N.M. VS. J.M. (FM-15-1431-13, OCEAN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0068-18T3
N.M.,
Plaintiff-Appellant,
v.
J.M.,1
Defendant-Respondent.
_________________________
Submitted November 12, 2019 – Decided April 17, 2020
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-1431-13.
Adinolfi, Molotsky, Burick & Falkenstein PA,
attorneys for appellant (Julie Roberson Burick, of
counsel and on the briefs; Kevin A. Falkenstein, on the
briefs).
Pavliv & Rihacek, LLC, attorneys for respondent (John
T. Rihacek, of counsel and on the brief).
1
To protect the identities of the parties' children, we refer to the parties by their
initials and to the children as the daughter and the son throughout this opinion.
PER CURIAM
Plaintiff N.M. appeals from paragraph two of a July 26, 2018 order, which
provides that she and defendant J.M. shall continue to have joint legal custody
of their two minor children. This matter has a long and tortured history that
ultimately led to a plenary hearing to determine, among other things, whether
plaintiff should have sole legal custody of the parties' children. After hearing
testimony from the parties and their children, the judge found that there was "no
reasonable prospect within the foreseeable future that the parties will be able to
agree, communicate and cooperate," and the parties failed to appreciate that this
issue negatively impacted their children. The judge applied the appropriate
statutory factors and concluded that based on the law, joint custody appeared to
be "totally inappropriate." Yet, he ordered that the parties continue to have joint
custody because he worried that awarding plaintiff sole custody would further
erode defendant's relationship with the children.
On appeal, plaintiff argues that the order for joint legal custody is not
supported by the judge's findings. We agree. Accordingly, we reverse
paragraph two of the July 26, 2018 order and remand to the Family Part for entry
of an order awarding plaintiff sole legal custody of the parties' children.
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2
We discern the following facts from the record. During the parties'
marriage, they had two children: a daughter, born in 2003, and a son, born in
2007. In January 2011, the parties were divorced in the State of Nevada. The
divorce decree recognized the parties' intent to relocate to the State of New
Jersey. Plaintiff was permitted to immediately move to New Jersey with the
children, and defendant planned to follow. If defendant failed to relocate,
plaintiff would become the children's primary physical custodian. The divorce
decree further revealed the parties' intent to share "equal or close to equal
[parenting] time . . . with the children."
Ultimately, plaintiff permanently relocated to New Jersey but defendant
did not. According to defendant, he moved to New Jersey in February 2011 and
shared a home with a friend, but he returned to Nevada during the summer of
2012 to work on his Nevada property, although he still kept his New Jersey
home. Therefore, under the terms of the divorce decree, plaintiff became the
primary physical custodian, and on September 25, 2012, the Eighth Judicial
District of the State of Nevada entered a stipulation and order to that effect. The
order also detailed defendant's parenting time schedule and addressed matters
related to communication between the parties and their children and the care and
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3
support of their children. Less than a year later, New Jersey assumed
jurisdiction over the matter.
Throughout 2014 and 2015, the Family Part entered numerous orders
addressing defendant's parenting time, which included placing limitations on it.
For example, the parties' daughter was not allowed to stay overnight at
defendant's New Jersey home, and certain individuals were not permitted to be
around when defendant had parenting time with the children. In addition,
defendant was not permitted to use marijuana, even for medical purposes, for a
specified period of time before his parenting time with the children.
Accordingly, he was required to undergo hair follicle testing before and after his
parenting time.
On September 11, 2015, a judge issued an order setting forth a telephonic
communication schedule for defendant and the children, allowing fifteen-minute
phone calls, three days a week and ordering plaintiff to record the conversations.
The judge also instructed both parties to refrain from discussing the litigation
with their children and making negative comments to the children about the
other parent.
