D.D. VS. T.L. (FM-05-0243-13, CAPE MAY COUNTY AND STATEWIDE) ( 2021 )


Menu:
  •                                 NOT FOR PUBLICATION WITHOUT THE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-3181-19
    D.D.,
    Plaintiff-Appellant,
    v.
    T.L. (f/k/a T.D.),
    Defendant-Respondent.1
    Argued October 13, 2021 – Decided November 23, 2021
    Before Judges Currier and DeAlmeida.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Cape May County,
    Docket No. FM-05-0243-13.
    Ronald G. Lieberman argued the cause for appellant
    (Adinolfi, Lieberman, Burick, Falkenstein, Roberto and
    Molotsky, PA, attorneys; Ronald G. Lieberman, of
    counsel and on the briefs).
    Jane Molt argued the cause for respondent (Coalition
    Against Rape & Abuse Law Project, attorneys; Jane
    Molt, on the brief).
    1
    We use initials and pseudonyms to protect the parties' and minors' privacy.
    PER CURIAM
    In this post-judgment matrimonial appeal, plaintiff challenges the trial
    court's decision denying his request to modify defendant's parenting time and
    transfer residential custody of the minor child, Logan, to him. He contends the
    trial court abused its discretion in: (1) denying his request to modify parenting
    time; (2) holding him responsible for paying $10,000 towards defendant's
    counsel fees and holding him solely responsible for paying the guardian ad litem
    (GAL) fees; and (3) granting defendant's crossclaim to modify parenting time.
    Defendant also requests this court set standards for trial judges to follow when
    conducting child interviews. We affirm.
    I.
    The parties divorced in 2013 after seven years of marriage. At the time,
    Logan was five years old. Under their Marital Settlement Agreement (MSA),
    the parties shared legal and residential custody of their son.        Plaintiff had
    parenting time on Thursdays after school until 10:00 a.m. on Sundays.
    Defendant had parenting time from 10:00 a.m. Sunday until Thursday morning.
    The parents also alternated parenting time on Wednesday nights.
    In 2018, plaintiff filed a motion seeking to: (1) transfer residential custody
    of Logan to himself; (2) modify defendant's parenting time to no longer allow
    A-3181-19
    2
    overnights; (3) require that defendant's parenting time occur outside the
    presence of defendant's husband and her husband's son; (4) register Logan in
    plaintiff's school district; (5) direct the parties to share transportation of Logan;
    and (6) terminate plaintiff's child support obligation. Defendant filed a cross
    motion seeking, among other things, a modification of parenting time, a request
    that the child's activities take place in her neighborhood, and for a recalculation
    of child support.
    Although a different Family Part judge initially presided over the matter,
    the ultimate hearing was conducted by Judge Benjamin Podolnick over five days
    between September and December 2019. Plaintiff presented himself, his current
    wife, a counselor from a program which focused on witnesses or victims of
    domestic violence, an elementary school counselor, and defendant's current
    husband as his witnesses. Defendant testified on her own behalf. The judge
    also interviewed Logan in camera.
    Plaintiff described his residence as a four bedroom, two-and-a-half-bath
    home situated on 3/4 acres of land. He discussed family vacations and his
    second home located in Cape May County. Initially, plaintiff lived in the Cape
    May home which was only fifteen to twenty minutes from defendant's residence.
    However, he has since moved to his current residence, located approximately an
    A-3181-19
    3
    hour away from defendant. He has a nineteen-year-old son from a prior marriage
    and a child with his current wife. He is employed as a sergeant with the New
    Jersey State Park Police.
    Plaintiff testified that he sought a change of custody because of certain
    incidents regarding defendant and her husband, as well as events that took place
    in defendant's home while her stepson was living there. Plaintiff admitted he
    unilaterally signed Logan up for a soccer league that played games in his town
    on Sundays. He conceded he was aware the soccer games interfered with
    defendant's parenting time.
