A.M. VS. T.A. (FD-09-0460-14, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2725-18T3
A.M.,
Plaintiff-Appellant,
v.
T.A.,
Defendant-Respondent.
______________________________
Submitted April 30, 2020 – Decided May 27, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FD-09-0460-14.
A.M., appellant pro se.
Thomas L. Curcio, attorney for respondent.
PER CURIAM
Plaintiff A.M.1 appeals from the December 14, 2018 order of the Family
Part denying her motion to compel two of her children, who are in the custody
of their paternal grandmother, defendant T.A., to undergo a psychiatric
examination. We affirm.
I.
The following facts are derived from the record. A.M. is serving a forty-
year sentence for the 2010 murder of the children's father. The children, then
seven years old, were present in the home at the time of the killing, heard
gunshots, and entered the bedroom to see their father dying. After the murder,
the children were placed with T.A., to whom the trial court later awarded
custody and guardianship. A third child placed with T.A. has since reached
adulthood.
During the proceedings that ultimately resulted in T.A. obtaining custody
of the children, the court ordered their evaluation by a psychologist the parties
jointly selected. At the evaluation, the children expressed no desire to see A.M.
Notably, the children had been undergoing therapy for trauma resulting from the
murder. In a 2014 report, the expert concluded visitation with A.M. would be
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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harmful for the children. Based on the expert's opinion, the court ordered contact
between A.M. and the children be limited to written letters, which would be
reviewed by the children's therapist to determine if they would be shown to the
children. In addition, the court directed T.A. to send A.M. photographs and
copies of the children's report cards periodically.
In 2018, A.M. filed a motion to compel the children to undergo a
psychiatric evaluation for the purpose of having the court consider increasing
her contact with the children. In her moving papers, A.M. requested oral
argument. T.A. opposed the motion.
The court denied A.M.'s motion, finding "there was no showing why it is in
[the children's] best interests to be evaluated mindful of their ongoing therapy for
many years after their father's murder." In addition, the court determined A.M. had
not alleged a change in circumstances warranting modification of the court's prior
orders that established limited contact between A.M. and the children. The court
noted A.M.'s motion was "decided on the pleadings [without] objection."
This appeal followed. A.M. raises the following arguments for our
consideration:
POINT ONE
THE COURT'S DECISION WAS AN ABUSE OF
DISCRETION AND FAILED TO GIVE SUFFICIENT
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WEIGHT TO PLAINTIFF'S STATUS AS MOTHER
OF THE CHILDREN.
POINT TWO
THE MOTION COURT FAILED TO COMPLY WITH
PROPER PROCEDURE BY FAILING TO MAKE
FINDINGS OF FACT AND CONCLUSIONS OF
LAW, REQUIRING A REMAND.
POINT THREE
THIS COURT SHOULD REVIEW APPELLANT'S
CLAIMS USING A HARMLESS ERROR
STANDARD OF REVIEW AND NOT APPLY THE
PLAIN ERROR STANDARD OF REVIEW FOR THE
REASONS STATED BELOW.
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,
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Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). This court's
"[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).
A.M.'s request for the appointment of an expert must be viewed in light
of the well-established standard for modifying orders that establish custody and
parenting rights. 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).
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The changed circumstances standard also applies to modifications of parenting
time, which may be granted if in the best interests of the child. Finamore v.
Aronson, 382 N.J. Super. 514, 522 (App. Div. 2006). Rule 5:3-3(a) provides
that when
the court, in its discretion, concludes that disposition of
an issue will be assisted by expert opinion . . . the court
may order any person under its jurisdiction to be
examined by a[n] [expert] designated by it . . . .
Having carefully reviewed the record, we conclude the trial court properly
exercised its discretion when it denied A.M.'s motion. The children were
examined by an independent expert, jointly selected by the parties, in 2014. The
court adopted the expert's opinion that it was in the children's best interests to
limit their contact with A.M., given the trauma they suffered as a result of her
having murdered their father. A.M. alleged no facts suggesting a change in
circumstances warranting modification of that arrangement. Her request for the
appointment of another expert to examine the children, who will become adults
in August 2020, is based only on her dissatisfaction with the court's prior order.2
2
We also note that we granted T.A.'s motion to remand this matter for the
limited purpose of allowing the trial court to decide her motion to remove the
children to Florida. The trial court granted the motion on August 23, 2019.
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To the extent we have not specifically addressed any of A.M.'s remaining
claims, we conclude they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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