On October 21, 2015, the judge issued two more orders. The first order
provided additional instructions about defendant's parenting time and hair
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4
follicle testing. The judge also restricted defendant from being present in
plaintiff's neighborhood, other than during scheduled parenting time. The
second order further addressed defendant's parenting time schedule, requiring
that parenting time be supervised by defendant's girlfriend, and it directed
defendant to cease making negative and inappropriate comments to the children
about plaintiff or risk termination of joint legal custody. The judge also
appointed a guardian ad litem (the guardian) to "review the matter with regard
to parenting time and issues between the parties." On March 21, 2016, the
guardian submitted his report to the judge after interviewing the parties, the
children, plaintiff's husband, and the daughter's therapist.
On June 28, 2016, the judge entered another order addressing defendant's
parenting time. Defendant, while not in compliance with prior orders, was
permitted parenting time at that time because he was in New Jersey. The judge
again ordered defendant to cease speaking about plaintiff with the chi ldren or
risk suspension of parenting time. The judge further ordered defendant to notify
plaintiff of any medical issues with the children that arose during his parenting
time and reminded him to refrain from using alcohol or drugs during his
parenting time.
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In December 2016, the parties' daughter suffered a breakdown and was
involuntarily committed an inpatient facility called the Carrier Clinic, pursuant
to court order. The need for a court order arose because defendant would not
consent to the daughter's commitment. Within a week, plaintiff was granted
authorization to make medical decisions for the daughter. Regarding visitation
at the hospital, both parties were ordered to comply with the treating physicians'
recommendations.
The following January, defendant's parenting time with both children was
suspended. In May 2017, a different judge maintained that this suspension was
proper, after defendant's hair follicle tests produced "exceptionally high" results.
The judge also set a schedule for defendant to Skype with the children three days
a week.
On July 17, 2017, plaintiff moved for sole legal custody. The parties again
appeared before a different judge, who denied plaintiff's motion, as a plenary
hearing was necessary to consider the children's best interests.
On October 23, 2017, the judge entered an order providing for continued
suspension of defendant's parenting time after he appeared at the daughter's
school, prompting a police response to the daughter's school and a lockdown at
both children's schools.
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In February 2018, plaintiff again moved for sole legal custody of the
children. A plenary hearing was held before a new judge on March 12, May 29,
July 16, July 17, and July 26, 2018. The judge heard testimony from plaintiff,
defendant, and the daughter's counselor, and he conducted an in camera
interview of the parties' children. The judge did not allow the guardian to testify,
although he did read the guardian's report.
Plaintiff testified that after the parties' divorce, she remarried and had a
third child with her husband. She has been a stay-at-home mom for years and
spends her days caring for the children and supporting the household, by getting
the children ready for school and extracurricular activities, preparing meals,
cleaning the house, and helping with homework, among other things. When the
children have misbehaved, she admitted to yelling at them and taking away
privileges, such as technology. Overall, she testified, both children are healthy
and doing well academically.
Because plaintiff felt that she was "the only one that has taken . . .
responsibility," and she has been "the foundation for [the children]," being
awarded sole custody would be best for the children. However, she believed
that allowing defendant parenting time would be beneficial. Further, such an
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arrangement would be best because everything is "a fight" with defendant, and
he "refuses to put the children first."
Plaintiff identified various instances where the children returned to her in
need of medical attention that defendant failed to seek. For example, in August
2010, the daughter returned to plaintiff in need of treatment for a staph infection,
and in November 2011, she returned to plaintiff with a broken toe. In the spring
of 2016, while the children were visiting defendant in Nevada, the son returned
to plaintiff with a sinus infection and infection in his genitals. According to
plaintiff, during this visit, the daughter told her that the son was sick, so plaintiff
texted defendant, telling him that the son needed medical care. However,
defendant blamed plaintiff for the son's infection and decided that seeking
medical care was unnecessary.
Similarly, with respect to the daughter's breakdown during December
2016, defendant refused to consent to the daughter's commitment to the Carrier
Clinic. In late December, the daughter told plaintiff that she planned to run
away to Mississippi to be with a person named Ryker, whom she had met on the
Internet. Plaintiff immediately called PerformCare, a state agency that assists
families with children in distress, and they recommended that plaintiff take the
daughter to the psychiatric emergency services unit at Community Medical
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Center. There, a nurse advised plaintiff that the daughter needed to transfer to
an inpatient facility, and when plaintiff informed defendant, he would not
consent. Plaintiff testified that a transcript of the daughter's phone conversation
with defendant about Ryker, while she was committed, showed that defendant
hinted to the daughter that if she lived with defendant, the rules would be
different. Plaintiff also stated that while defendant was visiting the daughter at
the Carrier Clinic, she and defendant discussed the Ryker situation, and
defendant suggested that plaintiff call Ryker.
