A.K.S. VS. M.V.M. (FM-09-0124-17, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2233-18
A-3932-18
A-1982-19
A.K.S.,1
Plaintiff-Appellant,
v.
M.V.M.,
Defendant-Respondent.
________________________
Agued January 26, 2021 – Decided March 3, 2021
Before Judges Yannotti, Haas, and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FM-09-0124-17.
Matheu D. Nunn argued the cause for appellant in A-
2233-18 and Jessie M. Mills argued the cause for
appellant in A-3932-18 (Einhorn, Harris, Ascher,
Barbarito & Frost, PC, attorneys; Matheu D. Nunn and
Jessie M. Mills, on the briefs).
1
We utilize the parties' initials to protect the child's privacy. R. 1:38-3(d).
A.K.S., appellant, argued the cause pro se in A-1982-
19.
M.V.M., respondent, argued the cause pro se.
PER CURIAM
In three back-to-back appeals, plaintiff A.K.S. challenges custody,
parenting time, and other provisions of a January 24, 2019 Dual Final Judgment
of Divorce (FJOD) and companion orders dated January 25 and April 26, 2019,
entered following a trial. Plaintiff also appeals from December 6, 2019 and
January 15, 2020 orders adjudicating the parties' post-judgment motions.
Plaintiff and defendant M.V.M. are Indian citizens. Plaintiff moved to the
United States in August 2005 to pursue his graduate degree, and has been
employed under an H-1B work visa sponsored by his employer. The parties
married in India in December 2011, and defendant moved to the United States
under an H-4 dependent-spouse visa; defendant's visa did not permit her to work.
A.S. was born in 2013. Defendant's mother traveled to the United States
one month before the child's birth and remained with the parties for five months
to assist defendant during this time. After A.S.'s birth, the parties traveled to
India frequently with the child between 2013 and 2015. In October 2014, the
parties traveled to India, with A.S., for defendant's brother's wedding. There,
defendant told plaintiff she wanted a divorce and sole custody of A.S. On
A-2233-18
2
November 18, 2014, during their stay in India, defendant claimed plaintiff
assaulted her and her father. Defendant, and plaintiff's and defendant's families
attended the wedding without plaintiff.
Plaintiff left India alone on December 1, 2014, without informing
defendant, taking A.S.'s passport. Once in the United States, plaintiff sent
defendant an email apologizing for his conduct on November 18, and for
hacking into and changing her email and Facebook account passwords without
her consent. Defendant told plaintiff she was would not return to the United
States because of his repeated acts of domestic violence.
Unbeknownst to defendant, plaintiff had filed a request with the United
States Department of State on January 26, 2015, to enter A.S.'s passport into the
Department's Child Passport Issuance Alert Program on grounds defendant had
absconded with the child to India. Plaintiff then traveled to India on January
30, 2015, in an attempt to convince defendant to return to the United States with
the child. During the January trip, defendant claimed plaintiff was aggressive
and verbally abusive to her and her parents. On March 15, 2015, plaintiff
returned to the United States, taking A.S.'s passport without informing
defendant.
A-2233-18
3
In April 2015, plaintiff filed a non-dissolution complaint and order to
show cause in the Family Part, alleging defendant abducted the child. Although
plaintiff knew defendant's address in India, he served his pleadings at the parties'
New Jersey address. Without opposition from defendant, the Family Part
entered a June 8, 2015 order granting plaintiff primary residential custody of
A.S. Defendant received neither the complaint and initial order to show cause,
nor the final order granting it and the order was later vacated.
In November 2015, while plaintiff was in India, he reconciled with
defendant and the parties returned to the United States with A.S. On May 31,
2016, defendant filed a complaint pursuant to the Prevention of Domestic
Violence Act, N.J.S.A 2C:25-17 to -35, alleging plaintiff committed assault,
harassment, and criminal mischief on May 29, 30, and 31, 2016. Plaintiff was
arrested and charged with simple assault as a result of injuries observed by
police on defendant on May 31.
In addition to the predicate acts of domestic violence, the complaint
recited a history of domestic violence, namely, that plaintiff slapped defendant
in 2012, 2013, and 2014. The complaint stated the 2013 incident caused "blood
to ooze from [defendant's] ear." The complaint also alleged plaintiff subjected
defendant to "ongoing verbal and emotional abuse" and monitored her phone
A-2233-18
4
calls, and email and Facebook accounts in "March/April 2015." The court
granted defendant a Temporary Restraining Order (TRO).
Plaintiff filed a complaint for divorce on July 6, 2016, seeking sole legal
and primary residential custody of A.S. Defendant's counterclaim for divorce
alleged extreme cruelty as one of the grounds for divorce, sought sole legal and
primary residential custody of A.S., permission to remove the child to India, and
monetary damages for the marital torts of assault, battery, and intentional
infliction of emotional distress.
In October 2016, a different judge tried the domestic violence matter and
dismissed the complaint, finding defendant failed to prove the predicate acts of
assault. We reversed, reinstated the TRO, and remanded the matter for a new
trial because the judge did not consider the testimony of a witness who testified,
the history of domestic violence, or the allegations of harassment. M.M. v. A.S.,
No. A-1508-16, slip op. at 8 (App. Div. May 31, 2018). The TRO remained in
place throughout the divorce trial.
On January 6, 2017, the trial judge in the matrimonial matter vacated the
custody provisions of the June 2015 order and granted the parties pendente lite
joint legal custody of A.S., designated defendant the parent of primary
A-2233-18
5
residence, and granted plaintiff parenting time every other weekend from Friday
to Sunday evening and every Thursday overnight.
On July 21, 2017, the court entered an order implementing a Memorandum
of Understanding (MOU) dated June 29, 2017, addressing custody and parenting
time, which the parties reached through court-initiated mediation. The MOU
maintained joint legal custody of A.S., designated defendant the parent of
primary residence and plaintiff the parent of alternate residence, and granted
plaintiff parenting time from Tuesday evening until Thursday morning and
alternating weekends. The MOU stated:
Although this memorandum is NOT a contract, it is our
desire that the terms set forth in a final judgment, by
which we will be bound, and we ask that any attorney
who may review this document respect the mediation
process and our desire to be bound by the agreements
we have reached in that process.
....
Further, as of the signing of this agreement the
parents are aware that the residency and/or immigration
status of one or both parents may change after
September of 2017. That being the case the parents
have agreed to create a holiday and vacation parenting
time schedule which will remain in effect only until
December 2017 or until modified by either mutual
consent of the parties or by Family Court Order.
Near the parties' signature lines, the MOU repeated the following language:
A-2233-18
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Though we the undersigned are aware that this
memorandum is NOT a contract; it is our mutual desire
that the terms herein be set forth in a final judgment, by
which we will both be bound. We ask that any attorney
who may review this document respect the mediation
process and our mutual desire to be bound by this
agreement and any decisions which were jointly made
together during that process.
Both parties were self-represented at the divorce trial, which occurred
over fourteen days between January and July 2018. The central dispute at trial
was regarding custody of A.S., parenting time, and removal, as demonstrated by
the following excerpt from the parties' opening statements:
[Plaintiff:] . . . Your [h]onor, this case primarily
revolves, more than anything else, around the
relocation issue of the parties' minor child. There are
other auxiliary issues, which I am hoping to address by
means of trial evidence and the witnesses that I have
subpoenaed as part of this trial around alimony, 50/50
custody, division of the 401[(k)], and a few other
things. . . .
With regards to relocation, [y]our [h]onor, I have
given the defendant . . . a lot of options in court-ordered
mediation, at the early settlement panel, and even . . .
when we both had attorneys a few months back. . . .
I am entirely uncomfortable with the relocation
of the child to India.
....
I hope [y]our [h]onor applies the best interest
standard . . . as is now public policy following the
A-2233-18
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Bisbing[2] decision, and comes to a decision which
allows both parties to continue parenting the child, who
they both love and who the child loves both so dearly.
Thank you, [y]our [h]onor.
THE COURT: Thank you. Do you want to make an
opening?
[Defendant]: Yes, [y]our [h]onor. Your [h]onor, this
case . . . is about me asking relief from the [c]ourt.
Namely, divorce from the plaintiff. Secondly, I am
seeking sole legal custody of the child and . . . that the
parent of primary residence continues to remain with
me, as well as I and the child be granted the permission
to relocate to the parties' home country that is India.
Thirdly, [y]our [h]onor, I am seeking monetary relief;
that is, child support, spousal support, equitable
distribution of marital assets, and counsel fees for this
case matter.
Both parties testified. Plaintiff called an immigration attorney from the
law firm retained by his employer to handle his work visa, and the assistant
director of the child's school as his witnesses, and defendant called a Jersey City
police officer as her witness relating to the domestic violence.
The immigration attorney testified defendant's visa status derived from
her marriage to plaintiff, and once the parties divorced defendant's visa would
no longer be valid. The attorney explained defendant could apply for a student
2
Bisbing v. Bisbing, 230 N.J. 309 (2017).
A-2233-18
8
or work-sponsored visa on her own, but these visa types had accompanying risks
and fees, and plaintiff's employer could not represent defendant independent of
plaintiff given the divorce proceedings.
Plaintiff next called the administrator from A.S.'s school. Her testimony
explained plaintiff's involvement in the child's schooling, that he performed
pickups and drop offs, and that the child was on par with the school's curriculum.
Plaintiff testified in his case in chief for approximately eight days. Much
of his testimony addressed his custody and parenting time requests, and
defendant's request to remove A.S. to India. He blamed the parties' marital
disputes on interference by defendant's family, claimed defendant interfered
with his ability to parent, and that defendant assaulted him in May 2016 by
spitting on him and demanding a divorce. Plaintiff also addressed the removal
by presenting evidence to support his argument it was in the child's best interests
to be raised in the United States due to better educational and medical systems.
Defendant called the Jersey City police officer who responded to the May
2016 incident. The officer testified defendant was "frightened [and] very
scared" and her claims of abuse were consistent with the injuries the officer
observed on defendant at the hospital.
A-2233-18
9
Defendant testified plaintiff repeatedly physically and verbally abused
her, and restricted her access to family and friends. She described incidents
from January to July 2012 where he slapped her several times for not complying
with his sexual demands, a December 2012 incident where plaintiff hit her so
hard blood came out of her ear, the November 2014 incident when he assaulted
her and her father, and the May 2016 incidents. She further testified defendant
would lash out at her if she did not have meals ready for him upon his return
from work.
Defendant testified she was dependent on plaintiff in the United States
due to her inability to obtain employment because of her visa status. She
explained her visa would become void upon the parties' divorce and she would
be compelled to return to India. She said she explored obtaining a student visa,
but the financial costs and risks outweighed the benefits.
