DANIEL W. PAURO v. RACHEL L. PAURO

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1468-19T2

DANIEL W. PAURO,

          Plaintiff-Respondent,

v.

RACHEL L. PAURO,

     Defendant-Appellant.
___________________________

                   Argued on September 22, 2020 – Decided October 27, 2020
                                                          , 2020
                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Atlantic County,
                   Docket No. FM-01-0121-18.

                   Nicholas C. Needle argued the cause for appellant
                   (Conrad O'Brien PC, attorneys; Nicholas C. Needle and
                   Robert N. Feltoon on the brief).

                   Respondent has not filed a brief.

PER CURIAM
      Defendant Rachel L. Pauro appeals that portion of the trial judge's order

granting without prejudice plaintiff Daniel W. Pauro's cross-motion to restrain

Rachel1 from "taking the [parties' two minor] children to [Daniel's] adoptive

parents" and the subsequent denial of her motion for reconsideration of that

order. Although our review of Family Part decisions is narrow as those judges

are accorded "broad discretion because of their specialized knowledge and

experience in matters involving parental relationships and the best interests of

children," and we generally defer to those decisions "unless they are so wide of

the mark that our intervention is required to avert an injustice," N.J. Div. of

Youth & Fam. Servs. v. F.M.,  211 N.J. 420, 427 (2012); see also N.J. Div. of

Child Prot. & Permanency v. A.B.,  231 N.J. 354, 365 (2017), "[w]e owe no

special deference to . . . [a] judge's legal determinations," and, as here, "are

compelled to reverse when the judge does not apply the governing legal

standards," Slawinski v. Nicholas,  448 N.J. Super. 25, 32 (App. Div. 2016).

      When Rachel moved to change the parenting time schedule to which the




1
  We use the parties' given names to avoid confusion because they have the
same surnames. We mean no disrespect or familiarity by our practice.



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parties agreed the year prior in a mediated agreement, 2 Daniel sought to restrain

Rachel from bringing the children to their paternal grandparents "for any type

of parenting time." In an oral decision rendered after a non-testimonial motion

hearing, the trial judge observed that Daniel had "a problem with his adoptive

parents. For whatever reasons he ha[d] issues with them, and that is something

that obviously is very significant to him.       But the children also have a

relationship with that family, those parents and the adoptive, and the extended

families at both sides."

      After expressing hope that the children would enjoy relationships with

their relatives, the judge conceded she did not "know the full extent of how

involved the children are with other family, cousins[,] and aunts and uncles and

grandparents," and that it was "hard for [her] to discern based upon what[] [was

then] right in front of [her] . . . whether the children should continue a

relationship with [Daniel's] adoptive parents." The judge agreed with Rachel's

counsel's argument

            that we don't know based upon what's been discussed
            thus far what the problem is with the [children] seeing


2
  The parenting plan agreement, incorporated in the final judgment of divorce,
set forth a proposed schedule, and the parties agreed "to maintain open
communication" in order to adjust the plan as needed. It did not provide any
limitation pertaining to the exercise of parenting time.
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            the grandparents separate and apart from what [Daniel]
            has an issue with them.

            So I don't have enough information right now to say,
            "Well, you know, it's against their interests or not in
            their best interests to not see their grandparents,"
            because I don't know what [Daniel's] issues are. He
            may have a reason to believe that those, his parents may
            not be in the best situation to, to respond to the children.
            I don't know that. So what I would say, at least at this
            instance is, if the grandparents want to have parenting
            rights, grandparents' visitation then they need to file the
            application. And if that is brought then, at that time, all
            those issues will come out.

            At this point, I'm not going to enforce that right, their
            right to have visitation by having [Rachel] take the
            children there.

      In denying Rachel's motion for reconsideration, the trial judge: concluded

Rachel "failed to put forth sufficient grounds under Court Rule, or by case

law[,]" that warranted a change to the challenged provision; and clarified that

Rachel could "not place the children in contact with the paternal grandparents

during her parenting time, even if she accompanies the children[,]" leaving any

contact with the grandparents to a later determination of their motion for

visitation pursuant to  N.J.S.A. 9:2-7.1.

