LINDA SCHULTZ v. SCOTT FELLINI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LINDA SCHULTZ,

Plaintiff-Respondent,

v.

SCOTT FELLINI,

Defendant-Appellant.

_____________________________

Argued July 14, 2014 Decided July 22, 2014

Before Judges Harris and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2092-12.

Salvatore A. Simeone argued the cause for appellant (Weiner Lesniak, L.L.P., attorneys; Mr. Simeone, on the brief).

Jodi Lee Alper argued the cause for respondent (Lasser Hochman, L.L.C., attorneys; Ms. Alper, of counsel and on the brief; Dinah E. Hendon, on the brief).

PER CURIAM

Defendant Scott Fellini appeals from the October 4, 2013 Family Part order denying his application for, among other things, a change in the custodial arrangement of his children. We affirm.

I.

Fellini and plaintiff Linda Schultz were married in 1996, and divorced in 2004. Their twin children, now almost fourteen years old, are the focus of this appeal. The parties' judgment of divorce provided for joint legal and physical custody of the children, who reside primarily with Schultz in Glen Rock,1 including equal parenting time. By all accounts, the children have thrived under the shared parenting arrangement put into place almost ten years ago.

Notwithstanding the absence of significant disputes with respect to their children in the years following the divorce, in August 2013, Fellini filed an application in the Family Part seeking "primary residential custody of the minor children." At the same time, he sought a modification of parenting time, a recalculation of child support, and the appointment of an expert to conduct a custody evaluation.

In support of his motion, Fellini supplied a certification indicating that he had recently moved to Glen Rock, and lived much closer to the children. He also set forth a series of contretemps between the parties with respect to parenting time discrepancies, all allegedly caused by the "erratic behavior" of Schultz. Claiming that the children "are simply pawns in the game that is being played by [Schultz]," Fellini listed several instances where he asserted that Schultz had undermined parenting time equality.

Schultz responded to the motion with a cross-motion in aid of litigant's rights vis- -vis financial issues, and a certification disputing the myriad parenting time claims of Fellini. Schultz's response included this rejoinder to Fellini:

[Fellini] portrays me as the bad, thoughtless parent while he is perfect in every way. I have every confidence that the [c]ourt knows and understands that neither of us is a perfect parent; we are simply humans who love our children and are good parents. If a problem exists, it is with the use of our children by [Fellini] as pawns in an ongoing thoughtless attempt at control.

Judge Peter J. Melchionne conducted oral argument of the motions on October 4, 2013. The judge considered the documentary evidence proferred by the parties together with their advocates' arguments. Judge Melchionne determined that because Fellini failed to demonstrate that a substantial issue existed with respect to the welfare of the children and there was no evidence of a change in circumstances, Fellini's motion would be denied. Further, the judge held:

The facts in this case are parenting issues. They're not welfare of the children issues. The children here are hopefully, because there's no proofs of it, are not suffering. I have no bad report cards. I have no trend in bad report cards. I have no medical evaluations from a pediatrician that says there's something wrong. I have no excessive absenteeism. I have two parents that are parenting equally, so if there [are] issues with the children, it could be on either side . . . .

Consequently, the judge denied Fellini's request to interview the children, declaring:

[W]e don't put children through evaluations at the whim of a parent unless there's a reason to do that. We don't bring them drag their children into court to meet a judge, to have a conversation to make them choose between their parents unless there's a reason to have . . . them have that conversation.

Ultimately, Judge Melchionne entered an order denying all relief to Fellini. This appeal followed.

II.

On appeal, Fellini raises two arguments for our consideration: (1) Judge Melchionne erred in failing to conduct a plenary hearing and (2) Judge Melchionne erred in failing to conduct in camera interviews with the children. Based upon our review of the motion record, we conclude that these contentions are meritless. We affirm substantially for the reasons expressed by Judge Melchionne in his oral decision on October 4, 2013. We add the following brief comments.

"The touchstone for all custody determinations has always been 'the best interest[s] of the child.'" Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009) (alteration in original) (quoting Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)), certif. denied, 203 N.J. 435 (2010). A party seeking to modify custody has the burden to demonstrate changed circumstances affecting the welfare of the child. M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979).

We defer to the motion judge's determination as to whether to schedule a plenary hearing. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). "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 v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); see also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary," and noting that "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application"); R. 5:8-6 (requiring the court to "set a hearing date" if it "finds that the custody of children is a genuine and substantial issue").

Judge Melchionne accurately parsed the parties' dispute and properly concluded that an evidentiary hearing, including an interview of the children, was inappropriate. We are satisfied that Fellini failed to surmount the threshold of a prima facie demonstration of changed circumstances. His move to Glen Rock, while in the best interests of the children, did not materially alter the dynamics of the parenting time paradigm followed by the parties for almost a decade, and, by itself, is insufficient to trigger a plenary hearing. A plenary hearing under the circumstances of this case would most likely consist of nit-picking by both parties, with no advantage to the children. Indeed, embarking upon such a litigious journey in this matter would be counterproductive to the children's best interests.

If it becomes necessary to avail themselves of the judicial process in the future, the parties would always have that opportunity as visitation and custody are subject to continuing review. Finnamore v. Aronson, 382 N.J. Super. 514, 522 (App. Div. 2006) ("Orders defining a parent's right with respect to contact with his child are subject to future revision depending on a showing of changed circumstances[,]" and "[m]odification of the order may be appropriate if the moving party shows the modification requested is in the best interests of the child.").

Affirmed.

1 The judgment provided, however, that "[n]either party shall be designated as the parent of primary residence."