STATE OF NEW JERSEY VS. RENE RODRIGUEZ(05-11-1496, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2122-15T1
MARIEL MIRALLES FERRER,
Plaintiff-Respondent,
v.
JOSEPH DURKIN,
Defendant-Appellant.
______________________________
Argued March 16, 2017 – Decided April 10, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden
County, Docket No. FM-04-1464-13.
Michael J. Confusione argued the cause for
appellant (Hegge & Confusione, LLC,
attorneys; Mr. Confusione, on the brief).
Helen E. Casale argued the cause for
respondent (Hangley, Aronchick, Segal,
Pudlin & Schiller, attorneys; Ms. Casale, on
the brief).
PER CURIAM
Defendant Joseph Durkin appeals from a Family Part order of
December 16, 2015, entered after a plenary hearing, denying his
request to expand his parenting time. Because we conclude Judge
Shusted conscientiously applied the law to the parties'
circumstances as he found them after taking testimony, we
affirm. See Hand v. Hand, 391 N.J. Super. 102, 111-12 (App.
Div. 2007).
By way of brief background, defendant and plaintiff Mariel
Miralles Ferrer were married in 1999 and divorced fifteen years
later. They have two children, an eleven-year-old boy and a
nine-year-old girl. Although the parties agreed on a
fifty/fifty shared parenting schedule, embodied in an April 2,
2015 parenting plan order, they could not agree on a vacation
schedule or on defendant's contention that he should be allowed
a right of first refusal when plaintiff is not available to care
for the children during her parenting time. Accordingly, the
court conducted a hearing limited to those issues a few hours at
a time over the course of eight days. The court heard testimony
from three witnesses, both parties and plaintiff's mother.
Defendant's appeal is limited to the issue of whether he
should have been granted additional parenting time when
plaintiff was at work and not able to personally look after the
children during her parenting time. Accordingly, we limit our
discussion to that issue.
Following the divorce, defendant remained in the marital
home in Haddonfield and plaintiff moved two miles away to Cherry
2 A-2122-15T1
Hill. They now live within seven minutes of one another. The
children go to public school in Haddonfield.
Plaintiff is a charge nurse at the State's developmental
center in New Lisbon. She typically works weekdays from 7:00
a.m. to 3:30 p.m., leaving her home at 6:15 a.m. while the
children are still sleeping. Defendant owns a Mister Softee
franchise, which he largely manages from home. When plaintiff
is at work or otherwise unavailable to care for the children
during her parenting time, she relies on her parents or
defendant's sister to look after them. During the summer, she
enrolls the children in day camp. Defendant characterizes
himself as a stay-at-home dad. Because of his flexible work
schedule, he rarely needs to rely on anyone else to care for the
children during his parenting time. He admitted on cross-
examination, however, that he was likewise available to care for
the children during the marriage, yet the parties still sent the
children to daycare for the socialization benefits it provided.
A review of the record makes clear that the parties'
relationship is acrimonious. They pursued domestic violence
complaints against each other, which they dismissed in favor of
civil restraints on the entry of their parenting plan in April
2015. Although Judge Shusted found that both are good parents
and devoted to their children, they do not speak and could not
3 A-2122-15T1
agree on relatively minor scheduling issues. The judge found
the reason for that lay largely with defendant, who the judge
found "made no effort at compromise."
Indeed, the judge found the many days of hearings "was
completely driven by the defendant," who "attempted to turn [the
hearing] into a personal crusade to assassinate the character of
his ex-wife." The judge found defendant adopted a trial
strategy to shake plaintiff's composure and acted in an
"intimidating" manner towards her. The judge characterized
defendant's "demeanor in court . . . as interrupting and rude."
Judge Shusted found plaintiff "exasperat[ed] with the money she
had to spend, [and] the time she had to spend for the limited
issue being tried by this court, which was school breaks and
summer recess parenting time."
The judge found no support in the case law for
"[d]efendant's principal argument" of a "constitutional right as
biological father" to priority over "his in-laws or his own
sister" when plaintiff needed to turn to one of them to help her
care for the children during her parenting time. Applying the
best interests standard of N.J.S.A. 9:2-4c, the judge concluded
defendant "does not get extra time because he lives within a
short walking distance of the elementary school." Judge Shusted
found the inability of the parties to agree, communicate or
4 A-2122-15T1
cooperate regarding the children and, to a lesser extent, the
importance of the children maintaining a relationship with their
maternal grandparents, predominated over the other factors and
militated against the relief defendant sought.
On appeal, defendant concedes there is no precedent for the
right of first refusal he seeks. His argument is that the judge
misapplied the best interests standard and that it is in his
children's best interests to be with their father when their
mother is at work and unavailable to care for them. He contends
"[r]uling that plaintiff must have 'equal parenting time'
regardless of whether it was Mom, an in-law, a babysitter, or a
day camp did not sensibly apply the best interests standard to
the facts presented by this particular family."
Defendant's arguments that the judge did not "sensibly
apply" the best interests standard reduce to quarrels with the
judge's fact-finding which we are simply in no position to
reject. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We
cannot overturn the factual findings and legal conclusions of a
trial judge sitting in a non-jury case "unless we are convinced
that they are so manifestly unsupported by or inconsistent with
the competent, relevant and reasonably credible evidence as to
offend the interests of justice[.]" In re Trust Created By
Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276,
5 A-2122-15T1
284 (2008) (quoting Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 484 (1974)) (internal quotation marks
omitted). Deference is especially appropriate in a custody case
in which we are reliant on the Family Part's special expertise
and where "the evidence is largely testimonial and involves
questions of credibility." Cesare, supra, 154 N.J. at 412
(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997)).
Having reviewed the record, we cannot find that the judge
misapplied his discretion by refusing defendant's request that
plaintiff turn to him first when she was not personally
available to care for the children during her shared parenting
time. Such a "first refusal" arrangement depends on a very high
level of respect and mutual cooperation that these parties
simply do not possess. Imposing it here over plaintiff's
objection would likely worsen an already overly contentious co-
parenting arrangement.
After hearing the testimony and observing the witnesses,
Judge Shusted determined it was in the best interests of the
children that the parties' custody arrangement stay well-defined
but amenable to written agreement between them. He thereby
hoped to reduce the friction between them, while encouraging
them to cooperate as co-parents in the best interests of their
6 A-2122-15T1
children. Defendant has given us no reason to second-guess the
court's careful determinations made in this matter. See Hand,
supra, 391 N.J. Super. at 111-12.
Affirmed.
7 A-2122-15T1