    Defendant's husband, Mark, testified that he and defendant have two
    children together and they experience financial issues from time to time. He also
    has a son, Larry, who is the same age as Logan. Mark advised that Larry suffers
    from several mental health issues, specifically attention deficit hyperactivity
    disorder, oppositional defiant disorder, disruptive mood dysregulation disorder,
    and bipolar disorder, for which he takes medication. Mark has had full custody
    of Larry since he was four years old and he described the treatment the child has
    undergone,    including     counseling,   in-home   therapy,   and   periods    of
    hospitalization.
    According to Mark, Logan was aware of Larry's mental health issues, but
    A-3181-19
    4
    he stated the boys played together, and there were no issues between them. He
    stated that Logan was not afraid of Larry.
    A catalyst to plaintiff's motion was an event that occurred at defendant's
    home in November 2017. Mark explained that Larry was having an emotional
    episode and was trying to jump out of the second story window of his bedroom .
    Mark pulled Larry out of the window multiple times, locked, and blocked the
    window, and "smacked" him on his butt. He stated Logan was downstairs in the
    living room when this incident occurred and heard what was happening. Mark
    reported the incident to Larry's therapist, who in turn reported it to the Division
    of Child Protection and Permanency (DCPP). He stated DCPP implemented a
    safety plan under which he was not allowed to be alone with the children, but
    neither he nor the children were removed from the home. Mark also completed
    parenting classes where he learned different methods to handle Larry.
    Larry voluntarily left Mark's home in November 2018 to live with his
    mother. Mark stated that Larry does return to Mark's home to visit and stay
    overnight, but there had been no further incidents and the children "got along
    fine."
    After plaintiff learned of the incident involving Larry, either from
    defendant or DCPP, he thought Logan was behaving differently and he enrolled
    A-3181-19
    5
    Logan in a program for domestic violence victims and witnesses. He did not
    inform defendant he was doing this nor did he seek her consent. Logan attended
    the program from April to August 2018. The counselor from the program stated
    the intake risk assessment revealed Logan was a witness to domestic violence
    but he did not meet the criteria required for a diagnosis of post-traumatic stress
    disorder. As part of the program, Logan created a safety plan to use as a coping
    mechanism if he were to witness Larry and Mark arguing.
    The counselor stated that after Logan completed the program, she did not
    think he needed any further support. However, plaintiff and his wife wanted
    Logan to continue with counseling and so the counselor recommended a second
    program.
    Defendant also testified, stating she worked several jobs and lives in a
    rented home with Mark, Logan, and a younger child. She advised the court there
    were times she was behind in paying rent and on her bills. In discussing the
    issues with Larry, defendant acknowledged the challenges the family faced
    regarding his disabilities, however, she said he and Logan had a good
    relationship.
    In addressing the November 2017 incident, defendant said Logan was
    "impacted" by the events but she did not observe any changes in his behavior
    A-3181-19
    6
    afterwards. When asked about Logan attending counseling, defendant admitted
    she was "mad" because plaintiff did not inform her about it. She only learned
    Logan was attending counseling from her attorney. She did not want Logan
    attending the program and she asked her attorney to request the counselling stop
    because DCPP informed her it was not necessary, and she was upset that she did
    not have any input despite the parties' joint legal custody arrangement.
    In discussing soccer, defendant testified she encouraged Logan to play but
    admitted that she "resented" the fact that the games occurred during her Sunday
    parenting time because it was not close to her home. The soccer schedule for
    the team plaintiff chose limited the activities defendant wanted to do with
    Logan, such as throwing parties for him or having him attend activities with his
    friends in her neighborhood. She explained she told plaintiff to stop scheduling
    Logan for activities during her parenting time and there was a travel soccer team
    Logan could play on in her neighborhood. Her main contention was that she did
    not have a full weekend day with Logan under the existing parenting time
    schedule and that plaintiff had further limited that time with the soccer league
    he had unilaterally chosen.
    A-3181-19
    7
    The court also conducted an in camera interview with Logan. At the time,
    Logan was eleven years old and in the sixth grade. He said he liked school and
    enjoyed playing soccer.
    Logan said that when he was at plaintiff's house, he had a lot of friends in
    the neighborhood, including his best friend, and was comfortable staying there.
