JON LOWE VS. BRYANNA GRANT (FD-07-1961-15, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1407-18T1

JON LOWE,

Plaintiff-Appellant,

v.

BRYANNA GRANT,

Defendant-Respondent.
____________________________

Submitted September 16, 2019 – Decided October 11, 2019

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FD-07-1961-15.

Jon Lowe, appellant pro se.

Bryanna Grant, respondent pro se.

PER CURIAM
 In this child custody dispute on remand from the Supreme Court,1 we

granted plaintiff Jon Lowe leave to appeal from the Family Part's October 31,

2018 order transferring residential custody of his six-year-old child to

defendant Bryanna Grant, the child's mother. Previously, the parties agreed to

joint legal custody and that plaintiff would maintain residential custody of

their son until defendant was able to have the child live with her again. After a

dispute arose about whether defendant should resume residential custody, the

parties filed cross-motions, with plaintiff asking for sole custody and child

support, and defendant seeking to maintain joint legal custody but have

residential custody restored to her. After applying the statutory factors under

N.J.S.A. 9:2-4, the motion judge denied plaintiff's motion, granted defendant's

application, and established a parenting schedule for plaintiff. We affirm

substantially for the reasons expressed by the motion judge.

At the outset, we observe that our review of this matter has been

hampered by the parties' failure to comply with our rules and provide us with a

1
The Court reversed our denial of permission to file an emergent application
and directed that plaintiff be permitted to file a motion for leave to appeal and
for a stay. See Lowe v. Grant, S-32-18 (082033) (Nov. 15, 2018).

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complete record.2 We have cobbled together, from the limited record we

obtained, what we understand to be the facts.

The parties, who have never been married, have one child, a six-year-old

boy. After the child's birth, the parties lived together at various times, but at

some point, they separated with plaintiff eventually leaving New Jersey in

2016 to live in Pennsylvania.

After the parties separated, prior to any custody order being entered,

they shared residential custody of their son 3 until plaintiff moved and settled

into Pennsylvania. At that time, the parties agreed they would have joint legal

custody, with plaintiff having residential custody until defendant "got herself

together." Evidently, their agreement was incorporated into an August 6, 2016

2
See R. 2:5-3; R. 2:6-1; R. 2:6-2; R. 2:6-4; and R. 2:6-8. We have gleaned
much of the historical information from the court's recording of a May 30,
2018 hearing and from the motion judge's October 31, 2018 comments made
on the record about the earlier hearing. We were not provided with a copy of
the transcript from the earlier hearing, even though the motion judge referred
to that hearing in his October 31, 2018 oral decision. Significantly, we have
not been provided with an August 6, 2016 custody order, the home inspection
or "best interest" reports ordered by the judge in advance of the October 31,
2018 hearing, or any certifications filed by the parties or anyone else in
support of or in opposition to the parties' motions.
3
Defendant made this undisputed statement under oath on May 30, 2018.

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order. It was undisputed that the parties agreed, once defendant "got herself

together," that residential custody of the child would be restored to her.

During 2016 until 2018, the parties abided by the arrangement with

plaintiff living with his son in a house in Pennsylvania, where plaintiff's wife

and two other children also live. Evidently, plaintiff has a fourth child who

does not reside with him. Plaintiff's eldest daughter has health issues.

Additionally, plaintiff assists in caring for his mother and is himself on

disability leave from his job.

After plaintiff left New Jersey in 2016, defendant lived in Newark with

her mother, three sisters, and her sister's child. By October 31, 2018,

defendant was in a relationship with a man, who plaintiff did not want

involved in carrying out the parties' parenting schedule. Defendant also was

working at a retail store.

Beginning in early 2018, the parties experienced problems keeping to

their parenting time schedules. For instance, since plaintiff did not appreciate

defendant's boyfriend getting involved in the exchange of their child on

weekends, plaintiff required the custody exchange to occur in front of a police

officer.

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 Plaintiff filed his motion on April 20, 2018, for "Modification of Court

Order," in which we assume he requested that the August 6, 2016 order be

modified to grant him "full custody" and child support. Defendant filed her

cross-motion on May 22, 2018, seeking "sole physical custody, to relocate the

child back to New Jersey, and to enroll him in school."

