S.H. VS. W.H. (FM-02-0441-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0404-17T1

S.H.,

Plaintiff-Appellant,

v.

W.H.,

Defendant-Respondent.

Submitted January 8, 2019 – Decided May 20, 2019

Before Judges Accurso and Moynihan.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

Docket No. FM-02-0441-15.

S.H., appellant pro se.

Fusco & Macaluso Partners, LLC, attorneys for

respondent (Amie E. DiCola, on the brief).

PER CURIAM

Plaintiff S.H. and defendant W.H. had one son – born June 13, 2014 –

prior to their March 2016 divorce. Plaintiff appeals from two Family Part

orders, entered March 22 and August 18, 2017 denying her sequential motions

for post-judgment relief.

In her self-authored merits brief plaintiff argues:

POINT I

THE JUDGE [ERRED] IN NOT CONSIDERING

MANY ITEMS OF RELIEF IN THE PLAINTIFF'S

NOTICE OF MOTION, WHICH WERE

INACCURATELY STATED BY THE JUDGE AS

NOT INCLUDED IN THE NOTICE OF MOTION.

POINT II

[THE] JUDGE ERRED IN DENYING HER

MOTIONS FOR ADJUSTMENT OF PARENTING

TIME, DID NOT CONSIDER THE CHANGED

CIRCUMSTANCES PROPERLY, AND DID SO

WITHOUT AFFORDING HER AN EVIDENTIARY

HEARING.

POINT III

THE JUDGE ERRED IN DENYING THE

PLAINTIFF'S REQUESTS FOR CURRENT

MODIFICATION IN CHILD SUPPORT, STATING

SHE DID NOT [DEMONSTRATE] "CHANGED

CIRCUMSTANCES," NOR WAS THE JUDGE'S

RULING ACCOMPANIED BY FINDINGS OF FACT

AND LEGAL CONCLUSIONS OR DID THE JUDGE

REQUEST A DISCOVERY HEARING OR REQUIRE

THE DEFENDANT TO DISCLOSE UPDATED

FINANCIAL INFORMATION.

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POINT IV

THE TRIAL COURT ERRED BY FAILING TO FIND

THAT THE [DEFENDANT] HAD

MISREPRESENTED HIS INCOME AT THE TIME

OF THE NEGOTIATION OF THE MARITAL

SETTLEMENT AGREEMENT AND THEREFORE IN

DENYING THE [PLAINTIFF'S] REQUEST FOR A

RETROACTIVE INCREASE IN CHILD SUPPORT

BASED UPON THAT MISREPRESENTATION.

POINT V

[THE] JUDGE [ERRED] IN NOT CONSIDERING

PLAINTIFF'S ALLEGATIONS OF CONTINUED

ACTS OF DOMESTIC VIOLENCE, FAILED TO

HOLD THE DEFENDANT IN CONTEMPT OF THE

PARTIES CONSENT ORDER AND INCORRECTLY

HAD NO OTHER REASONABLE BASIS FOR THIS

EVIDENCE TO NOT HAVE BEEN ALLOWED IN

EVALUATION THE PLAINTIFF'S CHANGE IN

PARENTING TIME.

POINT VI

[THE] TRIAL COURT [ERRED] IN DENYING THE

PLAINTIFF'S REQUEST FOR A CHANGE OF

VENUE.

POINT VII

THE [TRIAL COURT JUDGE] SHOULD [HAVE]

RECUSED HIMSELF BECAUSE THE [JUDGE] CAN

NO LONGER BE IMPARTIAL AS THE

PLAINTIFF'S RIGHTS TO . . . DUE PROCESS WERE

VIOLATED WHEN THE JUDGE REFUSED TO

CONSIDER EVIDENCE OR HOLD ORAL

HEARINGS THAT DOCUMENTS THE

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DEFENDANT'S CONTINUED ACTS OF DOMESTIC

VIOLENCE.

We are unpersuaded by these arguments and affirm.

Although her supporting certification raised twenty-one requests for

relief, plaintiff's first notice of motion sought only an adjustment of child

support payments, changes to the parties' custody and visitation arrangements,

enforcement of litigant's rights, a change of venue, and to set aside sections of

the marital settlement agreement incorporated in the judgment of divorce.

Addressing that first motion, the trial court judge noted "many items of relief

embodied within [plaintiff's] certification . . . were not included in the [n]otice

of [m]otion" and, due to this omission, were not going to be considered.

Nonetheless, the judge did address each request set forth in plaintiff's

certification and denied them all. We review only those issues which are the

subject of this appeal. C.f. Lombardi v. Masso, 207 N.J. 517, 542 (2011) ("[We]

confine ourselves to the original summary judgment record because that is the

limited issue before us.").