Defendant explained in detail why removal was in A.S.'s best interests and
explained her role as the child's primary caregiver. In contrast to her inability
to live independently in the United States, defendant furnished proof of a job in
India sufficient to meet her and A.S.'s needs. She also testified both her and
plaintiff's families live within a twenty to twenty-five-mile radius of where she
intended to live, furnished photographs showing A.S.'s relationship with his
A-2233-18
10
extended family, and proof of the child's enrichment activities when he was in
India.
On January 24, 2019, the trial judge rendered a comprehensive oral
decision totaling 181 pages. The judge credited the testimony of the school
representative, finding it demonstrated plaintiff was an involved parent. The
judge credited the immigration attorney's testimony, finding it disproved
plaintiff's claim he obtained special favors from his employer resulting in an
extension of defendant's visa. The judge found this was "one of the many
examples [the court] finds of plaintiff's lack of candor[.]"
The judge found plaintiff lacked credibility, particularly regarding his
claim defendant had abducted A.S. The judge made numerous and detailed
credibility findings. She stated:
It is clear, and the parties' testimony confirms, that this
family left for India together on a preplanned trip. It is
also clear that it was plaintiff who left after the assault
on the defendant and the defendant's father[,] and took
with him Ay[.S.]'s U.S. passport.
The [c]ourt finds defendant's testimony on this
event much more credible than the plaintiff's. She was
consistent, clear and spoke with a recollection of the
events that was both convincing, as well as non-
wavering. Unlike much of plaintiff's recollection,
defendant's testimony was precise. She did not forget
to include events in her original recitation of the facts
A-2233-18
11
and then include them later when only after confronted
with an omission.
Throughout [plaintiff]'s testimony, he would
make sweeping statements, such as my family was
disinvited to defendant's brother's wedding, only to be
shown . . . photos depicting his parents at the events.
He could offer no explanation for his misstatement.
Throughout the trial, defendant was able to
undercut plaintiff's credibility. For example, . . .
defendant was able to show that plaintiff's father was
present at the [second] birthday party she threw for
their son in April 2015. When confronted with this,
plaintiff changed his response, responding that his
father was not invited, but showed up at the festivities.
The court did not find this testimony credible.
Further, the judge cited plaintiff's own emails in which he admitted
leaving defendant and the child in India to return to the United States and
changing her passwords as other examples of his "less-than-credible testimony"
at trial. The judge also found plaintiff's assertion that he registered the child's
passport with the State Department to prevent defendant from removing A.S. to
another jurisdiction not credible because she "was not convinced . . . that ther e
was ever a credible threat of . . . defendant removing the child from India."
The judge found plaintiff obtained the relief in the non-dissolution matter
ex parte by deliberately failing to serve defendant at her actual address. The
judge rejected plaintiff's claim that he served defendant through an Indian
A-2233-18
12
attorney. She credited defendant's testimony that she never received the papers
and the attorney did not represent her and was instead her father's real estate
counsel in India. She also found "no proof was provided to the [judge in the
non-dissolution matter] where the [attorney] had been retained to accept service
for or on behalf of the defendant. . . . It is clear to the [c]ourt that plaintiff did
not want defendant to be apprised of the order to show cause."
The judge rejected plaintiff's testimony stating he had contacted the FBI
about the alleged abduction and that they suggested criminal charges could be
brought against defendant. The judge concluded plaintiff's testimony was not
credible because during cross-examination "it became clear that [plaintiff] didn't
visit the FBI or . . . speak directly to anyone other than a person who answered
the hotline. . . . Plaintiff's testimony was barren as to any particulars." The
judge also rejected plaintiff's testimony that the State Department considered
A.S.'s retention in India to be abduction. The judge stated:
It is clear from the [c]ourt's review of [the State
Department] letter that the State Department took no
official action in this case, it merely opened a case
based on the plaintiff's report that Ay[.S.] had been
abducted to India by his mother. . . . This opening of
the case does nothing to establish plaintiff's underlying
position that . . . defendant abducted or wrongfully
retained the parties' child in India. Indeed, the letter
from the State Department is no more than a typed up
version of what plaintiff said and nothing more.
A-2233-18
13
The judge made detailed findings under each N.J.S.A. 9:2-4(c) factor and
concluded they preponderated in favor of awarding the parties joint legal
custody with defendant having primary residential custody, and permitting the
removal of A.S. to India. We recount the factors relevant to the issues in this
appeal.
Addressing the first statutory factor, the judge found defendant minimizes
the contact "she needs to have with the plaintiff, especially contact that is not
supervised by either . . . police or an official . . . and the [c]ourt is not surprised
by this, given that she has been subjected to . . . cycles of both violence and
verbal abuse." The judge concluded despite "both parents . . . [being] guilty to
some degree in failing to communicate in a timely manner . . . the parties do
have the ability to communicate on matters involving the child[.]"
Addressing the second statutory factor, the judge stated:
[I]t's clear that both of these people want custody, both
of these parents . . . are willing to accept custody.
. . . [T]he main issue that these two parties tried, . . . is
was this an abduction case or was this a case of a
woman escaping a domestic violence relationship and
went back home and stayed with her parents for her own
safety and that of the child.
. . . Much of the plaintiff's case in chief was devoted to
his portraying that the defendant abducted Ay[.S.] to
India and her continued retention of the child in India.
A-2233-18
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The [c]ourt finds that the facts of this case simply do
not support plaintiff's version of an abduction or a
wrongful retention.
Citing the evidence presented relating to the December 2014 incident, the
judge concluded plaintiff "snuck out of India without [defendant's] notice and
with the child's passport under the cover of night. Despite plaintiff's protestation
to the contrary, he did indeed abandon the defendant." The judge found the
credible evidence also proved plaintiff left India again without notice and with
the child's passport after perpetrating the March 2015 incident.
Furthermore, the judge stated:
[W]hat is clear to the [c]ourt is that there's information
in the record which corroborates defendant's version of
abuse inflicted upon her, both physically and verbally,
at the hands of plaintiff and plaintiff, not defendant's
conduct, separated him from his child.
Defendant remained in India with the child in an
effort to keep herself safe. There is nothing in this
record to support any other conclusion. . . .
[Defendant] was left by her husband on not one,
but two occasions in India without advanced notice and
no arrangements for the support of the child. He just
left. And when it was clear to him that their marriage
was in trouble and they may not reconcile, then and
only then did he start to suggest an abduction. Indeed,
the [c]ourt scoured the emails submitted to find one
email, letter, et cetera prior to May of [2016] to support
plaintiff's suggestion that he believed [defendant]
abducted or wrongfully retained the child prior to his
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April order to show cause. The [c]ourt could not find
one.
....
[After plaintiff filed the order to show cause,
n]owhere in any of the email exchanges between the
parties during this time does plaintiff ever advise
defendant of court action in the U.S. . . . Instead, he
keeps it as a secret.
The [c]ourt is left to wonder why would anyone
get an order if they are not undertaking to pursue the
relief awarded, namely the return of the child.
Addressing the fourth statutory factor, the judge found defendant's
testimony credible that from January to July of 2012, plaintiff would strike her
if she did not comply with his demands for sex, hit her if meals were not ready
when he came home, and that he admitted to abusing defendant. Beyond the
May 2016 incidents, the judge noted the incident where defendant testified that
during her pregnancy, plaintiff struck her and caused her ear to bleed, was
corroborated by a medical report in evidence. The judge also found defendant's
testimony credible that when the parties returned to the United States, plaintiff
became threatening and attempted to control defendant by telling her to get
pregnant again, taking her phone, and demanding she immediately return home
if she was out with the child. The court recounted defendant
A-2233-18
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testified throughout the trial that plaintiff would often
ridicule her for not working, stating that she didn't
know the value of money, because she did not make
money . . . [a]nd . . . was again . . . taunted about [that
at a later date] . . . .
....
The [c]ourt finds that there was an extensive
history of domestic violence between plaintiff and the
defendant, some of which occurred in front of [A.S.].
The [c]ourt further finds that there was not an iota
of credible evidence or testimony before the [c]ourt to
support a finding that the defendant had been the
aggressor in any incident or that she had in any way
verbally or physically abused plaintiff. Rather, the
evidence the [c]ourt finds credible clearly demonstrates
plaintiff has committed acts of domestic violence upon
the defendant from the inception of the parties'
marriage beginning in early 2012 until the day of their
final separation on May 31st, 2016.
Indeed, plaintiff was convicted of simple assault
arising from that May 31st, 2016 domestic violence
incident on June 19, 2017[,] in the Jersey City
Municipal Court. . . . Defendant testified at trial that he
has filed an appeal in that case.
Concomitantly, under the fourth statutory factor, the judge concluded
"defendant is not safe from physical abuse by the plaintiff." The judge again
noted defendant "often could particularize the events, giving even minute details
of what occurred, unlike the plaintiff in many instances. She did not have
differing recollections, nor did she contradict herself when confronted with
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evidence undercutting her initial version of the events." The judge characterized
defendant's recollection as "clear," her testimony "frank," her demeanor on
cross-examination "unshakeable" and "[o]verall, defendant's testimony was
credible, believable, and consistent."
Reciting the seventh statutory factor, the judge found both parties capable
of meeting the child's needs. Addressing the stability of the child's home
environment under the eighth statutory factor, the judge found defendant
provided A.S. with "a stable home of love and nurturing" in both the United
States and India. However, the judge credited defendant's testimony that "when
the parties were in a fight and the plaintiff was mad at her, that the plaintiff
would take Ay[.S.] and lock himself in a room and cut the child off from the
defendant and the defendant's care of the child." The judge found "it was
plaintiff and his conduct that had created the negative impact of the stability of
Ay[.S.'s] home environment."
With regard to the ninth statutory factor, the judge determined defendant
was fit, having parented A.S. since birth, but found plaintiff obtaining ex parte
custody orders to create a record that defendant abducted the child "affects
whether plaintiff is fit to parent Ay[.S.]" The judge further found although
"plaintiff is a devoted, committed parent to Ay[.S.], his conduct toward
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defendant committed in front of Ay[.S.] or within earshot of him, slapping his
wife, yelling at her, demeaning her and her family in front of the child, affects
his fitness to parent."
Under the eleventh statutory factor requiring the court to assess the extent
and the quality of the time each parent spent with the child prior to and after
their separation, the judge noted "both [parties] went to every doctor
appointment and wrote down everything, but that's not what the primary
caretaker's function is." The judge concluded because plaintiff had work
obligations, "the only constant daily caretaker was [defendant]. . . . The [c]ourt
finds that the defendant has spent extensive time as the parent of primary
residence or the primary caretaker of the child." However, the judge also
concluded that since the entry of a January 2017 parenting time order, "plaintiff
has exercised consistent frequent contact in parenting time with Ay[.S.]."
