J. M v. C.K

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                                NOT FOR PUBLICATION WITHOUT THE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-0635-19T1

J. M.,

          Plaintiff-Appellant,

v.

C.K.,

     Defendant-Respondent.
__________________________

                    Submitted October 26, 2020 – Decided January 19, 2021

                    Before Judges Mayer and Susswein.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Middlesex County,
                    Docket No. FM-12-0596-17.

                    John Barone, attorney for appellant.

                    Respondent has not filed a brief.

PER CURIAM

          Plaintiff, J.M., appeals from a Family Part post-judgment order denying

her motion to modify the current parenting plan, award her sole custody of the
children, and order a plenary hearing. 1 Judge John A. Jorgensen rendered an

oral decision and thereafter issued a written amplification. We affirm .

      We presume the parties are familiar with the circumstances leading to this

appeal. In 2017, plaintiff J.M. and defendant, C.K., divorced after more than

ten years of marriage. The property settlement agreement (PSA) provided that

both parents would share joint custody of their two children.          The PSA

designated J.M. as the parent of primary residence.

      The parties have a long history of post-divorce litigation. Notably, in

December 2018, Judge Jorgensen granted plaintiff a domestic violence final

restraining order (FRO) against C.K. The FRO generally prohibits C.K. from

communicating with J.M. but allows him to communicate with her via text

messages for matters concerning the children.

      In August 2019, defendant applied for an Order to Show Cause seeking to

have the court enforce his parenting time in accordance with the PSA, change

the location of the custody exchanges from the police station to the courthouse,

and impose penalties against plaintiff for her alleged failures to exchange

custody. Plaintiff filed a cross-motion seeking to suspend defendant's parenting



1
 We use initials to protect the privacy of the parties and the children. R. 1:38-
3(d).
                                                                           A-0635-19T1
                                       2
time or, in the alternative, require supervised parenting time.    Plaintiff also

sought a plenary hearing for a change in custody that would grant her sole legal

and physical custody of the children.

      On September 13, 2019, Judge Jorgensen granted defendant's application

to enforce his parenting time but denied his request to relocate the custody

exchange and his request to impose penalties. Judge Jorgensen also denied

plaintiff's cross-motion, finding she failed to present sufficient evidence to

establish a change of circumstances warranting modification of the parenting

time arrangement or a plenary hearing. 2 We now review the decision to deny

plaintiff's cross-motion.

      Because we affirm for the reasons explained in Judge Jorgensen's

thorough oral opinion and written amplification, we need not re -address

plaintiff's arguments at length. We begin our analysis by acknowledging that

the scope of our review is narrow. Findings by a Family Part judge are "binding

on appeal when supported by adequate, substantial, and credible evidence."


2
  We note that plaintiff's brief does not address the trial court's denial of her
request for a plenary hearing. Accordingly, plaintiff has waived this issue. See
Sklodowsky v. Lushis,  417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue
not briefed on appeal is deemed waived.") (quoting Jefferson Loan Co. v.
Session,  397 N.J. Super. 520, 525 n.4 (App. Div. 2008)). We add that the record
clearly supports Judge Jorgensen's decision to deny plaintiff's cross-motion to
modify the custody arrangements without convening a plenary hearing.
                                                                         A-0635-19T1
                                        3
Cesare v. Cesare,  154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v.

Invs. Ins. Co.,  65 N.J. 474, 484 (1974)). Additionally, "[b]ecause of the family

courts' special jurisdiction and expertise in family matters, appellate courts

should accord deference family court factfinding." Id. at 413. We may reverse

only if there is "'a denial of justice' because the family court's 'conclusi ons are

[] "clearly mistaken" or "wide of the mark."'" Parish v. Parish,  412 N.J. Super.
 39, 48 (App. Div. 2010) (alteration in original) (quoting N.J. Div. of Youth &

Family Servs. v. E.P.,  196 N.J. 88, 104 (2008)). Accordingly, an appellate court

should not disturb the trial court’s factfinding unless the court is "convinced that

they are so manifestly unsupported by or inconsistent with the competent,

relevant, and reasonably credible evidence as to offend the interests of justice."

Cesare,  154 N.J. at 413 (quoting Rova Farms,  65 N.J. at 484).

      Furthermore, a party seeking modification of an existing custody or

parenting time order bears the burden of demonstrating changed circumstances

and that the current arrangement is no longer in the best interests of the child.

Finamore v. Aronson,  382 N.J. Super. 514, 522-23 (App. Div. 2006); Hand v.