The judge found plaintiff failed to establish that a change to the terms of

the marital settlement agreement – which he found was freely and voluntarily

agreed to by the parties – was warranted and that plaintiff failed to attempt

mediating the disputed issues as required by the agreement. In denying the

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request to modify child support, the judge concluded plaintiff failed to

demonstrate that there had been a significant change in circumstances, see Lepis

v. Lepis, 83 N.J. 139, 157 (1980), and submit a case information statement, Rule

5:5-2. The judge also found plaintiff showed neither that the visitation terms of

the marital settlement agreement required modification to address the needs of

the child nor a significant change in circumstances. And the judge denied

plaintiff's request for a change of venue to Union County based on her allegation

that defendant – a police officer employed by the City of Garfield – had undue

influence in proceedings venued in Bergen County, finding defendant was

unknown to the court except for his involvement in litigated matters before the

court.

Plaintiff's second notice of motion also sought an adjustment of child

support payments, changes to the parties' visitation arrangement, enforcement

of litigant's rights, and a change of venue; she additionally requested an

"emergency hearing to order a new parenting time evaluation"1 and the recusal

of the trial court judge. Plaintiff's certification in support of the second motion

listed nineteen requests for relief.

1

Plaintiff's request for emergent relief was denied on June 30, 2017. Plaintiff

has not appealed from that order.

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The judge again ruled that the requests set forth in plaintiff's certification ,

but not included in her notice of motion, would not be considered. He ruled

only on plaintiff's motion for recusal, modification of parenting time and change

of venue; for reasons which we discuss in detail, he denied all requested relief.

Parenting Time

Plaintiff argues the trial court erred in denying her request for a change in

parenting time because she demonstrated changed circumstances. She explains

that the parties' son was diagnosed with cognitive and speech developmental

delays necessitating his enrollment in a five-day-per-week program. Plaintiff

avers the current back-to-back overnight weekday parenting time schedule,

which requires the child to be transported from defendant's home in Garfield to

school in Cranford, is not in the child's best interests. She maintains an

evidentiary hearing was required "to evaluate the issues raised by [plaintiff] that

the child's teachers and social workers who treat the child report that the child

is having difficulty adapting to changing environments and the frequent [trips]

between households is putting undue stress on the child, [a]ffecting his

emotional and cognitive development."

The primary consideration in a case involving parenting time is the best

interests of the child. V.C. v. M.J.B., 163 N.J. 200, 227-28 (2000); Kinsella v.

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Kinsella, 150 N.J. 276, 317 (1997). The best-interests standard focuses on the

"safety, happiness, physical, mental and moral welfare of the child." See

Fantony v. Fantony, 21 N.J. 525, 536 (1956). Although "New Jersey has long

espoused a policy favoring the use of consensual agreements to resolve marital

controversies," Konzelman v. Konzelman, 158 N.J. 185, 193 (1999), parenting

time orders are subject to modification at any time "upon a showing of a material

change in circumstances," Hoy v. Willis, 165 N.J. Super. 265, 275-76 (App. Div.

1978). The party seeking a modification has the burden to show it is warranted.

Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981).

We agree with the trial court judge that plaintiff did not meet her burden.

Plaintiff's certification and supporting documents do not provide a link between

any emotional and cognitive difficulties the parties' son may be having and the

current parenting time arrangement. The New Jersey Early Intervention System

Initial Evaluation/Assessment Summary submitted by plaintiff in support of the

motion states only that "Mom report[ed] changes in [the child's] behavior after

spending overnights at his dad's as he tends to be quieter and the transitio n to

school (separating) is more difficult." Plaintiff may have met her burden if she

submitted a like opinion by a learning specialist or other trained professional

with knowledge of the child's circumstances that tethered the parenting time

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arrangements to the child's delayed developmental progress. See Dorfman v.

Dorfman, 315 N.J. Super. 511, 518 (App. Div. 1998) (noting that detailed and

documented evidence demonstrating behavioral problems with the child

necessitated at least an investigation of the problem). Her submissions,

however, do not raise a “genuine and substantial factual dispute regarding the

welfare” of the child to necessitate a hearing to resolve the issue. Hand v. Hand,

391 N.J. Super. 102, 105 (App. Div. 2007); see also Lepis, 83 N.J. at 159

(holding “a party must clearly demonstrate the existence of a genuine issue as

to a material fact before a hearing is necessary” so that courts are not obligated

to hold hearings on every modification application).