Plaintiff also testified that defendant often failed to ensure that the
children felt safe under his care. For example, in the summer of 2014, after the
children returned from visiting defendant in Nevada, the son told her that
another child pinned him to the ground, put a dirty sock in his mouth, and tried
to wrap him in duct tape. According to plaintiff, when she reported this to
defendant, he "didn't believe or just disregarded it as if it didn't happen." Later
that month, while the children were spending time at defendant's New Jersey
home, the daughter reported that one of defendant's friends saw her while she
used the bathroom. Plaintiff stated that the daughter did not feel comfortable
staying overnight at defendant's home because there were so many people
coming and going. As a result of these incidents, court orders were issued,
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restricting the children's contact with the alleged offending individuals and
providing that the daughter was not allowed to sleep overnight at defendant's
New Jersey home.
In addition to plaintiff's opinion that defendant continuously failed to
ensure the children's well-being, plaintiff testified that defendant constantly
undermined her parenting efforts. When the children would return home from
visiting defendant, at times they would act defiant, claiming that defendant told
them they need not listen to plaintiff and that he would speak negatively about
her. Defendant also often told the children that if they lived with him, the rules
would be different. For example, after the children returned from spending time
with defendant in Nevada during the summer of 2015, plaintiff felt that she could
not manage her daughter's behavior, so she called PerformCare and was directed
to enroll the daughter in GenPsych, a therapeutic counseling service.
Additionally, plaintiff testified that defendant often fails to comply with
court orders and impedes the parties' ability to effectively communicat e about
their children. She stated that he constantly blames her for the children's
problems, and he fights her or ignores her when she wants to do something for
the children. Overall, she felt that his behavior hurt the children and contributed
to their lack of interest in maintaining and improving their relationship with him.
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Before hearing from defendant, the judge heard from April Chillemi, a
licensed clinical social worker who served as a counselor to the parties'
daughter. During April 2017, the daughter requested to arrange a meeting with
defendant. Chillemi testified that on the morning of the meeting, defendant
requested to bring his girlfriend. Chillemi believed it was not in the daughter's
best interests, so she canceled the meeting. Later that day, she received sixteen
phone calls and voice messages "from a Nevada prefix." The first message
identified the caller as defendant. Chillemi could not identify the caller that left
the subsequent messages but testified that the caller was angry and used vulgar
language, questioning Chillemi's ethics and claiming that Chillemi was
"blocking access to the child."
After hearing from plaintiff and Chillemi, the judge finally heard from
defendant. Defendant testified that he was currently living in Nevada and
worked as a window tinter and as a specialized installer for certain products. He
owns 121 acres of land, located a few hours outside of Las Vegas. The land is
mountainous and covered partly by a pine forest, and there are several
uninhabited buildings on the property, plus defendant's home.
Defendant testified that his desired outcome for the hearing would be an
arrangement that would allow him to "re-establish a connection with [his]
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children," and if he retained custody, he would leave everything in Nevada and
move to New Jersey to be with them. According to defendant, his relationship
with the children has largely deteriorated due to plaintiff's efforts to keep him
away from them.
Specifically, defendant identified several instances of he and the children
enjoying time together in their earlier years. He explained that when he and the
children had spent time together in New Jersey, they went to parks and on
crabbing trips, and when they visited him in Nevada, they had friends to play
with, and there were plenty of activities, including hiking, horseback riding,
visiting parks, and riding quads. However, in recent years, he had limited
contact with the children. Specifically, with respect to the daughter, he had only
spoken to her over Skype about four times each year during 2017 and 2018.