      The procedures under that statute, however, were inapplicable to these

circumstances where, as recognized by the trial judge, Rachel wanted to visit

Daniel's parents during her parenting time. The grandparents did not seek their

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own time with the children, which would have required them to file a motion

under the statute and assume the burden of proving by a preponderance of the

evidence that granting them visitation was in the children's best interests.

 N.J.S.A. 9:2-7.1(a).

      Inasmuch as the issue at hand involves one parent's parenting time, we

adhere to the tenet that the "primary concern in determining questions of

visitation and custody is the best interests of the child[ren]." Wilke v. Culp,  196 N.J. Super. 487, 497 (App. Div. 1984). In making the determination, the focus

must be on the "safety, happiness, physical, mental and moral welfare" of the

children. Fantony v. Fantony,  21 N.J. 525, 536 (1956); see also Hand v. Hand,

 391 N.J. Super. 102, 105 (App. Div. 2007).

      In essence, Daniel's cross-motion sought to limit Rachel's parenting-time

activities.   "A party seeking to modify custody must demonstrate changed

circumstances that affect the welfare of the children." Hand,  391 N.J. Super. at
 105. "[A] motion for a change in custody . . . will be governed initially by a

changed circumstances inquiry and ultimately by a simple best interests

analysis." Baures v. Lewis,  167 N.J. 91, 116 (2001), overruled on other grounds,

Bisbing v. Bisbing,  230 N.J. 309 (2017); see also R.K. v. F.K.,  437 N.J. Super.
 58, 62 (App. Div. 2014).


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      "First, a party must show 'a change of circumstances warranting

modification' of the custodial arrangements." Costa v. Costa,  440 N.J. Super. 1,

4 (App. Div. 2015) (quoting R.K.,  437 N.J. Super. at 63). In evaluating whether

the requisite changed circumstances exist, the judge must consider the

circumstances that existed at the time the original custody order was entered.

Sheehan v. Sheehan,  51 N.J. Super. 276, 287-88 (App. Div. 1958). The judge

can then "ascertain what motivated the original judgment and determine whether

there has been any change in circumstances." Id. at 288. Only if the party makes

that showing is that party then "entitled to a plenary hearing as to disputed

material facts regarding the child's best interests, and whether those best

interests are served by modification of the existing custody order." R.K.,  437 N.J. Super. at 62-63.

      The trial judge strayed from these procedures. She did not analyze what

was obviously a change of circumstances: the restriction of Rachel's activities

with the children during her parenting time. And the judge did not consider the

children's best interests, despite recognizing the importance of the children's

relationships with their extended family, and that the only reason for the

restriction on seeing their grandparents was Daniel's cryptic "problem with his

adoptive parents."


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      While a parent's personal views should be considered in deciding custody

and parenting time conditions if "they relate to the paramount consideration of

the safety, happiness, physical, mental and moral welfare of the child[ren]," we

have long held they do not govern those conditions. DeVita v. DeVita,  145 N.J.

Super. 120, 128 (App. Div. 1976). The trial judge made no finding that Daniel

established the children would be harmed by seeing their grandparents, or that

it was not otherwise in the children's best interests to have contact with them.

      The trial judge's misapplication of the law was an abuse of discretion in

that it "departed from established policies, [and] rested on an impermissible

basis." Flagg v. Essex Cnty. Prosecutor,  171 N.J. 561, 571 (2002) (quoting

Achacoso-Sanchez v. Immigr. & Naturalization Serv.,  779 F.2d 1260, 1265 (7th

Cir. 1985)). We are constrained to reverse that portion of the order restraining

Rachel "from taking the children to [Daniel's] adoptive parents." 3

      Reversed.




3
  Although not required in light of our decision, we also reverse the denial of
Rachel's motion for reconsideration because it too was based on a misapplication
of the law. See Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,  440 N.J.
Super. 378, 382 (App. Div. 2015) (holding our review of a trial court's decision
on a motion for reconsideration is for a clear abuse of discretion, present when
the trial court's decision rests "upon a palpably incorrect or irrational basis");
D'Atria v. D'Atria,  242 N.J. Super. 392, 401 (Ch. Div. 1990).
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