C.S.S v. A.T.E

NOT FOR PUBLICATION WITHOUT THE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-3911-18T2

C.S.S.,

          Plaintiff-Appellant,

v.

A.T.E.,

     Defendant-Respondent.
______________________________

                    Argued February 27, 2020 – Decided May 20, 2020

                    Before Judges Suter and DeAlmeida.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    Docket No. FD-03-1043-12.

                    Mark J. Molz argued the cause for appellant.

                    Respondent has not filed a brief.

PER CURIAM
      Plaintiff C.S.S.1 appeals from the portions of the April 1, 2019 order of

the Family Part modifying the custody and parenting time of C.S.S. and

defendant A.T.E. with respect to their child, A.S., and reducing A.T.E.'s child

support obligation to reflect the change in custody. We reverse.

                                         I.

      The following facts are derived from the record. A November 7, 2012

Family Part order establishes the parties' custody and parenting time of A.S., as

well as A.T.E.'s child support obligation. The November 7, 2012 order is not

included in the appendix, and it appears to have been modified prior to the trial

court proceedings to give C.S.S. primary custody of A.S., with A.T.E. having

custody of the child every other weekend. In addition, although the amount of

A.T.E.'s child support obligation is not in the record, an undated page from a

Family Part order states support arrears of $18,183.77 as of October 24, 2018.

      In February 2019, A.T.E. sought a decrease in his child support obligation

"[b]ased on permanent disability[.]" The application was not accompanied by

an affidavit, certification, or case information statement required by Rule 5:5-3.

Nor were those documents served on C.S.S. at any point subsequent to the filing



1
  We identify the parties by initials to protect the confidentiality of court records
relating to child custody. R. 1:38-3(d)(13).
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of the application. In addition, the application contains no financial information,

does not state the source or amount of A.T.E.'s income, the nature of his

disability, or the scope of his inability to work, or set forth allegations supporting

his request. The application also sought a change in custody and parenting time,

but contained no explanation of the basis of the requested modification.

      At a hearing on the application, A.T.E. testified that approximately four

weeks earlier he severed several fingers on one hand while cutting wood at

home. Doctors reattached his fingers and A.T.E. had a positive prognosis for

regaining their use. A.T.E. offered no medical evidence concerning the extent

to which he was unable to use his hand or the expected duration of his recovery.

      A.T.E. testified he worked "off the books" as a mechanic but would be

hindered from doing so because of his injury. He did not state the amount of his

income and produced no documentary evidence establishing how much he

earned. He did not estimate how much of a decline in income he expected as a

result of his injuries. C.S.S. testified A.T.E. owned and operated a towing

company and auto care business. In addition, she testified A.T.E. had employees

who could earn income for his business and sold automobiles. She too produced

no evidence of the amount A.T.E. earns.




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      C.S.S. asked the court to adjourn hearing A.T.E.'s request for a

modification of the parties' custody and parenting time in order to permit her to

retain an attorney. The court denied her request.

      A.T.E. testified he and C.S.S. each had the child fifty percent of the time

until the court reduced A.T.E.'s time after it determined he had endangered the

child's welfare by permitting her to ride on the back of a car, an act captured on

video. A.T.E. requested a return to the prior arrangement and testified that

because of his injury, he would have more time to have custody of the child.

      After considering the testimony, the trial court determined it "didn't have

any medical evidence from [A.T.E.] with regard to his ability or inability to

work." The court continued, "clearly, [A.T.E.] sustained an injury, but what

isn't clear is that he will suffer a loss of income because of it." The court,

therefore, denied A.T.E.'s request to modify his child support obligation.

However, because of A.T.E.'s injury, the court suspended enforcement of his

child support obligation for 120 days.

      The court concluded "[w]ith regard to the request for additional parenting

time, I'm also not being provided with any information that would cause me to




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change the October 24, 20182 order." Despite this finding, the court modified

the parties' custody and parenting time as follows:

            What I'm going to do is I'm going to reverse the
            parenting time [from] . . . one week after the end of
            school, June 2019, to one week before the school begins
            . . . for the 2019/20 school year. So we'll reverse it so
            that [A.T.E.] will have parenting time during the
            summer. And I'll calculate how many days or how
            many overnights that is, how that changes the
            overnights, and alter the parenting time that way.

                  .....

            [The court will] reverse the parenting time so that
            [C.S.S. will] have the child every other weekend during
            the summer.

                  .....

            I will recalculate the child support based on the number
            of overnights that I'm ordering.

      On April 1, 2019, the court entered an order memorializing its decision

and setting A.T.E.'s child support arrears at $20,060.77 as of April 1, 2019.