While the motions were pending, plaintiff obtained an order to show

cause to enforce litigant's rights when defendant refused to return the child to

plaintiff because she had no car and plaintiff refused to accommodate her.4 A

Family Part judge "ordered that . . . defendant return [the child] to . . .

plaintiff," and set a May 30, 2018 return date.

On the return date, a different judge took testimony from the parties.

Afterward, the judge "ordered that joint legal custody should continue as had

previously been ordered," specifically "[t]hat [plaintiff] should continue to

have . . . residential custody" and that the parties go to mediation.

Upon the child's return to plaintiff, plaintiff insisted he could no longer

arrange for defendant's parenting time because he was assisting his mother

4
Plaintiff and defendant testified to this statement under oath on May 30,
2018.

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who had "major surgery." For that reason, defendant did not see her child

from May 30, 2018 until July 15, 2018.

On July 12, 2018, the mediator abruptly terminated the proceeding based

upon a misrepresentation made by plaintiff. When the mediation was

terminated, the parties returned to the motion judge, who ordered "a best

interest report and home inspection for both parties" to be conducted. The

judge also ordered that the parenting time should continue as previously

agreed to pending the matter's return and directed that each parties' "significant

other . . . shall not be present when the exchange takes place."

The parties appeared before the motion judge again on October 31, 2018,

for a hearing on their pending applications. Initially, the judge identified the

statutory factors for a court to consider when deciding custody under N.J.S.A.

9:2-4 and then proceeded to make detailed findings based upon the parties'

testimony from May 30, 2018, and the home inspection and "best interests"

reports. He later made specific credibility determinations, finding that

plaintiff was not credible and defendant was "truthful and not . . . self-

serving."

In discussing the statutory factors, the judge found, among other things,

the parties' lack of communication affected the ability of the parties to easily

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carry out their earlier custody arrangement. He also found there were no

safety concerns or issues with either party's willingness or ability to care for

their son or with any of the individuals with whom they lived.

Addressing "the quality and continuity of the child's education," the

judge found that both parties were able to provide their child with appropriate

education to effectively deal with his attention deficit and any other conditions

he may have. The judge acknowledged that while plaintiff had his son

enrolled in a Pennsylvania school, in which the child was following an

individualized education plan (IEP), he was satisfied that defendant could

arrange for the child's needs because she "worked or volunteered at [the

Newark] school, [so] she's aware that they do have the capacity at that school

to provide . . . for [her son's] educational needs."

The judge also addressed each party's fitness to parent and found no

issue with either of them. He also concluded that although defendant spent

less time with the child, each party "spent a significant amount of time" with

him.

The judge also addressed the parties' original custody arrangement and

found it was undisputed the parties had agreed their son's residential custody

was to be returned to defendant when she was able to care for the child. After

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considering the parties' testimony from their May 30, 2018 appearance and the

two reports he reviewed, the judge concluded that defendant "sorted her things

out" and "that she is -- for lack of a better phrase -- together," as "she ha[d] a

stable living situation" and "a stable work situation." According to the judge,

defendant had met her burden to establish that she could now care for her son

as contemplated by the parties' agreement.

At the conclusion of the hearing, the motion judge entered an order that

granted residential custody to defendant and denied plaintiff's motion for full

custody and child support. Plaintiff immediately filed an emergency petition

with the court in Pennsylvania for modification of the motion judge's order.

The Pennsylvania court acknowledged New Jersey's jurisdiction over the

matter and dismissed the motion. Thereafter, plaintiff attempted to seek an

order to stop the transfer of residential custody from the motion judge in this

case. However, the judge rejected the motion because he viewed the

application as non-emergent and instead, treated plaintiff's motion as one for

reconsideration that he planned to schedule at a later date. The judge rejected

plaintiff's request for a stay and, as already noted, we denied him permission to

file an emergent application with our court, which the Supreme Court reversed

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and remanded. We granted plaintiff's leave to appeal the October 31, 2018

order on November 28, 2018, and stayed the order pending appeal.