Addressing the last statutory factor, the judge found defendant was not
employed "outside of the home during [the] marriage and post-complaint [time
period.]" However, "[d]efendant testified that she has the promise of
employment in India and the [c]ourt finds that if she is permitted to relocate, she
and the plaintiff will then have work responsibilities to contend with in relation
to the parenting time with the child."
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The judge also found defendant had demonstrated cause pursuant to
N.J.S.A. 9:2-2 and proved it was in A.S.'s best interests under Bisbing to remove
the child based on plaintiff's efforts to prevent defendant from living in the
United States through the immigration system and the domestic violence. The
judge quoted from a May 2015 email plaintiff wrote defendant after leaving her
in India in which he stated:
As for working in the U.S. without staying with me, this
is out of the question. Any H-4 status benefits that you
may be entitled to . . . are derived benefits as a result of
my primary H-1B status in the United States. Upon
divorce, you are not entitled to any such benefits
without being a beneficiary . . . . Anyways, I have
already relayed to immigration our pending divorce and
to hence have your H-4 status terminated in the United
States, so there is no question of you gaining H-4 EAD
[Employment Authorization Document] benefits in this
context anymore.
The judge concluded as follows:
This email . . . exemplifies plaintiff's conduct
with respect to the defendant during the marriage.
Again, he made it clear you don't live with me, I've
already told them there is no status for you. And again,
I note this because it exemplifies the reasons the
defendant desires and her need to relocate the child to
India with her.
The judge stated:
In addition to having no family here, being the
victim of domestic violence, it is also clear that once
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these parties divorce . . . defendant loses . . . her . . .
visa status.
. . . . She must remove herself from the United States.
The [c]ourt must then consider, is it in the best
interests of Ay[.S.] to remain here in the United States
or to leave the United States and relocate with his
mother to India. Under all of the facts herein, the
[c]ourt is satisfied that under these particular factors
Ay[.S.]'s best interests will be served by allowing him
to relocate to India with his mother.
....
Given that the defendant has continually been the
primary caretaker of the child and the parent of primary
residence, the [c]ourt finds that it is in the child's best
interests to remain with his primary caretaker.
Addressing the standards of living between the United States and India,
the judge explained the evidence presented showed the child's lifestyle would
"not be diminished" in India. The judge noted plaintiff testified the educational,
health and "overall environment is not as good in India[,]" but concluded "I have
no credible proof before me that the educational institutions[,] . . . the medical
institutions in India are any less qualified than those here in the United States."
The judge rejected plaintiff's argument that smog in India was a reason to deny
the removal and concluded
Ay[.S.]'s best interests will be served by
continuing under the care of his mother. She has
A-2233-18
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consistently made the child her priority, giving herself
entirely to the raising of him and the protecting of him.
Hers is the more stable environment for Ay[.S.], one
filled with peace and respect and lack of violence.
....
The [c]ourt notes that [India] is a familiar place
to Ay[.S.] He has spent a considerable period of time
there prior to the instant divorce proceeding. . . .
It is clear that, but for these divorce proceedings,
Ay[.S.] would have continued to travel back and forth
to India with his parents for vacations, celebrations of
holidays, special family events and the like.
The judge further noted plaintiff's work schedule permitted him to work
from his employer's office in India and "it is possible that plaintiff himself could
relocate to India and still maintain his employment. . . . [Moreover, p]laintiff
has presented no credible evidence . . . to suggest that he would be unable to
return to India for parenting time . . . once the child relocates." She rejected
plaintiff's argument that the legal system in India was unfair, noting plaintiff had
abused the process in the United States to obtain an ex parte custody order and
served an unauthorized individual in India.
The judge rejected plaintiff's argument that defendant had interfered with
his ability to communicate with A.S. in India. She noted the examples of
interference cited by plaintiff occurred when the child was "approximately two
A-2233-18
22
years of age with very little verbal skills." The judge found "Ay[.S.] is al most
six years of age. He and his dad have established their own rituals. Ay[.S.] no
longer needs to rely upon the defendant for all his care." The judge concluded
as follows:
There is evidence in the record to demonstrate the
defendant has done all she can to foster a positive image
of plaintiff in their son's eyes, despite her personal
experiences.
Plaintiff did not offer any testimony or evidence
to suggest that the defendant has attempted to do
anything to inhibit the parent-child relationship.
The judge entered the FJOD on January 24, 2019, granting the parties joint
legal custody of A.S., designating defendant as parent of primary residence, and
permitting the removal. The judge also granted the following relief:
The [c]ourt recognizes that a parenting plan is
necessary to ensure frequent contact between the
plaintiff and Ay[.S.]. As such, the [c]ourt orders that
plaintiff shall be permitted vacation parenting time the
child each year in line for the time that the child is off
for school for vacation.
Given that limited information is known about
the child's school vacation, the [c]ourt orders that
[defendant] provide to the [c]ourt and plaintiff a
schedule with the school calendar to enable the [c]ourt
to . . . block out periods of time Ay[.S.] shall travel to
the United States to exercise his time with his father.
A-2233-18
23
The [c]ourt recognizes that vacation time will be
the bulk of the time that the child spends with his father,
so the father should be permitted the majority of the
child's vacation parenting time.
Additionally, the father shall be permitted to have
parenting time with the child in India on notice to
defendant at least [thirty] days prior to the scheduled
parenting time. If plaintiff comes to India to celebrate
holidays, the parties shall alternate the holiday[s]
yearly . . . .
The parties shall use their best efforts to ensure
Ay[.S.] has consistent parenting time with his father
yearly.
The parties shall also be responsible each for
[fifty] percent of the cost of Ay[.S.]'s plane fare for his
yearly vacation parenting time. Tickets shall be
purchased in advance to ensure the parties of the best
price.
....
It is the [c]ourt's intention for plaintiff to have
parenting time with Ay[.S.] in the U.S. for each
vacation as the Indian authorities define it, from five
days after school closes until one week before school
starts. The [c]ourt has established that this will amount
to approximately six weeks of parenting time vacation
for the child here in the United States.
Additionally, plaintiff would be permitted
parenting time in India upon notice to the defendant.
....
A-2233-18
24
As such, if [plaintiff] travels to India, he shall be
permitted overnight parenting time with the child
during his stay. This parenting time shall not, however,
interfere with the child's schooling and the child must
attend school even when his father visits.
....
. . . . This award carries with it, however, an obligation
by the custodial parent to foster and maintain the father-
son relationship.
As such, in addition to what has already been
ordered, the [c]ourt shall order FaceTime between the
father and the son three times per week, with at least
one day taking place on the weekend. Unless the
parties agree otherwise, the child shall have FaceTime
with dad on Monday, on Wednesday and on Sunday of
each week. At a time to be set by the parties. To ensure
that there is consistent FaceTime.
Finally, the Court orders the parties to sign up for
Family Wizard within [fourteen] days of the
defendant's relocation to India. All communications
and schedules, et cetera, shall be done in Family
Wizard.
The judge awarded child support in accordance with the Child Support
Guidelines and ordered the parties to "discuss and agree what school best fits
the needs of the child and their ability to pay for same. The parties shall . . .
each pay their share [of the schooling costs] according to the guidelines
percentages[,]" which were sixty-four percent plaintiff and thirty-six percent
defendant.
A-2233-18
25
The judge adjudicated defendant's marital tort claims and found she
proved plaintiff committed assault and battery and awarded defendant $7500 in
compensatory damages. After addressing the equitable distribution factors
under N.J.S.A. 2A:34-23.1, the judge ordered, among other relief, that defendant
receive a thirty percent of the marital portion of plaintiff's 401(k). The judge
ordered plaintiff to have a QDRO 3 prepared to divide the asset. The judge also
awarded defendant $18,800 representing unpaid pendente lite support and
counsel fees the court had ordered plaintiff to pay defendant in a June 23, 2017
pendente lite order.
Plaintiff sought a stay of the judge's decision, which she denied. On
January 25, 2019, the judge signed an order vacating a pendente lite order
preventing international travel with the child. We heard and denied plaintiff's
motion for a stay and the Supreme Court also denied his motion for a sta y.
Plaintiff filed a notice of appeal from the January 24 FJOD and January 25 order
on January 29, 2019.
In February 2019, defendant and A.S. moved to India. Pursuant to the
FJOD, the parties began researching potential schools for the child, but
disagreed on the choice of school. Plaintiff claimed defendant unilaterally
3
Qualified Domestic Relations Order.
A-2233-18
26
enrolled the child in JBCN International School in Mumbai for the remainder of
kindergarten and a different school for first grade, which "drastically shortened"
his summer parenting time with A.S.
Plaintiff filed a post-judgment motion to compel defendant to: (1) disclose
the child's address in India; (2) disclose the school selection process; (3)
establish a video call schedule between plaintiff and A.S.; and (4) confirm his
summer vacation parenting time schedule and travel arrangements, among other
requested relief. Defendant cross moved to: (1) compel plaintiff to pay A.S.'s
school tuition; (2) enforce the monetary awards in the judgment of divorce and
compel plaintiff to execute a QDRO for his 401(k); (3) sanction plaintiff for
contempt of the judgment; (4) make a number of specific findings with respect
to the January 24, 2019 decision; (5) compel plaintiff to cease all threatening
and harassing communications; (6) compel plaintiff to cease making video
recordings of his video calls with the child; (7) compel plaintiff to cease all
purported "tactical manipulative communications" during the calls; and (8)
compel plaintiff to cooperate in the school selection process, among other
requested relief.
On April 4, 2019, the trial judge entered an order clarifying that the
guidelines for parenting time were calculated assuming defendant lived in India
A-2233-18
27
with A.S. and that plaintiff exercised a minimum of six weeks' parenting time.
The order restated the January 24 FJOD's provisions that plaintiff was to have
FaceTime/Skype sessions with A.S. three times per week on Monday,
Wednesday, and Sunday unless the parties decided otherwise. The order also
clarified that the judge intended that A.S. would spend seventy-five percent of
his summer vacation time with plaintiff, and restated the finding the summer
vacation time was to commence five days after school ends through one week
before the start of school.
On April 26, 2019, the trial judge heard argument and testimony from both
parties on their post-judgment motions. At the outset, the judge noted because
of the pending appeal, she had limited jurisdiction only to enforce her orders
and therefore could not decide several items of relief in plaintiff's motion.
Relating to the issues raised on this appeal, plaintiff claimed defendant cut off
and interfered with the FaceTime calls. He also claimed defendant unilaterally
selected the child's school and purposefully chose a school whose schedule
shortened plaintiff's 2019 summer parenting time. Plaintiff argued defendant
interfered with the paternal grandparent's ability to visit A.S.
Defendant denied interfering with plaintiff's calls and testified plaint iff
insisted on having A.S. close the door during the calls, which worried her.
