W.A.D. VS. R.M.C. (FD-07-4283-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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 NO. A-2587-16T2
W.A.D.,
Plaintiff-Respondent,
v.
R.M.C.,1
Defendant-Appellant.
___________________________
Argued September 18, 2018 – Decided October 5, 2018
Before Judges Yannotti, Rothstadt and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FD-07-4283-15.
Angela M. Scafuri argued the cause for appellant
(Wilentz, Goldman & Spitzer, PA, attorneys; Angela
M. Scafuri, on the briefs).
Theresa A. Lyons argued the cause for respondent
(Lyons & Associates, PC, attorneys; Theresa A. Lyons,
Chris A. Wright and Joanna R. Adu, on the brief).
1
We use initials to identify the parties and others involved in this dispute in
order to protect their identities.
PER CURIAM
Defendant appeals from the trial court's order dated November 18, 2016,
which declared plaintiff the psychological parent of the minor child G.M., and
ordered that the parties would share joint legal custody, with plaintiff designated
the parent of primary residence (PPR). Defendant also appeals from an order
dated January 12, 2017, which denied her motion for reconsideration.
I.
The parties met in 2009 when defendant, a licensed practical nurse, was
taking care of plaintiff's mother at a nursing facility. They became friends and
soon began what defendant describes as an intimate personal relationship. In
the fall of 2009, defendant moved into plaintiff's single-family home in West
Orange. In the spring of 2011, because of certain difficulties in their
relationship, defendant moved into a separate apartment in Clark, although the
parties remained in contact. One of the reasons for the parties' difficulties was
their differing attitudes towards children. Plaintiff was reluctant to have
children because of her age and her career.
In July 2011, defendant completed a training program so that she could
become licensed by the Division of Child Protection and Permanency (Division)
as a foster parent. G.M. was born on December 3, 2011. Later that month, the
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Division contacted defendant and told her that the child could be placed with
her immediately. The parties picked up the child at the hospital. Thereafter,
defendant and G.M. moved into plaintiff's residence, which the Division had
certified as a resource home. The parties agreed that G.M. would call plaintiff
"Mamma" and defendant "Mommy."
In 2013, the parties learned that G.M. had a brother, and the Division
asked the parties if they wanted to adopt G.M.'s brother so that the brothers
would be together in the same home. Defendant wanted to adopt G.M.'s brother,
but plaintiff did not. This disagreement led to a deterioration in the parties'
relationship. Eventually, G.M.'s brother was adopted by his resource parents.
It appears that the parties both intended to adopt G.M., but they were
concerned the adoption could be delayed because they were a same-sex couple.
In order to expedite the matter, the parties agreed that the adoption would
proceed in defendant's name only, with plaintiff's name added later. Defendant
adopted G.M. on November 22, 2013. At the time, defendant was living in
plaintiff's home.
In 2014, the parties' relationship continued to deteriorate and plaintiff
encouraged defendant to begin dating others. In June 2014, defendant began a
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relationship with C.M.C. In August 2014, defendant moved out of plaintiff's
home and moved in with C.M.C.
In June 2015, plaintiff commenced this action seeking joint legal and
physical custody of G.M. Plaintiff also sought to have her name be placed on
G.M.'s birth certificate as a parent, and to have G.M.'s last name hyphenated to
reflect the surnames of both parents.2 The Family Part entered an order which,
among other things, scheduled the matter for a plenary hearing; temporarily
granted defendant sole legal and residential custody; appointed Lucy Agostini
as guardian ad litem for the child; appointed Dr. Sharon Ryan Montgomery to
determine whether there was a psychological bond between plaintiff and G.M.;
and directed plaintiff to deposit $40,000 in a fund to cover the costs of this
litigation.
In July 2015, defendant married C.M.C. Plaintiff later amended her
complaint to add a count seeking to be designated the PPR for the child. In
2
In November 2015, plaintiff filed a separate complaint in Essex County to
adopt G.M. That same month, C.M.C. filed a complaint in Union County to
adopt the child. The court dismissed the complaint without prejudice and
C.M.C. appealed. In an opinion also filed this date in A-1600-17, we affirm the
dismissal of C.M.C.'s complaint.
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February 2016, the court ordered plaintiff to deposit an additional $40,000 in
the litigation fund.
