BRANDY KISSOONDATH VS. SASHA KISSOONDATH (FM-06-96-12, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-4837-14T1
    BRANDY KISSOONDATH,
    n/k/a BRANDY DIGGS,
    Plaintiff-Respondent,
    v.
    SASHA KISSOONDATH,
    Defendant-Appellant.
    Submitted April 26, 2017 – Decided May 10, 2017
    Before Judge        Carroll,     Gooden     Brown    and
    Farrington.
    On appeal from the Superior Court of New
    Jersey, Chancery Division, Family Part,
    Cumberland County, Docket No. FM-06-96-12.
    Law Office of Robert J. O'Donnell, P.C.,
    attorneys for appellant (Robert J. O'Donnell,
    on the brief).
    Adinolfi & Packman, P.A., attorneys for
    respondent (Julie Burick, of counsel and on
    the brief; Kevin Murphy, on the brief).
    PER CURIAM
    The parties' 2001 marriage produced three children and ended
    with the entry of a November 28, 2012 judgment of divorce (JOD).
    The JOD incorporated a handwritten stipulation of settlement that
    the parties agreed to as their divorce trial was commencing.                On
    January 2, 2013, an amended JOD was entered that incorporated the
    final, typed version of the parties' settlement agreement.
    Among its other provisions, the JOD awarded the parties joint
    legal custody of the children.        Plaintiff Brandy Kissoondath was
    designated   parent   of    primary   residence,   and   defendant     Sasha
    Kissoondath was designated parent of alternate residence.                 The
    JOD, as amended, also provided:
    [] Based upon the distance between the
    parties' residences of approximately one
    hour's drive time, [] defendant, Sasha
    Kissoondath, shall have parenting time on a
    two-week rotating schedule as follows:
    Week #1: Friday at 6:00 p.m. to
    Monday (drop off at school).
    Week #2: Friday at 6:00 p.m. to
    Saturday at 2:00 p.m.
    . . . .
    [] The parties shall equally share summer
    school recess on an alternating one-week
    on/one-week off basis provided each party may
    take a two (2) week vacation on [sixty] days'
    advance written notice to the other via email.
    Despite their settlement, the parties have engaged in further
    disputes regarding the judgment's implementation.            The present
    appeal represents the latest chapter in what the motion judge
    characterized   as    the    parties'     "significant",   "protracted",
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    "substantial", and "acrimonious" litigation, a description with
    which the parties readily concur.
    In    this   appeal,   defendant   seeks   our   review    of   certain
    provisions of an April 17, 2015 post-judgment order entered by
    Judge Harold U. Johnson, Jr.     Judge Johnson was well familiar with
    the parties, having presided over their divorce proceedings and
    several    post-judgment    applications.       The   order    in    question
    consists of nineteen pages and memorializes the judge's findings
    of fact and conclusions of law with respect to each of the combined
    twenty-six reliefs sought by the parties.
    Pertinent to this appeal, the trial court denied defendant's
    request to obtain the children's passports to take them on a Disney
    cruise that would travel to different parts of the Caribbean
    islands.   The court's decision was partly based on the acrimonious
    dynamic between the parties and the concern that defendant would
    use the trip as a pretext to abscond with the children to Trinidad,
    where he was born and had family, or another foreign country.                 A
    year earlier, the court denied defendant's request to take the
    children to Trinidad, predicated on plaintiff's concerns about
    available medical care in Trinidad as well as the flight risk.
    The judge indicated that, while he "rarely denies children an
    opportunity to enjoy a 'Disney experience,'" he was "regrettably"
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    compelled to deny defendant's application because of "the facts,
    circumstances[,] and history that exists here."
    The court also denied defendant's request to modify the
    parenting time schedule for lack of a substantial change in
    circumstances      affecting   the       welfare      of   the    children.
    Specifically, the court denied defendant's request to add to his
    parenting time by picking up the children each Wednesday after
    school and then returning them to school on Thursday morning.            The
    court determined that it would be unduly disruptive and burdensome
    for the children to commute to accommodate a weekday overnight.
    However, the court permitted defendant to pick up the children
    from school at 3:00 p.m. on Fridays with plaintiff's consent, and
    also permitted defendant to keep the children until 6:00 p.m. on
    those Saturdays when plaintiff is scheduled for parenting time but
    works until 6:00 p.m.
    The court also denied defendant's request that he be allowed
    to keep the children with him when plaintiff is away overnight.
    Plaintiff   acknowledged   that   she    left   the    children   with   her
    boyfriend with whom she resides while she went away for a week on
    a business trip.    Reiterating a prior ruling, the court determined
    that plaintiff had the discretion to choose who to leave the
    children with when required to travel for work during her parenting
    time.   However, the court ordered that defendant be given the
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    option to take the children when plaintiff is required to travel
    for work for a period longer than five days. Defendant now appeals
    these three rulings.
    We    provide         substantial       deference       to    the    Family     Part's
    findings of fact because of its special expertise in family
    matters.      Cesare v. Cesare, 
    154 N.J. 394
    , 411-12 (1998).                            Thus,
    "[a]    reviewing            court     should        uphold    the     factual      findings
    undergirding the trial court's decision if they are supported by
    adequate,     substantial             and    credible       evidence   on    the    record."
    MacKinnon v. MacKinnon, 
    191 N.J. 240
    , 253-54 (2007) (quoting N.J.
    Div.    of   Youth       &       Family     Servs.    v.    M.M.,    
    189 N.J. 261
    ,   279
    (2007))(alteration in original).                      While no special deference is
    accorded to the judge's legal conclusions, Manalapan Realty v.
    Manalapan Twp. Comm., 
    140 N.J. 366
    , 378 (1995), we "'should not
    disturb the factual findings and legal conclusions of the trial
    judge    unless      .       .    .   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'
    or when we determine the court has palpably abused its discretion."
    Parish v. Parish, 412 N.J. Super., 39, 47 (App. Div. 2010) (quoting
    