Although we do not discern that the judge decided the issue, we do not

perceive any merit in plaintiff's contention that defendant's continued acts of

domestic violence required an evidentiary hearing regarding her request to

change the parenting time arrangement. Evidence of domestic violence

affecting the safety of the child may establish a prima facie case requiring an

evidentiary hearing to assess whether the acts affect the welfare of the child.

See R.K. v. F.K., 437 N.J. Super. 58, 66-67 (App. Div. 2014); Hand, 391 N.J.

Super. at 105-06. But all of plaintiff's allegations of domestic violence involve

harassing emails sent by defendant to her personal email account. Regardless

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of whether these qualify as "domestic violence" under N.J.S.A. 2C:25-19(a),

there is no evidence the child was exposed to them. Moreover there is no

evidence as to how the acts impact on the parenting time arrangement. The

record supports the trial court's decision to deny plaintiff's parenting-time-

modification motion.

Child Support

Plaintiff argues the trial court erred by denying her request for a

modification of the parties' child support agreement because she demonstrated

changed circumstances and by denying her request for a retroactive increase

because she proved that defendant misrepresented his income when negotiating

the marital settlement agreement.2 Plaintiff proffers several changed

circumstances she contends warrant the child support modification: her

remarriage; the birth of two children unrelated to the defendant; the child's

commencement of the five-days-per-week program; and defendant's recent

promotion leading to an increased salary and his purchase of an investment

property.

2

Plaintiff does not contest the denial of her first motion for child support

modification for which she did not submit a case information statement as

required by Rule 5:5-2.

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The party seeking modification of support payments has the burden of

showing changed circumstances; a prima facie showing requires "a

demonstration that the child's needs have increased to an extent for which the

original arrangement does not provide." Lepis, 83 N.J. at 157. Child support is

for the benefit of the child, not the parent. Ordukaya v. Brown, 357 N.J. Super.

231, 241 (App. Div. 2003). Thus, plaintiff's remarriage and the birth of her other

children are irrelevant to establishing a change of circumstances. Further,

plaintiff failed to demonstrate how the child's financial needs increased because

of his enrollment in the program. There is no evidence of any costs associated

with the program. Nor do we see any evidence that the parties' child care costs

were impacted by the child's enrollment.

In furtherance of her argument that defendant misrepresented his income

at the time of the agreement was negotiated, plaintiff alleges that "false,

misleading, and incomplete financial evidence" was submitted by the defendant

prior to enactment of the agreement. These assertions of deliberate

misrepresentations of his gross income are belied by documentary evidence she

included in her appendix. Defendant's 2014 W-2 statement listed his yearly

income as $134,190, the exact amount he then listed on the case information

statement submitted in 2015 during negotiations. None of the financial

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documents plaintiff submitted as evidence supports the assertion that defendant

misrepresented income prior to enactment of the parties' agreement.

Although the trial court judge did not set forth any findings of fact or legal

conclusions when denying plaintiff's child support requests in his decision on

the second motion – which, unlike the first motion, was supported by a case

information statement – there is no evidence in the record to support plaintiff's

claim that she established a change of circumstances to warrant a modification.

Nor is there any evidence to support her prayer for a retroactive modification of

child support. Inasmuch as plaintiff did not establish a prima facie case of

change circumstances, she was not entitled to defendant's financial information.

Welch v. Welch, 401 N.J. Super. 438, 444 (Ch. Div. 2008); see R. 5:5-1(d); see

also Major v. Maguire, 224 N.J. 1, 23 (2016) (citing Welch with approval).

Change of Venue

It has long been held that motions for change of venue "are addressed to

the sound discretion of the court." State v. Collins, 2 N.J. 406, 411 (1949).

Recognizing that a court's exercise of discretion "must be neither arbitrary,

vague nor fanciful and must be in consonance with well established principles

of law . . . [t]he exercise of such discretion will not be disturbed on review unless

it has been clearly abused." Ibid.

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We analyze plaintiff's challenge to the trial court judge's denial of her

motion to change venue to the Union vicinage under Rule 4:3-3(a) which, in

pertinent part, permits a change of venue:

(1) if the venue is not laid in accordance with [Rule]

4:3-2; or

(2) if there is a substantial doubt that a fair and impartial

trial can be had in the county where venue is laid; or

(3) for the convenience of parties and witnesses in the

interest of justice; or

(4) in Family Part post-judgment motions, if both

parties reside outside the county of original venue and

application is made to the court by either party to

change venue to a county where one of the parties now

resides.