A-2233-18
28
Regarding the child's schooling, defendant stated plaintiff failed to respond to a
list of schools she provided for A.S. to attend kindergarten, and schools on
plaintiff's list were ones the parties could not afford and were not accepting
admission for A.S.'s grade level. Defendant noted she selected JBCN because
it was the only mutually agreed-upon school willing to admit A.S.
After reviewing the evidence relating to FaceTime calls, the judge
discerned no interference by defendant. The judge noted the friendly nature of
the calls and remarked to plaintiff as follows:
I had the ability to watch the FaceTime and while I
know it was somewhat disruptive, . . . I don't know if
you're realizing this, you got to be part of Ay[.S.] and
his friends that day, and I thought it was remarkable
that the girl, whoever she was, . . . she kept refocusing
him. "He's talking to you." "He's talking to you." And
I say that because although you weren't there
[physically], you were there with him and his friends
and I thought that as a parent that was a different
dimension . . . they play[ed] with you as much as he
played with you, and I thought that was neat.
The judge concluded
I don't have anything on this record where I could find
that either plaintiff or the defendant intentionally cut
[FaceTime videos] off. . . . [W]e had some
technological differences. I noted that when [plaintiff]
was speaking to one of the schools he was cut off. . . .
I saw on the FaceTime that it would be paused and then
it would come back. . . . I can't make the finding . . .
that it's an intentional interference. . . . I'm just hopeful
A-2233-18
29
that we can eliminate the outside distractions during
these periods of time when the child has FaceTime with
dad, so, that [A.S.] can get the most out of the
experience.
Regarding the summer parenting time issue, the judge noted neither party
testified in the divorce trial "how long vacation in India was." Regardless, the
judge explained the
court['s] decision with respect to summer vacation was,
the child comes five days after school closes, so, if the
school closes on Friday, five days after and is returned
one week before. . . . That is the [c]ourt[']s order. I am
not free to modify [it].
....
It's always going to be five days after the current
year, to one week before.
The judge denied the request that the court select the school as beyond her
enforcement jurisdiction. She also enforced the monetary judgments set forth
in the FJOD and required plaintiff to obtain the QDRO.
In the April 26, 2019 order, the judge added that plaintiff was required to
provide proof he executed the QDRO for his 401(k) within thirty days and had
ninety days to pay the compensatory damages and the pendente lite counsel fees
awarded in the FJOD. The order also contained a provision granting defendant's
request that "[p]laintiff shall cease all tactical and manipulative communications
A-2233-18
30
during [FaceTime] videocall sessions and phone-calls with the parties' child in
on-going attempts to harm the safety of the parties' child and negatively
influence child against [d]efendant and [d]efendant's family . . . ." Plaintiff
appealed from the April 26, 2019 order.
The post-judgment litigation continued. On November 8, 2019, the trial
judge entered an order adjudicating various requests from both parties. We
highlight the portions of the order relevant to our discussion which follows. The
November order stated A.S. would visit plaintiff in the United States for two
weeks during his winter recess specifically from December 21 to January 1,
2019, and reiterated the parties were to split the child's airline ticket cost equally.
The judge clarified the April 26, 2019 order did not require plaintiff to travel to
India to bring A.S. to the United States and stated if defendant could not
accompany the child, then his paternal grandparents could do so instead. The
order stated the court reserved on plaintiff's request to hold defendant in
contempt until the court was assured "both parties have complied with [the]
outstanding financial obligations."
The matter returned to court on December 6, 2019, on competing motions
by the parties to enforce the FJOD and the April 26, 2019 order. Defendant
alleged plaintiff violated the court's order relating to winter vacation time by
A-2233-18
31
failing to return the child to India on January 1, 2020, and instead booking a
flight for the following day. She also alleged defendant failed to: pay his share
of the child's school tuition and the money judgments awarded defendant; satisfy
a marital debt; and complete the QDRO. Plaintiff argued defendant failed to
comply with her obligations to obtain health and life insurance under the April
26, 2019 order. He also claimed defendant failed to send the child to the United
States for the summer vacation on a flight he had booked for the child and his
paternal grandmother, and requested the court award him the "no show" and
ticket change fees associated with the child and grandmother's tickets, and half
of the child's ticket fare.
Plaintiff conceded he had not complied with his obligation to pay
defendant the money judgments or complete the QDRO as set forth in the April
26, 2019 order, and requested the court deduct the sum he claimed defendant
owed him for the airline tickets and fees from the amount he owed defendant.
He also alleged defendant failed to make the child available for holiday vacation
parenting time, and canceled FaceTime sessions at the last minute and requested
the court order her to provide advance notice before doing so. Plaintiff provided
video of the FaceTime calls to the court and argued defendant was interfering
with his time with the child by leaving the door to the room open allowing "free
A-2233-18
32
traffic. People coming in, people going out, the village coming in, the village
leaving, people distracting [A.S.]."
The trial judge addressed the FaceTime calls at the outset of her oral
findings. She noted she reviewed the video plaintiff provided and
there were instances where the child . . . and I will note
large periods of time where the child either put it on
pause, walked away, . . . kept cutting dad off.
. . . A good portion of it was reflective that it's the child.
. . . [Plaintiff] would attempt to engage the child.
Whether the child was tired, I put in my notes and no
disrespect to Ay[.S.], he was whining, I don't want to
talk, stop, call back tomorrow.
. . . So, . . . the snippets that I watched, there weren't
any people in the ones that I have watched. So, it wasn't
Grand Central Station, not like the original ones when
all the kids were involved. . . . [T]he ones that I was
able to view are the ones of Ay[.S.] and his dad. We
had Mr. Stuffed Animal in there. We had the globe in
there. We had Alexa in there. . . . Alexa being the
computer, and . . . [plaintiff] was doing everything . . .
to engage Ay[.S.] . . . you know, the geography game,
the latitude game. We renamed our icons on the
computer. It just went on and on and on, but, again, the
take away is that this is a young child who just loses
interest and . . . or wants to just be . . . [,] as [plaintiff]
called him, a trickster and would snap off.
....
Obviously, [plaintiff] is saying to me that the
child is leaving to seek direction, and on this video,
A-2233-18
33
again, he clearly left the room and then at one point he
does come back and say, mom said change the topic.
....
. . . . [F]rom what I could see, clearly the child left, but
she didn't come in and pull him out. This is the child
leaving, asking mom questions, and I can't say that
mom is pulling the strings.
The judge granted defendant's request to enforce the money judgments
entered against plaintiff and compel him to obtain the QDRO. Noting both
parties could be subject to sanctions, she stated:
[Plaintiff] for not complying with the [c]ourt's order
with respect to the payment of money and the QDROing
of his funds, and [defendant] as well by not obtaining
the health and the life insurance that I required with
respect to the child. [However,] . . . I'm reserving on
that for now.
The judge ordered plaintiff to satisfy the marital debt in thirty days. She
ordered him to cease taking unauthorized deductions of the money owed to
defendant. The judge reserved on defendant's request for the child's past due
school tuition, subject to the submission of clearer proofs by defendant.
Defendant requested the court order plaintiff to "cease all tactical, and
manipulative communications during FaceTime, video call sessions with parties '
child in an ongoing attempt to harm the safety of the parties' child and to
negatively influence the parties' child against the defendant and the defendant's
A-2233-18
34
family in India since this is detrimental to the best interests." The judge denied
the request stating:
Again, I have no credible proof before me that that was
occurring. The video snippets that I was able to see
really has nothing to do with the defendant, or
defendant's family. It's just the plaintiff, and the
plaintiff's relationship with the child. But I had
previously ordered that neither one of you do anything
as part of my judgment to alienate the affections.
Ay[.S.] has the right to have a relationship, but I don't
find that there's been any proof before me that
[plaintiff] has [violated the court's order]. So, I'm going
to deny it, because it suggests that he has, and I can't
find it upon the record before me.
The judge granted plaintiff's request that defendant bear one half of the
airline ticket fare for the child's missed flight during the summer of 2019. The
judge reserved on plaintiff's request for reimbursement of the no show fees
subject to her review of plaintiff's bank statements. The judge also granted
plaintiff's request for compensatory parenting time related to another vacation
the child did not enjoy with plaintiff. However, the judge denied plaintiff's
request to extend winter parenting time to January 2, and instead enforced the
judgment noting it contemplated "[A.S.] was allowed to stay [in the United
States] until the 1st," and could not remain until January 2.
The judge denied plaintiff's request to move the FaceTime sessions to his
parents' home, noting there was no evidence defendant or others interfered with
A-2233-18
35
the calls and the child's distractions were due to his young age. Addressing
plaintiff, the judge stated:
I watched hours of these videos and I didn't see anyone
else interacting. It was just you and Ay[.S.]. I
explained to you that if you wanted me to see . . .
particular people there, okay, point me to that one. . . .
There was no one there.
So, today you said, Judge, I want to bring this one
up, and I'm all for it, but if you're taking hours and
hours of video, and that there may be one, two, three
times in these hours, or at least the ones that [have] been
reproduced, I can't find that the parade is in the room.
It's your son[.]
....
He's six . . . . A child can look wherever. You
want me to see something that I've not been able to see,
and, again, I gave you that opportunity last time. . . . If
there's a particularly egregious day, again, I'm not
seeing it, but if you want me to just surmise that
because he's looking around somebody is in the
shadows[,] I couldn't make that finding.
Next, the judge addressed plaintiff's request for grandparent visitation and
the following colloquy ensued:
THE COURT: . . . [A]gain, we've talked about the
grandparents. I didn't have a request during the trial. I
didn't order grandparent parenting time. I recognize
[plaintiff] has couched it now in terms of a best interest,
but you recognize that there's an appeal, so, I can't make
a determination that not seeing the grandparents is or
isn't in the child's best interests.
A-2233-18
36
[Plaintiff]: Well, you made that determination at trial,
Judge.
THE COURT: No, what I said at trial, and I recognize
....
[Plaintiff]: When you said that all the grandparents that
are in India that's why he's moving to India.
THE COURT: I didn't say that, sir. What I reminded
everyone was . . . this child had spent a tremendous
amount of time in India. India wasn't a foreign country
to him. He had gone over there and stayed at the
grandparent's house. I didn't say he was allowed to
move because his grandparents were India. And, quite
frankly, if somebody had wanted to secure grandparent
rights they could have done that at the trial. We could
have tried an issue with respect to . . . I want my parents
or I want my parents, either one of you could. Neither
one of you did, and now I can't do it on appeal because
it's not part of the reliefs I requested.
[Plaintiff]: I understand, Judge.
....
[Plaintiff]: Either you find it in his best interest or not.
It's one of those two things; right?
THE COURT: Again, . . . grandparent visitation isn't
part of someone's best interest. It's an actual statute that
you have to comply with. Either . . . you or [defendant]
could have made that statute and the grandparent's
rights to . . . visitation, part of a trial. But . . . you went
to the Appellate Division. I didn't order, and I can only
enforce now that which . . . I ordered.
