J.L. v. J.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1208-11T1

J.L.,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant.

______________________________________________

July 31, 2013

Submitted October 3, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1857-11.

August J. Landi, attorney for appellant.

J.L., respondent, pro se.

PER CURIAM

In this post-judgment matrimonial matter, defendant J.C. appeals from a September 22, 2011 Family Part order denying his motion for reconsideration. Defendant sought reconsideration of part of a July 18, 2011 Family Part order that denied his motion for an independent medical evaluation of his daughter and appointment of a guardian ad litem for his two children and granted plaintiff J.L.'s motion allowing the children to participate in limited extracurricular activities during defendant's parenting time. We affirm.

We discern the following facts from the record. The parties were married in 1997 and had two daughters, A.C., born in 2000, and H.C., born in 2002. The August 4, 2003 final judgment for divorce incorporated a consent order fixing custody and parenting time. The parties agreed to share joint custody with the children residing with plaintiff.

Disputes soon arose between the parties, particularly concerning child support, visitation, and the children's health conditions. In 2006, A.C.'s pediatrician recommended that she be evaluated by a pediatric neurologist, who diagnosed her with certain neurological conditions and recommended her to a specialist to determine a course of treatment. Defendant disagreed with the diagnoses and refused to consent to certain tests and evaluations. In 2007, plaintiff filed a motion seeking court authorization to bring A.C. to her doctors and to follow their recommended treatments. The court issued an order on July 9, 2007, giving her the authority to arrange the children's health care as long as she kept defendant informed and tried to use doctors covered by his health insurance.

In 2008, alleging that defendant continued to refuse to cooperate with A.C.'s treatment, plaintiff filed a motion for more explicit authority to manage A.C.'s treatment without defendant's interference. Defendant argued that, since 2006, plaintiff had been taking A.C. to different doctors and received various diagnoses, but the treatments were unnecessary and harmful. Finding that the "animosity between the parties [was] too great to require the parties to agree on major decisions regarding the children," the family judge issued an order including the following provision:

[Plaintiff] as the primary residential custodian may solely manage the children's health care without obtaining [defendant]'s permission or approvals. [Defendant] shall have access to the children's medical records and if there is any disagreement regarding their health care treatment or needs, he may bring application to the court for the court to resolve the issue. [Plaintiff] shall keep [defendant] informed as to the children's health care issues and needs. Additionally, [defendant] may attend the children's doctor appointments and [plaintiff] shall give him sufficient advanced notice as to when the appointments are scheduled so that he may attend.

Defendant did not appeal this order.

In 2011, plaintiff filed a motion seeking, among other things,1 enforcement of the 2008 order. She alleged that defendant continued to interfere with A.C.'s treatment, including instructing the child not to take her medication, setting up an appointment with a new pediatrician without consulting her, and alienating A.C.'s doctors so that several refused to treat her. She also sought an order allowing her to schedule each child for one year-long activity and one sport for two seasons and requiring defendant to cooperate in getting the children to these activities. She contended that although the consent order provided that the parents should not unreasonably withhold consent to enrollment of the children in extracurricular activities, defendant would not consent.

Defendant opposed the motion,2 again claiming that A.C.'s treatment was based upon a misdiagnosis because plaintiff had "dragged [A.C.] from doctor to doctor" to get the diagnosis she wanted. He also filed a cross-motion asking to have A.C. evaluated by Dr. Stephen Moscowitz, an "independent physician," to appoint a guardian ad litem for both children, and to order plaintiff evaluated for Munchausen by Proxy Syndrome. Although defendant requested oral argument, the motion judge3 decided both motions without it.

In his statement of reasons, the motion judge held that the parties' motions concerning A.C.'s medical treatment were all controlled by the provision of the 2008 order allowing plaintiff to "solely manage the children's health care without obtaining [defendant]'s permissions and approval." The judge observed that the prior judge's statement accompanying the 2008 order established a valid reason for its entry and noted that the defendant never appealed or sought reconsideration. The judge found that defendant's motion failed to demonstrate any reason why the existing order should not continue. Thus, by order of July 18, 2011, he found defendant in contempt for violating the 2008 order and denied defendant's motion for Dr. Moscowitz to evaluate A.C., for appointment of a guardian ad litem, and for a psychological evaluation of the plaintiff, which the judge emphasized was unfounded and inappropriate. The judge also granted plaintiff's motion to allow her to enroll each child in limited extracurricular activities and to order defendant to cooperate when such activities are scheduled during his visitation.