With respect to the son, they had Skyped 130 times during 2017 and forty times
during 2018. Defendant specifically identified one of the Skype sessions during
which the son told defendant that his stepfather was there for him, and he did
not want to speak with defendant on Skype. Defendant stated that this was out
of character for his son, and he felt as though his son was being instructed to say
these things.
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When questioned about plaintiff's testimony concerning certain instances
of defendant's failure to consider the children's best interests, defendant always
justified his behavior. When asked about the situations where he declined to
seek medical care for the children, defendant reasoned that the issues were minor
and not worthy of seeking medical attention. Similarly, he explained that the
issues plaintiff raised concerning certain individuals being present around t he
children were exaggerated by plaintiff. With respect to plaintiff's testimony
about his unplanned visit to the daughter's school, defendant testified that the
daughter's friends, whose mother is friends with defendant's girlfriend, arranged
for defendant to visit the school. When he arrived at the school, he spoke with
the daughter for a short time and then left without any issue. He reasoned that
his daughter was probably upset when plaintiff later arrived at the school
because she knew how plaintiff would react to defendant spending time with
her.
When asked about Chillemi's plan for him to meet with the daughter, he
explained that he had wanted his girlfriend to attend the meeting, as a prior judge
had ordered that she be present during parenting time, and he wanted a witness
because he was unsure of what would happen at the meeting. With respect to
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the sixteen voice messages left on Chillemi's cell phone, defendant admitted that
he left only the first one, in an effort to confirm the time of the appointment.
At the end of the hearing, the judge issued an oral decision. In evaluating
the credibility of the parties, the judge found defendant to be more credible,
although he explained that both parties "had trouble answering questions" and
directly answering the questions asked. The judge found it "clear . . . that both
parties were heavily invested in convincing this [c]ourt that the other side is
bad[,] [n]ot worthy of [his] belief." This concerned the judge, causing him to
wonder, "[I]f these parties hate each other so much, can they ever work
together?" He added that "neither of the parties adequately appreciate how their
hatred of each other negatively affects these children." The "constant state of
war against each other . . . causes them to act at times without regard to the . . .
best interest of the children" and to exaggerate minor situations "beyond all
reason." With respect to the children, the judge found that both children
conveyed an "unexplained resistance" to spending time with their father, finding
"that they have adopted [plaintiff's] viewpoint of . . . defendant."
After evaluating the parties' and the children's testimony, the judge
considered each factor set forth at N.J.S.A. 9:2-4(c). Most significantly, he
found "that there is no reasonable prospect within the foreseeable future that the
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parties will be able to agree, communicate and cooperate, more so on the part of
. . . plaintiff than . . . defendant." He also found that "it's clear that . . . plaintiff
does not want . . . defendant to see the children," and although defendant had
undermined plaintiff's authority on many occasions and may have "said stupid
things to the children," the judge did not find "it to rise to the level where the
restrictions that have been placed . . . are in any way justified." The judge was
equally concerned about plaintiff's efforts to alienate defendant from the
children. Specifically, he found that Nevada was no more dangerous than New
Jersey, and defendant's marijuana use did not "negatively impact[] his ability to
parent." Although the judge found that the children's needs "are more than
adequately met by . . . plaintiff[,] . . . for whatever short period of time that the
children may be in Nevada, their needs would be met there also."
With respect to the children's preferences, the judge found that the
daughter's desire not to spend time with her father in Nevada likely stemmed
from her mother's opinions about defendant and the culture in northeast New
Jersey. As to the son, the judge found that "he would go to Nevada happily."
Based on his consideration of the statutory factors, the judge concluded
that continuing joint custody was the best option:
Based on the law, it would appear that a joint
custodial arrangement is totally inappropriate. Under
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normal circumstances, I would say that. However, that
being said, even if I said . . . plaintiff was at fault for
this, . . . defendant becomes the sole custodian. It's
clearly not in the best interest of the children to move
to Nevada full time. That being said, however, my
concern is if I give . . . plaintiff sole custody, it would
be [inimical] to the children's best interest, because it
would only lead to a further erosion of the relationship
between the children and their father. Consequently,
the [c]ourt will continue joint custody as . . . the better
of two bad options, to ensure that . . . defendant will
have a continuing, and with hope, an improving
relationship with the children.