A-2233-18
37
The judge found insufficient evidence to conclude defendant repeatedly
canceled FaceTime sessions but granted the part of plaintiff's request requiring
the parties provide one day's notice before rescheduling a session. She denied
plaintiff's request to find defendant denigrated plaintiff or spoke "harshly" about
him in front of the child, finding there was no proof of defendant's conduct.
The judge denied plaintiff's request to impose sanctions on defendant
relating to the missed vacation time and other relief requested in plaintiff's
motion relating to financial issues. She noted plaintiff was in violation of the
orders requiring him to pay the money judgments awarded defendant and had
unclean hands. However, the judge further stated:
Neither one of you have done all that you are ordered
to do. So, I'm going to deny the request for sanctions.
I'm not going to sanction her, and I'm not going to
sanction you.
Following arguments, the trial judge issued a written order on December
6, 2019, which denied plaintiff's motion seeking modification of relief granted
in the FJOD and the April 26, 2019 order; enforced the FJOD by compelling
plaintiff to comply with his financial obligations, and sanctioned plaintiff for
"repeated [c]ontempt" of the court and "repeated violations of [c]ourt [o]rders."
The order stated as follows:
A-2233-18
38
a. Plaintiff did not comply with the 04/26/19 [c]ourt
[o]rder that enforced the 1/24/19 FJOD to have
[p]laintiff QDRO his 401([k]) and that ordered
[p]laintiff to submit a proof of the same within thirty
. . . days of 04/26/19;
b. Plaintiff did not comply with the 04/26/19 [c]ourt
[o]rder that enforced the 1/24/19 FJOD to have
[p]laintiff provide pending additional support to
[d]efendant in the amount of [$2300] for six months
and [$5000] towards pending [c]ounsel fees, totaling
$18,800, and that ordered [p]laintiff to submit a proof
of payment within ninety . . . days of 04/26/19;
c. Plaintiff did not comply with the 04/26/19 [c]ourt
[o]rder that enforced the 01/24/19 FJOD to have
[p]laintiff provide [d]efendant with compensatory
damages in the amount of [$7500] for perpetrating
assault and battery and that ordered [p]laintiff to submit
a proof of the payment within ninety . . . days of
04/26/19;
d. Plaintiff did not comply with the 04/26/19 [c]ourt
[o]rder that enforced the 01/24/19 FJOD to have
[p]laintiff provide [d]efendant with [c]ounsel [f]ees in
the amount of [$7773] for the pendente-lite support
motion returnable February 2017 and that ordered
[p]laintiff to submit a proof of the payment within
ninety . . . days of 4/26/19;
e. Plaintiff did not comply with the [c]ourt [o]rders
dated 03/30/17 that ordered [p]laintiff to QDRO his
401(k) and instead, [p]laintiff made unauthorized post-
complaint withdrawals of $21,067[], absent any [c]ourt
[o]rders; [and]
f. Plaintiff did not comply with [c]ourt [o]rders dated
06/23/17 that ordered [p]laintiff to pay additional
A-2233-18
39
support to [d]efendant in the amount of [$2300] for six
months and [$5000] towards pending [c]ounsel fees,
totaling $18,800[.]
The order enforced the FJOD by compelling plaintiff to pay the marital
debt and unreimbursed medical expenses for the child of $2139.53 and $337.93,
respectively. The order also reprimanded and compelled plaintiff "to stop
demanding [d]efendant to work with QDRO agencies for the QDRO and
liquidation of [p]laintiff's 401([k]) account through [p]laintiff's employer," and
issued sanctions against plaintiff for "on-going frivolous [m]otion filings,
despite his pending appeals, driven by improper purposes to cause [d]efendant
harassment, irreparable harm and unnecessary legal expenses."
On January 15, 2020, after reviewing statements plaintiff submitted, the
judge issued a companion order to the December 6, 2019 order addressing
plaintiff's request for reimbursement of the ticket change and no-show penalties
relating to the 2019 summer vacation. The judge stated:
With respect to the demand by [plaintiff] for
reimbursement of the cost of penalties incurred by him
as a result of [defendant's] failure to send Ay[.S.] on
May 15, 2019[,] as well as the date change costs
incurred as a result of a discrepancy in the date Ay[.S.]
returned to school, a review of the record provides
[p]laintiff is seeking reimbursement of costs for not
only Ay[.S.] but also for costs associated with [the
paternal grandmother]'s airline tickets. It is clear from
the [c]ourt's review of the submitted documents it is
A-2233-18
40
being asked to consider awarding fees and penalties for
an individual who was not part of the [c]ourt's [FJOD].
Nowhere in [plaintiff]'s certification did he state that
the $1076.11 of no-show fees and penalties sought
included fees/penalties for his mother's ticket. Indeed,
with respect to the no-show fees in the proofs provided
there is no breakdown of Ay[.S.]'s ticket cost and the
penalties/fees chargeable only as to his tickets.
As a result of continual motion practice [while
this matter is on appeal] . . . the [c]ourt is only permitted
to enforce its prior orders. It is not permitted to
consider any requested relief not in the nature of an
enforcement. [Plaintiff]'s request for reimbursement
costs incurred for his mother's ticket is clearly not
within the purview of an enforcement action.
....
The [c]ourt has no authority at this time to
consider the no-show costs incurred for [plaintiff's]
mother. These penalties and costs are not the child's
and therefore not part of an enforcement application.
[Plaintiff]'s submissions with respect to the no-
show costs for Ay[.S.]'s ticket does not allow the
[c]ourt to make the necessary determination as to the
reimbursement amount owed to [p]laintiff.
....
From the proofs offered[,] the [c]ourt does not
find [plaintiff] has demonstrated by a preponderance of
the credible evidence that [defendant] gave inaccurate
information as to the date Ay[.S.]'s new school would
re-open from summer vacation. From the submissions
provided the [c]ourt does not find [defendant]
A-2233-18
41
intentionally misled either the [c]ourt of [plaintiff]
about the opening date of Ay[.S.]'s school [JBCN].
....
No credible evidence was presented to the court
which would warrant a hearing on the issue of change
of date fees. The record supports a finding that as of
the date the parties appeared before the court on April
26[,] no definitive . . . school opening date was known.
The fact that defendant thereafter purchased tickets for
a return date which was incorrect, without more, does
not provide a basis for a finding that it was [defendant]
who misled the [c]ourt and [p]laintiff and therefore she
should be responsible for Ay[.S.]'s change of date fees.
Given that the [c]ourt does not find [defendant] misled
either the [c]ourt or [plaintiff] the [c]ourt does not find
[defendant] is responsible for the change in date
fees/costs.
....
[Plaintiff] shall forward his [seventy percent]
share of the outstanding school fees to [defendant]
within thirty . . . days of this [o]rder.
Plaintiff also appealed from the December 6, 2019 and January 15, 2020 orders.
I.
"The scope of appellate review of a trial court's fact-finding function is
limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's opinion is
"binding on appeal when supported by adequate, substantial, credible evidence."
Id. at 412 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484
A-2233-18
42
(1974)). "Deference is especially appropriate 'when 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)).
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 412).
"Because a trial court 'hears the case, sees and observes the witnesses, [and]
hears them testify,' it has a better perspective than a reviewing court in
evaluating the veracity of witnesses.'" Cesare, 154 N.J. at 412 (quoting Pascale
v. Pascale, 113 N.J. 20, 33 (1988)). "We do '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."'" Gnall v.
Gnall, 222 N.J. 414, 428 (2015) (alterations in original) (quoting Cesare, 154
N.J. at 412). Therefore, "'[o]nly when the trial court's conclusions are so "clearly
mistaken" or "wide of the mark" should we interfere[.]'" Ibid. (quoting N.J. Div.
of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). However, "we owe
no deference to the judge's decision on an issue of law or the legal consequences
A-2233-18
43
that flow from established facts." Dever v. Howell, 456 N.J. Super. 300, 309
(App. Div. 2018).
II.
In A-2233-18, plaintiff raises the following points:
I. DEFENDANT FAILED TO DEMONSTRATE A
LEGITIMATE, SUBSTANTIAL CHANGE IN
CIRCUMSTANCES WARRANTING A
MODIFICATION OF THE JULY 21, 2017 CUSTODY
AND PARENTING TIME CONSENT ORDER.
A. The court erred when it failed to order the
custody arrangement agreed upon by the parties.
B. Defendant failed to demonstrate that
relocation of the parties' child to India is in the
child's best interests.
II. THE TRIAL COURT DECREASED PLAINTIFF'S
PARENTING TIME WITHOUT INPUT FROM ANY
EXPERT AND LESS THAN TWO . . . YEARS AFTER
THE PARTIES AGREED THAT IT WAS IN THE
CHILD'S BEST INTERESTS THAT THEY SHARE
50/50 PARENTING TIME.
III. IT IS PLAIN ERROR THAT THE DIVORCE
TRIAL RE-LITIGATED THE PARTIES' DOMESTIC
VIOLENCE CLAIMS THAT WERE PREVIOUSLY
ADJUDICATED ON THE MERITS AND UPON
WHICH PLAINTIFF PREVAILED.
A. Defendant's previously adjudicated
allegations of domestic violence are barred by
claim preclusion (res judicata) and issue
preclusion (collateral estoppel).
A-2233-18
44
i. Defendant's marital tort claims are
barred by the doctrine of res judicata.
ii. Defendant's marital tort claims are
barred by the doctrine of collateral
estoppel.
IV. THE TRIAL COURT'S FINDINGS OF FACT
ARE NOT BASED ON SUBSTANTIAL CREDIBLE
EVIDENCE IN THE RECORD AND THEREFORE
SHOULD BE GIVEN LITTLE WEIGHT BY THE
APPELLATE DIVISION.
We reject plaintiff's arguments in Points I and IV that a change in
circumstances was required before the court to adjudicate the custody and
removal issues at trial. We also reject the assertion the judge's findings were
unsupported by the substantial credible evidence.
In custody cases, it is well settled that the court's
primary consideration is the best interests of the
children. . . . The court must focus on the "safety,
happiness, physical, mental and moral welfare" of the
children. Fantony v. Fantony, 21 N.J. 525, 536 (1956).
See also P.T. v. M.S., 325 N.J. Super. 193, 215 (App.
Div. 1999) ("In issues of custody and visitation '[t]he
question is always what is in the best interests of the
children, no matter what the parties have agreed
to.'"). . . . Custody issues are resolved using a best
interests analysis that gives weight to the factors set
forth in N.J.S.A. 9:2-4(c).
[Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.
2007) (citations omitted).]
