B.A. VS. A.S. (FM-07-0223-15, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3654-19
B.A.,1
Plaintiff-Appellant,
v.
A.S.,
Defendant-Respondent.
________________________
Submitted October 14, 2021 – Decided November 19, 2021
Before Judges Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-0223-15.
Sekou Law Group LLC, attorneys for appellant
(Torkwase Y. Sekou, on the brief).
Advokat & Rosenberg, attorneys for respondent
(Jeffrey M. Advokat, on the brief).
1
We use initials to protect the identities of the parties given the domestic-
violence allegations and discussion of parenting-time plans. R. 1:38-3(d)(10),
(13).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff appeals an April 17,
2020 order implementing "on a monitored and gradual basis" a parenting plan
in which the parties share joint legal and physical custody of their then nine-
year-old son. Because the family-division judge did not abuse his discretion in
issuing that order, we affirm.
The parties were legally married in 2013, separated in 2014, and divorced
in 2016. A February 9, 2016 amended dual judgment of divorce incorporated
their property settlement agreement (PSA), which gave the parties joint legal
custody of their son, with plaintiff having parenting time from Thursday until
Tuesday one week and Thursday until Friday the next week, plus alternating
holidays and school vacations and two weeks each summer.
On December 24, 2018, plaintiff filed a motion for sole custody of the
parties' son. Defendant cross-moved, seeking to amend plaintiff's parenting time
and have it supervised. On January 4, 2019, plaintiff filed a domestic-violence
complaint against defendant, alleging she had been harassing and stalking him
and threatening his family members. He testified defendant had harassed,
stalked, and hit their son. A judge issued a temporary restraining order (TRO)
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prohibiting defendant from having contact with plaintiff and their son and gave
plaintiff temporary custody of their son.
Three days later, plaintiff filed an order-to-show-cause application,
seeking, among other things, an order directing defendant to give plaintiff their
son's passport. The judge who had been handling the parties' matrimonial action
heard that application and ordered defendant to deposit the passport with the
court.
Approximately three weeks later, defendant filed an order-to-show-cause
application in the matrimonial action after she learned plaintiff, without telling
her, had enrolled their son in a school in a different district. During the hearing
on that application, plaintiff, in an apparent effort to explain his actions,
testified: "this case is not the case that it was three years ago or even one year
ago or even six months ago."
The judge found plaintiff had "secretly" removed the parties' son from his
current school system for a "clearly . . . disingenuous" reason and had "sent
[him] to an undisclosed location" and in doing so had not acted in the child's
best interest. The judge stated plaintiff had indicated he was the minor's only
living parent when he enrolled him in the new school. Holding the child could
be irreparably harmed by being removed from his school and detached from his
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mother, the judge granted defendant temporary sole legal and residential custody
of the minor and barred plaintiff from having any contact with him until further
order of the court. The judge issued an amended TRO, leaving in place the
restraints as to plaintiff and memorializing her award of temporary custody to
defendant. Plaintiff subsequently sought, and the court granted, dismissal of the
TRO.
The day after the dismissal of plaintiff's TRO, defendant obtained a TRO
against plaintiff and filed an order-to-show-cause application. The judge issued
an order continuing defendant's temporary "sole legal and residential custody"
of the parties' son, the suspension of plaintiff's parenting time, and the bar to
plaintiff contacting their son until further order of the court. In a subsequent
consent order, defendant agreed to dismiss the TRO against plaintiff. On the
return date of the custody motions, the judge reserved on plaintiff's application
for sole custody and defendant's application to change plaintiff's parenting time;
appointed an expert to prepare a best-interest report; and scheduled a plenary
hearing. The judge also ordered that plaintiff would have supervised parenting
time in the interim.
After the court-appointed expert submitted the best-interest report, the
judge then handling the matrimonial matter sent a copy of the report to counsel.
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He asked counsel to advise him if counsel (1) wanted to conduct discovery
pursuant to Rule 5:3-3(f); and (2) were in agreement as to the opinions and
recommendations set forth in the report. If they were in agreement, he would
not conduct a plenary hearing on the custody motions. If they were not in
agreement, he would conduct a plenary hearing. Counsel for defendant
responded, stating he did not wish to conduct discovery and obtain a report from
another expert. Counsel for plaintiff responded, stating she did not want further
delay and requested an immediate date to end the dispute. The judge understood
from that letter that plaintiff did not wish to conduct discovery or obtain a report
from another expert.