Thereafter, Judge Craig R. Harris conducted a trial in the matter. On
November 18, 2016, the judge filed a written opinion in which he concluded that
plaintiff met the criteria in V.C. v. M.J.B., 163 N.J. 200, 223 (2000), and
established she is a psychological parent of the child. The judge also found it
would be in the child's best interests if the parties shared joint legal custody,
with plaintiff designated as the PPR. In addition, the judge granted plaintiff's
application to have her name placed on the child's birth certificate, and to have
the child's last name reflect the surnames of both parents. The judge
memorialized his findings of fact and conclusions of law in an order entered on
the same date. On January 12, 2017, the judge denied defendant's motions for
reconsideration and for a stay pending appeal. This appeal followed.
II.
On appeal, defendant argues that the trial court erred by allowing her
attorney to withdraw from the case about three weeks before the scheduled trial
date.
The record shows that on March 22, 2016, defendant's attorney filed a
motion seeking leave to withdraw from the case because defendant owed her
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firm more than $100,000 in attorney's fees. The court considered the motion on
April 8, 2016, and placed its decision on the record. The court pointed out that
defendant had signed a retainer agreement, which stated that counsel could ask
the court for permission to withdraw if defendant did not pay the fees in a timely
manner.
The court noted that it had scheduled the trial to begin in about three
weeks, and this weighed against granting the application. The court stated,
however, that the case already had been pending for about ten months, and cases
of this sort ordinarily should be completed in ninety days. The court observed
that the case was not complex, defendant had the opportunity to retain new
counsel, and new counsel would have time to "get up to speed" in the case.
The court also observed that although defendant had paid a significant
amount of her attorney's fees, she had sufficient income to pay "much more."
The court further found that substantial, additional attorney's fees would be
incurred to complete the case, and the likelihood defendant would pay those fees
was "pretty minimal." Balancing all of these factors, the court decided counsel
should be permitted to withdraw.
"An attorney who appears of record may withdraw from a case for
justifiable and lawful cause, after giving proper notice and obtaining leave of
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court." Jacobs v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967). The
decision of whether to permit an attorney to withdraw is committed to the sound
discretion of the court. Ibid. Withdrawal may be permitted if the client fails or
refuses to pay his or her attorney's fees, after a reasonable demand for payment.
Ibid.In deciding whether to grant a motion to withdraw, the court should
consider, among other relevant factors
the terms of the written retainer agreement and whether
either the attorney or the client has breached the terms
of that agreement; the age of the action; the imminence
of the scheduled trial; the complexity of the issues; the
ability of the client timely to retain substituted counsel;
the amount of fees already paid by the client to the
attorney; the likelihood that the attorney will receive
payment of any balance due under the retainer
agreement if the matter is tried; the burden on the
attorney if the withdrawal application is not granted;
and the prejudice to the client or to any other party.
[R. 5:3-5(e)(2).]
Here, the record shows that when defendant's attorney sought leave to
withdraw, defendant owed counsel more than $100,000 in fees. The court found
that defendant had sufficient funds to pay her attorney more than she paid, and
that it was unlikely she would be able to pay the additional fees that would be
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incurred to complete the case. In addition, the court weighed all of the other
relevant factors in determining whether to allow counsel to withdraw.
Although defendant argues that it was too close to the scheduled trial date
to permit counsel to withdraw, it is undisputed that defendant was able to retain
new counsel before the trial began. In addition, the trial judge indicated that he
could only try the case on two days during any week. The trial commenced on
May 10, 2016, and was not concluded until September 23, 2016. Therefore,
counsel had sufficient time to become familiar with the case. Furthermore,
defendant has not shown that she was prejudiced by the court's determination.
We conclude the court's decision to allow counsel to withdraw was not a
mistaken exercise of discretion.
III.
Next, defendant argues that the trial judge erred by denying her new
attorney's application to adjourn the trial. As stated previously, on April 8, 2016,
the court permitted defendant's attorney to withdraw from the case. The trial in
the matter was then scheduled to begin on May 3, 2016. Defendant retained new
counsel, and on April 15, 2016, counsel sought an adjournment of the trial. The
court denied the application.
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We review a trial court's decision denying an application for an
adjournment for abuse of discretion. Kosmowski v. Atl. City Med. Ctr., 175
N.J. 568, 573-74 (2003). We will only reverse the court's determination when
it "appears that an injustice has been done." Rocco v. N.J. Transit Rail
Operations, 330 N.J. Super. 320, 343-44 (App. Div. 2000). In deciding whether
to reverse the trial court's decision, we consider all relevant factors, including
the length of the delay, whether similar requests had previously been made and
granted, the inconvenience to other parties and the court, whether denying the
application would result in prejudice to the party seeking the adjournment, and
the complexity of the case. State v. Hayes, 205 N.J. 522, 538 (2011).