A-2233-18
45
N.J.S.A. 9:2-4(d) states: "The court shall order any custody arrangement
which is agreed to by both parents unless it is contrary to the best interests of
the child." Otherwise, it must set forth why the agreed-upon arrangement is not
in the child's best interests. Ibid.It is well-settled that a party seeking modification of an existing custody
and parenting time arrangement must demonstrate a change in circumstances.
Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007). However, a
change in circumstances is required only where a final judgment fixing custody
and parenting time has entered. Todd v. Sheridan, 268 N.J. Super. 387, 398
(App. Div. 1993). As a general proposition, in the absence of a final judgment,
the Family Part has the authority to revisit and modify pendente lite orders.
Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). This is even more
so when the issue in dispute is the custody of a child because the court sits as
parens patriae. Fantony, 21 N.J. at 536.
The MOU specifically twice stated the parties understood it was not a
contract, yet also stated "it is our desire that the terms be set forth in a final
judgment, by which we will be bound . . . ." However, the terms of the MOU
were never incorporated into a final judgment and instead were embodied in a
pendente lite order.
A-2233-18
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More importantly, as we have recounted, the record is abundantly clear
both parties understood custody and removal were trial issues. The MOU and
the pendente lite order incorporating it did not address removal. Moreover, we
fail to see how the MOU, which considered a change in immigration status
worthy of a modification of the holiday schedule, would not also consider a
modification of the child's place of residence based on a change in a parent's
immigration status as well. Furthermore, the record does not support plaintiff's
argument defendant's immigration status was self-created. This argument lacks
merit to warrant discussion. R. 2:11-3(e)(1)(E).
Because it was clear defendant was A.S.'s primary caretaker and could not
remain in the United States, it was equally clear why the parties' pendent e lite
custody agreement was not in the child's best interests. Contrary to plaintiff's
arguments, the judge did not need to make a more explicit finding on this point
pursuant to N.J.S.A. 9:2-4(d).
Plaintiff challenges the judge's findings under the N.J.S.A. 9:2-4(c)
factors and argues it "amounted to a rote use of N.J.S.A. 9:2-4(c) as a checklist,"
which "did not actually focus on the best interests of the child . . . [and] centered
on [d]efendant's selfish desire to return to India." He argues the tri al judge
A-2233-18
47
applied the Baures v. Lewis, 167 N.J. 91 (2001), standard by focusing on
defendant's needs in deciding the removal. We disagree.
The trial judge painstakingly addressed and explained her reasons in
deciding the custody and removal by applying the facts to each N.J.S.A. 9:2-
4(c) factor. We affirm substantially for the reasons expressed in the judge's
thorough oral opinion. Plaintiff's argument the judge's reasoning was rote lacks
sufficient merit to warrant further discussion in a written opinion. R. 2:11-
3(e)(1)(E).
The record also does not support the suggestion the judge applied the
Baures standard. The Baures Court predicated removal applications on the
premise that "social science research links a positive outcome for children of
divorce with the welfare of the primary custodian and the stability and happiness
within that newly formed post-divorce household." 167 N.J. 106. As a result,
the Court adopted factors for consideration different from the N.J.S.A. 9:2 -4(c)
factors, namely,
(1) the reasons given for the move; (2) the reasons
given for the opposition; (3) the past history of dealings
between the parties insofar as it bears on the reasons
advanced by both parties for supporting and opposing
the move; (4) whether the child will receive
educational, health and leisure opportunities at least
equal to what is available here; (5) any special needs or
talents of the child that require accommodation and
A-2233-18
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whether such accommodation or its equivalent is
available in the new location; (6) whether a visitation
and communication schedule can be developed that will
allow the noncustodial parent to maintain a full and
continuous relationship with the child; (7) the
likelihood that the custodial parent will continue to
foster the child's relationship with the noncustodial
parent if the move is allowed; (8) the effect of the move
on extended family relationships here and in the new
location; (9) if the child is of age, his or her preference;
(10) whether the child is entering his or her senior year
in high school at which point he or she should generally
not be moved until graduation without his or her
consent; (11) whether the noncustodial parent has the
ability to relocate; (12) any other factor bearing on the
child's interest.
[Id. at 116-17.]
The Bisbing Court overturned the holding in Baures stating:
In short, social scientists who have studied the impact
of relocation on children following divorce have not
reached a consensus. . . . Moreover, the progression in
the law toward recognition of a parent of primary
residence's presumptive right to relocate with children,
anticipated . . . in Baures, has not materialized."
[Bisbing, 230 N.J. at 330.]
Here, there is no evidence the trial judge applied the Baures factors. At
the outset, we note the Legislature qualified the list of factors in N.J.S.A. 9:2-
4(c) when it stated: "In making an award of custody, the court shall consider but
not be limited to the following factors . . . ." (Emphasis added). Plaintiff
A-2233-18
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presented evidence to the judge in his case in chief comparing the medical and
educational systems in the United States and India. He also adduced evidence
relating to the child's relationship with extended family in India. There was also
evidence of plaintiff's efforts to stifle defendant's ability to remain in the
country, which required the judge to assess her employment prospects and
standard of living in India and the United States. Although these considerations
may suggest the application of the Baures factors, a thorough review of the
record shows the judge adjudicated the custody and removal applying the correct
law. Defendant's place of residence, her employment prospects, and other
comparisons made by the judge between India and United States were all proper
considerations under the N.J.S.A. 9:2-4(c) factors, which require the court to
assess among other factors "the needs of the child; the stability of the home
environment offered; the quality and continuity of the child's education; . . .
[and] the parents' employment responsibilities[.]"
In Point II, plaintiff argues it was an error for the court to address custody
without the assistance of an expert to evaluate A.S.'s best interests and provide
insight to the court, particularly in a case involving an issue of magnitude such
as a removal.
A-2233-18
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We reject plaintiff's argument that an expert was required before the judge
could decide custody and removal. This proposition is unsupported by our law.
Indeed, neither Rule 5:3-3 nor Rule 5:8-6 require the court to appoint a custody
expert nor the parties to retain one. Moreover, although our Supreme Court has
stated: "In implementing the 'best-interest-of-the-child' standard, courts rely
heavily on the expertise of psychologists and other mental health professional s,"
Kinsella v. Kinsella, 150 N.J. 276, 318 (1997), there is no evidence mental
health was an issue in this case. Here, given the level of preparation and
knowledge demonstrated by both parties at trial, there is no evidence plaintiff
was incapable of retaining an expert. Moreover, he does not identify the missing
"scientific, technical, or other specialized knowledge [that would] assist the
[judge] . . . to understand the evidence or to determine a fact in issue." N.J.R.E.
702.
In Point III, plaintiff argues the trial judge was barred by res judicata and
collateral estoppel from making a finding of domestic violence because the
judge who decided the domestic violence case determined there was none. He
asserts the judge's independent findings of domestic violence influenced the
outcome of the custody determination and the marital tort finding. He argues
the judge prevented him from producing a Jersey City police officer who
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51
testified at the domestic violence trial to testify as a rebuttal witness in the
divorce matter. He argues domestic violence was not a consideration because
defendant settled custody after any purported domestic violence occurred.
As a result, defendant also argues the marital tort findings were
unsupported by the evidence. He asserts we should not defer to the trial judge's
fact findings because the judge ignored the credible evidence and several areas
of defendant's testimony, which demonstrated she lacked credibility.
The doctrine of res judicata requires:
(1) the judgment in the prior action must be valid, final,
and on the merits; (2) the parties in the later action must
be identical to or in privity with those in the prior
action; and (3) the claim in the later action must grow
out of the same transaction or occurrence as the claim
in the earlier one.
[Rippon v. Smigel, 449 N.J. Super. 344, 367 (App. Div.
2017).]
In order to determine whether the prior action and the later action are the same
a court must consider:
(1) whether the acts complained of and the demand for
relief are the same (that is, whether the wrong for which
redress is sought is the same in both actions); (2)
whether the theory of recovery is the same; (3) whether
the witnesses and documents necessary at trial are the
same (that is, whether the same evidence necessary to
maintain the second action would have been sufficient
A-2233-18
52
to support the first); and (4) whether the material facts
alleged are the same.
[Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 606-07
(2015).]
Collateral estoppel is "a branch of the broader law of res judicata which
bars relitigation of any issue actually determined in a prior action generally
between the same parties and their privies involving a different claim or cause
of action." Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 173 (App. Div.
2000) (internal quotations omitted). For collateral estoppel to apply, a party
must demonstrate:
(1) the issue to be precluded is identical to the issue
decided in the prior proceeding; (2) the issue was
actually litigated in the prior proceeding; (3) the court
in the prior proceeding issued a final judgment on the
merits; (4) the determination of the issue was essential
to the prior judgment; and (5) the party against whom
the doctrine is asserted was a party to or in privity with
a party to the earlier proceeding.
[Delacruz v. Alfieri, 447 N.J. Super. 1, 24 (Law. Div.
2015) (citing In Re Est. of Dawson, 136 N.J. 1, 20-21
(1994)).]
Here, res judicata and collateral estoppel did not apply because the TRO
remained in place during the divorce proceedings following our initial remand
and a final judgment in the domestic violence matter was not yet entered.
Moreover, as we noted in our decision remanding the domestic violence matter,
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53
the trial judge there only addressed the May 2016 predicate acts and did not
address the history of domestic violence. Therefore, even if the findings i n the
domestic violence case were somehow final, defendant adduced much more
testimony regarding the prior history of domestic violence which was not
previously adjudicated. Also, plaintiff was convicted following a trial in the
municipal court of simple assault for the May 2016 incidents and was fined and
served a one day in jail. Although we understand plaintiff appealed the
conviction, the record lacks evidence it was overturned.
"Domestic violence is a term of art which describes a pattern of abusive
and controlling behavior which injures its victim." Corrente v. Corrente, 281
N.J. Super. 243, 246 (App. Div. 1995). For these reasons, the Legislature
created the fourth N.J.S.A. 9:2-4(c) factor, requiring the court to consider "the
history of domestic violence, if any[.]" However, the Legislature also adopted
the fifth N.J.S.A. 9:2-4(c) factor, which requires the court to consider "the safety
of the child and the safety of either parent from physical abuse by the other
parent[.]"
Interpreting the statute, as we must, using its plain language, the absence
of the term "domestic violence" in the fifth best interests factor signals the trial
judge could still consider acts of abuse regardless of whether they constituted a
A-2233-18
54
pattern of abuse or control and qualified as domestic violence. Similarly, the
marital tort claim did not share the same characteristics or theory of recovery as
the domestic violence for either res judicata or collateral estoppel to apply.
The trial judge did not prevent plaintiff from producing a Jersey City
police officer to testify on his behalf. On the first day of trial, plaintiff advised
the court he had subpoenaed the officer as his witness, but the officer was on
leave and could not testify. On the tenth day of trial, during the presentation of
defendant's case in chief, plaintiff announced he wished to produce the officer
as a rebuttal witness. By then, the officer had testified in the domestic violence
matter and in the municipal court trial leading to plaintiff's conviction.