On August 10, 2011, defendant filed a motion for reconsideration. He challenged that part of the July 18, 2011 order holding defendant in contempt for interfering with A.C.'s medical treatment, restraining him from contacting her doctors, and allowing the children to participate in extracurricular activities during his visitation time. He also requested oral argument, which had previously been denied. The judge scheduled the reconsideration motion for oral argument.

To support his motion, defendant provided parental evaluations from 2006 and two neurological evaluations from 2007, all of which predated the 2008 order. Additionally, defendant furnished several unsworn emails from November 2010 to June 2011 from a person named "Heather," apparently one of A.C.'s teachers or teaching assistants. The emails said that A.C. was doing well academically, socialized with her peers, and displayed no behavioral problems. Heather opined that she never saw any reason for A.C. to take Paxil or Prozac.

Defendant apparently submitted two additional documents. The first was a one-page, undated, handwritten, barely-legible document, purportedly from A.C.'s psychologist, which described an incident of A.C.'s aggression and threatening behavior toward her mother, and gave the psychologist's recommendation for handling the specific behavior. Defendant argued that the fact that the psychologist did not prescribe medication for that incident proved that his daughter did not need medication. He also furnished a one-page, undated form, purportedly from the doctor who prescribed medication for A.C., giving three diagnoses, two "by history."4 Defendant argued that these recent medical records in conjunction with the older records demonstrated that A.C. had been incorrectly prescribed medication based solely on the history of her diagnoses, which, defendant maintained, were inaccurate from the beginning. Defendant contended that A.C. was doing well in school and in his home, and that any reported behavioral problems at plaintiff's home were due to her poor parenting skills. Thus, he concluded, A.C. was being harmed by having medical treatment which she did not need.

In denying the motion to reconsider, the judge found that defendant had made the same arguments in the original motion but still had not demonstrated any changed circumstances showing that the challenged 2008 order should be modified. After reviewing the "new" medical records5 that defendant claimed proved that A.C.'s diagnosis and treatment were incorrect, the judge found that these records did not establish new evidence supporting his claim. This appeal followed.

On appeal, defendant raises the following contentions for our consideration:

POINT I: PRESENTED WITH A PRIMA FACIE SHOWING OF HARM TO THE CHILD, IT IS AN ABUSE OF DISCRETION FOR THE COURT NOT TO ACT.

POINT II: THE COURT ERRED BY FAILING TO APPOINT A GUARDIAN AD LITEM IN THIS CONFLICTED CASE WHERE THERE ARE ALLEGATIONS OF HARM TO A CHILD.

POINT III: THE TRIAL COURT'S ORDER REQUIRING DAD COMPORT WITH EVENTS SCHEDULED BY MOM ABRIDGE DAD'S FUNDAMENTAL LIBERTY RIGHT TO CO-PARENT THE CHILDREN.

We begin with a few basic principles that guide our review. We first note that, as designated in his notice of appeal, defendant has only appealed the denial of the motion for reconsideration, not the July 18, 2011 order. See R. 2:5-1(f)(3)(A). If a notice of appeal "designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2013). We have so held in a number of cases. See, e.g., W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002).

The denial of a motion for reconsideration rests within the sound discretion of the trial judge. Id. at 462. "Motions for reconsideration are granted only under very narrow circumstances." Ibid. To obtain relief, the movant must show "either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). As best we can discern, defendant argued for reconsideration on the theory that the judge did not appreciate the significance and value of the evidence he provided.

In general, since the Family Part has special expertise in family matters and has the opportunity to see and hear the witnesses first-hand, its fact-finding should be accorded particular deference on appeal. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However, we review the Family Part's interpretation of the law de novo without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A decision concerning custody is up to the sound discretion of the judge. See Randazzo v. Randazzo, 184 N.J. 101, 113 (2005).