      This appeal followed. C.S.S. raises the following arguments:

            POINT I

            THE TRIAL COURT ERRED IN CHANGING
            PARENTING TIME/CUSTODY AFTER PLAINTIFF
            REQUESTED LEGAL REPRESENTATION.

2
  This is the first mention in the transcript of the October 24, 2018 order, a
complete copy of which is not included in C.S.S.'s appendix.
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            POINT II

            DEFENDANT'S MOTION TO REDUCE CHILD
            SUPPORT WAS DEFICIENT BECAUSE IT DID NOT
            CONTAIN A FINANCIAL STATEMENT OR ANY
            FACTS   SUCH   AS   AN   AFFIDAVIT OR
            CERTIFICATION.

            POINT III

            THE TRIAL COURT ERRED IN AWARDING A
            CHANGE IN PARENTING TIME/CUSTODY
            WITHOUT   NOTICE   DEMONSTRATING   A
            CHANGE OF CIRCUMSTANCES SET FORTH IN
            DEFENDANT'S MOVING PAPERS.

                                        II.

      Our review of a Family Part order is limited. Cesare v. Cesare,  154 N.J.
 394, 411 (1998). "[W]e do not overturn those determinations unless the court

abused its discretion, failed to consider controlling legal principles or made

findings inconsistent with or unsupported by competent evidence." Storey v.

Storey,  373 N.J. Super. 464, 479 (App. Div. 2004). We must accord substantial

deference to the findings of the Family Part due to that court's "special

jurisdiction and expertise in family matters . . . ." Cesare,  154 N.J. at 413.

      We defer to the judge's factual determinations, so long as they are

supported by substantial credible evidence in the record. Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 483-84 (1974).           This court's


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"[a]ppellate review does not consist of weighing evidence anew and making

independent factual findings; rather, [this court's] function is to determine

whether there is adequate evidence to support the judgment rendered at trial."

Cannuscio v. Claridge Hotel & Casino,  319 N.J. Super. 342, 347 (App. Div.

1999) (citing State v. Johnson,  42 N.J. 146, 161 (1964)). We review de novo

the court's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm.,  140 N.J.
 366, 378 (1995).

      Custody orders are subject to revision based on the changed circumstances

standard. Eaton v. Grau,  368 N.J. Super. 215, 222 (App. Div. 2004). As we

explained in Costa v. Costa,  440 N.J. Super. 1, 4 (App. Div. 2015):

            [m]odification of an existing child custody order is a
            "'two-step process.'" R.K. v. F.K.,  437 N.J. Super. 58,
            62 (App. Div. 2014) (quoting Crews v. Crews,  164 N.J.
            11, 28 (2000)). First, a party must show "a change of
            circumstances warranting modification" of custodial
            arrangements. Id. at 63 (quoting Beck v. Beck,  86 N.J.
            480, 496 n.8 (1981)). If the party makes that showing,
            the party is "'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.'" Id. at 62-63 (citation
            omitted).

We review a trial court's determination regarding a change of circumstances for

an abuse of discretion. Costa,  440 N.J. Super. at 4 (citing Hand v. Hand,  391 N.J. Super. 102, 111-12 (App. Div. 2007)).

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      Our review of the record in light of these precedents reveals the trial court

misapplied its discretion when it modified the parties' custody and parenting

time. A.T.E. introduced no evidence of changed circumstances other than his

testimony that he will have more time off from work while recuperating from an

injury. This alone is insufficient to constitute a change in circumstances. In

addition, the court did not undertake an analysis of the child's best interests. No

testimony or other evidence was elicited with respect to how a change in custody

and parenting would affect the child. Nor did the court examine how A.T.E.

would provide for the child's care while recuperating from a severe injury

requiring continuing medical interventions          or whether A.T.E.'s poor

supervision, which resulted in the prior modification of custody and parenting

time, had been ameliorated.

      In light of our conclusion, we need not reach C.S.S.'s argument the trial

court abused its discretion by denying her request to adjourn the hearing to allow

her to retain counsel. We note, however, that C.S.S.'s assertion that she was not

provided with notice A.T.E. was seeking a change in custody and parenting time

is not supported by the record. A.T.E.'s application indicates he was seeking a

modification of an existing custody and parenting time order.




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      The April 1, 2019 order is reversed to the extent it modified the parties'

custody and parenting time. The custody and parenting time in place prior to

the April 1, 2019 order is reinstated. The trial court is directed to adjust A.T.E.'s

child support obligation to reflect the change in the number of overnights the

child will spend with each parent. We do not retain jurisdiction.




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