Hand,  391 N.J. Super. 102, 105 (App. Div. 2007). The analytical process is

sequential.   A party seeking modification must first show a change in

circumstances that affects the welfare of the children. If the party makes such a


                                                                            A-0635-19T1
                                         4
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.'" Costa v. Costa,  440 N.J. Super.
 1, 4 (App. Div. 2015) (quoting R.K. v. F.K.,  437 N.J. Super. 58, 62-63 (App.

Div. 2014) (citation omitted)); see also Lepis v. Lepis,  83 N.J. 139, 159 (1980).

      Applying these legal principles to the record before us, we conclude Judge

Jorgensen did not abuse his discretion in denying plaintiff's cross -motion.

Plaintiff contends that Judge Jorgensen failed to appreciate the importance and

probative value of the evidence she submitted. She also claims the judge

uncritically accepted what she characterizes as defendant's "bald blanket denial"

of her factual allegations.     The record belies her argument.         Contrary to

plaintiff's claim, defendant in his reply certification specifically addressed her

allegations, save for those relating to his failure to respond to her text

messages—a matter we address momentarily. We note that plaintiff points only

to the catch-all denial at the end of defendant's certification, essentially ignoring

the remainder of his five-page certification in which he specifically responds to

her factual allegations.

      We have reviewed the record and conclude that Judge Jorgensen carefully

considered all of the proofs and arguments submitted by both parties. Based on


                                                                             A-0635-19T1
                                         5
that review, the judge concluded that the allegations made by plaintiff reflected

"domestic contretemps" between the parties, falling short of a change in

circumstances warranting modification of the child custody arrangement. 3 We

see no reason to disturb that finding. Indeed, our review of the litigation history

confirms that plaintiff and defendant have a contentious relationship and, as a

result, are unable to communicate. Domestic contretemps do not constitute a

change of circumstances.

      Much of plaintiff's argument hinges on her frustration that defendant

refuses to respond to her text messages. She contends defendant's failure to

communicate places the children at risk of substantial and ongoing harm. By

way of example, she argues that defendant's failure to respond to her inquiries

regarding their daughter's health placed plaintiff in an untenable position where

she was afraid to administer fever medication to their daughter for fear of

overdosing her.




3
  We note that plaintiff alleged that defendant harassed and stalked her after a
custody exchange. Judge Jorgensen in his November 6, 2019 amplification
letter determined that it was premature to consider plaintiff's allegation that
defendant violated the FRO, as that matter was scheduled to be heard on
December 2, 2019. The record before us does not indicate the final disposition
of the FRO violation hearing.
                                                                           A-0635-19T1
                                        6
      In support of her argument, plaintiff relies on Nufrio v. Nufrio, in which

we commented that

            the prime [criterion] for establishing a joint legal
            custodial relationship between divorced or separated
            parents centers on the ability of those parents to agree,
            communicate[,] and cooperate in matters relating to the
            health, safety[,] and welfare of the child[,]
            notwithstanding animosity or acrimony they may
            harbor towards each other.

            [ 341 N.J. Super. 548, 550 (App. Div. 2001).]

      We do not interpret this general principle to require a modification of the

parenting arrangement in the particular circumstances presented in this case. We

deem it to be significant that the FRO issued by Judge Jorgensen permitted —

but did not require—defendant to communicate directly with plaintiff by text

messaging concerning the children. We therefore reject plaintiff's argument that

defendant created a substantial change of circumstances by his failure to

communicate with plaintiff.

      In this instance, the same judge who issued the FRO denied defendant's

cross-motion to modify the parenting arrangement.        In rejecting plaintiff's

argument, Judge Jorgensen recognized both parties continually filed police

reports and motions against each other. Considering the contentious nature of

the parties' relationship, Judge Jorgensen acted well within his discretion in


                                                                         A-0635-19T1
                                       7
declining to require defendant to communicate directly with plaintiff, since such

communications would present an opportunity for confrontation and escalation

that might lead to new charges of domestic violence harassment.

      Given the deferential standard of review, it is not our place to substitute

our judgment for that of the Family Part judge when, as in this case, the trial

court's findings are supported by competent, relevant, and reasonably credible

evidence. Cesare,  154 N.J. at 412. Deference is especially appropriate in view

of Judge Jorgensen's intimate familiarity with the long history of conflict

between these parties.

      To the extent we have not addressed them, any additional arguments

raised by plaintiff lack sufficient merit to warrant discussion in this opinion. R.

2:11-3(e)(1)(E).

      Affirmed.




                                                                           A-0635-19T1
                                        8