T.B. VS. D.B. (FM-15-0214-14, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-5153-15T1
T.B.,1
Plaintiff-Appellant,
v.
D.B.,
Defendant-Respondent.
________________________________
Submitted September 20, 2017 – Decided October 6, 2017
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FM-15-0214-14.
Warren L. Peterson, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
In this post-judgment matrimonial matter, plaintiff appeals
from the June 21, 2016 order of the Family Part denying her motion
to allow her boyfriend, a convicted sex offender subject to the
1
We use initials to protect the privacy of the family.
registration and notification requirements of Megan's Law,
N.J.S.A. 2C:7-1 to -10, to have contact with the parties' four
children. We affirm.
The parties were married in 2004 and have four children. They
separated in 2012. At the time of their separation, plaintiff was
romantically involved with her boyfriend. On November 15, 2012,
the trial court entered an order setting child support, and stating
that the parties would share joint legal custody of the children
with plaintiff having temporary residential custody. The order
further provided that plaintiff's boyfriend "shall have no contact
whatsoever with the parties['] children nor be in their presence."
On June 14, 2013, the court entered a second child support
and parenting time order, which stated that plaintiff "is not to
leave [her boyfriend] in a care[-]giving capacity for the children
at any time." One week later, the court entered another order
again providing that plaintiff's boyfriend was "to have no contact
with the minor children in any capacity nor be in the presence of
the children at any time."
On September 20, 2013, the court entered a fourth order
stating that the parties' "children shall not be in [plaintiff's
boyfriend's] presence at any time. If [the boyfriend] is in the
[presence] of the minor children, [defendant] may petition the
court . . . for custody and removal of the minor children." The
2 A-5153-15T1
parties divorced in May 2014. The parties continued to share
joint legal custody of the children with plaintiff designated as
the parent of primary residence.
In November 2015, the parties exchanged a series of text
messages. During this exchange, plaintiff wrote that the children
had been to her boyfriend's home and he helped them with their
homework. Plaintiff also stated that she and her boyfriend took
the children to church on a "couple" of occasions.
Based on these statements, defendant filed a motion seeking
to have residential custody of the children transferred to him.
Plaintiff responded with a cross-motion seeking an order
permitting her boyfriend to have supervised contact with the
children.2 In a certification accompanying her motion, plaintiff
denied that her boyfriend had been in contact with the children.
She stated that she became engaged to her boyfriend in November
2014 and wanted the children to "have an opportunity to know and
have a relationship with their stepfather."
Plaintiff's certification contained a number of hearsay
statements not based upon her personal knowledge. For example,
she alleged the boyfriend's "parole officers feel that [her
boyfriend] should be allowed around [the] children, with [her]
2
Plaintiff also sought other relief, but those requests are not
involved in the present appeal.
3 A-5153-15T1
supervision." Plaintiff did not provide a certification from a
parole officer to support this claim and, at oral argument on the
motion, stated it would be a violation of her boyfriend's parole
"to live with the children." Plaintiff also asserted, again
without any supporting certifications or documentation from the
agency, that the Division of Child Protection and Permanency
(Division) had evaluated her boyfriend and she "believe[d] the
evaluation was favorable to" him. Plaintiff did not provide a
certification from her boyfriend on any of these topics.
Following oral argument, the trial judge denied plaintiff's
motion to permit her boyfriend to have contact with the children.
In his written statement of reasons, the judge noted that the
court had issued four prior orders barring the boyfriend from
being in the presence of the children for any purpose and that
plaintiff failed to establish any basis for modifying that
prohibition.3 This appeal followed.
On appeal, plaintiff asserts that she established a change
of circumstances warranting a modification of the bar against her
boyfriend having contact with the children, and the trial judge
should have conducted a plenary hearing and granted discovery of
3
The trial judge denied defendant's motion for a change of custody
without prejudice. Thereafter, plaintiff indicated that she no
longer planned to marry or live with her boyfriend.
4 A-5153-15T1
the Division's records prior to considering her motion. We
disagree.
The scope of our review of the Family Part's orders is
limited. We owe substantial deference to the Family Part's
findings of fact because of that court's special expertise in
family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We will only reverse the judge's decision when it is necessary to
"ensure that there is not a denial of justice because the family
court's conclusions are [] clearly mistaken or wide of the mark."
Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010)
(alternation in original) (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)).
A party who seeks to modify an existing custody or parenting
time order must meet the burden of showing changed circumstances
and that the arrangement is no longer in the best interests of the
child. Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App.
Div. 2006). The issue is "two-fold and sequential." Faucett v.
Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied,
203 N.J. 435 (2010).
Plaintiff did not meet this burden. The prohibition against
plaintiff's boyfriend having any contact with the children had
been in place since the time of the parties' separation in 2012.
Plaintiff was involved with her boyfriend at that time. Her
5 A-5153-15T1
announced engagement to this individual, with whom she had been
involved in a years-long relationship, was certainly not a new
development or a changed circumstance warranting a modification
of the four prior orders.
Plaintiff also failed to show that there had been any change
in her boyfriend's circumstances. Indeed, she admitted at oral
argument that he was still prohibited by the terms of his parole
from living with the children.
Although plaintiff claimed in her certification that her
boyfriend's parole officers and the Division now believed that he
could safely have supervised contact with the children, these
statements were not based upon her own personal knowledge as
required by Rule 1:6-6,4 which governs the presentation of evidence
on motions. Therefore, the trial judge properly discounted these
claims.
Plaintiff's argument that the judge should have conducted
a plenary hearing also lacks merit. "A plenary hearing is required
when the submission show there is a genuine and substantial factual
dispute . . . and the trial judge determines that a plenary hearing
is necessary to resolve the factual dispute." Hand v. Hand, 391
4
Rule 1:6-6 requires certifications "made on personal knowledge,
setting forth only facts which are admissible in evidence to which
the affiant is competent to testify."
6 A-5153-15T1
N.J. Super. 102, 105 (App. Div. 2007). Because plaintiff raised
nothing more than bald allegations concerning her boyfriend's
efforts to reform, which lacked competent factual support, we
discern no abuse of discretion in the judge's decision to resolve
the motion without conducting a plenary hearing. Similarly,
because plaintiff did not demonstrate a change of circumstances
warranting a re-examination of the prior orders prohibiting
contact between her boyfriend and the children, there was no need
for discovery of any of the Division's records. As noted above,
there was no competent evidence in the record establishing that
the Division had conducted any evaluation of plaintiff's
boyfriend.
As for the balance of any of plaintiff's arguments not
expressly discussed above, they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
7 A-5153-15T1