J.S. VS. H.S. (FD-09-2286-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2216-17T4
J.S.,
Plaintiff-Respondent,
v.
H.S.,
Defendant-Appellant.
____________________________
Argued January 30, 2019 – Decided July 3, 2019
Before Judges Alvarez and Reisner.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FD-09-2286-15.
Eric S. Solotoff argued the cause for appellant (Fox
Rothschild LLP, attorneys; Eric S. Solotoff, of counsel
and on the briefs; Eliana T. Baer, on the briefs).
Respondent J.S. has not filed a brief.
Peter Damian Alvino, Deputy Attorney General, argued
the cause for respondent Division of Child Protection
and Permanency (Gurbir S. Grewal, Attorney General,
attorney; Jason Wade Rockwell, Assistant Attorney
General, of counsel; Peter Damian Alvino, Deputy
Attorney General, on the brief).
PER CURIAM
In this case, the parties, two attorneys who were never married to each
other, litigated a bitter custody dispute over their daughter, M.S.1 The child
resides in New Jersey with the mother, defendant H.S., while the father, plaintiff
J.S., lives in Ohio. Several months after the child's birth, the father filed a
complaint seeking custody, and the mother filed a cross-motion for child
support. During the litigation, the mother accused the father of sexually
molesting the child, allegations the Division of Child Protection and
Permanency (Division) investigated and found not substantiated . The mother
unsuccessfully sought records from the Division, over the agency's objections.2
The trial court reviewed the Division's records in camera and determined that
their disclosure was not necessary to the resolution of any issue before the court.
1
We use the parties' initials because the case involves allegations of child abuse.
For clarity, however, we will generally refer to plaintiff as "the father" and
defendant as "the mother."
2
On this appeal, the Division filed a brief limited to the issue of access to the
agency's records. Those records included a report to the Division from the
Audrey Hepburn Children's House (AHCH), where the child was medically
examined for evidence of sexual abuse. According to the trial court, which
reviewed the records in camera, the AHCH reported that the examination was
normal with no signs of trauma.
A-2216-17T4
2
See N.J.S.A. 9:6-8.10a (b)(6); In re Z.W., 408 N.J. Super. 535, 539 (App. Div.
2009). Ultimately, the trial court found the mother failed to prove the sexual
abuse allegations.
The court awarded the parties joint legal custody of the child, designated
the mother as the parent of primary residence, set a parenting time schedule for
the father, and appointed a parenting coordinator. Considering the parties'
respective income and expenses, including the fact that the mother earns almost
twice as much as the father, and the father has support obligations for other
children,3 the judge ordered the father to pay $316 per week in child support.
On this appeal, the mother challenges the trial court's decisions as to
custody and child support, and seeks a new hearing before a different trial
judge.4 She presents the following points of argument:
POINT I. THE TRIAL COURT’S DENIAL OF
[H.S.]’S REQUEST TO REVIEW THE RECORDS OF
THE DIVISION AND [AHCH] AND TO EXAMINE
3
In Ohio, the father had a teenage daughter and a teenage son who was
developmentally disabled. He also had a one-year-old son with his current
girlfriend. The disabled son lived with the father. Pursuant to a court order, the
father was paying over $1000 a month in support for the teenage daughter. He
did not have a formal child support arrangement for the infant son.
4
The notice of appeal lists the trial court's post-trial final order dated December
22, 2017, and a January 16, 2018 order memorializing the trial court's November
4, 2016 decision quashing subpoenas issued by the mother for the Division's
records and the testimony of a Division case worker.
A-2216-17T4
3
THE CASEWORKER WAS LEGALLY
ERRONEOUS, AN ABUSE OF DISCRETION,
AGAINST THE WEIGHT OF THE EVIDENCE AND
DEPRIVED [H.S.] OF HER RIGHT TO DUE
PROCESS.
i. The Trial Court Applied An Incorrect Legal
Standard In Denying [H.S.]’s Request To Review The
Division’s File.
ii. [H.S.]’s Due Process Rights Were Violated Due
To The Trial Court’s Reliance on the Division’s Report,
In Spite Of Its Unreliability and Failure to Admit Same
Into Evidence.
iii. [H.S.]’s Due Process Rights Were Violated
When She Was Denied The Ability To Examine The
Division Caseworker.
POINT II. THE TRIAL COURT’S REFUSAL TO
ENFORCE [H.S.]’S TRIAL SUBPOENA AS TO
[AHCH] CONSTITUTED REVERSIBLE ERROR.
POINT III. THE TRIAL COURT ERRED IN
FAILING TO TAKE ADVERSE INFERENCES
AGAINST [J.S.] FOR HIS ASSERTION OF HIS
FIFTH AMENDMENT RIGHTS AS TO THE CHILD
SEXUAL ABUSE.