    He got along with plaintiff's wife and plaintiff's eighteen-year-old son.
    Logan said when he was at defendant's house, he also had a lot of friends
    and was comfortable staying there. He stated that when Larry lived at the house
    there was more yelling and it was calmer since Larry had moved to his mother's
    house. He also said he got along well with Mark and described a recent outing.
    When asked about his living arrangements, Logan said he liked the current
    plan and was happy. He did not want to change his school to the one in plaintiff's
    area, stating he had "a ton of friends" at his current school.
    In describing the interview, Judge Podolnick noted that Logan "presented
    as a well-adjusted preteen," was "pleasant and cooperative," although he seemed
    "bored" with the whole interview. The judge also found "it was apparent that
    [Logan] was not being coached although he was certainly aware that he was the
    subject of a custody dispute between his parents."
    A-3181-19
    8
    II.
    On March 4, 2020, Judge Podolnick issued a comprehensive, well-
    reasoned written decision and accompanying order denying plaintiff's
    application for a change of custody and granting defendant's request for a
    revised parenting schedule – to allow defendant parenting time including at least
    one full weekend per month. The judge also awarded defendant $10,000 in
    attorney's fees and ordered plaintiff to pay the guardian ad litem's (GAL) fees
    of $3725.
    In assessing the parties' credibility, Judge Podolnick found plaintiff
    attempted to "mislead" the court which affected his credibility. When presented
    with information, the judge found plaintiff "cherry picked data" and only
    testified to the information that benefitted him, ignoring the contradictory
    information. The court concluded "that [p]laintiff attempted [to] purposely
    ignore relevant evidence and hope[d] that such information would not be
    brought out on cross examination. In the court's view, this had a detrimental
    effect on [p]laintiff's credibility as a witness."
    The judge further observed that "[p]laintiff was surprisingly emotionless
    while testifying and had a rather flat demeanor," considering the emotionally
    charged issues. However, the judge found plaintiff provided straightforward
    A-3181-19
    9
    responses and did not embellish his answers. The judge also commented that
    "[i]n short, [p]laintiff testified that his home is nicer and a better f[i]t for Logan
    than [d]efendant's home."
    In addressing the issue whether the parties had discussed the litigation
    with Logan in contravention of the court's order, the judge found plaintiff's
    testimony contradicted that given by his wife. He stated, "[w]hile this is not a
    major nor dispositive point in this litigation, it certainly calls into question
    [p]laintiff's candor with the court as it was clear he was afraid that admitting he
    had discussed the litigation with Logan would somehow have hurt his claims."
    In considering Mark's testimony, Judge Podolnick found he was a credible
    witness.   The court observed that Mark made good eye contact, "did not
    embellish his version of events nor did he down-play their serious nature; and
    he was straightforward when addressing his family's financial troubles."
    The judge also acknowledged the challenges Mark encountered in raising
    Larry, specifically stating "[t]here [was] no question that [Mark], [d]efendant,
    and their family, sought help in dealing with a child who has serious mental
    health issues." As to the November 2017 incident, the judge stated that
    [w]hile physical abuse will never be condoned by this
    court, the court can certainly understand the witness's
    reaction to an emotionally charged situation. [Mark's]
    son was trying to jump out of a second story window.
    A-3181-19
    10
    In the heat of that moment, [Mark] acted
    instantaneously to stop [Larry] from jumping. His
    reaction was visceral and done with the intent to protect
    [Larry] from hurting himself. While it is easy to second
    guess [Mark's] actions, there is certainly a reasonable
    explanation for what happened.
    Judge Podolnick also found defendant credible. He stated she was candid
    and honest throughout her testimony, and in addressing the incidents plaintiff
    presented regarding school and soccer. The court noted defendant's candor
    regarding her frustration with plaintiff, particularly with his unilateral decision
    to schedule Logan for soccer during her parenting time.
    In his thorough decision, Judge Podolnick considered whether there were
    changed circumstances and analyzed each factor as required under N.J.S.A. 9:2-
    4(c). He concluded that:
    (1) [p]laintiff has drastically failed to meet his burden
    under Terry v. Terry, 
    270 N.J. Super. 105
     (App. Div.
