MEDWIN SOTO VS. ICO POLYMERS NORTH AMERICA(L-0467-10, HUNTERDON 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NOT FOR PUBLICATION WITHOUT THE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-3885-14T1
J.E.,
Plaintiff-Respondent,
v.
J.E.,
Defendant-Appellant.
_______________________________
Argued November 15, 2016 – Decided May 4, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-869-07.
John R. Nachlinger argued the cause for
appellant (Previte & Nachlinger, P.C.,
attorneys; Mr. Nachlinger, on the briefs).
Benjamin P. De Sena argued the cause for
respondent (De Sena & Petro, attorneys; Mr.
De Sena, on the brief).
PER CURIAM
Defendant J.E. (Jesse)1 appeals a February 25, 2015 order of
the Family Division that denied his request to transfer his child
to the Upper Saddle River (USR) school system, and an April 6,
2015 order that required him to pay part of the attorney's fees
incurred by plaintiff J.E. (Joy) in opposing the requested
transfer. We affirm the order denying the transfer, but reverse
the order for attorney's fees and remand that issue to the Family
Part.
Jesse and Joy were married in 1998, and had one child, Randy,
who was born in 2002. They divorced on May 29, 2007, after
executing a comprehensive property settlement agreement (PSA).
Under the PSA, the parties agreed to joint legal and physical
custody of Randy with parenting time that was equally divided.
Neither parent was designated the parent of primary residence.
Regarding Randy's education, Article VI, paragraph 7, of the
PSA provided that:
The parties shall confer and agree upon the
school system into which the child shall be
enrolled, either Bogota or Ridgefield Park,
based upon the choices afforded by the
parties' respective residences. The agreement
shall be based upon the better school system
for the child, and the child's best interests.
Should either party choose to move from either
of those towns, the child's "residence" for
purposes of determining the child's school
1We have used initials and fictitious names to protect the privacy
of the child who is involved in this matter.
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system shall be reevaluated and subject to
further conference and agreement between the
parties. Should the parties fail to agree,
the matter shall be referred to mediation. If
mediation is unsuccessful, the matter shall
be referred to the court upon the application
of either party.
After the parties divorced, Randy attended elementary school
in the Ridgefield Park school system. In the early grades, Randy
did well, but by sixth grade there was a noticeable decline in his
grades, particularly in the areas of science and civics. In the
past, Randy had achieved higher grades in math and science than
in the language arts, but in sixth grade, even his grade in science
had dropped.
Jesse remarried and in December 2013 moved to USR because of
the school system, which he believed to be superior to the schools
in Ridgefield Park. When the parties could not agree on whether
Randy should attend Cavallini Middle School (Cavallini) in USR or
continue attending school in Ridgefield Park, and after mediation
failed to resolve the dispute, Jesse filed a post-judgment motion
in July 2014 seeking an order requiring Randy's transfer to the
USR school system.2 At that time, Randy was in seventh grade at
the Ridgefield Park Jr./Sr. High School (Ridgefield Park).
2The motion also requested reimbursement of certain expenses, but
because those issues are not part of the appeal, we have omitted
them from our opinion.
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A plenary hearing was conducted. Dr. Eileen Kohutis, a
psychologist retained by Jesse, testified that moving Randy to
Cavallini would "increase his motivation," as "[t]he school work
would challenge him more." Dr. Kohutis testified about a number
of stresses in Randy's life, and that he had an "emotional
attachment" to Ridgefield Park. She observed that Randy was shy,
but opined he would be able to maintain the friends he had
developed at Ridgefield Park, despite the distance between the two
towns.
Jesse testified that Randy was not being challenged at
Ridgefield Park, and that Randy needed to "work up to his
potential," as he was not making enough of an effort. He denied
Randy had trouble making friends or difficulty with change. Jesse
wanted to move Randy to another school to motivate him.
Joy testified that Randy was being challenged at Ridgefield
Park, where he was "extremely happy." She saw no compelling reason
to transfer Randy to another school.
Dr. Jonathan Mack, a psychologist retained by Joy, testified
that Randy's best interest was to continue school attendance at
Ridgefield Park. He performed a number of psychological tests on
the child and his parents. His conclusion was that Randy was "a
sensitive child, easily pressured." Randy "[did] not respond well
to pressure, [did] not respond well to a lot of push to be
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competitive." He did not "handle[] conflict well" and
"internalizes it." Dr. Mack testified that if "you put this kid
under too much competitive pressure, you're going to have a
meltdown." Dr. Mack reported the child had somatic complaints
such as "nightmares, dizziness, tired, aches, headaches, eye
problems, skin problems and stomach problems." If transferred to
"a more difficult, demanding, competitive school district," Randy
may show "worsening performance under pressure, increased
psychosomatic reactivity, increased sleep disruption, and
increased tendency to be overweight due to eating over stress."
