THOMAS A. SHEA, III v. CHRISTINE SHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1947-11T4

THOMAS A. SHEA, III,

Plaintiff-Respondent,

v.

CHRISTINE SHEA,

Defendant-Appellant.

_______________________________

March 7, 2013

Argued September 12, 2012 - Decided

Before Judges Axelrad, Sapp-Peterson and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1495-09.

Kristin S. Pallonetti argued the cause for appellant (Law Office of Steven P. Monaghan, L.L.C., attorneys; Ms. Pallonetti and Steven P. Monaghan, on the brief).

Michael S. Williams argued the cause for respondent (Gold, Albanese & Barletti, attorneys; Mr. Williams, on the brief).

PER CURIAM

Defendant, wife, appeals from the post-judgment order issued denying her application to change the current parenting arrangements. We affirm.

The parties were married in 2000. Two children, born in 2002 and 2005, resulted from the union. The parties separated in 2007 and submitted to mediation, out of which the parties agreed to joint custody. This arrangement was formalized and incorporated into a Property Settlement Agreement (PSA) the parties executed in early 2008. The PSA provided for joint legal custody, with wife being the parent of primary residential custody and husband having the children as follows:

Week 1 - Husband shall have kids Thursday on or about 4 PM until Sunday 11:30 AM.

Week 2 - Husband shall have kids Wednesday on or about 4 PM until Friday 9:00 AM. Also, Sunday 11: 30 AM to 6 PM.

Week 3 - Husband shall have kids Thursday on or about 4 PM until Sunday 11:30 AM.

Week 4 - Husband shall have kids Wednesday on or about 4 PM until Friday 9:00 AM. Also, Sunday 11: 30 AM to 6 PM.

The parties had continuing disagreements over parenting time and, in April 2010, executed an addendum to their PSA in which they agreed to retain Dr. William Frankenstein, Ph.D., to perform an evaluation to resolve lingering issues regarding custody and parenting time. They included in the addendum a provision that they would "make good faith efforts to resolve the outstanding issues between them without the necessity of judicial intervention."

Dr. Frankenstein completed his evaluation and issued a report dated January 12, 2011. He found that the children appeared healthy and were developing well. He recommended that "[t]he current parenting plan could be modified through settlement negotiation[,]" which he believed "would probably result in a more user-friendly schedule for the children and parents[.]" He also expressed the opinion that "a fully equal timesharing model is not yet recommended[.]"

Following the receipt of Dr. Frankenstein's evaluation, the parties spent the next eight months trying to resolve the custody and parenting time disputes, but were unable to reach an agreement. On September 19, 2011, wife filed a motion, which, in addition to other relief sought, requested that the court (1) modify the parenting schedule to reflect Dr. Frankenstein's recommendations and (2) recalculate child support. Husband filed a cross-motion seeking various relief that included an order increasing his parenting time.

On December 2, 2011, after reviewing Dr. Frankenstein's evaluation and certifications from both parties, Judge Michael A. Guadagno denied wife's motion in its entirety, but also denied husband's application to increase his parenting time.1 The judge found that reducing husband's amount of overnights with the children from 128 to 52, as wife proposed, was too drastic in the absence of a demonstration of changed circumstances. He found that the children were developing well under the model in place at the time:

This is very far removed from saying that the current parenting plan is harmful to the children and should be modified because it's in their best interest to do so. This report falls far short of doing that. And the [c]ourt must examine all of the factors contained in N.J.S.A. 9:2-4(c) in evaluating this application here. But first and foremost is the best interest of these children.

Now these children, it's conceded, are doing well in school. There are no indications that they do not enjoy the substantial time that they spend with their father, nor is there any indication here that the time spent with him is in any way harmful. The drastic reduction that defendant seeks here, seeking to halve this father's time[,] is simply unwarranted and not justified by the facts here, and certainly not called for by any conclusion reached by Dr. Frankenstein.

The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

LEGAL STANDARD: THE COURT ERRED BY FAILING TO ORDER A PLENARY HEARING.

