2:11-3(e)(1)(E).

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