Fitton v. Elmasry, 012121 NJSUP, A-1360-19T3

Docket NºA-1360-19T3
Opinion JudgePER CURIAM
Party NameLISA FITTON, Plaintiff-Respondent, v. GEORGE ELMASRY, Defendant-Appellant.
AttorneyGeorge Elmasry, appellant pro se. Cores & Associates, LLC, attorneys for respondent (Amy Sara Cores, on the brief).
Judge PanelBefore Judges Fasciale and Mayer.
Case DateJanuary 21, 2021
CourtSuperior Court of New Jersey

LISA FITTON, Plaintiff-Respondent,

v.

GEORGE ELMASRY, Defendant-Appellant.

No. A-1360-19T3

Superior Court of New Jersey, Appellate Division

January 21, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2021

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0553-11.

George Elmasry, appellant pro se.

Cores & Associates, LLC, attorneys for respondent (Amy Sara Cores, on the brief).

Before Judges Fasciale and Mayer.

PER CURIAM

Defendant appeals from a September 13, 2019 order denying his motion to modify the custody arrangement for the parties' son Adam1; and a November 1, 2019 order denying reconsideration. Defendant argues the judge abused his discretion in entering both orders. We disagree and affirm.

The parties married in December 1994 and have two children together: Adam and Neil. They separated and eventually divorced in July 2014. The parties entered into a Dual Agreement of Divorce, which incorporated the parties' Marital Settlement Agreement (MSA). Adam is twenty-one years old and is diagnosed with autism, attention deficit hyperactivity disorder, obsessive-compulsive disorder, and an anxiety disorder. He presents with physically aggressive tendencies which sometimes become violent. In May 2018, a judge determined that Adam was legally incapacitated and appointed plaintiff as Adam's guardian. Defendant has custody of Neil and currently lives in California with him, his second wife, and their child.

Pursuant to the MSA, which the parties entered into knowingly and voluntarily, defendant and plaintiff shared custody of both children, but plaintiff had sole and exclusive authority to make all medical and educational decisions pertaining to Adam. The parties acknowledged in the MSA that when Adam reached the age of twenty-one, they "[would] work together to move [Adam] to live in a state residence as an adult permanently." Plaintiff agreed to register with the Department of Developmental Disabilities for the "priority list" to assist in finding Adam a suitable permanent placement in a state facility.

On appeal, defendant raises the following points for this court's consideration:

POINT I

[THE MOTION JUDGE] DID NOT UNDERSTAND THE CASE DETA[I]LS WHEN HE RULED[.]

POINT II

THE CASE BOUNCED BETWEEN COURTS IN A THEATRICAL MANNER[.]

POINT III

THE BEST INTEREST OF [ADAM] WAS NOT CONSIDERED[.]

POINT IV

THE PLAINTIFF IS LYING[.]

POINT V

CASE LAW[.]

In his reply brief, defendant raises additional points for this court's consideration, which we have renumbered:

[POINT VI]

[THE MOTION JUDGE] ACTED WITH IGNORANCE[.]

[POINT VII]

HEARSAY IS NOT EVIDENCE[.]

[POINT VIII]

THE MORAL [NON]-EQUIVALENCE BETWEEN THE PLAINTIFF AND [DEFENDANT.]

[POINT IX]

PROBATE COURT DECIDED [ADAM'S] LONG TERM RESIDENCY[.]

[POINT X]

[DEFENDANT] NEV[E]R GAVE[] UP . . . [HIS] PARENTAL RIGHTS.

[POINT XI]

[DEFENDANT] HA[S] THE FIRST RIGHT TO [HIS] OWN CHILD OVER THE STATE.

[POINT XII]

THE PLAINTIFF VIOLATED ALL AGREEMENTS.

[POINT XIII]

HEARSAY DOES NOT REPLACE COURT APPOINTED EXPERT OPINION.

We affirm substantially for the reasons expressed by the motion judge. We add these brief remarks.

We review a motion judge's denial of a modification of child custody for abuse of discretion. Hand v. Hand, 391 N.J.Super. 102, 111-12 (App. Div. 2007). In custody determinations, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). This inquiry focuses on the "'safety, happiness, physical, mental and moral welfare' of the child[]." Hand, 391 N.J.Super. at 105 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). Our Supreme Court has set forth "the proper procedure for [judges] to follow on modification motions." Lepis v. Lepis, 83 N.J. 139, 157 (1980); see R.K. v. F.K., 437 N.J.Super. 58, 62 (App. Div. 2014) (noting that "[t]he Lepis two-step process procedure applies to changes in child custody"). "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[]." Hand, 391 N.J.Super. at 105. The motion judge may then conduct a...

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