POINT II

THE COURT MISAPPLIED BORYS V. BORYS, 76 N.J. 103 (1978).

POINT III

THE COURT MISAPPLIED CHEN V. HELLER, 334 N.J. SUPER. 361 (APP. DIV. 2000).

POINT IV

THE COURT FAILED TO APPLY THE TEST PROMULGATED BY N.J.S.A. 9:2-4(c).

POINT V

THE COURT SHOULD HAVE DI[S]REGARDED THE RESPONDENT'S REPLY CERTIFICATION AS IT DID NOT COMPLY WITH R[ULE] 1:6-3(b).

POINT VI

THE COURT ERRED [IN] FAILING TO AWARD THE APPELLANT COUNSEL FEES IN THIS MATTER.

After reviewing the record in light of the written and oral arguments advanced by the parties, we reject all of the points advanced and affirm substantially for the reasons expressed by Judge Guadagno in his oral opinion delivered on December 2, 2011. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nor do we find the record warranted a plenary hearing. We add the following comments.

There is no absolute right to a plenary hearing.
Rather, a plenary hearing is warranted if there are genuinely disputed issues and a hearing would assist the court in resolving the issues presented. P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999). Thus, if a hearing would not be helpful to resolving the issues, a judge is not required to hold one. Here, apart from the record not evidencing any request by wife for a plenary hearing, Dr. Frankenstein's report was detailed and provided specific findings and recommendations, which wife proffered as a basis for modifying the parenting time. The fact that the court did not adopt Dr. Frankenstein's recommendation was not a basis to conduct a plenary hearing. A court is free to accept an expert's opinion in part or in its entirety or to reject all or part of it. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002).

In this instance, Judge Guadagno accepted the expert's opinion that the children, overall, had adjusted to the parenting schedule and were doing well and noted that in his report, Dr. Frankenstein merely stated the parenting schedule "could" be modified. Defendant presented no contrary evidence. We are therefore satisfied the judge did not abuse his discretion in reaching his findings and conclusions without the benefit of a plenary hearing.

Because Judge Guadagno's findings are supported by substantial credible evidence in the record, we adhere to the general rule that we will defer to the factual findings of the Family Part judge when supported by adequate, substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We discern no basis to disturb the findings reached here.

While we defer to a trial judge's factual findings, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we owe no deference to a trial court's legal conclusions, which we review de novo. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002). To that end, contrary to wife's claim, Judge Guadagno applied the correct legal standard. "It is axiomatic that the court should seek to advance the best interests of the child[ren] where [their] parents are unable to agree on the course to be followed." Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978). "When both parents have a fundamental right to care and nurture their children and neither has a preeminent right over the other . . . the sole benchmark is the best interest of the child." Sacharow v. Sacharow, 177 N.J. 62, 79-80 (2003). See also Abouzahr v. Matera Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003) (holding that a "party seeking modification of a judgment, incorporating a PSA regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child"); Holder v. Polanski, 111 N.J. 344, 353-54 (1988) (stating that in "resolving the tension between a custodial parent's right[s] . . . and a noncustodial parent's visitation rights, the beacon remains the best interests of the children").

We are satisfied, from our review of the record, that the judge's reference to Borys v. Borys, 76 N.J. 103 (1978), and Chen v. Heller, 334 N.J. Super. 361 (2000), two factually inapposite cases, was not reflective of the judge's application of the incorrect legal standard. The brief reference to those two decisions reflects the judge's recognition of the best interests standard, as well as the factual recognition that wife and her live-in boyfriend both had professional ties to Fort Monmouth. Since its closing, many of its operations have been relocated to Maryland. Thus, plaintiff's continued connection to these operations for her business may impact parenting time in the future should relocation become an issue. We observe that Dr. Frankenstein, in his evaluation, also noted the potential reality of wife's relocation could not be discounted if she was unable to "manage the company from here, or that the occupational demand would draw her away from the children more than she predicts now."

The remaining points raised by wife are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 Although both parties sought additional relief in their respective motions, only the denial of wife's application to modify husband's parenting time is the subject of this appeal.