The judge then decided that plaintiff would continue as the parent of
primary residence and that unsupervised parenting time for defendant could
resume within sixty days, subject to the parties' participation in counseling. He
ordered the parties to attend parenting counseling to learn to better interact with
each other and to parent their children without undermining each other. He also
ordered the children to attend individualized counseling. These decisions were
memorialized in a written order that same day. This appeal ensued.
On appeal, plaintiff only challenges the judge's decision to order
continued joint legal custody of the children. Plaintiff contends that the judge
incorrectly applied his factual findings to the law, given his conclusion that the
parties are unable to cooperate in matters related to their children. Further,
plaintiff contends that the judge's rationale for ordering joint custody, that
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plaintiff alienated defendant from their children, is not supported by the record.
In addition, plaintiff argues that the judge erred in declining to allow the
guardian to testify and instead read the guardian's report.
Our review of a Family Part judge's factual findings is limited, as we are
bound by such findings if they are "supported by adequate, substantial, credible
evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Deference is
especially appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). Reversal is warranted only if the judge's findings
"are so manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence as to offend the interests of justice." Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting
Fagliarone v. Township of North Bergen, 78 N.J. Super. 154, 155 (App. Div.
1963)). However, the "judge's findings are not entitled to that same degree of
deference if they are based upon a misunderstanding of the applicable legal
principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427,
434 (App. Div. 2002).
Our Legislature has determined "that it is in the public policy of this State
to assure minor children of frequent and continuing contact with both parents
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after the parents have . . . dissolved their marriage." N.J.S.A. 9:2-4. Further,
"it is in the public interest to encourage parents to share the rights and
responsibilities of child rearing in order to effect this policy." Ibid. In a
proceeding concerning the custody of a minor child, the judge may award joint
custody, sole custody with a provision for "appropriate parenting time for the
noncustodial parent," or another arrangement that "the court may determine to
be in the best interests of the child." N.J.S.A. 9:2-4(a) to (c). When deciding
which option is best for the children, the judge must consider several factors:
the parents' ability to agree, communicate and
cooperate in matters relating to the child; the parents'
willingness to accept custody and any history of
unwillingness to allow parenting time not based on
substantiated abuse; the interaction and relationship of
the child with its parents and siblings; the history of
domestic violence, if any; the safety of the child and the
safety of either parent from physical abuse by the other
parent; the preference of the child when of sufficient
age and capacity to reason so as to form an intelligent
decision; the needs of the child; the stability of the
home environment offered; the quality and continuity
of the child's education; the fitness of the parents; the
geographical proximity of the parents' homes; the
extent and quality of the time spent with the child prior
to or subsequent to the separation; the parents'
employment responsibilities; and the age and number
of the children.
[N.J.S.A. 9:2-4(c).]
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The focus of this inquiry is "the best interests of the child." Ibid.; Sacharow v.
Sacharow, 177 N.J. 62, 80 (2003) ("In [custody] cases, the sole benchmark is
the best interests of the child."); Fantony v. Fantony, 21 N.J. 525, 536 (1956)
("[T]he paramount consideration is the safety, happiness, physical, mental and
moral welfare of the child.").
"[I]n promoting the child's welfare, the court should strain every effort to
attain for the child the affection of both parents rather than one." Beck v. Beck,
86 N.J. 480, 485 (1981) (quoting Turney v. Nooney, 5 N.J. Super. 392, 397
(App. Div. 1959)). However, a custody decision "must foster, not hamper," a
healthy parent-child relationship. Nufrio v. Nufrio, 341 N.J. Super. 548, 550
(App. Div. 2001). Although joint legal custody may be preferred in certain
cases, as it may "foster the best interests of the child," Beck, 86 N.J. at 488, "the
decision concerning the type of custody arrangement [is left] to the sound
discretion of the . . . courts," Pascale v. Pascale, 140 N.J. 583, 611 (1995).