The record shows that when defendant requested the adjournment, the
case had already been on the court's calendar for about ten months, which was
longer than usual for a case of this sort. Moreover, the judge's schedule only
permitted him to conduct the trial on two days during any week. The trial
ultimately began on May 10, 2016 and did not conclude until September 23,
2016. This afforded defendant's new attorney sufficient time in which to
become familiar with the case. In addition, defendant has not shown that she
was prejudiced by the court's decision. We therefore conclude that the denial of
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defendant's application for an adjournment was not a mistaken exercise of
discretion.
IV.
Defendant contends the trial court erred by ordering the parties to make
equal contributions to the litigation fund to pay the additional expenses that
would be incurred to complete the trial. We note that Rule 5:3-5(c) expressly
authorizes the court to make a pendente lite allowance for "prospective services
likely to be performed," taking into account "the respective financial
circumstances of the parties."
As noted, after plaintiff filed her complaint, the court ordered the parties
to establish a fund to pay the costs of this litigation, and plaintiff was required
to deposit about $80,000 in the fund. Before the start of trial, the court
anticipated that the expenses for the two expert witnesses would be $70,000, and
directed both parties pay $35,000, in monthly installments of about $4000 a
month, into the fund. After the trial began, the judge determined that the parties
should continue to make those payments.
On appeal, defendant argues that the court erred by requiring her to
contribute to the litigation fund. She notes the judge relied upon the case
information statements (CISs) the parties had filed with the court, but asserts the
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court's reliance upon the CISs resulted in "faulty financial accounting." She
contends the court failed to recognize the income disparity between the parties,
and that she was not working. She also argues the court erred by failing to
conduct an ability-to-pay hearing.
Defendant's arguments lack sufficient merit to warrant extended
discussion. R. 2:11-3(e)(1)(E). We note, however, that prior to trial, plaintiff
had contributed $80,000 to the fund, and the court anticipated that additional
expenses of $70,000 would be incurred before the matter was concluded. The
court decided that the parties should share these additional expenses equally. In
making that determination, the judge relied upon the CISs filed by the parties,
which provided sufficient information for the court's decision. Therefore, the
court was not required to conduct an ability-to-pay hearing.
V.
Defendant argues that the judge erred by finding plaintiff was the
psychological parent of G.M. We disagree.
We note that the scope of our review of factual determinations of the
Family Part is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448-49 (2012). The trial court's findings of fact are binding on appeal when
supported by adequate, substantial and credible evidence. Cesare v. Cesare, 154
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N.J. 394, 411-12 (1998). We must accord deference to the trial judge's factual
findings when they are based on the judge's familiarity with the case,
opportunity to make credibility judgments based on live testimony, and
expertise in family matters. F.M., 211 N.J. at 448. We note, however, that, "[a]
trial court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan Realty,
LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The right of parents to the care and custody of their children is not
absolute." V.C., 163 N.J. at 218. A third party may seek custody of another
person's child in "exceptional circumstances." Id. at 219. The psychological
parenting doctrine is based on the "recognition that children have a strong
interest in maintaining the ties that connect them to adults who love and provide
for them." Id. at 221.
To demonstrate the existence of a parent-like relationship with a child, a
third party must establish:
(1) that the biological or adoptive parent consented to,
and fostered the petitioner's formation and
establishment of a parent-like relationship with the
child; (2) that the petitioner and the child lived together
in the same household; (3) that the petitioner assumed
the obligations of parenthood by taking significant
responsibility for the child's care, education and
development, including contributing towards the child's
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support, without expectation of financial compensation
[a petitioner's contribution to a child's support need not
be monetary]; and (4) that the petitioner has been in a
parental role for a length of time sufficient to have
established with the child a bonded, dependent
relationship parental in nature.
[Id. at 223 (quoting In re Custody of H.S.H.-K, 533
N.W.2d 419, 421 (Wis. 1995)).]
Once the court has determined that the third party is a psychological
parent to a child, "he or she stands in parity with the legal parent." Id. at 227.
Custody and visitation issues are determined based on the best-interests-of-the-
child standard, "giving weight to the factors set forth in N.J.S.A. 9:2-4." Id. at
227-28.
Here, Judge Harris held that plaintiff met the four-prong test under V.C.
and established that she is a psychological parent to G.M. The judge found that
plaintiff had presented overwhelming evidence showing that defendant had
consented to and fostered the parental relationship between G.M. and plaintiff.