POINT IV. THE TRIAL COURT ABDICATED ITS
JUDICIAL RESPONSIBILITY IN APPOINTING A
PARENTING COORDINATOR AND COMPELLING
THE PARTIES TO ABIDE BY THE PARENTING
COORDINATOR’S RECOMMENDATIONS,
INCLUDING AS TO THE POTENTIAL EXPANSION
OF [J.S.'S] PARENTING TIME.
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POINT V. THE TRIAL COURT’S CHILD SUPPORT
AWARD WAS UNSUPPORTED BY FACT OR LAW
AND THEREFORE CONSTITUTED AN ABUSE OF
DISCRETION AND AGAINST THE WEIGHT OF
THE EVIDENCE.
A. The Trial Court Failed to Adjust Child Support []
To Account For Parties’ Above-Guideline Income.
B. The Trial Court Improperly Took Judicial Notice
in Utilizing the Average Cost of Daycare Facilities for
the Child Support Guidelines Worksheet Based Upon
Documents Not Admitted into Evidence.
C. The Trial Court Erred in Failing to Account for
the Increased Cost of [H.S.]’s Travel with the Child in
the Calculation of Child Support.
D. The Trial Court Committed Plain Error in
Awarding [J.S.] a Credit for a Prior Existing Support
Obligation that likely Had Been Terminated as of the
Date of Decision.
POINT VI. THIS MATTER MUST BE REASSIGNED
TO A NEW JUDGE.
Because the trial judge's decision resulted from a plenary hearing, we
defer to her factual findings so long as they are supported by substantial credible
evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular
deference to her evaluation of witness credibility and to her expertise as a Family
Part judge. Id. at 413. We review the judge's evidentiary rulings for abuse of
discretion. State v. Nantambu, 221 N.J. 390, 402 (2015). We review legal issues
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5
de novo. Ibid. With one limited exception, our review of the record in light of
those standards leads us to affirm, substantially for the reasons stated by the trial
judge in her lengthy oral opinion issued on December 7, 2017. We remand for
the limited purpose of re-determining the reasonable cost of child care and
recalculating the child support award in light of that determination.
Addressing the mother's first two points, we find no merit in any of her
arguments related to her concern that the father may have molested the child.
The Division – as well as the AHCH, where the child was medically examined
– found that the allegations of child abuse were not substantiated. The
prosecutor's office declined to pursue the case. While we find no abuse of
discretion in the judge's evidentiary rulings, the mother's evidentiary arguments
are also irrelevant, because the judge did not rest her decision on the Division's
conclusions.
Rather, as the judge explained in her December 7, 2017 oral opinion, the
testimony of the mother and the child's babysitter did not support an inference
that the father was responsible for any redness they may have observed in the
child's vaginal area. The father had a visit with the child during the day on
Friday, June 3, 2016. After he brought her home, the mother admittedly changed
the child's diaper Friday night and first thing Saturday morning and did not
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notice anything unusual. In response to questions from the trial judge, the
mother admitted that the child was not screaming or indicating that she was in
pain Friday night or Saturday morning. The mother testified that she noticed
redness and swelling later on Saturday, when she changed the child's diaper
during a birthday party. On Saturday evening, the babysitter arrived about 6:00
p.m., changed the child's diaper, and saw what appeared to be severe diaper rash.
The mother did not take the child to the doctor until Monday. The judge also
noted the mother's statement that she had never previously seen a diaper rash on
her daughter. Hence, the mother may have mistakenly assumed that the
inflammation she saw must be evidence of sexual abuse. The judge found there
was not "sufficient credible evidence" that the father posed a risk to the child's
safety.
The judge's December 7, 2017 opinion made clear that the timing of the
mother's and babysitter's observations simply did not support a conclusion that
the father molested the child. In this context, the mother's search for evidence
with which to impugn the thoroughness of the Division's investigation was
essentially a fishing expedition. In addition, the judge allowed the mother to
testify about her reactions to conversations she had with a Division worker and
an AHCH doctor, in order to explain the mother's skepticism about the
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investigation and her reluctance to let the father have overnight visits with the
child. We find no abuse of the trial court's decision precluding the mother from
access to the Division's records and its staff. The mother's arguments about
discovery are without sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
The mother's Point III, concerning the father's trial testimony on the abuse
issue, is not supported by the record and is without sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).
The mother next asserts that the judge gave too much authority to a
parenting coordinator. That concern is based on a misreading of the judge's
opinion. With respect to the parenting coordinator, the judge specifically stated
in her opinion that the parents should work out disputes "[t]hrough the
parent[ing] coordinator and if they cannot come to an agreement either one of
them is free to come back to court." Later in her opinion, the judge repeated
that the parents "can come back to court" if they cannot resolve issues through
the parenting coordinator. Contrary to the mother's argument here, the judge
did not give the parenting coordinator unbridled authority over parenting time
issues.