    Cesare, supra
    , 154 N.J. at 412).                     "We reverse only to 'ensure that
    there is not a denial of justice' because the family court's
    'conclusions are [] "clearly mistaken" or "wide of the mark."'"
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    Id. at 48
    (quoting N.J. Div. of Youth & Family Servs. v. E.P., 
    196 N.J. 88
    , 104 (2008)) (alteration in original).
    Generally,    when    courts    are    confronted   with   disputes
    concerning custody or parenting time, the court's primary concern
    is the best interests of the child.        See Sacharow v. Sacharow, 
    177 N.J. 62
    , 80 (2003); Wilke v. Culp, 
    196 N.J. Super. 487
    , 497 (App.
    Div. 1984), certif. denied, 
    99 N.J. 243
    (1985).          The court must
    consider "what will 'protect the safety, happiness, physical,
    mental and moral welfare of the child.'" Mastropole v. Mastropole,
    
    181 N.J. Super. 130
    , 136 (App. Div. 1981) (quoting Beck v. Beck,
    
    86 N.J. 480
    , 497 (1981)) (internal quotation marks omitted).            "A
    judgment, whether reached by consent or adjudication, embodies a
    best interests determination."      Todd v. Sheridan, 
    268 N.J. Super. 387
    , 398 (App. Div. 1993).          When a parent seeks to modify a
    parenting time schedule that parent "must bear the threshold burden
    of showing changed circumstances which would affect the welfare
    of the [child]."   
    Ibid. Before us, defendant
    argues that the trial court failed to
    adequately consider the best interests of the children in denying
    his requests to take the children outside the country on a Disney
    cruise, for increased parenting time, and to take the children
    when plaintiff is away overnight for work.            Defendant further
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    asserts that the motion judge was mistaken in his analysis of the
    underlying facts and law, thus resulting in an abuse of discretion.
    We have considered defendant's arguments in light of the
    record and the applicable legal principles and conclude they lack
    sufficient    merit   to   warrant   further   discussion   in   a   written
    opinion.     R. 2:11-3(e)(1)(E).      When defendant filed this motion
    in March 2015, Judge Johnson was abundantly familiar with the
    parties, the arguments they had previously raised, and those they
    continued to advance.        We affirm substantially for the reasons
    embodied in the judge's April 17, 2015 order, which are consistent
    with the law and adequately supported by the record.
    Affirmed.
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