                                NOT FOR PUBLICATION WITHOUT THE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-1378-17T3

D.J.,

          Plaintiff-Respondent,

v.

T.L.,

     Defendant-Appellant.
__________________________

                    Submitted December 4, 2018 – Decided January 9, 2019

                    Before Judges Geiger and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    Docket No. FD-03-1274-14.

                    Felsenfeld & Clopton, PC, attorneys for appellant
                    (Howard L. Felsenfeld, on the brief).

                    Martone Law Group, LLC, attorneys for respondent
                    (Kelli M. Martone, on the brief).

PER CURIAM
        Defendant T.L., 1 father, appeals from an October 4, 2017 order modifying

the parenting time schedule for the parties' son, K.L.,2 arguing there was no

plenary hearing or finding of a substantial change of circumstances to warrant

the modification. After consideration of the record and relevant law, we affirm.

                                           I.

        A brief dating relationship between the parties resulted in the birth of their

son, K.L., now five years old. Before K.L. was born, the parties separated and

never lived together as a family. In response to a non-dissolution application

filed by plaintiff D.J., K.L.'s mother, defendant filed a cross-application seeking

custody and parenting time. On August 13, 2014, a prior judge noted that:

"[d]efendant seeks reconsideration of support order and split custody[.]"3 That

judge ruled as follows:

              Based upon sworn testimony, parties granted joint legal
              custody with [p]laintiff designated Parent of Primary
              Residence (PPR) and [d]efendant designated Parent of
              Alternate Residence (PAR). Defendant's parenting

1
    We use initials to protect the identity of the parties and the minor child.
2
    K.L.'s date of birth is December 26, 2013.
3
   This prior order is not a part of this record. Based upon our review of the
record before us, the reference to "split" custody is inaccurate because a fifty -
fifty parenting time arrangement was never implemented. Therefore, we view
this as a joint custody case.


                                                                              A-1378-17T3
                                           2
            time shall be alternate weekends from 6:00 [p.m.]
            Friday to 6:00 [p.m.] Sunday; every Wednesday
            evening after practice until 7:00 p.m.; anytime at the
            babysitter/daycare as his schedule allows. Defendant
            may pick-up the child at daycare and return the child to
            [p]laintiff at the Wawa on Route 541 in Burlington
            Township. Defendant shall provide (high school)
            regular basketball and practice schedule to [p]laintiff
            by Monday August 18, 2014. Plaintiff consents to
            maintain medical coverage for the minor child.
            Defendant's request to re-calculate child support
            guidelines due to increase in [p]laintiff's salary is
            denied, based upon guideline figures calculated
            previously.

      Another order was entered on December 10, 2014 by the prior judge,

absent a hearing, increasing defendant's parenting time to include every

Wednesday overnight with a drop off to K.L.'s daycare on Thursday morning.

The order also directed defendant to serve copies of his 2014 W-2 forms and tax

returns by February 15, 2015, and further provided that: "[a]ll other visitation

orders are still in effect.   [Child support] [g]uidelines are rerun per the

[defendant's] request." The re-calculation resulted in a downward modification

of defendant's prior child support from $210 weekly ($192 basic child support

and $18 towards arrearages) to $103 weekly, retroactive to September 11, 2014.

      Plaintiff claimed defendant really never had an interest in parenting their

child, as evidenced by the fact that visitation did not become an issue until her

child support application was filed nine months after K.L.'s birth. She contends

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                                       3
that he has seven children and a hectic schedule, including teaching and

coaching basketball. Pick-ups and drop-offs were problematic. Oftentimes,

defendant's mother or sister would show up to exchange the child in his stead,

to the chagrin of plaintiff. After being addressed by the court, defendant was

ordered to be present for exchanges with his sister. He defied the order by either

not showing up or having his sister appear alone. In plaintiff's view, defendant's

contumacious behavior and aggression led to his preclusion from the child's day

care centers. He threatened to sue one of them.

      Once K.L. enrolled in the Burlington County Early Intervention Program,

defendant was described as being "aggressive" and "problematic" with the staff ,

including the child's speech therapist. Oftentimes defendant was late getting

K.L. to the school bus stop and he did not provide him with a nutritious lunch,

resulting in Lydia Lopez, in her capacity as an Early Childhood Educator,

writing to plaintiff about it. Lopez's letter also states that defendant did not

supply an "actual lunch" and "[j]uice, pudding and chips" do not suffice for a

healthy meal. Plaintiff also claims defendant rarely drove the child to his

swimming lessons and activities, which she had to pay for regardless of whether

he attended same. Defendant frequently moved and did not disclose his new

addresses to plaintiff, even though they were joint custodial parents, in


                                                                          A-1378-17T3
                                        4
contravention of basic co-parenting principles.        Instead of spending his

parenting time with K.L., defendant's mother would often babysit him alone.