In support of this finding, the judge relied upon the testimony of Dr.
Montgomery and the guardian ad litem, which the judge found compelling.
The judge pointed out that with defendant's consent, G.M. referred to
plaintiff as "Mamma" and had been doing so since he could speak. The judge
pointed out that both parties were referred to as the child's foster parents in
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various documents, and that defendant wanted to add plaintiff's name to the
adoption. Furthermore, both parties' names appeared on holiday cards and
birthday party invitations. The judge also rejected defendant's claim that
plaintiff did not qualify as a psychological parent because plaintiff had not
wanted children and was not involved in the decision to adopt.
The judge further found that G.M. had resided with plaintiff. The judge
acknowledged that defendant had stayed at home for the first ten months after
the child was adopted, and that initially plaintiff was not as actively involved in
parenting G.M. as defendant because defendant had a medical background. The
judge also observed that G.M.'s health care providers had recognized defendant
as the child's only legal parent.
The judge found, however, that plaintiff became more actively involved
in parenting the child when she was not working. She interacted regularly with
personnel at the schools G.M. attended. In addition, school records referred to
both parties as the child's "parents." The judge noted that even after defendant
moved out of plaintiff's home, plaintiff continued to take G.M. to school and
participate in school events.
The judge found that plaintiff took significant responsibility for the child's
care, education, and development. The judge also found that plaintiff had
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provided substantial financial contributions to support defendant and G.M.,
without any expectation of repayment, but the judge did not give inordinate
weight to this evidence. The judge rejected defendant's contention that
plaintiff's relationship with G.M. was merely that of a babysitter.
The judge further found that it was "undeniable that a parent-child bond
has been formed" between G.M. and plaintiff. The judge noted that Dr.
Montgomery had testified that G.M. would suffer psychological harm if his
relationship with plaintiff was severed. Dr. Montgomery also had stated that
G.M. viewed plaintiff as a parental figure. In addition, Elizabeth Smith,
plaintiff's psychological expert, and the guardian ad litem for the child agreed
that G.M. had a significant attachment to plaintiff.
On appeal, defendant concedes that G.M. developed a parental bond with
plaintiff, and that she and plaintiff had lived together with the child. Defendant
argues, however, that plaintiff failed to establish that defendant consented to the
parent-child relationship. She claims she did not delegate any of her parental
duties to plaintiff.
Defendant further argues that although plaintiff provided financial support
for the child, this was not enough to satisfy the third prong under V.C. She
claims plaintiff only took on a "playful caretaker role," and plaintiff's
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involvement with G.M.'s schooling was limited. Defendant also argues that the
judge failed to give sufficient weight to the fact that plaintiff did not formalize
her relationship with G.M. by filing for a separate adoption or becoming a foster
parent.
We find no merit in these contentions. We are convinced there is sufficient
credible evidence in the record to support the trial court's finding that plaintiff
was a psychological parent to G.M. under the criteria established in V.C.
Defendant's arguments to the contrary lack sufficient merit to warrant further
discussion. R. 2:11-3(e)(1)(E). We affirm the determination that plaintiff is
G.M.'s psychological parent substantially for the reasons stated by Judge Harris
in his thorough and well-reasoned opinion.
VI.
Defendant also argues that the judge erred by granting plaintiff joint legal
custody and designating plaintiff as the PPR. Defendant maintains the judge
erred by rejecting the guardian ad litem's recommendation that neither party be
designated as the PPR. She contends the judge failed to give sufficient weight
to her status as the adoptive parent.
As we stated previously, where, as here, a court has found that a third
party is the psychological parent of a child, the court must consider the best
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interests of the child in determining custody and related issues, giving weight to
the factors in N.J.S.A. 9:2-4. V.C., 163 N.J. at 227-28. Therefore, in deciding
custody, the court must consider the following:
the parents' ability to agree, communicate and
cooperate in matters relating to the child; the parents'
willingness to accept custody and any history of
unwillingness to allow parenting time not based on
substantiated abuse; the interaction and relationship of
the child with its parents and siblings; the history of
domestic violence, if any; the safety of the child and the
safety of either parent from physical abuse by the other
parent; the preference of the child when of sufficient
age and capacity to reason so as to form an intelligent
decision; the needs of the child; the stability of the
home environment offered; the quality and continuity
of the child's education; the fitness of the parents; the
geographical proximity of the parents' homes, the
extent and quality of the time spent with the child prior
to or subsequent to the separation; the parents'
employment responsibilities; and the age and number
of the children. A parent shall not be deemed unfit
unless the parents' conduct has a substantial adverse
effect on the child.