Jesse's application to transfer Randy's school enrollment to
Cavallini was denied. In its written opinion, the Family Part
judge found Jesse's expert witness, Dr. Kohutis, "did not supply
much useful information based on her area of expertise." The
court noted Dr. Kohutis's conclusion that a transfer to Cavallini
was in Randy's best interest failed to address whether there would
be "a psychological impact" on Randy if he were transferred to
Cavallini and then did not do well academically. Dr. Kohutis also
failed to consider the impact on Randy's self-esteem if he changed
schools and performed poorly.
The court found that both schools would "provide
extracurricular and educational activities which will meet the
needs of the child." Both would be "welcoming" and both would
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"afford [Randy] an opportunity to unfold his talents both
academically and musically," although Ridgefield Park offered more
"cultural diversity." The court found that the "continuity of
school, teachers, friends and acquaintances" provided
"compensation for the fractionalization of [the child's] time[,]"
referencing the parents "50/50" shared parenting time arrangement.
The court found that "[p]eer relationships are very important,"
as well as "the continuity of friends and the emotional attachment
to school and the community," in "stimulating the overall growth
of the child." The court concluded that it was in Randy's "best
interest to remain as a student in Ridgefield Park."
Both parties requested payment of their attorney and expert
fees. The court clarified at trial that it would address their
fee requests at a later date. In her written summation, Joy's
counsel "await[ed] advice from the court" about her request for
fees because the court had indicated during the hearing that
"evidence pertaining to such would not be admitted into evidence
at this time." Jesse's written summation asked for fees because
he contended Joy acted in bad faith by not settling the case. He
objected to any payment of her attorney's fees because Joy's mother
had paid them, not Joy. He noted, as he had at trial, that his
counsel and expert fees were paid for largely by credit cards.
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By letter on March 30, 2015, Joy's counsel submitted a
certification from Joy addressing attorney fees. In the
submission, she explained the disparity of the parties' income,
that Jesse had proceeded in bad faith, and submitted copies of
fee certifications from her counsel, which were not in evidence
at the trial. She attached a copy of Jesse's deed and mortgage
for his new home in USR, which also were not in evidence.
On April 6, 2015, in an oral decision, the trial court ordered
Jesse to pay $34,512 in attorney's fees to Joy, which was a portion
of the amount she claimed in her March 30, 2015 submission. The
court reviewed Rule 5:3-5(c), finding that Joy had less ability
than Jesse to pay fees because of her income, that she had borrowed
money from her mother to pay for them, and that she was the
prevailing party. Jesse did not show good faith because he had
tried to dissuade Joy's mother from continuing to fund the
litigation. The court stated it had no information from Jesse
about his expert or attorney's fees.
Two days later, Jesse's counsel advised the court by letter
that he had been preparing a response to the March 30, 2015 letter,
which would have apprised the court of the new information that
Jesse "lost his job in January, exhausted his savings, maxed out
his credit cards, and had no ability to pay counsel fees.
Moreover, his wife recently gave birth to twins and is not
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working." He requested the opportunity to respond. Counsel for
Joy opposed this request, but the issue was not further addressed
by the court.
Jesse appeals, claiming the Family Part judge erred in
determining Randy should continue attendance at Ridgefield Park.
He asserts the court should have assessed the quality of the two
school systems and selected whichever one was better. He contends
the court erred by raising the concept of fractionalization at
trial and then relying on that concept in its decision. Further,
Jesse challenged the award of attorney's fees, claiming the court
violated due process and misapplied its discretion because he did
not have the opportunity to oppose Joy's request for fees. If
there is a remand, he requests assignment to a different judge
because of alleged bias by this judge.
I.
"[W]e accord great deference to discretionary decisions of
Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012), in recognition "of the family courts' special
jurisdiction and expertise in family matters." N.J. Div. of Youth
& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting
Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a] trial
court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special
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deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014)
(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
In cases where the child's joint custodians cannot agree on
the choice of school, the issue is resolved by ascertaining the
best interest of the child. In Levine v. Levine, 322 N.J. Super.
558, 565 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000), the
parents shared physical and legal custody of their child but could
not agree where the child would attend school. After a plenary
hearing, the court ordered a transfer. There, "[w]e question[ed]
the wisdom of a Family Part judge engaging in a comparative
evaluation of public school districts based on" empirical data.