Defendant was also substantiated for abuse and neglect with respect to another

one of his children, causing great concern to plaintiff. The parenting time was

described as a "circus" by plaintiff's counsel at oral argument.

      Because the parties continued to have conflicts, the prior judge entered an

order on July 15, 2015, extending defendant's parenting time to include a Sunday

overnight on his weekends until Monday mornings, dropping the child off at

daycare whenever possible, in order to avoid contact between the parties. This

FD order was entered in the aftermath of two domestic violence restraining

orders being entered,4 and was an attempt by the judge to limit confrontation

between the parties. No plenary hearing was conducted to effectuate this change

and the parties did not object to the modification.

      Defendant denied missing his parenting time or having problems with

exchanging the child. At the July 15, 2015 hearing, the prior judge tersely

stated: "So now, [T.L.], [you have] heard everyone's concerns . . . . Parenting




4
  The domestic violence orders were entered following a physical altercation
between the parties at a hospital where K.L. was being treated for burns he
suffered during defendant's parenting time.
                                                                         A-1378-17T3
                                        5
time is parenting time . . . . So you don't show up [I will] cut you off at the

knees."

      T.L. raises three points on appeal.

            I.  THE TRIAL COURT ERRED AS A MATTER
            OF LAW IN ITS FAILURE TO REQUIRE A
            HEARING TO DETERMINE FACTUAL DISPUTES
            OF     THE     PARTIES'     CONFLICTING
            CERTIFICATIONS    AND     TO    FURTHER
            DETERMINE THE BEST INTEREST OF THE CHILD
            AS TO THE PARENTING TIME SCHEDULE.

            II. THE TRIAL COURT ERRED IN MODIFYING
            THE PARENTING TIME SCHEDULE WITHOUT A
            SHOWING OF CHANGE OF CIRCUMSTANCES BY
            THE PLAINTIFF AND [IN] ACCORDANCE WITH
            THE ESTABLISHED LAW OF NEW JERSEY.

            III. THE COURT FAILED TO MAKE ADEQUATE
            FINDINGS OF FACT AND CONCLUSIONS OF
            LAW CONSISTENT WITH RULE 1:7-4.

                                        II.

      The scope of appellate review of a trial court's findings of fact is limited.

Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts'

special jurisdiction and expertise in family matters, appellate courts should

accord deference to family court factfinding." Id. at 413. A reviewing court

will only disturb the findings when they are "so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to


                                                                           A-1378-17T3
                                        6
offend the interest of justice[.]" Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78

N.J. Super. 154, 155 (App. Div. 1963)).

      We first address defendant's contention in Point I of his brief, that the trial

court should have ordered a plenary hearing in order to resolve conflicting

statements in the parties' certifications and to determine a parenting time

schedule, utilizing the best interest standard.

      It is well-established that a plenary hearing is necessary when a genuine

issue exists as to a material fact. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App.

Div. 2006) (citing Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982)).

A plenary hearing is only necessary to resolve a genuine issue of a material fact,

as "trial judges cannot resolve material factual disputes upon conflicting

affidavits and certifications." Harrington v. Harrington, 281 N.J. Super. 39, 47

(App. Div. 1995); see Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).

A plenary hearing is usually appropriate before the entry of an order affecting

the custody of a child. See Fusco, 186 N.J. Super. at 327-29.

      Fifteen hearings and twelve orders were entered by the time the successor

judge reduced defendant's parenting time on October 4, 2017, to weekends only.




                                                                             A-1378-17T3
                                         7
When the parties appeared for oral argument that day, both were represented by

counsel, and the judge took some limited testimony. The trial judge decided:

            The application to modify the current order for the
            [d]efendant's parenting time, is granted.            The
            [d]efendant shall have weekend parenting time only, for
            the reasons stated on the record, [a]nd based on the
            [c]ourt's findings as to the credibility of the parties.
            Pick up and drop off shall be in accordance with the
            prior order. The application of the [p]laintiff for
            counsel fees is granted, the [d]efendant shall be
            responsible for $500 to be paid within [forty-five] days
            to [p]laintiff's attorney.     The application of the
            [plaintiff] [m]other to be allowed to obtain a passport
            for the child. The [p]laintiff may obtain the passport
            without the permission of the [d]efendant [f]ather.