    1994), Beck v. Beck, 
    86 N.J. 480
     (1981), Mastropole v.
    Mastropol[e], 181 N.J. Super[.] 130 (1981); (2) it [was
    in] Logan's best interest to remain in his current school
    district; (3) [p]laintiff attempted to mislead this court
    through a portion of his testimony and that such
    testimony was elicited in bad faith; (4) [p]laintiff
    purposely violated the terms and conditions of the
    parties' agreed upon Final Judgment of Divorce and
    Settlement Agreement by scheduling Logan for
    activities during [d]efendant's parenting time; (5)
    initially [p]laintiff filed this litigation in good faith but
    continued the litigation in bad faith when he had no
    evidence that Logan suffered significant trauma, that
    A-3181-19
    11
    the [DCPP] cases were either dismissed or found to be
    "not established," when the criminal charges against
    [Mark] were outright dismissed by the prosecutor and
    because he continued to go forward with this litigation
    despite [Larry] leaving the home. Plaintiff also failed
    to present any evidence whatsoever that there were any
    detrimental activities occurring in [d]efendant's home
    after [Larry] left the home; (6) [p]laintiff exaggerated
    the alleged effects on Logan resulting from [Larry's]
    episodes and those alleged effects were unsupported by
    any expert testimony, or any quantifiable data or
    testing; (7) the various incidents         identified by
    [p]laintiff for which he claims prove that [d]efendant is
    a bad parent do not collectively support a change in
    custody; and (8) [p]laintiff engaged Logan in
    counseling without consulting [d]efendant despite the
    joint custodial arrangement.
    Therefore, the judge denied plaintiff's application to designate him the
    parent of primary residence and to change Logan's school district.              In
    considering defendant's request to modify parenting time, the court found she
    established a change of circumstances when plaintiff moved to his principal
    residence located an hour away from defendant's home. Therefore, the judge
    ordered the parties to participate in mediation to establish a new parenting time
    schedule that included defendant having Logan at least one full weekend per
    month.
    The judge also considered both parties' requests for counsel fees. After
    considering the required factors under Rule 5:3-5(c), the court granted defendant
    A-3181-19
    12
    $10,000 in fees and denied plaintiff's motion. The judge also ordered plaintiff
    to pay the GAL fees totaling $3725.
    III.
    On appeal, plaintiff asserts the court erred in denying his request for a
    change in custody and granting defendant's request for a change of parenting
    time. Plaintiff also challenges the award of counsel fees to defendant and the
    order requiring him to pay the GAL fees.
    A.
    A party seeking a modification of custody must show a change in
    circumstances. Bisbing v. Bisbing, 
    230 N.J. 309
    , 322 (2017). The changed
    circumstances standard applies to all modification requests, including those
    seeking an increase or decrease in parenting time. Finamore v. Aronson, 
    382 N.J. Super. 514
    , 522 (App. Div. 2006).
    In addition, N.J.S.A. 9:2-4(c) requires a trial court to consider fourteen
    enumerated factors when considering an award or change of custody. Under the
    statute, the court must make a record of its reasons for its custody decision and
    "must reference the pertinent statutory criteria with some specificity . . . ."
    Kinsella v. Kinsella, 
    150 N.J. 276
    , 317 (1997) (quoting Terry, 
    270 N.J. Super. at 119
    ).   The court must not lose sight of the "primary and overarching
    A-3181-19
    13
    consideration" of what is in the best interests of the child. 
    Ibid.
     As the Kinsella
    court stated, "[t]he best-interest analysis is an additional requirement
    'superimposed upon an analysis of the statutory scheme'" and one which requires
    that the court consider all material evidence which has bearing on the custody
    decision. 
    Ibid.
     (quoting Terry, 
    270 N.J. Super. at 119
    ).