At an April 17, 2020 hearing, the judge confirmed with both counsel the
parties did not intend to conduct discovery or submit another expert report. The
judge asked plaintiff's counsel if plaintiff wanted a hearing during which the
parties could cross-examine the court-appointed expert. Plaintiff's counsel
initially advised the judge plaintiff did not want a hearing and then asked if she
could have time to confer with her client. After the judge had granted her request
and after she had spoken multiple times with plaintiff, plaintiff's counsel advised
the judge, "I consulted with my client; you can go forward . . . without the cross-
examination . . . ." Defendant's counsel confirmed defendant also was waiving
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her right to cross-examine the court-appointed expert. The judge scheduled oral
argument on the pending motions to take place that afternoon.
At oral argument, the judge again confirmed each party had waived their
rights to conduct discovery, submit a report from another expert, and cross-
examine the court-appointed expert and that, with those waivers, the court-
appointed expert's report would be the only evidence considered by the judge.
Counsel did not object. The judge then gave counsel the opportunity to argue
the motions. In her presentation, plaintiff's counsel advised the judge she
"agree[d] with the evaluation." In his presentation, defense counsel advised the
judge he also agreed to the adoption of the expert's recommendations.
After noting, without objection, "both parents agree that this report says
it all," and after making detailed factual findings based on information contained
in the report, the judge agreed with the expert's recommendation that it was in
the minor's best interest for the parties to share legal and physical custody and
that "this be implemented in a monitored and graduating manner" so the parties
could "learn[] how to work with one another for the best interest of the child."
The judge ordered the retention of a parenting coordinator and adopted the
recommendations that "there needs to be a psychotherapeutic intervention as a
prerequisite to a more equitable parenting plan" and that "a graduated and
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monitored parenting plan be implemented by the parenting coordinator,
ultimately terminating in the [restoration] of [plaintiff's] parenting time, and
contingent upon complying." That day, the judge issued a written order
memorializing his directives.
Plaintiff appeals from that order, arguing:
I. THE TRIAL COURT ERRED IN NOT KEEPING
AN ACCURATE RECORD OF ITS PROCEEDINGS
AS NUMEROUS TRANSCRIPTS AND CD
RECORDINGS OF THE HEARINGS ARE MISSING
OR INCOMPLETE.
II. THE TRIAL COURT ERRED IN HOLDING A
TELEPHONIC HEARING APRIL 17, 2020, WHEN
PLAINTIFF HAD NO KNOWLEDGE THAT THE
DEFENDANT WAS NOT PRESENT AND SWORN
IN, NOR SERVED WITH NOTICE OF THE
HEARING.
III. THE TRIAL COURT ERRED IN RELYING
SOLEY ON THE PSYCHOLOGIST'S REPORT TO
MAKE ITS RULING.
IV. THE TRIAL COURT ERRED IN NOT MAKING
AN INDEPENDENT ASSESSMENT OF THE FACTS,
WHEN THE CASE WAS TRANSFERRED FROM
THE PREVIOUS TRIAL COURT JUDGE AFTER
PLAINTIFF MADE A MOTION FOR RECUSAL OF
SAID JUDGE.
V. THE TRIAL COURT ERRED BY CONTINUING
THE RESTRAINTS ON THE PLAINTIFF'S
PARENTING TIME UNTIL PLAINTIFF
COMPLETED THERAPY SESSIONS WITH THE
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CHILD IN THE ABSENCE OF ANY FINDINGS
WARRANTING SUCH RESTRICTIONS.
VI. ON REMAND, THIS MATTER SHOULD BE
HEARD BY A DIFFERENT JUDGE
We find insufficient merit in plaintiff's arguments to warrant discussion
in a written opinion, R. 2:11-3(e)(1)(E), and add only the following brief
comments.
In this appeal, plaintiff faults the judge for "relying solely on the
psychologist's report" and for not taking testimony from the parties and asserts
plaintiff "did not agree, nor did [c]ounsel waive any rights." That bald assertion
is contradicted by the record. The judge gave the parties an opportunity to
conduct discovery, submit a report from another expert or other evidence, and
cross-examine the court-appointed expert. Plaintiff's counsel advised the judge
in writing before the April 17, 2020 hearing that she did not want further delay.
At the hearing, the judge confirmed the parties did not want to conduct discovery
or submit other expert reports and plaintiff's counsel, after conferring with
plaintiff, stated on the record the judge could proceed without cross-examination
of the court-appointed expert. When the judge confirmed the agreed-upon
procedure – no discovery, no other reports or evidence, and no cross-
examination, leaving the court-appointed expert's report as the only evidence
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before the judge – plaintiff's counsel did not object. In fact, she stated her
agreement with the report during oral argument.
Recognizing "[a]ppellate review of a trial court's findings in a custody
dispute is limited," W.M. v. D.G., 467 N.J. Super. 216, 229 (App. Div. 2021),
we see no error in the judge's reliance on the court-appointed expert's report or
in his order requiring the implementation of a parenting plan on a "monitored
and gradual basis," which was supported by the expert's report.
Affirmed.
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