      The trial judge stated on the record that he spent three hours reviewing the

extensive record and that he developed a feel for the case. In his well-reasoned

oral opinion, the judge found:

            I've considered the argument of counsel, I've
            considered the testimony of the witnesses, I've noted
            the demeanor of the plaintiff and I've noted the
            demeanor of the defendant. I've also reviewed the
            certifications and the submissions of counsel and the
            [twelve] prior orders that are present in this case.

            The plaintiff's demeanor in this matter has been calm,
            cool and collected. She has maintained her composure
            throughout. I find that she is more credible with regard
            to the defendant's appearances at the pickup and
            dropoff than the defendant. The defendant's demeanor
            has been perhaps passionate and - - but argumentative.
            He has interrupted his attorney.

                                                                          A-1378-17T3
                                        8
           And the record does seem to reflect that there has been
           difficulties with daycares such that there are three
           daycares that there have been difficulty with so there
           does appear to be a pattern.
           ....

           All right, so I do find it more credible that the plaintiff's
           testimony with regard to the difficulties of pickup and
           dropoff. It does seem that it is a large problem. And
           the [c]ourt's . . . sense of the case is that the fact that the
           defendant is requesting that his fiancé participate in the
           pickup and dropoff causes a problem for the plaintiff in
           that there are differences that go into the employment
           situation into her employment and that defendant is - -
           so I will enter an order in which I will alter the
           parenting time arrangement such that it will be on the
           weekends only and that the weekday parenting time
           will be changed and I will make the amendment to the
           child support obligation because of that.

           The record that I have in front of me and the testimony
           that I have from the parties is just such that I find the
           plaintiff to be more believable as to the defendant's
           ability or inability to comply with the prior orders of
           the [c]ourt so that will be my decision and we will
           calculate the child support obligation accordingly. So
           I will reduce the parenting time.

                                             III.

     We have no quarrel with the judge's exercised discretion in not holding a

plenary hearing. We defer to the trial judge's determination as to whether to

schedule a plenary hearing. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App.

Div. 2012). Given the judge's discrete findings of fact, his extensive record

                                                                             A-1378-17T3
                                         9
review, and questioning of the parties, we do not view defendant's contention

that there were "conflicting" certifications warranting a hearing to have any

merit. Any doubts in the trial judge's mind were resolved after hearing extensive

oral argument and querying the parties.       Where a prior court order exists

specifying the terms of residential custody and parenting time, a parent seeking

to alter those terms has the burden of demonstrating a material change in

circumstances that affects the welfare of the child. Hand v. Hand, 391 N.J.

Super. 102, 105 (App. Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16

(1978)).

      In defining what constitutes a "material" change in circumstances, this

court has provided fact-specific scenarios:      an "evidentiary hearing [was]

required prior to entry of order of joint custody and unsupervised visitation with

father who had been accused of sexually abusing his child." Id. at 106 (citing

P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999)); see Mackowski v.

Mackowski, 317 N.J. Super. 8, (App. Div. 1998) (holding that a father's motion

to transfer custody of sixteen-year-old daughter should not have been decided

without a plenary hearing); see also Fusco, 186 N.J. Super. at 329 (holding that

a plenary hearing was necessary to ascertain parameters of visitation for a father




                                                                          A-1378-17T3
                                       10
who was serving a thirty-two-year prison term for first-degree murder). These

circumstances are far more compelling than the issues in the present case.

      Here, the record amply supported the judge's decision to modify parenting

time and essentially revert the schedule back to the original order entered in this

matter. Because the proofs were insufficient to warrant a plenary hearing, we

find no abuse of discretion by the trial judge. Hand, 391 N.J. Super. at 112.

Defendant failed to present a factual dispute or a material change in

circumstances for which a plenary hearing would be helpful in reaching

resolution. Fusco, 186 N.J. Super. at 329.

                                            IV.

      In his next point heading, defendant argues that the trial judge erred by

modifying parenting time absent a showing of changed circumstances. We have

considered his arguments in light of the record and controlling legal principles

and do not find them persuasive.

      "The Family Court possesses broad equitable powers to accomplish

substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000)

(citing Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988)). We

"accord great deference to discretionary decisions of Family Part judges." Milne

v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Donnelly v.


                                                                           A-1378-17T3
                                       11
Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)). Such discretion "takes

into account the law and the particular circumstances of the case before the

court." Ibid. (internal quotation marks omitted) (quoting Hand, 391 N.J. Super.

at 111). However, we will not defer to a family court's decision where the court

abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). "An

abuse of discretion 'arises when a decision is "made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis."'" Milne, 428 N.J. Super. at 197 (quoting Flagg v. Essex

Cty. Prosecutor, 171 N.J. 561, 571 (2002)). The family judge's legal decisions

are subject to this court's plenary review. Crespo v. Crespo, 395 N.J. Super.