Contrary to plaintiff's argument on appeal, the trial judge did not foreclose
him from producing the witness and instead stated: "I don't know. You are
finished with your case in chief. Again, it's almost like giving you a second bite
at the apple, but I'll give you an opportunity to think about it. We won't talk
about it today." On the thirteenth day of trial, plaintiff presented his rebuttal
testimony and evidence, but never called the officer. We discern no error on the
judge's part where plaintiff failed to present his subpoenaed witness.
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III.
In A-3932-18, plaintiff challenges an April 26, 2019 post-judgment order.
He argues the order modified the terms of the FJOD, which mandated he have a
minimum of six weeks of parenting time in the United States, reducing his
parenting time by several weeks by finding the child was to spend seventy five
percent of his summer vacation time with plaintiff instead. Plaintiff also asserts
the trial judge erred by not finding defendant unilaterally enrolled A.S. in JBCN
in order to shorten plaintiff's summer parenting time.
He also alleges the trial judge improperly modified the FJOD by imposing
deadlines for the satisfaction of his financial obligations, which were not
previously contained in the judgment, thereby exceeding the scope of the court's
authority pending appeal. He asserts the judge found he made tactical,
manipulative communications during FaceTime calls where there was no such
evidence in the record. He also argues the judge made new findings of domestic
violence during the marriage beyond the scope of the judge's findings in the
divorce trial.
The trial judge's rulings regarding the vacation and the school selection
were sound. In her oral findings on January 24, 2019, the judge stated plaintiff's
"[p]arenting time will be at a minimum six weeks during the child's vacation,
A-2233-18
56
whatever months that is, starting five days after school, and the child must be
returned one day [sic] before school starts." The judge also stated plaintiff
"should be permitted the majority of the child's vacation parenting time" and
previously noted the six weeks was "approximately" what plaintiff's parenting
time would be according to the Indian school calendar. In the FJOD, the judge
stated: "It is the [c]ourt's intention that Ay[.S.] spend [seventy-five percent] of
his summer vacation time with the plaintiff . . . [to] commence [five] days after
school closes for the year and Ay[.S.] shall return to India one week prior to the
start of the school year."
The April 26, 2019 order reiterated A.S. would spend his summer vacation
in the United States with plaintiff from five days after school ends until one
week before school starts again. Therefore, the April 26, 2019 order was in
accord with the FJOD and did not constitute a modification.
Furthermore, the record supports the judge's conclusion that plaintiff
failed to meet his burden to show defendant selected JBCN in order to shorten
his parenting time. JBCN was the only mutually-agreed-upon school referenced
on each party's list of prospective schools for A.S. Defendant's selection
comported with the FJOD, which required the parties to "discuss and agree what
school best fits the needs of the child and their ability to pay for same."
A-2233-18
57
A motion to enforce litigant's right is governed by Rule 1:10-3. "Rule
1:10-3 provides a 'means for securing relief and allow[s] for judicial discretion
in fashioning relief to litigants when a party does not comply with a judgment
or order.'" N. Jersey Media Grp., Inc. v. State Off. of the Governor, 451 N.J.
Super. 282, 296 (App. Div. 2017) (quoting In re N.J.A.C. 5:96, 221 N.J. 1, 17-
18 (2015)). We review an order entered under Rule 1:10-3 for abuse of
discretion. Id. at 299.
Plaintiff's argument the trial judge's imposition of a deadline to meet his
financial obligations under the judgment was an improper modification of the
judgment pending appeal lacks merit. There was no question plaintiff violated
his court ordered obligation to pay defendant the sums owed to her. The judge's
imposition of a deadline to satisfy the money judgments was well within her
discretion and power to enforce the FJOD.
However, we are constrained to vacate and remand the portion of the April
26, 2019 order stating:
Plaintiff shall cease all tactical and manipulative
communications during Face[T]ime videocall sessions
and phone-calls with the parties' child in on-going
attempts to harm the safety of the parties' child and
negatively influence the parties' child against the
[d]efendant and [d]efendant's family, pursuant to the
[c]hild's relocation to India with the [d]efendant.
A-2233-18
58
Although each party presented evidence and argument to the trial judge
blaming the other for interfering with the FaceTime calls, the record lacks
findings by the judge that plaintiff was the culprit. We vacate and remand this
portion of the order for further findings by the judge.
Plaintiff argues the judge's findings of domestic violence from the divorce
trial only addressed the incidents which occurred in May 2016 and did not
include specific findings of domestic violence in 2012. He asserts the April 26,
2019 order made new findings regarding incidents of domestic violence in 2012,
which constituted an improper modification of the FJOD pending appeal.
The evidence presented in the divorce trial included the 2012 incidents.
As we noted, the judge's oral findings of fact prior to entering the FJOD
concluded there were incidents of domestic violence between January and July
2012. The judge found the domestic violence was predicated on a series of acts
"from the inception of the parties' marriage beginning in early 2012 until the day
of their final separation on May 31st, 2016." This argument lacks sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
IV.
In A-1982-19, plaintiff challenges December 6, 2019 and January 15,
2020 orders and raises the following points for our consideration:
A-2233-18
59
POINT I
THE TRIAL COURT'S FINDINGS OF ENTERING
SANCTIONS AGAINST PLAINTIFF WERE
IMPROPER AND MUST BE REVERSED.
POINT II
THE TRIAL COURT NOT FINDING . . . PLAINTIFF
BEING CURRENT ON CHILD SUPPORT WAS
IMPROPER AND MUST BE REVERSED.
POINT III
THE TRIAL COURT'S ENTRY OF
"REPRIMANDING" PLAINTIFF IN ITS ORDER IS
IN CONTRADICTION TO ITS OWN FINDINGS ON
THE RECORD, CONSTITUTES AN ABUSE OF
DISCRETION AND MUST BE REVERSED.
POINT IV
THE TRIAL COURT'S FINDINGS AND ASSESSING
PLAINTIFF 100% OF THE [CHILD'S] TRAVEL
COSTS CONSTITUTES AN ABUSE OF
DISCRETION AND MUST BE REVERSED.
POINT V
THE TRIAL COURT'S VARIOUS FINDINGS RE:
THE [CHILD'S] BEST INTERESTS, IN LIGHT OF
DEFENDANT'S CONDUCT AS IT PERTAINS TO
THE JANUARY 24, 2019 DECISION WERE
IMPROPER AND MUST BE REVERSED.
POINT VI
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60
THE TRIAL COURT'S VACATING PRIOR ORDERS
ALREADY UNDER THE UMBRELLA OF THE
PENDING APPEAL CONSTITUTE AN ABUSE IN
[DISCRETION] AND MUST BE REVERSED.
In Point I, plaintiff argues the judge contradicted herself because during
oral argument she stated she would not sanction either party, yet in her writt en
order she sanctioned only him.
Defendant's motion asked the court to sanction plaintiff for failing to meet
his financial obligations pursuant to the January 24 and April 26, 2019 judgment
and order, respectively. Conversely, plaintiff's motion sought to sanction
defendant for "demanding school fees in excess of [p]laintiff's [o]rdered share
of [the c]hild's tuition fees." The judge granted defendant's requests for
sanctions and denied plaintiff's request. Notably, the order did not issue an
actual sanction aside from granting enforcement of the FJOD and order setting
forth plaintiff's financial obligations.
In her oral findings the judge found plaintiff in violation of litigant's
rights, but made no affirmative findings she would also sanction ei ther party,
and instead stated: "I'm going down the order [which requests the court] issue
sanctions and, again, I'm reserving on that for now." Therefore, the judge did
not contradict herself because the issue was reserved. However, the written
orders lack an explanation of the reason for the sanctions or the nature of the
A-2233-18
61
sanction itself and whether it was just to find plaintiff in violation of litigant's
rights. For these reasons, we are constrained to reverse and remand for further
findings regarding the imposition of sanctions.
In Point II, plaintiff asserts the judge erred when she failed to find he was
current on child support and asserts the decision is contrary to the evidence and
the judge's statements during the motion hearing. This issue is moot. The
December 6, 2019 order states: "O[rdered] that [p]laintiff is current on his child
support obligations being paid to [d]efendant in the amount of $253/week[.]"
In Point III, plaintiff argues the trial judge contradicted herself when
"during oral arguments at the motion hearing on December 6, 2019, [she]
state[d] that ' . . . [t]he . . . [c]ourt doesn't reprimand . . . [,]' yet it goes on to
enter relief to the contrary when it grants relief sought by [d]efendant to
'[r]eprimand [p]laintiff[.]" Plaintiff misreads the record.
Because each party made numerous requests for relief, during the motion
hearing the judge utilized their respective forms of order to discuss the requests
she was inclined to grant. In pertinent part, defendant's form of order read as
follows:
7. Reprimanding and [c]ompelling [p]laintiff to stop
demanding [d]efendant to work with QDRO agencies
for the QDRO and liquidation of [p]laintiff's 401([k])
account through [p]laintiff's employer, which is
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62
pending for approximately three . . . years now since
the [c]ourt [o]rder of March 30, 2017.
....
9. Reprimanding [p]laintiff on awarding himself with
[c]ounsel [f]ees and [c]osts in the amount of $178.00
for the [order to show cause] dated May 16, 2019,
absent any [c]ourt [o]rder. Plaintiff is hereby [o]rdered
to refrain from making inappropriate and unauthorized
deductions in an attempt to reduce his share of the
aforementioned pending financial relief owed to the
[d]efendant.
During the motion hearing, the judge explained "the [c]ourt doesn't
reprimand, and I know that that's just a term of art, but I am going to grant
especially [n]umber [seven.]" Regarding paragraph nine, the judge stated:
"Again, absent any court order [plaintiff] is hereby refrained from making
inappropriate and unauthorized deductions, that's correct, in an attempt to reduce
his share. So, I have granted that. I didn't make any awards."
The written order modified paragraph seven of defendant's form of order
as follows:
7. . . . Reprimanding and [c]ompelling [p]laintiff to
stop demanding Plaintiff + [d]efendant to work with
QDRO agencies for the QDRO and liquidation of
[p]laintiff's 401([k]) account through [p]laintiff's
employerwhich is pending for approximately three . . .
years now since the [c]ourt [o]rder of March 30, 2017.
The order did not change the language in paragraph nine.
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63
We are unconvinced the trial judge erred. She did not contradict herself
because consistent with her oral findings, she struck the language referring to a
reprimand in paragraph seven. Moreover, the reference to a reprimand in
paragraph nine did not amount to an abuse of discretion because the paragraph
explained plaintiff was "refrain[ed]" from exercising self-help by taking
unilateral deductions against the monetary obligations he repeatedly refused to
pay. The record clearly supports the decision to grant this relief.
