V.A.F v. R.J.G

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3456-19T3

V.A.F.,

          Plaintiff-Appellant,

v.

R.J.G.,

     Defendant-Respondent.
________________________

                   Argued November 17, 2020 – Decided December 22, 2020

                   Before Judges Fisher and Gummer.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FD-02-0193-15.

                   Philip Petrullo argued the cause for appellant (Russo
                   Petrullo Law Group, LLC, attorneys; Philip Petrullo on
                   the brief).

                   R.J.G., respondent, argued the cause pro se.

PER CURIAM
      Plaintiff V.A.F. (Valerie) 1 appeals the judge's decision to deny her

custody-modification motion without first conducting a plenary hearing.

Because we agree with the judge's conclusion that plaintiff failed to demonstrate

changed circumstances warranting a plenary hearing, we affirm.

      This action was initially filed by Valerie in 2014 when the parties'

daughter A.G. (Anna) was approximately fifteen-months old. As memorialized

in a September 11, 2014 order, defendant R.J.G. (Richard) acknowledged

paternity, and the parties agreed to a parenting-time arrangement. About two

years later, the parties reached a new agreement regarding parenting time, which

was detailed in an August 10, 2016 consent order.

      Within a year, Valerie moved for sole custody. In an August 1, 2017

order, the judge denied that application, declined to modify parenting time,

denied Valerie's request to impose supervised visitation, and ordered that certain

medical and diagnostic evaluations be performed. As set forth in a December

6, 2017 order, the parties subsequently agreed to share joint legal custody of

Anna, with Valerie being the parent of primary residence and Richard having

regular weekly parenting time.



1
   We use initials and fictitious names for ease of reading and to protect the
identities of the parties. R. 1:38-3(d)(12).
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      Six months later, this case was before the court again. On June 7, 2018,

the judge ordered the parties to comply with the December 6, 2017 order. The

parties agreed to meet with Anna's therapist and were directed to follow her

recommendations.

      After another six months passed, the court considered a new application

filed by Valerie. In a December 18, 2018 order, the judge suspended one day of

Richard's weekly parenting time until he cooperated with a therapist's

recommendations but otherwise enforced all prior orders.

      The case was before the court again the following spring. After Anna told

her therapist that her paternal uncle had sexually abused her, the parties agreed

in a June 25, 2019 consent order that Anna would not have any contact with that

uncle. The authorities who investigated that allegation ultimately concluded

that no sexual abuse had occurred.

      Not long after that allegation, Anna, who was then over six-years old, told

a case worker that Richard had touched her sexually when she was one-, two-,

or three-years old. The judge on July 10, 2019, suspended Richard's overnight

parenting time, required that his other parenting time be supervised by his

fiancé, and ordered him to obtain a best-interest evaluation and that the matter




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be relisted upon completion of a Division of Child Protection and Permanency

(DCPP) investigation.

      The matter was relisted on December 3, 2019. The parties reviewed the

DCPP report, and, consistent with the recommendations of Daniel Bromberg,

PhD, a psychologist to whom DCPP had referred the case for evaluation, the

judge ordered that DCPP arrange for therapeutic reunification sessions between

Richard and Anna.

      Before a single reunification session was scheduled, Valerie filed an

application for a modification of a January 15, 2020 order, 2 seeking "sole legal

and physical custody" of Anna and to suspend Richard's parenting time "until

further order of the court." 3 Valerie stated that she sought that modification

because "continued contact with [Richard] is detrimental to [Anna's] well-being.




2
  Valerie did not provide a copy of the January 15, 2020 order on which she
based her modification application and did not discuss it in the brief. The judge
did not reference the January 15, 2020 order in his March 31, 2020 order or his
amplification of his order. We assume that Valerie mistakenly referenced a non-
existent January 15, 2020 order in the application and intended to base the
modification motion on the December 3, 2019 order.
3
   Valerie also asked the judge to enforce Richard's child-support obligations
and to order Richard to pay a lump sum of $1000 towards arrears within thirty
days or face issuance of a bench warrant and her counsel fees and costs in
bringing the motion.
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It is in her best interests that I be granted sole legal and physical custody. " She

supported that assertion with only her certification.

      In her certification, Valerie stated that she had retained Curtis W. Branch,

PhD, to conduct an evaluation in the fall of 2019. According to Valerie, Dr.

Branch issued a report in which he opined that it was in Anna's best interest that

Valerie "parent her on a full-time basis minus the animus and discord that seems

to have plagued co-parenting arrangements with [Richard]" and recommended

that Valerie be granted sole custody. In her certification, Valerie also referenced

a letter from Anna's "trauma counselor," in which, according to Valerie, the

counselor described Anna's "marked improvement since contact with [Richard]

was suspended." Valerie did not provide a copy of the report or the lette r to the

court but offered to make them available.          She did not mention in her

certification the allegations of abuse by Richard or his brother.

      Valerie's motion was heard by the same judge who had issued the

December 3, 2019 order and two prior orders in the case. In a March 30, 2020

letter to the judge, DCPP representatives stated that DCPP was closing its case

"as there are no concerns of Child Abuse and Neglect." They also indicated that

DCPP had assisted Richard in arranging for therapeutic visitation, presumably

pursuant to the December 3, 2019 order, but that the visitation had not yet begun


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through no fault of Richard. DCPP relied on recommendations contained in a

new evaluation prepared by Dr. Bromberg. Concluding that Valerie's actions

had contaminated information regarding Richard's alleged abuse of Anna and

that evidence supporting that allegation was highly suspect, Dr. Bromberg

recommended, among other things, that the therapeutic supervised visits

between Richard and Anna, which he previously had recommended, begin as

soon as possible.