In Nufrio, we considered whether an award of sole custody was supported
by the record. 341 N.J. Super. at 554. The Family Part had entered a pendente
lite order for joint legal custody of the parties' child. Id. at 552. "Thereafter
ensued a bitter and acrimonious . . . history, marred by frequent applications to
the court and several municipal court and domestic violence charges." Ibid.
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After a trial, the judge found that the defendant "does nothing that is not for his
own benefit," and "he cannot perceive how difficult he makes things for other
people and does not believe that he has done wrong." Ibid. The judge found the
defendant's testimony, that the plaintiff did not look out for their child's best
interests, "totally unbelievable." Id. at 553. Thus, the judge granted sole
custody to the plaintiff, leaving the defendant with an "extensive parenting-time
schedule" as provided in the parties' final judgment of divorce. Ibid. The judge
reasoned "that the child's rights will not be protected if joint custody is awarded
and continuing conflict between the parties will increase if called upon to make
'together' decisions." Ibid. Further, the plaintiff "can no longer be challenged
by [the defendant] in [everything] that she does for their son." Ibid.
We affirmed the Family Part's decision, as the judge's findings made "it
clear that any form of 'joint' custody or shared decision-making will be
detrimental to the parties' child." Id. at 555. We also identified principles
pertaining to the relationship between parents that should guide judges in
deciding custody issues:
[T]he prime criteria for establishing a joint legal
custodial relationship between divorced or separated
parents centers on the ability of those parents to agree,
communicate and cooperate in matters relating to the
health, safety and welfare of the child notwithstanding
animosity or acrimony they may harbor towards each
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other. The ability of parents to put aside their personal
differences and work together for the best interests of
their child is the true measure of a healthy parent-child
relationship. A judicial custody determination must
foster, not hamper, such a healthy relationship.
Therefore, a parent's amenability or inability to
cooperate with the other parent are factors to be
considered in awarding joint legal custody.
[Id. at 550.]
Having considered the judge's factual findings and his reasons for
determining that joint legal custody is "the better of two bad options," we
conclude that, under the circumstances, ordering joint legal custody is
inconsistent with the legal principles that govern custody matters. We are
troubled that the judge concluded that "[b]ased on the law, it would appear that
a joint custodial arrangement is totally inappropriate," and yet, he ordered joint
legal custody. As the record reveals, and as the judge properly found, there
appears to be "no reasonable prospect within the foreseeable future that t he
parties will be able to agree, communicate and cooperate." In Nufrio, it was this
inability to communicate on the part of the parties that we held warranted
awarding sole custody to the plaintiff. Id. at 555. Although Nufrio differs in
that it involved a defendant who exhibited severely inappropriate behavior, and
the record before us does not suggest the same pathological behavior on the part
of defendant, the record clearly indicates, however, that requiring the parties to
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continue making joint decisions would be detrimental to their children. See ibid.
Their disagreements over every aspect of raising their children, even concerning
seemingly minor events, have negatively impacted their relationships with the
children.
Moreover, the judge's finding that plaintiff has alienated defendant from
the children is unsupported. Defendant offered no expert testimony about
parental alienation and the possibility that it had occurred and negatively
impacted the children's views of him. It appears that the judge based this finding
on his own assessment of the parties as they testified. Further, such a finding
contradicts the judge's own findings that both parties played a role in impairing
the relationships with their children. Regardless, the judge's concern that
defendant's relationship with the children may further deteriorate can be
remediated by ensuring that plaintiff adheres to defendant's parenting time
schedule, and defendant continues to comply with the requisite orders about
each visit. As the July 26, 2018 order provides, unsupervised parenting time
would resume within sixty days of the order.
Accordingly, we reverse the judge's July 26, 2018 order to the extent that
it mandates joint legal custody of the parties' children. We remand to the Family
Part for entry of an order granting sole legal custody to plaintiff.
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Because we conclude that reversal is warranted, we need not address
plaintiff's argument concerning the judge's decision not to hear the guardian's
testimony but to instead read the guardian's report. To the extent that we have
not addressed the parties' remaining arguments, we conclude that they lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for entry of an order consistent with this opinion.
We do not retain jurisdiction.
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