Id. at 567.
In the context of the best interests of a
child, any evaluation of a school district is
inherently subjective. Just as a student
cannot be summed up by IQ, verbal skills or
mathematical aptitude, a school is more than
its teacher-student ratio or State ranking.
The age of its buildings, the number of
computers or books in its library and the size
of its gymnasium are not determinative of the
best interest of an individual child during
his or her school years. Equally, if not more
important, are peer relationships, the
continuity of friends and an emotional
attachment to school and community that will
hopefully stimulate intelligence and growth to
expand opportunity.
[Ibid.]
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We are satisfied the conclusion of the Family Part judge
here, that transfer was not in the child's best interest, was
consistent with our guidance in Levine and supported by "adequate,
substantial and credible evidence" in the record. See Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
The parties' PSA did not require the Family Part judge to
determine which school system offered a better education. Although
marital settlement agreements "which are fair and just" are
enforceable in equity, see Petersen v. Petersen, 85 N.J. 638, 642
(1981), the parties' PSA expressly required consideration of
Randy's best interest. The court followed our guidance in Levine
that cases such as this are about more than the schools themselves,
and that the best interest of the child is the paramount concern.
The Family Part judge had ample evidence to support the
finding that Randy's best interest was not served by a transfer.
Dr. Mack testified that Randy had self-esteem issues, did not make
friends easily, was weak in listening skills and did not respond
well to pressure, competition or conflict. Dr. Mack testified
that Randy could "meltdown" if subjected to too much competitive
pressure, and that his transfer to USR would be "counterproductive"
and will "set him backwards." The child told Dr. Mack that he was
suffering from somatic complaints such as dizziness, lack of sleep
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and headaches. Dr. Mack testified increased competition would
exacerbate these symptoms.
The trial court did not err in discounting the testimony of
Jesse's expert because Dr. Kohutis had not addressed many of these
concerns. She had not conducted psychological testing. She had
not considered what might happen to Randy's self-esteem, nor any
other consequences for Randy should there be an academic decline
at Cavallini. Indeed, her opinion that transfer was warranted was
based on her conclusion from Randy's grades that Ridgefield Park
was not motivating Randy.
Jesse claims error because during the trial, the court asked
Dr. Mack about "fractionalization," which was its reference to the
parties' equal parenting time. The trial judge is permitted to,
"on his own initiative and within his sound discretion, interrogate
witnesses for the purpose of eliciting facts material to the
trial." State v. Riley, 28 N.J. 188, 200 (1958), cert. denied and
appeal dismissed, 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832
(1959); see also State v. Guido, 40 N.J. 191, 207-08 (1963). We
see no error by the trial judge in making this inquiry,
particularly given the testimony by both experts about Randy's
level of stress.
We disagree with Jesse's contention the Family Part judge was
biased. The record of the trial showed no bias whatsoever. Bias
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is not manifested merely because the court decides against the
position of one of the parties. See Strahan v. Strahan, 402 N.J.
Super. 298, 318 (App. Div. 2008) ("Bias cannot be inferred from
adverse rulings against a party.")
II.
Jesse appeals the trial court's April 6, 2015 order that
required him to pay $34,512 toward Joy's attorney's fees. The
assessment of attorney's fees is an issue left to the sound
discretion of the trial court. Tannen v. Tannen, 416 N.J. Super.
248, 285 (App. Div. 2010), aff'd, 208 N.J. 409 (2011). It is
reviewed under an abuse of discretion standard. Strahan, supra,
402 N.J. at 317 (citing Rendine v. Pantzer, 141 N.J. 292, 317
(1995)).
Although the court appropriately considered the factors under
Rule 5:3-5(c), it appears that Jesse did not have the opportunity
to respond to the March 30, 2015 submission by Joy before the
court's decision was made. He advised the court he had new
information about his ability to pay and wanted the opportunity
to respond to new documents that were not part of the evidence at
trial.3 Because of that, we are constrained to reverse the
3 The March 30, 2015 submission by Joy included the deed and
mortgage of Jesse's home in USR, as well as certifications of
services from her counsel.
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attorney fee award. On remand, Jesse should be afforded an
opportunity to respond to the March 30, 2015 submission. The
court also may permit the parties to update their case information
statements. If there is an award, the court should explain how
it reached that amount.
We affirm the February 25, 2015 order that denied Jesse's
request to transfer the child's school to USR. We reverse the
April 6, 2015 order that awarded attorney's fees and remand that
issue to the Family Part for further proceedings consistent with
this opinion. We do not retain jurisdiction.
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