"[T]he parent having physical custody of the child is generally accorded broad responsibility in making daily child-rearing decisions." Ronan v. Adely, 182 N.J. 103, 108 (2004) (quoting Gubernat v. Deremer, 140 N.J. 120, 142 (1995)). That principle is supported by "the supposition that the primary caretaker 'act[s] in the best interests of the child . . . .'" Ibid. (quoting Gubernat, supra, 140 N.J. at 142). That supposition is based upon the primary caretaker's ongoing exposure to the children and familiarity with their problems and needs. See Pascale v. Pascale, 140 N.J. 583, 606 (1995) (quoting Brzozowski v. Brzozowski, 265 N.J. 141, 147 (Ch. Div. 1993)). Thus, courts do not interfere with a primary caretaker's day-to-day decisions "unless some basic problem involving the welfare of the child is involved." Pogue v. Pogue, 147 N.J. Super. 61, 64 (Ch. Div. 1977).

In any custody or visitation determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court's focus must be "on the 'safety, happiness, physical, mental and moral welfare' of the" child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). The terms of a custody order are subject to modification if circumstances change. Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)); see also Lepis v. Lepis, 83 N.J. 139, 157-59 (1980).

To establish a prima facie case for modification of a custody order, the moving party must show a substantial change in circumstances and that the changed circumstances affect the welfare of the child such that his or her best interests would best be served by modifying the current arrangement. Hand, supra, 391 N.J. Super. at 105; see also Segal v. Lynch, 211 N.J. 230, 264-65 (2012) ("[A] plenary hearing is only required if there is a genuine, material and legitimate factual dispute."). The party seeking the change bears the burden of proof. Innes, supra, 391 N.J. Super. at 500. The determining factor is "whether the movant has made a prima facie showing that a plenary hearing is necessary." Hand, supra, 391 N.J. Super. at 106.

Guided by these principles, we find no support in the record that the motion judge abused his discretion in denying defendant's motion for reconsideration. In the context of the issues of A.C.'s medical treatment, defendant has not produced any competent evidence showing changed circumstances since the 2008 order or that A.C. is being harmed by her current medical treatment. Defendant, despite having access to A.C.'s complete medical records, has not furnished a medical opinion reviewing her records and confirming his claims. While he disagrees with A.C.'s board-certified pediatric neurologist, it is evident that defendant does not have medical credentials to render an opinion flatly contradicting a board-certified neurologist's diagnosis. Additionally, although defendant claims that his daughter is being harmed by taking medication, he has provided no details such as what medication she is taking, which doctor prescribed it, the reason for the prescription, and the specific harm it caused. Again, defendant failed to provide a medical opinion or even scientific literature showing that a particular medication taken by his daughter is harmful to her or to children her age.

Here, the judge's determination, that defendant failed to prove a material change of circumstances resulting in harm to A.C. that warranted a change in the 2008 order, is supported by substantial credible evidence in the record and is consistent with controlling legal principles. Mere disagreement or naked claims not supported by competent evidence in certifications do not create a prima facie case of changed circumstances or prove the child is being harmed. See Shaw v. Shaw, 138 N.J. Super 436, 440 (App. Div. 1976).

We have considered defendant's other arguments and find them without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We add only that, based upon our review of the record, we find no abuse of discretion in the judge's determination that defendant unreasonably withheld his permission to allow his children to participate in a limited, defined amount of extracurricular activities. The record does not support defendant's claim that his entire visitation time is swallowed by this limited time commitment and, if this should occur, the judge specifically invited defendant to bring this to his attention.

Affirmed.

1 The parties raised various visitation issues that are not the subject of this appeal.

2 The record does not contain defendant's opposition or cross-motion. Consequently, we rely on the trial judge's discussion of defendant's claims in the statement of reasons.

3 This judge was not the judge who issued the 2008 order.

4 This document also reveals that, at the time, the doctor's treatment recommendations were occupational therapy, behavioral therapy, and no medication.

5 As defendant did not submit his original moving papers, we are unable to definitively ascertain what was "new" in the motion to reconsider.