[N.J.S.A. 9:2-4(c).]
Here, the judge considered these factors and found that defendant fell
short in terms of her ability to cooperate with plaintiff regarding G.M. The judge
noted that defendant had unilaterally removed G.M. from his school district,
relocated to a different county, registered the child in a new school, and refused
to disclose her new address to plaintiff without a court order. The judge also
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noted that defendant had repeatedly failed to inform plaintiff about G.M.'s
medical providers. In addition, defendant had sought to deny plaintiff parenting
time during a holiday, publicly disparaged plaintiff on social media, and refused
to allow G.M. to participate in a certain activity with plaintiff's family.
The judge noted that Dr. Smith had opined defendant did not have the
ability to agree, communicate and cooperate. The judge found Dr. Smith's
opinion to be "compelling." The judge pointed out that Dr. Smith stated that the
degree of vitriol, especially on defendant's part, was affecting G.M., and had the
potential to cause him to sustain "significant and lasting harm."
The judge stated that although the parties were willing to accept shared
custody, it was "troubling" that defendant was resisting plaintiff's exercise of
the parenting role, and that defendant had no intention of facilitating the exercise
of parenting time going forward. The judge added that G.M. "clearly loves both
parties," but his teachers reported that he requested plaintiff when he was upset.
In addition, Dr. Smith concluded that defendant displayed a "dramatic failure in
empathy" and was not able to separate G.M.'s need to maintain a relationship
with plaintiff from her own needs.
The judge also noted that plaintiff had lived in the same residence for
fifteen years, whereas defendant had lived in several different homes since she
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began her relationship with C.M.C. The judge deemed this significant because
G.M. is a special needs child and he requires "stability and continuity" in his
education. The judge found that the applicable factors weighed in favor of
having the parties share joint legal custody of the child. The judge also found
that designating plaintiff as the PPR was in G.M.'s best interests.
On appeal, defendant argues that the factors in N.J.S.A. 9:4-2(c) weigh in
her favor. She contends the trial judge ignored evidence that she and plaintiff
could work together, and the evidence shows plaintiff has not taken any role in
fostering a relationship between G.M. and his brother. She also contends the
needs of the child weigh heavily in her favor because she is a nurse and plaintiff
has been insufficiently involved in G.M.'s medical care. In addition, defendant
asserts her home is more stable than plaintiff's home, and that the extent and
quality of the time spent with the child prior to or after the parties' separation
weighs in her favor. Defendant also contends the judge erred by failing to give
substantial weight to the views of the guardian ad litem, who recommended that
neither party be designated as the PPR.
We note that in child custody matters, the trial court's findings of fact and
conclusions of law are entitled to great weight and will not be lightly disturbed
on appeal. DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976). Here,
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there is sufficient credible evidence in the record to support the judge's findings
of fact and conclusion that the parties should share legal custody of the child,
with plaintiff designated as the PPR.
The evidence supports the judge's finding that the parties did not have the
ability to communicate and cooperate in matters relating to the child, as shown
by defendant's animosity towards plaintiff and the ongoing litigation between
the parties. The evidence also shows that despite defendant's claim to the
contrary, plaintiff was willing to foster a relationship between G.M. and his
brother.
In addition, there is no evidence in the record that plaintiff was ever
inattentive or uninvolved with G.M.'s behavioral issues or medical needs. The
record also does not support defendant's claim that she has the more stable home.
While defendant did spend more time with G.M. before the parties separated.
The parties have spent roughly the same amount of time with G.M. since that
time. Moreover, G.M. has expressed a preference for living with plaintiff.
Finally, although the guardian ad litem recommended that neither party be
designated as the PPR, Dr. Smith offered a contrary opinion. She stated that
plaintiff should be named the PPR. A fact-finder has the discretion to accept or
reject an expert's testimony. Torres v. Schripps, Inc., 342 N.J. Super. 419, 430-
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31 (App. Div. 2001). Moreover, a fact-finder can choose to adopt or reject all
or part of an expert's testimony. City of Long Branch v. Liu, 203 N.J. 464, 491
(2010). Therefore, the trial judge was not compelled to accept the guardian ad
litem's opinion. The judge provided sound reasons for accepting Dr. Smith's
recommendation that plaintiff be designated the PPR for the child.
Affirmed.
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