Although the trial court judge quoted the holdings of four cases, the only

finding the judge made in denying plaintiff's motion was, "under [Rule] 4:3-

3(a)(4), [defendant was] "still a resident of Bergen County." The judge

mentioned section (a)(1) in his ruling but plaintiff's current arguments pertain

only to the last three sections of the Rule. The judge's limited factual finding

and plaintiff's muddled merits brief and appendix do not provide sufficient

information for us to ascertain what was argued to the trial court. We will,

however, address all three facets of plaintiff's argument.

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As an initial matter, the judge's finding that defendant resides in Bergen

County eliminates section (a)(4) as a ground for a venue change.

Next, under section (a)(3) and the doctrine of forum non conveniens, "a

court may decline jurisdiction where there is available another forum where trial

will best serve the convenience of the parties and the ends of justice." Gore v.

U.S. Steel Corp., 15 N.J. 301, 305 (1954). Plaintiff claims that the child and

witnesses, including "the child's teachers, social workers, religious leaders and

doctors" who would be called "in a new custody evaluation and at trial, all live

closer to the Union County courts." We see nothing in the record that identifies

any such witnesses or substantiates their alleged connection to Union County.

Further, a change of venue need not be granted to alleviate witnesses' travel

inconvenience. See Diodato v. Camden Cty. Park Comm., 136 N.J. Super. 324

(App. Div. 1975).

We do not find any support in the record for plaintiff's contention that

venue should be changed to Union County under the forum non conveniens

doctrine because of prior acts of domestic violence, which plaintiff asserts are

"likely to continue in the future." As we already observed, plaintiff's only

allegations of domestic violence involve harassing emails sent by defendant to

her personal email account. The record reveals defendant is not subject to a

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restraining order; the parties agreed to a consent order providing civil restraints.

In ruling on plaintiff's first motion seeking enforcement of litigant's rights, the

trial court judge found plaintiff did not submit proof of any violations of that

order and did not demonstrate any recent act by defendant, only "pre-divorce

issues and issues litigated" in a prior final restraining order hearing. Indeed, in

her merits brief – in a point that conflates arguments about the court's failure to:

consider allegations of continued domestic violence, hold defendant in contempt

for violating the consent order and consider "this evidence" in evaluating

plaintiff's parenting time modification request – plaintiff argues that she "should

have been permitted to submit evidence of past violations of the civil restraints,

not because those violations were per se acts of domestic violence, but because

the past violations support the claim that the defendant engaged in acts of

harassment by making communications with the purpose to alarm or seriously

annoy." As the trial court judge found, no proofs were submitted; nothing in the

record supports plaintiff's argument that she was prohibited from presenting

same.

Plaintiff argues defendant's "social and professional status and substantial

political connections and influence as a public employee of Bergen County,"

occasioned by his many years of service as a police officer in Garfield, created

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the appearance of bias, requiring a venue change under Rule 4:3-3(a). The trial

court judge did not address this issue in ruling on the second motion. He did,

however, deny plaintiff's first motion to change venue, finding "[w]hile . . .

plaintiff imagines [defendant] is well known and a powerful figure in Bergen

County, other than being a party to this case and a prior [d]omestic [v]iolence

action, he is unknown to the [c]ourt."

We note that defendant is not employed by Bergen County; he is a

municipal police officer. The judge's determination that no evidence supports

plaintiff's contention that defendant exerts such influence in Bergen County that

"there is a substantial doubt that a fair and impartial trial can be had" there was

supported by the record. We see no basis upon which a change of venue should

be based.

Recusal

The trial court judge denied plaintiff's recusal motion, concluding:

The assertion by the plaintiff does not include any

specific reasons for recusal, [and] does not cite to any

verifiable actions by the [c]ourt by way of presentation

of a transcript. [Plaintiff] asserts that at some

unspecified time, she observed the [c]ourt "high five"

the defendant in a hall, an assertion which is

categorically denied, and fails to submit any

independent verification of this assertion.

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Any motion seeking a judge's disqualification is, "at least in the first

instance, entrusted to the 'sound discretion' of the trial judge whose recusal is

sought." Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting

Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)). "Judges shall

disqualify themselves in proceedings in which their impartiality or the

appearance of their impartiality might reasonably be questioned." Code of

Judicial Conduct, R. 3.17(B); see also R. 1:12-1. It is, nonetheless, "improper

for a judge to withdraw from a case upon a mere suggestion that he is

disqualified 'unless the alleged cause of recusal is known by him to exist or is

shown to be true in fact.'" Panitch, 338 N.J. Super. at 66-67 (quoting Hundred

E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.

