JAMES L. MARCHESE v. REBECCA L. GRANDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAMES L. MARCHESE,

Plaintiff-Appellant,

v.

REBECCA L. GRANDE,

Defendant-Respondent.

___________________________________________________

November 15, 2013

Submitted July 16, 2013 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0765-04B.

August J. Landi, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff James L. Marchese appeals from a January 13, 2012 Family Part order denying his motion to change the court-ordered custody arrangement and a March 9, 2012 Family Part order denying his motion for reconsideration. Plaintiff sought to have sole

custody of his two children instead of the other parent, defendant Rebecca L. Grande having sole custody. Finding twice that plaintiff presented no proof of changed circumstances warranting a change in custody, the judge denied both motions. For the reasons that follow, we affirm.

We glean the following facts from the record provided. Plaintiff and defendant were married in 1997. Two sons were born of the marriage, one in 2000 and the other in 2002. The couple divorced in 2004. A trial to determine the custody of the children took place over twenty-two days and resulted in an order on June 19, 2008, granting defendant sole custody. Plaintiff did not appeal this order.

Plaintiff brought a motion to change custody based on changed circumstances. At the hearing on January 3, 2012, plaintiff argued that custody should be changed because defendant (1) was being evicted for the second time; (2) had tried to have one of their sons falsely diagnosed with autism; (3) failed to provide him with ongoing medical and educational information on the children; (4) tried to have plaintiff put in jail for violating a final restraining order; and (5) had pled guilty to a second-degree felony that would likely result in jail time. The judge rejected plaintiff's claim of changed circumstances as unsupported by any evidence showing that the children's custody should be altered. He observed, for instance, that because defendant had not yet been sentenced, whether her sentence would be custodial was not yet determined. The judge ordered the parties to mediate some of the issues the parties raised in their moving papers.

Plaintiff moved for reconsideration, contending that he demonstrated a prima facie case of changed circumstances and that a plenary hearing was necessary. Plaintiff asserted that defendant's guilty plea to a felony demonstrated a lack of moral and ethical character, which was needed to raise teenage boys. The judge denied plaintiff's motion for reconsideration on March 9, 2012, reiterating that plaintiff failed to demonstrate a prima facie case of changed circumstances. The judge noted that defendant had not been incarcerated but was on probation on a third-degree charge. The judge also noted that, contrary to plaintiff's original claim, defendant's housing was not in jeopardy. The judge concluded that plaintiff's assertions were not sufficient to uproot the children from the home they had known for six years. This appeal followed.

On appeal, plaintiff raises the following:

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 RE-APPOINT THE GUARDIAN AD LITEM, WHERE THERE ARE ALLEGATIONS OF HARM TO A CHILD.

POINT III: WHERE RESTITUTION OF $1500 PER MONTH WAS A REQUIREMENT FOR DEFENDANT'S PROBATION, CHILD SUPPORT TO DEFENDANT OF $1500 PER MONTH SHOULD BE SEQUESTERED.

As a preliminary matter, we note that plaintiff's appeal brief is procedurally deficient.1 In violation of requirements of Rule 2:6-10, the spacing, font type, and font size were inconsistent throughout the brief, making it difficult to read. See Almog v. Israel Travel Advisory Serv. Inc., 298 N.J. Super. 145, 155-56 (App. Div. 1997) (describing formatting violations as "serious"), certif. dismissed, 152 N.J. 361, cert. denied, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998).

Moreover, plaintiff's appendix is incomplete as it does not include the motion papers that are the subject of this appeal. See R. 2:6-1(a)(1)(I) (appellant's appendix shall contain "such other parts of the record . . . as are essential to the proper consideration of the issues"); Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002). The absence of the motion papers makes it impossible for us to determine which issues were before the motion court, and which documents in the voluminous appendix were part of the trial record and subject to the judge's review.

Based on the court orders under appeal, it appears that plaintiff's second and third points, regarding the appointment of a guardian ad litem and sequestration of child support, were not raised or decided in the trial court. Therefore, we will not consider them now. See State v. Galicia, 210 N.J. 364, 383 (2012) ("Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." (citing Deerfield Estates, Inc. v. E. Brunswick, 60 N.J.115, 120 (1972)); State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J.83 (2006).

We will, however, despite the procedural deficiencies, consider plaintiff's assertion that he demonstrated a prima facie case of changed circumstances warranting a plenary hearing. We find plaintiff's arguments to be without merit.

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)).

A judge must consider a request for modification in accordance with the procedural framework established in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Under Lepis, the first question is whether the party seeking a modification has made a prima facie showing of a substantial change in circumstances. Id. at 157. To establish a prima facie case for modification of a custody arrangement, 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 custody. Hand, supra, 391 N.J. Super. at 105.

In evaluating whether the requisite changed circumstances exist, the court must consider the circumstances that existed at the time the current custody order was entered. Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div.), certif. denied, 28 N.J. 147 (1958). After considering those facts, the court can then "ascertain what motivated the original judgment and determine whether there has been any change in circumstances[.]" Id. at 288. "In assessing a claim of changed circumstances deference is given to the length and stability of the existing custody relationship." M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979).

"A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand, supra, 391 N.J. Super. at 105 (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). "In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded. Only statements to which a party could testify should be considered." Lepis, supra, 83 N.J. at 159.

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).

Applying the above principles, we perceive no reason to disturb the judge's orders. Here, the judge's determination that plaintiff failed to prove that a material change of circumstances had occurred is supported by substantial credible evidence in the record and is consistent with controlling legal principles. We reject plaintiff's contention that defendant's guilty plea and non-custodial sentence constitute a change in circumstances.

Plaintiff provided no evidence that defendant's conviction actually affected the children in any way. Plaintiff merely makes conclusory assertions that defendant is unfit because of her conviction and that the conviction must have affected the children. This is not enough. Indeed, evidence in the record shows that the boys are succeeding in school, earning awards, and otherwise thriving.

Thus, plaintiff has failed to satisfy his burden that any change since the 2008 custody order has affected the welfare of the children. Moreover, no genuine and substantial factual disputes exist warranting a plenary hearing.

We find plaintiff's further arguments to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

1 In his motion for reconsideration, plaintiff's reply certification was filed in violation of Rule 5:5-4(c), and thus was not considered by Judge O'Brien. Additionally, Judge O'Brien denied plaintiff's motion for reconsideration, in part, because it violated Rule 5:5-4(a).