    We will not disturb the factual findings and legal conclusions of a trial
    court unless we are convinced "they are so manifestly unsupported by or
    inconsistent with the competent, relevant and reasonably credible evidence as to
    offend the interests of justice." Cesare v. Cesare, 
    154 N.J. 394
    , 412 (1998)
    (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co., 
    65 N.J. 474
    , 484 (1974)).
    This deference is considered especially appropriate in cases where "the evidence
    is largely testimonial and involves questions of credibility." 
    Ibid.
     (quoting In re
    Return of Weapons to J.W.D., 
    149 N.J. 108
    , 117 (1997)).
    As stated, the trial court meticulously addressed the statutory best interest
    factors and after analyzing the factors, focused on whether plaintiff
    demonstrated changed circumstances to warrant a change of custody.
    Thereafter, the court concluded that plaintiff had failed to meet his burden to
    support any change to the existing custody agreement.
    A-3181-19
    14
    The court also found plaintiff was misleading in his testimony and acted
    in bad faith in pursuing the litigation. In addition, the court noted it was plaintiff
    who violated the terms of the parties' settlement agreement and judgment of
    divorce by committing Logan to activities during defendant's parenting time and
    enrolling the child into a counselling program without consulting def endant.
    However, the judge did find a change of circumstances pertinent to the
    parties' parenting time as a result of plaintiff's move to a residence an hour away
    from his prior location and from defendant's home. Therefore, the parties were
    ordered to participate in mediation to establish a new parenting schedule to
    include defendant having at least one full weekend a month with Logan.
    Our review of the record refutes plaintiff's contention that the judge's
    findings regarding the statutory factors were not supported by the evidence. To
    the contrary, the court made detailed findings, referring to the evidence
    presented during the hearing.         The court also made specific credibility
    assessments.    Any further arguments regarding the judge's findings lack
    sufficient merit to warrant further discussion in a written opinion. R. 2:11-
    3(e)(1)(E).
    B.
    A-3181-19
    15
    As stated, plaintiff also challenges the court's finding that his move to a
    residence an hour away from defendant constituted a change of circumstances
    requiring a modification of the parenting time schedule. Although plaintiff
    acknowledges defendant requested the parenting time modification in her
    crossclaim, he states she subsequently abandoned the claim.               We are
    unconvinced.
    The entire trial was about parenting time. Defendant discussed her desire
    for weekend parenting time during her testimony. In his written decision, the
    court found the relocation "significantly alter[ed] the basis upon which the
    original parenting time agreement was negotiated." In addressing plaintiff's
    appellate contentions, the trial judge stated in his Rule 2:5-1(b) amplification of
    reasons that plaintiff's assertion that defendant abandoned the claim was a "total
    mischaracterization." The court pointed out that defendant again addressed the
    issue in her written closing submissions, requesting "either additional parenting
    time or a different parenting time schedule." We discern no error in the court's
    ruling finding a change in circumstances and referring the parties to mediation. 2
    2
    During oral argument, counsel advised this court that the parties were
    unsuccessful at mediation in reaching an agreement regarding a new parenting
    time. Therefore, if the parties continue at an impasse, the trial court will
    establish a parenting time schedule to include at least one full weekend each
    month for defendant.
    A-3181-19
    16
    C.
    We turn to the award of fees. The court ordered plaintiff to pay the
    outstanding GAL fees and awarded defendant $10,000 in attorney's fees.
    An award of attorney's fees in matrimonial matters is discretionary.
    Slutsky v. Slutsky, 
    451 N.J. Super. 332
    , 365 (App. Div. 2017) (citing Packard-
    Bamberger & Co. v. Collier, 
    167 N.J. 427
    , 444 (2001)). Under Rule 4:42-9(b)
    and Rule 5:3-5(d), counsel must submit an affidavit of services that addresses
    the factors listed in RPC 1.5(a) and itemizes disbursements for which
    reimbursement is sought. The Family Part court must also consider the Rule
    5:3-5(c) factors. A "fee award is accorded substantial deference and will be
    disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, 
    329 N.J. Super. 447
    , 466 (App. Div. 2000).