1986)). And while "'it is not necessary to prove actual prejudice on the part of

the court' to establish an appearance of impropriety," there must be an

"'objectively reasonable' belief that the proceedings were unfair." DeNike v.

Cupo, 196 N.J. 502, 517 (2008) (quoting State v. Marshall, 148 N.J. 89, 279

(1997)).

Plaintiff contends there is "evidence detailing prior unethical and/or

illegal conduct" by the judge against other litigants. As the trial court judge

found, however, plaintiff points to no specific, verifiable actions by the judge to

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support this assertion. Although plaintiff alleged the judge "high-fived"

defendant in a hall, thus showing bias, she provided no independent proof of this

conduct which was "categorically denied" by the judge. Plaintiff further alleged

the judge made sarcastic and demeaning references and labeled her requests for

relief as "prayers," thus requiring recusal. Judges and lawyers often refer to

requests for relief as prayers. 3

Plaintiff also avers the judge refused to hold an evidentiary hearing,

concluded plaintiff's allegations were unsupported by evidence and that his

rulings showed undue favoritism. We perceive no "'objectively reasonable'

belief that the proceedings were unfair." DeNike, 196 N.J. at 517 (quoting

Marshall, 148 N.J. at 279). "[B]ias is not established by the fact that a litigant

is disappointed in a court's ruling on an issue." Marshall, 148 N.J. at 186.

The judge did not abuse his discretion in denying the recusal motion.

We determine plaintiff's argument that recusal was compelled because a former

Bergen County prosecutor joined the law firm hired by defendant while an

investigation into defendant's conduct as a police officer by the prosecutor's

office was ongoing, to be without sufficient merit to warrant discussion in this

3

A "prayer for relief" is defined as "A request addressed to the court and

appearing at the end of a pleading[] . . . . Often shortened to prayer." Black's

Law Dictionary, 1213 (8th ed. 1999).

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opinion. R. 2:11-3(e)(1)(E). Defendant's counsel's alleged conflict involves

none of the tenets impacting on the judge's decision. See R. 1:12-1.

Domestic Violence

To the extent we have not addressed plaintiff's contentions regarding

allegations of domestic violence, we again note a restraining order has not been

granted and plaintiff admitted she did not submit evidence that defendant

violated the civil restraints in place, violations which she conceded were not per

se acts of domestic violence. Plaintiff's requests that we determine whether

"defendant's recent contact and communications were meant to alarm or did

alarm or seriously annoy" her and grant a restraining order, are not cognizable

on appeal. Any victim of domestic violence is entitled to file a complaint with

"the Family Part of the Chancery Division of the Superior Court in conformity

with the Rules of Court." 4 N.J.S.A. 2C:25-28(a). Plaintiff may avail herself of

that process if justified.

4

"On weekends, holidays and other times when the court is closed, a victim

may [also] file a complaint before . . . a municipal court judge who shall be

assigned to accept complaints and issue emergency, ex parte relief in the form

of temporary restraining orders pursuant to this act." N.J.S.A. 2C:25-28(a).

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Failure to Address Requests for Relief

A court is required, "by an opinion or memorandum decision, either

written or oral, [to] find the facts and state its conclusions of law thereon . . . on

every motion decided by a written order that is appealable as of right." R. 1:7-

4(a). Plaintiff, citing to that Rule, argues we "should reverse the judge[']s

decision to deny proper consideration of the requested items of relief by [her] in

her [n]otice of [m]otion based on the inadequacy of the [judge's] findings and

conclusions."

In her first notice of motion, plaintiff did not, as required by Rule 1:6-

2(a), set forth the grounds upon which each prayer for relief that she set forth in

her certification supporting that motion was made or the nature of the relief she

sought. Nevertheless, the trial court judge did address prayers which were set

forth only in plaintiff's certification, albeit, at times, tersely.

The judge addressed only three of plaintiff's claims made in her second

motion although the notice of motion set forth six prayers. Although some of

the other claims were addressed in the judge's first decision, the better course

would have been to follow suit and address the all six claims in the second

decision.

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Neither the litigants nor we are well-served by an opinion lacking

analysis. Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (App.

Div. 2000). Appellate review is impeded, if not precluded, when a trial court

does not specifically address arguments properly made by a movant. A decision

that identifies a movant's contentions fosters appellate review and ensures the

parties – particularly, self-represented litigants – that their requests were heard.

Nonetheless, as we have determined, the record does not support

plaintiff's second-motion claims that were not addressed: for an adjustment of

child support, changes to the visitation arrangement or enforcement of litigant's

rights. After reviewing that record, we see no reason to disturb the trial court's

denial of both plaintiff's motions.

Affirmed.

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