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We next turn to the mother's arguments about child support, including her
obligation to pay for the child's travel to visit the father in Ohio. The issue of
payment for the child's travel must be viewed in context. The judge found that
the mother had unreasonably blocked the father's opportunities to visit with the
child and had done so even before the allegations of sexual abuse. For example,
the judge recounted that, in opposing the father's request for parenting time in
Ohio, the mother argued that the child was too young to fly. However, the judge
later learned that the mother had taken the child on several plane trips. The
judge ruled that the father was entitled to four annual visits with the child in
Ohio, and liberal parenting time in New Jersey.
The judge ruled that each party must pay his or her own travel expenses
associated with parenting time. Thus, when the father travels to New Jersey
several times a year for visits, he must pay for his own airfare plus the cost of
staying at a hotel with the child for his overnight visits. When the mother brings
the child to Ohio four times a year to visit the father, she must pay for their
airfare. In light of the mother's insistence on accompanying the child to Ohio
and remaining there during all visits with the father, and in light of the mother's
vastly greater income, we find no abuse of the judge's discretion in allocating
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the travel expenses. Nor do we find error in the way the judge dealt with those
expenses for purposes of calculating child support.
The mother also argues that the judge erred in failing to calculate child
support in an amount beyond the regular child support guidelines, because the
parents collectively earn more than $187,000 per year. See Child Support
Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A(21)
to R. 5:6A, www.gannlaw.com (2017); Caplan v. Caplan, 182 N.J. 250 (2005).
The first judge to handle the case did not award interim child support on an
"above-guidelines" basis, because the parties did not present financial
information focused on the expenses associated with the child. The case was
then transferred to a second judge (the trial judge), who conducted the plenary
hearing. At the end of the trial, when the trial judge asked both counsel about
the calculation of child support, both attorneys asserted that their clients were
only seeking a "guidelines" calculation. Neither attorney asked for child support
to be calculated on an "above-guidelines" basis. In fact, in response to the
judge's question, the mother's attorney stated "our position has been just that it
should be a guideline number."
The mother's post-hearing brief to the trial court was consistent with that
position, and did not even quantify the amount of child support she was seeking.
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Having failed to ask the court to depart from the child support guidelines due to
the parties' total income level, and having failed to address or quantify the
appropriate amount or the reasons therefore, the mother may not now assert the
issue on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We next address the mother's argument about childcare expenses. On that
issue, the trial court found that, without consulting the father, the mother
enrolled the two-year-old in what the mother described as a "pre-k" school that
cost $2370 per month. 5 The court found that the father "cannot possibly afford
a $2300 daycare center per month" in light of his income and support obligations
for his other children. 6 The court determined that approximately $10,600 was a
reasonable annual expense for daycare, in light of the average cost of daycare
facilities in the area where the mother lived. However, the court made that
determination based on information outside the trial record.
Instead of giving the parties an opportunity to submit additional evidence
as to the cost of other available and appropriate day care centers, the court
assigned a law clerk to conduct an informal telephone survey of local facilities
5
We note the annualized cost of such a facility would be $28,440.
6
The mother testified that with salary and bonuses, her projected income for
the year was $210,000. The trial court determined that the father's total annual
income was about $125,000.
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and their costs. The record presented to us does not reflect that the court asked
the attorneys whether they consented to that procedure, and absent such a record
we cannot infer that the court did so. We agree with the mother's contention
that this was not a proper subject for judicial notice, and certainly not without
giving the parties an opportunity to respond to the information. See N.J.R.E.
201(b), (e); Lall v. Shivani, 448 N.J. Super. 38, 51 (App Div. 2016); State v.
Silva, 394 N.J. Super. 270, 275 (App. Div. 2007). As a result, we cannot defer
to the trial court's factual findings with respect to the reasonable cost of
childcare, and we are constrained to remand for reconsideration of that limited
issue.7 On remand, the court shall give the parties the opportunity to submit
additional evidence on the cost issue, make new findings on that issue, and
adjust the child support award if appropriate based on those findings.
Lastly, the mother's argument concerning disqualification of the trial
judge is without sufficient merit to warrant extended discussion. R. 2:11-
3(e)(1)(E). Based on our review of the entire trial transcript, the trial judge
7
We are not disturbing any of the court's other findings about the childcare
issue.
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conducted the proceedings in a fair and even-handed manner and there is no
basis for disqualification. 8
Affirmed in part, remanded in part. We do not retain jurisdiction.
8
The mother's argument concerning child support for the father's teenage
daughter is based on speculation and does not warrant discussion here. R. 2:11-
3(e)(1)(E).
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