      During a March 31, 2020 proceeding, the judge stated that the case was

before him for review of a DCPP matter and Valerie's request for sole legal

custody and to suspend Richard's parenting time. He noted that the matter had

been before him previously and that he had ordered various relief, including that

DCPP would arrange for therapeutic reunification. He referenced the recent

DCPP report, indicating that Dr. Bromberg's recommendations were consistent

with his prior recommendations. When the judge stated that he was likely to

adopt Dr. Bromberg's findings and recommendations, Valerie's counsel

objected, stating that Valerie had "multiple experts opining that sole legal

custody is in [Anna's] best interest." He acknowledged that he had not actually

provided the judge with a copy of those expert opinions. He asked to put Dr.

Bromberg "on the stand." The judge noted that he already had ordered in


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December that DCPP would arrange for "therapeutic reunification" with

Richard. He denied Valerie's request for sole legal custody, stating that "[f]or

me, a huge issue with custody is whether or not a parent would – is likely to

reinforce the relationship with the other parent" and that "[f]or me this was a

follow up more or less to see what Dr. Bromberg had to say . . . I'm going to

adopt his recommendations as I ordered before, but I don't believe that this is a

case for sole legal custody, because I think that is adverse to what the doctor has

stated in his findings."

      In a March 31, 2020 order, the judge denied "without prejudice" Valerie's

application for sole legal custody, ordered that the therapeutic visitation efforts

continue, and adopted certain recommendations made in Dr. Bromberg's

evaluation.

      After Valerie filed this appeal, the judge issued an amplification of his

decision pursuant to Rule 2:5-1(b). In that amplification, the judge stated that

Valerie had failed to make a prima facie showing of a substantial change in

circumstances that warranted further discovery on her request for modification

of the parties' custody arrangement. He referenced his December 3, 2019 order

requiring therapeutic reunification, Dr. Bromberg's recommendation to reunify




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Richard and Anna, and Dr. Bromberg's finding that custody should not be

changed or that Richard was not a danger to Anna.

      In this appeal, Valerie faults the judge for denying Valerie's motion and

for adopting Dr. Bromberg's recommendations without conducting a plenary

hearing.

      Because of the Family Part's special jurisdiction and its judges' expertise

in family matters, we defer to a Family Part judge's factual determination if

supported by "adequate, substantial, and credible evidence in the record." Milne

v. Goldenberg,  428 N.J. Super. 184, 197 (App. Div. 2012). We also "accord

great deference to discretionary decisions of Family Part judges." Ibid. A trial

court abuses its discretion when it makes a decision "'without a rational

explanation, inexplicably depart[ing] from established policies, or rest[ing ] 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 (7 th Cir. 1985)). A "judge's legal decisions are subject to our plenary

review." Milne,  428 N.J. Super. at 197-98.

      The moving party in a custody-modification motion is not entitled to

discovery or an evidentiary hearing without meetings "the threshold standard of

changed circumstances." J.B. v. W.B.,  215 N.J. 305, 327 (2013); see also Lepis


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v. Lepis,  83 N.J. 139, 157 (1980) ("[a] prima facie showing of changed

circumstances must be made before a court will order discovery"); Hand v.

Hand,  391 N.J. Super. 102, 105 (App. Div. 2007) ("[a] party seeking to modify

custody must demonstrate changed circumstances that affect the welfare of the

children"); Chen v. Heller,  334 N.J. Super. 361, 380 (App. Div. 2000) (party

seeking to modify custody must show substantial change in circumstances from

time current custody was established). A prior custody order, "whether reached

by consent or adjudication, embodies a best interests determination." Todd v.

Sheridan,  268 N.J. Super. 387, 398 (App. Div. 1993). With that determination

having been made in a prior custody order, a party seeking to modify the order

"must bear the threshold burden of showing changed circumstances which would

affect the welfare of the children." Ibid.

      The only support for Valerie's motion was her certification, and nothing

in the certification indicated a change in circumstances since the judge issued

his prior order. Valerie did not assert in the certification that a change in

circumstances had occurred. Instead, she relied on her descriptions of Dr.

Branch's report and the trauma counselor's letter. Nothing in her descriptions of

the report and letter indicated changed circumstances. According to Valerie, Dr.

Branch opined that she should have sole custody so she could parent Anna


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                                        9
"minus the animus and discord that seems to have plagued co-parenting

arrangements with" Richard. That the parties' co-parenting efforts have been

plagued with "animus and discord" is nothing new. As Valerie conceded in her

appellate brief, the parties "have been involved in nearly continuous custody and

parenting time litigation for the past six years." According to Valerie, the

trauma counselor in her letter stated that Anna had had a "marked improvement"

since Richard's overnight parenting time was suspended in July 2019. She does

not say in what way Anna had a marked improvement or what the marked

improvement was, she does not attribute the marked improvement to any

particular cause, and she does not indicate when the marked improvement

occurred or whether it occurred before the last order. That does not rise to the

level of a prima facie demonstration of changed circumstances.

      Valerie's submissions in support of her motion and appeal actually show

that no change in circumstances has taken place since the prior order. Even

though the judge on December 3, 2019, had ordered therapeutic reunification

sessions between Richard and Anna, those sessions, through no fault of Richard,

had not yet occurred and Richard still had not had any parenting time with Anna.

      The better course would have been for the judge to set forth on the record

on March 30, 2020, or in his March 31, 2020 order, the explanation for his denial


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                                      10
of Valerie's motion that he gave in his amplification. Nevertheless, we find no

abuse of discretion in his ultimate determination that Valerie had failed to

demonstrate a change in circumstances warranting a plenary hearing on the

custody-modification application or in his denial of that application.

      Affirmed.




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