In Point IV, plaintiff argues the court found him "100% responsible [for
A.S.'s] ticket . . . change penalties . . . in paragraph [two] of the January 15,
2020[, o]rder[.]" He asserts the court modified the judgment, which required
the parties to equally bear A.S.'s travel costs. Plaintiff reiterates he bought a
ticket for A.S. to visit him in the United States on May 15, 2019, however,
defendant failed to put the child on the plane and left plaintiff's mother waiting
at the airport. As a result, plaintiff had to rebook the tickets for A.S. and
plaintiff's mother for May 17, 2019, with a return date of June 6, 2019. Plaintiff
states the judge abused her discretion because during the motion hearing she
found defendant at fault for not boarding the child onto the plane.
The FJOD requires the parties to share equally in the child's plane fare to
have parenting time with plaintiff. During the motion hearing, the judge
A-2233-18
64
addressed the requests sought in plaintiff's form of order and stated: "Next is
[fifty] percent of the airline ticket, again, that was the 2019 ticket that was used,
for lack of a better word, seeking $847. The [c]ourt will grant that[.]" Separate
from the airfare, the judge reserved decision regarding the date change penalties
subject to her review of plaintiff's bank statements proving he incurred the
expense.
After reviewing the evidence submitted by plaintiff, the judge issued the
January 15, 2020 order and written findings reversing her decision. The judge
noted, plaintiff's proofs showed he incurred $3126.42 and was refunded
$2050.31, leaving $1076.11 representing the no-show penalties. Plaintiff then
re-booked tickets for A.S. and the paternal grandmother at a cost of $3388.77.
The judge stated: "The date change fee of $932.60 'clearly shown in . . .
[plaintiff's] bank statement, posted on June 12, 2019[.'] This is the exact same
amount as on the . . . date change penalty receipt provided in motion exhibits."
Because of the pending appeals, the judge concluded she could not
consider any request for reimbursement of travel costs and penalties associated
with the paternal grandmother. The judge reasoned the judgment only addressed
the airfare for A.S. and therefore expanding it to include costs for the
A-2233-18
65
grandmother would not constitute enforcement, but modification. This
determination was not an abuse of discretion.
The judge also concluded plaintiff's "submissions with respect to the no-show
costs for Ay[.S.]'s ticket does not allow the [c]ourt to make the necessary
determination as to the reimbursement amount" because the proofs submitted
failed to include a "breakdown of the original cost of only Ay[.S.]'s ticket.
Additionally, the refund processed email from [the online travel agent] does not
provide a breakdown by way of individual." However, the judge was able to
determine the change of date fees attributable to A.S., which she calculated as
$466.30 representing one-half of $932.60 plaintiff incurred.
The judge concluded as follows:
From the proofs offered the [c]ourt does not find
[plaintiff] has demonstrated by a preponderance of the
credible evidence that [defendant] gave inaccurate
information as to the date Ay[.S.'s] new school would
re-open from summer vacation. From the submissions
provided the [c]ourt does not find [defendant]
intentionally misled either the [c]ourt or [plaintiff]
about the opening date of Ay[.S.'s] school [JBCN].
Indeed, a review of the paperwork submitted and the
portion of the [c]ourt hearing on April 26, 2019 reveals
that [defendant] offered mid-June as the start date of
school. A copy of the transcript provided for the April
26[] hearing reveals it was [plaintiff] who gave exact
dates during the hearing[,] offering that he had a school
calendar.
A-2233-18
66
. . . Indeed, it was [plaintiff] who insisted at various
times during the April 26, 2019 hearing, that school
started either June 10 or June 3, 2019. The [c]ourt
ordered the parties to follow the [o]rder of the [c]ourt—
namely vacation was to start [five] days after school
closes and the return of the child was to take place one
week before the start of school. The [c]ourt gave no
exact dates.
. . . The fact that plaintiff thereafter purchased tickets
for a return date which was incorrect, without more,
does not provide a basis for a finding that it was
[defendant] who misled the [c]ourt and [p]laintiff and
therefore she should be responsible for A[.S.]'s change
of date fees.
. . . If [plaintiff] can obtain proof of the breakdowns of
A.[S.'s] ticket costs [minus] reimbursement costs, he
may refile his application. The [c]ourt cannot,
however, find . . . that [defendant] is responsible for
[$1076.11] for no show fees, given this includes costs
for [plaintiff's] mother as well.
The judge's findings were supported by the substantial credible evidence
and were not an abuse of discretion. We decline to disturb her ruling.
In Point V, plaintiff argues defendant violated the April 26, 2019 order by
failing to bring A.S. to the airport on May 16, 2019, and "refus[ing] to permit .
. . A.S., to visit [p]laintiff in the [United States] during his Diwali vacation
[from] school [in] October-November 2019[.]" He asserts defendant failed to
create a schedule for A.S. to visit his paternal grandparents in India and is
intentionally depriving A.S. from seeing them. He points out although the court
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did not address the grandparent visitation, it was a factor the court cons idered
in allowing defendant to relocate to India with A.S. Plaintiff also repeats
arguments he made regarding the FaceTime calls, namely, that defendant and
other adults were in the same room as A.S. and defendant employed "harassing
tactics during FaceTime calls designed to impede [p]laintiff's ability to have a
quality relationship with his son." Plaintiff argues the court erred by not finding
defendant in violation of litigant's rights and ignored A.S.'s bests interests when
it did not grant these requests in his motion.
The December 6, 2019 order addressed the summer 2019 vacation costs
by awarding plaintiff $847 representing one-half of the ticket cost and
permitting him to offset "this amount by reducing $847 from the monies owed
by [p]laintiff to [d]efendant." As we noted, the judge's findings respecting the
other costs associated with the trip were unassailable.
The December 6 order also granted plaintiff's request to find "defendant
in violation of [the court's] prior orders by refusing to honor [plaintiff's] various
requests to allow . . . [A.S.] to visit [p]laintiff in the United States for [two]
weeks, during his . . . Diwali school break . . . in 2019." Therefore, this issue is
moot.
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Plaintiff's argument relating to grandparent visitation lacks merit and is
affirmed substantially for the reasons expressed by the trial judge. We add the
following comments. Grandparent visitation rights are governed by N.J.S.A.
9:2-7.1. Our Supreme Court has explained that because parents have a
fundamental right of autonomy to parent their children, a party seeking
grandparent visitation must first "prove that visitation is necessary to avoid harm
to the child." Moriarty v. Bradt, 177 N.J. 84, 117 (2003). Only when the movant
meets his or her burden of overcoming the presumption in favor of the parent by
a preponderance of the evidence is the court then required to determine a
visitation schedule that is in the best interests of the child. Ibid.Here, no complaint for grandparent visitation was ever filed. Moreover,
as noted by the trial judge, the record here is devoid of an any evidence
demonstrating plaintiff met his burden of proof under Moriarty.
We also decline to disturb the judge's findings regarding the FaceTime
calls. We recounted the detailed findings the judge made after she "watched
hours and hours['] worth of video of Ay[.S.] and [plaintiff] during their
FaceTime" and concluded she could find none of the violations or adverse
conduct allegedly perpetrated by defendant. Plaintiff's appendix lacks the
videos he provided to the trial judge. See R. 2:6-1(a)(1)(I) (appellant's appendix
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must include those portions of the record that "are essential to the proper
consideration of the issues"). However, a review of still photos of the FaceTime
calls provided by plaintiff only reveal a few photos in which there is another
person in the room with A.S. and do not convince us the judge's findings were
mistaken.
In Point VI, plaintiff alleges the court's January 24, 2019 custody
determination and conclusions regarding defendant's inability to remain in the
United States "failed to give any weight to [d]efendant's failure to undertake
efforts to remain in the U[nited] S[tates]" and ignored a "self-created
'deportation situation'". He asserts defendant's immigration status should not
have served as a basis for a modification of custody agreement and "she is unable
to demonstrate that the best interests of [A.S.] would be served by a relocation
to India." Plaintiff repeats his argument "[a] best interests analysis is not
required where the parties have reached an agreement as to custody and
parenting time" and the parties had already agreed to equal custody of A.S. He
further asserts defendant raised no claims of domestic violence after the part ies
entered into the custody and parenting time agreement. Therefore, the existence
of domestic violence was not a basis to modify the agreement. He concludes by
claiming
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the [t]rial [c]ourt['s] attempts of now vacating [the July 21,
2017] [o]rder, more than a year after its oral decision on
January 24, 2019[,] are improper in light of the pending
appeal and beyond the scope of the [t]rial [c]ourt['s]
jurisdiction . . . . The [t]rial [c]ourt['s] finding and [o]rdering
that the "FJOD Court Order of 1/24/2019 supersedes all prior
pendente-lite [c]ourt [o]rders from before the trial
proceedings," made by the [t]rial [c]ourt in paragraph
[sixteen] of the December 6, 2019 [o]rder . . . is hence
improper and must be reversed because this is a new finding
which is not enforcement of its January 24, 2019 oral decision
of the [FJOD], and this finding is beyond the scope of
amplification of the [t]rial [c]ourt's decision, in light of the
pending appeals . . . . Rule 2:9-1 provides that the [t]rial
[c]ourt shall have continuing jurisdiction to enforce
judgments and orders pending appeal. The [t]rial [c]ourt is
therefore barred from making any new findings in the
December 6, 2019 [o]rder which it had failed to previously
make in its January 24, 2019 oral decision of the [FJOD], and
as such any such findings must all be reversed since they
constitute an abuse in discretion by the [t]rial [c]ourt.
We have addressed the arguments relating to defendant's immigration
status, the removal, the effect of the MOU and pendente lite order incorporating
it, and the domestic violence findings at length in section II of this opinion. To
the extent that we have not further elaborated on plaintiff's arguments it is
because they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Finally, plaintiff raised an issue for the first time in his reply brief and
during the oral argument of this appeal, namely, that the January 15, 2020 order
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requires him to pay seventy percent of the JBCN tuition whereas the judgment
stated he would bear sixty-four percent of the expense. We have stated: "Raising
an issue for the first time in a reply brief is improper." Borough of Berlin v.
Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001). This
is because neither the trial judge nor the parties on appeal have had the
opportunity to address the argument. Ibid. This is the case here. For these
reasons, we decline to address plaintiff's argument as to the percentage of the
JBCN fees awarded in the court's January 15, 2020 order.
V.
Affirmed as to A-2233-18. Affirmed in part and vacated and remanded in
part as to A-3932-19. Affirmed in part and remanded in part as to A-1982-19.4
We do not retain jurisdiction.
4
Following oral argument, plaintiff filed a motion to supplement the record
under this docket number, which we have denied.
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