On appeal, plaintiff raises concerns about his son's primary residence

being changed to defendant's home in Newark. One of his concerns that

related to the child's "educational and mental growth" was raised before the

motion judge. According to defendant, the other concerns he now raises were

not raised before the motion judge. Those concerns relate to his son's safety,

the living conditions in Newark, the impact of his relocation on his

relationship with his siblings, and the motion judge's failure to consider the

progress the child made with his IEP in Pennsylvania.

When a party raises on appeal issues that were not raised before the trial

judge, we generally will not consider them on appeal. See Correa v. Grossi,

458 N.J. Super. 571, 576 n.2 (App. Div. 2019); State v. Robinson, 200 N.J. 1,

20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))

("[A]ppellate courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is

available unless the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest."). However, because we

conclude that the child's best interests are of a paramount concern, we have

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considered all of plaintiff's contentions and his proofs under our applicable

standard of review.

Our scope of review of Family Part judges' "fact-finding is limited."

Cesare v. Cesare, 154 N.J. 394, 411 (1998). We review a judge's decision on a

motion to change custody "for abuse of discretion, 'with deference to the

expertise of Family Part judges.'" Costa v. Costa, 440 N.J. Super. 1, 4 (App.

Div. 2015). "[I]n reviewing the factual findings and conclusions of a trial

judge, we are obliged to accord deference to the [judge's] credibility

determination[s] and the judge's 'feel of the case' based upon his or her

opportunity to see and hear the witnesses." N.J. Div. of Youth & Family

Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154

N.J. at 411-13). Such deference "will be disturbed only upon a showing that

the findings are 'manifestly unsupported by or inconsistent with the competent,

relevant[,] and reasonably credible evidence' to ensure there is no denial of

justice." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)

(quoting Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006)).

Given the deference afforded to the Family Part, we cannot discern an

abuse of discretion in the judge's determination that plaintiff failed to

demonstrate a change of circumstances sufficient to warrant a deviation from

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the parties' original custody and parenting time agreement. N.J.S.A. 9:2-4(d)

requires a "court [to] order any custody arrangement which is agreed to by

both parents unless it is contrary to the best interests of the child ." We give

considerable weight to parties' settlement agreements. See Petersen v.

Petersen, 85 N.J. 638, 642 (1981). The Supreme Court has cautioned that in a

court's consideration of agreements that address custody and parenting time,

"fair and definitive arrangements arrived at by mutual consent should not be

unnecessarily or lightly disturbed." Quinn v. Quinn, 225 N.J. 34, 44 (2016)

(quoting Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999)).

Before a court may consider a modification to a consensual agreement

on custody, the moving party must show "changed circumstances." R.K. v.

F.K., 437 N.J. Super. 58, 62 (App. Div. 2014) (quoting J.B. v. W.B., 215 N.J.

305, 327 (2013)); Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div.

2007) (quoting Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.

1958)). "If the party makes [this initial] showing, that 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, 440 N.J. Super. at 4 (quoting R.K., 437 N.J.

Super. at 62-63).

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 In evaluating whether the requisite changed circumstances exist, the

court must consider the circumstances that existed at the time the original

custody order was entered. Sheehan, 51 N.J. Super. at 287-88. The court can

then "ascertain what motivated the original judgment and determine whether

there has been any change in circumstances." Id. at 288. The court must also

analyze the child's best interests, which are controlling "no matter what the

parties have agreed to." P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div.

1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div.

1997)).

Applying these guiding principles here, we conclude that the motion

judge correctly determined that the parties' original custody arrangement was

not adverse to the child's best interest and that plaintiff failed to demonstrate a

substantial change in circumstances that would warrant the abandonment of the

original agreement. While we recognize that plaintiff proceeded without

representation, once defendant established she was able to care for her son,

plaintiff was obligated to come forward with evidence beyond his unsupported

allegations that circumstances had changed to such a degree that the original

arrangement was no longer viable. The motion judge concluded that plaintiff

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failed to so, and we agree substantially for the reasons expressed by the judge

in his oral decision.

Affirmed.

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