ROGER N. FARR v. GERI MASESSA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1085-10T4

ROGER N. FARR,

Plaintiff-Appellant,

v.

GERI MASESSA,

Defendant-Respondent.

___________________________________________________

April 12, 2011

Argued March 30, 2011 - Decided

Before Judges Fisher and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-270-03.

William E. Reutelhuber argued the cause for appellant (The Rotolo Law Firm, attorneys; VictorA.Rotolo,ofcounsel;Mr.Reutelhuber, on the brief).

Douglas J. Steinhardt argued the cause for respondent (Florio Perrucci Steinhardt & Fader, attorneys; Mr. Steinhardt, of counsel and on the brief; Jennifer Ann Vorhies, on the brief).

PER CURIAM

In this appeal, we review the disposition of plaintiff's matrimonial post-judgment motion by which he sought to modify the parties' existing custody arrangement. The trial judge denied the motion, concluding that, among other things, the circumstances relied upon by plaintiff were too insubstantial to warrant relief. We agree and affirm.

The record reveals that the parties were married in 1993 and three children were born of the marriage; the children are now fourteen, twelve, and ten years old. The parties were divorced by way of a January 6, 2004 judgment, which incorporated a property settlement agreement (PSA). The PSA stipulated that the parties would share joint legal and physical custody of the children; they agreed residential custody would alternate on a weekly basis. Since the PSA, plaintiff unsuccessfully moved to alter the custodial arrangement.

This third application,1 which was filed in September 2010, sought, among other things: the appointment of an expert to conduct a custody evaluation; the judge's in camera interviews of the three children; an exchange of discovery; the scheduling of an evidentiary hearing; and a temporary change in the custodial arrangement. Plaintiff asserted that defendant had moved from her Flemington home to a home in Port Murray she purchased with her boyfriend. Although plaintiff argued this new home is "far away," Port Murray is in the same county and only fifteen miles from defendant's former residence. He also argued that defendant and her boyfriend have "acted in an abusive and neglectful manner" toward the children, that she has "engaged in a major disparagement campaign in an effort to alienate the children's affections," and that she has refused to inform him about the children's medical and mental health treatment. In particular, noting his "greatest concern" is their twelve-year old daughter's alleged expressions of a desire to kill herself, plaintiff asserted that defendant has failed to acknowledge, provide, or support appropriate treatment for that child.

Defendant opposed the motion, arguing, among other things, that this application is further evidence -- as were the prior similar custody motions -- of plaintiff's "need to control every person and situation." She also claimed plaintiff is abusive, referring to domestic violence proceedings commenced in January 2007 against him by his former girlfriend. Defendant asserted that her move to Port Murray has had no real impact on the children and that the twelve-year old is in therapy; she further asserted that the child's therapist has stated the child is not depressed and has not engaged in suicidal ideation. Defendant also cross-moved for an award of counsel fees.

With the exception of directing the parties to attend family counseling, the judge denied all other relief. Plaintiff appealed, presenting the following arguments for our consideration:

I. THE TRIAL COURT COMMITTED LEGAL ERROR WARRANTING REVERSAL.

II. THE TRIAL COURT SHOULD BE REVERSED BE-CAUSE IT AVOIDED ITS PARENS PATERIAE [SIC] RESPONSIBILITIES TO PROTECT THE CHILDREN FROM HARM.

A. The "Mediation First" Provision was Invalid as Applied.

B. Roger Farr's Presentment of a Prima Facie Case of Actual or Impending Harm to the Children Required the Trial Court to Reject the Application of the "Mediation First" Provision.

III. THIS COURT SHOULD REVERSE BECAUSE THE TRIAL COURT IGNORED A PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCES.

IV. THIS COURT SHOULD REVERSE BECAUSE THE TRIAL COURT DETERMINED DISPUTED FACTS ON THE BASIS OF CONFLICTING CERTIFICATIONS.

V. THIS COURT SHOULD REVERSE BECAUSE THE TRIAL COURT SPECULATED AND FOUND FACTS NOT IN THE MOTION RECORD.

VI. BECAUSE THE TRIAL COURT FAILED TO MEET ITS DUTIES UNDER RULE 1:7-4(a), THIS COURT SHOULD REVERSE THE ORDERS BELOW.

VII. THIS COURT SHOULD REVERSE THE COUNSEL FEE AWARD BECAUSE THE TRIAL COURT FAILED TO PROPERLY ANALYZE THE COUNSEL FEE ISSUE.

VIII. THIS COURT SHOULD REVERSE BECAUSE THE TRIAL COURT FAILED TO INTERVIEW THE CHIL-DREN.

IX. THIS CASE SHOULD BE REMANDED TO A NEW TRIAL JUDGE.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Contrary to the thrust of plaintiff's contentions, the judge was not required to schedule an evidentiary hearing into the matters raised in his motion. Not every post-judgment matrimonial dispute requires such exploration. Here, Judge Ann R. Bartlett correctly observed, with regard to the chief aspect of plaintiff's motion, that defendant's intra-county move to Port Murray was not so significant as to warrant a change in the custody arrangement. In addition, plaintiff's concerns about the twelve-year old were fully met by defendant's assertion that the child is in therapy and that the therapist does not share plaintiff's concerns. To the extent there may be some substance to plaintiff's concerns, they will be addressed through continuing therapy and Judge Bartlett's direction that the parties engage in family counseling. We find no abuse of discretion in the judge's refusal to schedule an evidentiary hearing in these circumstances. See, e.g., Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007); Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div.), certif. denied, 187 N.J. 81 (2006).

A

1The parties disagree about how many earlier applications were filed by plaintiff, and the record on appeal does not provide sufficient information from which we might determine this easily demonstrable fact. Because it has no great relevance to the matter at hand, we have assumed this was the third application and for present purposes reject defendant's claim in her brief that this was the fourth and her attorney's claim at oral argument that this was the fifth such application.