    Here, Judge Podolnick carefully considered the statutory factors and
    stated which he found relevant and why. He concluded the factors weighed in
    favor of an award of fees to defendant. The judge also reviewed the submitted
    certification of services and found defense counsel's hourly rate to be reasonable
    for the geographical location. Although counsel requested $32,680, the court
    only awarded $10,000. The court did not award defendant any fees incurred
    with work done on the first trial.
    A-3181-19
    17
    In his amplification, the judge reiterated the reasons for the award of fees
    to defendant: "Plaintiff's bad faith in pursuing the litigation; Plaintiff's
    mischaracterization of evidence during the trial, thereby attempting to mislead
    the trial court; the parties' ability to pay; and the end result of the litigation ."
    We are satisfied the judge did not abuse his discretion in the award of counsel
    fees.
    We also review the order requiring plaintiff to pay the GAL fees for an
    abuse of discretion. D.H. v. D.K., 
    251 N.J. Super. 558
    , 565-66 (App. Div. 1991).
    Rule 5:8B(d) requires the GAL to "submit a certification of services at the
    conclusion of the matter, on notice to the parties, who will thereafter be afforded
    the right to respond prior to the court fixing the final fee."
    At the start of the first trial, an issue arose whether the therapy program
    counselor's testimony regarding Logan's testimony was privileged and whether
    the parents, who agreed to allow the testimony, could waive the privilege. The
    issue was not resolved, and the trial was not completed. The issue then arose
    again before Judge Podolnick on the first day of trial before him. The judge was
    perturbed that neither party had informed him prior to the start of trial of the
    unresolved issue and he determined that the parties' conflicting positions
    required the appointment of a GAL.
    A-3181-19
    18
    When the judge appointed the GAL, he initially stated that both parties
    would be equally responsible for her fees.         However, when ruling on the
    privilege issue, the court found the payment and allocation of the GAL's fees
    would be determined after she submitted her certification of services. As stated,
    the GAL did submit the required certification and the judge found her fees were
    reasonable and necessary.
    In directing plaintiff to pay the guardian's fees, the court noted that,
    despite plaintiff knowing the privilege issue was unresolved and that it involved
    his first witness, plaintiff failed to notify the court in advance and thus the court
    "was compelled to appoint a [GAL] to represent Logan to address the privilege
    issue."
    The GAL was only appointed for the limited purpose of addressing the
    privilege issue. The counselor was plaintiff's first witness and her testimony
    was offered to support his claim for a change in custody. We discern no abuse
    of discretion in the court's order directing plaintiff to pay the GAL fees.
    D.
    Lastly, plaintiff requests this court to set standards for trial courts to
    consider and adhere to when conducting an in camera child interview. We
    decline to do so.
    A-3181-19
    19
    In the first instance, plaintiff did not raise this issue before the trial court.
    In addition, there is already a structure in place: Rule 5:8-6 – regarding the
    procedure to follow when conducting an in camera interview of a child. Judge
    Podolnick complied with that rule. Plaintiff submitted questions to the court
    that he desired be asked of his son. The parties were provided with a transcript
    of the interview.
    On appeal, plaintiff asserts the court did not ask all of the questions he
    wanted. In his amplification, the judge stated he "found many of the questions
    posed by [p]laintiff's counsel were irrelevant and redundant." The judge advised
    he "was well aware and acquainted with the material issues in dispute and
    focused the in camera child interview on those particular issues." The judge
    noted he "was able to gain sufficient insight into the minor child's feelings, his
    residential situation, his relationship with all relevant parties, as well as his
    thoughts and desires through the numerous questions posed by the trial court
    during the . . . interview."
    The judge explained that he took "into consideration that a certain degree
    of trust and mutual respect between the court and a child is more likely to elicit
    a genuine and reliable response from a child during a[n] . . . interview." We are
    satisfied Judge Podolnick conducted an appropriate, insightful, and thorough
    A-3181-19
    20
    interview of the child. He elicited the information he needed to reach his
    decision on the parties' applications without causing any collateral damage to
    the child. As a court rule already governs an in camera child interview, we
    decline the invitation to take any further action.
    Affirmed.
    A-3181-19
    21