190, 194 (App. Div. 2007).

      We find no error here. No prima facie showing was made that there was

a substantial change of circumstances, or anything material warranting

discovery or a plenary hearing.

                                              V.

      Turning to defendant's third point heading, Rule 1:7-4(a) clearly states

that a trial "court shall, by an opinion or memorandum decision, either written

or oral, find the facts and state its conclusions of law thereon . . . on every motion

decided by a written order that is appealable as of right . . . ." See Shulas v.


                                                                              A-1378-17T3
                                         12
Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate

explanation of basis for court's action).     "Meaningful appellate review is

inhibited unless the judge sets forth the reasons for his or her opinion." Strahan

v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch,

240 N.J. Super. 441, 443 (App. Div. 1990)). The failure to provide findings of

fact and conclusions of law "constitutes a disservice to the litigants, the

attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70

(1980) (quoting Kenwood Assocs. v. Board of Adjustment, 141 N.J. Super. 1, 4

(App. Div. 1976)).

      From our review of the record, we are satisfied that the judge made

adequate findings of fact. He assessed credibility by observing the parties'

demeanor and considering their testimony. Defendant failed to comply with

multiple prior court orders directing him on parenting issues, specifically being

present and not delegating his responsibilities to family members. Plaintiff

testified that defendant missed "four visits" between July 5 and October 4, 2017,

and he "was under narcotics for one visit." He was not present for pickups

according to plaintiff's testimony found credible by the judge.        Defendant

testified that his mother and sister were no longer available for exchanges and




                                                                          A-1378-17T3
                                       13
the location was changed to the Westampton Police Station for that reason, and

in his view, "there was no need for a third-party."

      In light of the minor change in parenting time made in eliminating

defendant's Wednesday overnights, we find appropriate findings were made by

the trial judge and no error.

                                       VI.

      In his brief, defendant argues that the trial judge failed to address

modification of child support in light of plaintiff's increased income that was

included in his motion for reconsideration. While defendant did not raise this

latter issue in a point heading to be argued in his brief as required by Rule 2:6-

2(1), we will address it.

      Child support is necessary to ensure that parents provide for the "basic

needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). A party

seeking modification of a child support obligation has the burden of

demonstrating a change in circumstances warranting an adjustment. Lepis v.

Lepis, 83 N.J. 139, 157 (1980). The decision must be made in accordance with

the Guidelines and the best interests of the child. See Caplan v. Caplan, 182

N.J. 250, 266 (2005). The trial court's discretion in determining the amount of

child support is limited by the foregoing principles and the Guidelines, which


                                                                          A-1378-17T3
                                       14
are designed to result in a fair allocation of the parental responsibility to provide

appropriate child support given the parents' resources. See Id. at 267-68.

      The parties are required to file updated matrimonial case information

statements in support of an application to modify child support. R. 5:5-4(a).

Defendant failed to do that, therefore, the issue is not properly before us.

Notwithstanding that deficiency, the judge stated on the record that "defendant

did not comply with my order of July 5th, 2017 to provide proof that Tayasha 5

was a student within [fourteen] days of that order." Relief was apparently given

to defendant without his providing the necessary documentation.

      Additionally, both parties have children from other relationships. The

Other Dependent Deduction (ODD) was apparently calculated for plaintiff but

not for defendant in reviewing the Child Support Guidelines Worksheet s

submitted in the appendices.

      The child support calculation cannot be viewed in a vacuum here.

Adjustments are appropriate for the support of other legal dependents when

addressing multiple family obligations. Child Support Guidelines, Pressler &




5
   Defendant's child from another relationship. The record indicates that she
attended Montclair State University.
                                                                             A-1378-17T3
                                        15
Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at P10(a) and

(b), www.gannlaw.com (2017). The issue has been decided by this court:

            The Guidelines require the court to consider multiple
            family obligations to obtain an equitable resolution that
            does not favor any family. The Guidelines also
            anticipate an adjustment when an obligor must support
            more than one family. Pursuant to the Guidelines, prior
            child support orders must be deducted from an obligor's
            weekly income because such an obligation "represents
            income that is not available for determining the current
            child support obligation . . . ." Thus, "the amount of
            such orders must deducted from the obligor's total
            weekly [a]djusted [g]ross [t]axable [i]ncome."

            [Harte v. Hand, 433 N.J. Super. 457, 462 (App. Div.
            2013) (citations omitted).]

      Defendant's application was never properly before the trial court for these

reasons, and therefore, we cannot reach this remaining issue on appeal. The

parties may file whatever applications they deem appropriate with the trial court

to address child support.

      Affirmed.




                                                                         A-1378-17T3
                                      16
