BRANDY KISSOONDATH VS. SASHA KISSOONDATH (FM-06-96-12, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4837-14T1
BRANDY KISSOONDATH,
n/k/a BRANDY DIGGS,
Plaintiff-Respondent,
v.
SASHA KISSOONDATH,
Defendant-Appellant.
Submitted April 26, 2017 – Decided May 10, 2017
Before Judge Carroll, Gooden Brown and
Farrington.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Cumberland County, Docket No. FM-06-96-12.
Law Office of Robert J. O'Donnell, P.C.,
attorneys for appellant (Robert J. O'Donnell,
on the brief).
Adinolfi & Packman, P.A., attorneys for
respondent (Julie Burick, of counsel and on
the brief; Kevin Murphy, on the brief).
PER CURIAM
The parties' 2001 marriage produced three children and ended
with the entry of a November 28, 2012 judgment of divorce (JOD).
The JOD incorporated a handwritten stipulation of settlement that
the parties agreed to as their divorce trial was commencing. On
January 2, 2013, an amended JOD was entered that incorporated the
final, typed version of the parties' settlement agreement.
Among its other provisions, the JOD awarded the parties joint
legal custody of the children. Plaintiff Brandy Kissoondath was
designated parent of primary residence, and defendant Sasha
Kissoondath was designated parent of alternate residence. The
JOD, as amended, also provided:
[] Based upon the distance between the
parties' residences of approximately one
hour's drive time, [] defendant, Sasha
Kissoondath, shall have parenting time on a
two-week rotating schedule as follows:
Week #1: Friday at 6:00 p.m. to
Monday (drop off at school).
Week #2: Friday at 6:00 p.m. to
Saturday at 2:00 p.m.
. . . .
[] The parties shall equally share summer
school recess on an alternating one-week
on/one-week off basis provided each party may
take a two (2) week vacation on [sixty] days'
advance written notice to the other via email.
Despite their settlement, the parties have engaged in further
disputes regarding the judgment's implementation. The present
appeal represents the latest chapter in what the motion judge
characterized as the parties' "significant", "protracted",
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"substantial", and "acrimonious" litigation, a description with
which the parties readily concur.
In this appeal, defendant seeks our review of certain
provisions of an April 17, 2015 post-judgment order entered by
Judge Harold U. Johnson, Jr. Judge Johnson was well familiar with
the parties, having presided over their divorce proceedings and
several post-judgment applications. The order in question
consists of nineteen pages and memorializes the judge's findings
of fact and conclusions of law with respect to each of the combined
twenty-six reliefs sought by the parties.
Pertinent to this appeal, the trial court denied defendant's
request to obtain the children's passports to take them on a Disney
cruise that would travel to different parts of the Caribbean
islands. The court's decision was partly based on the acrimonious
dynamic between the parties and the concern that defendant would
use the trip as a pretext to abscond with the children to Trinidad,
where he was born and had family, or another foreign country. A
year earlier, the court denied defendant's request to take the
children to Trinidad, predicated on plaintiff's concerns about
available medical care in Trinidad as well as the flight risk.
The judge indicated that, while he "rarely denies children an
opportunity to enjoy a 'Disney experience,'" he was "regrettably"
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compelled to deny defendant's application because of "the facts,
circumstances[,] and history that exists here."
The court also denied defendant's request to modify the
parenting time schedule for lack of a substantial change in
circumstances affecting the welfare of the children.
Specifically, the court denied defendant's request to add to his
parenting time by picking up the children each Wednesday after
school and then returning them to school on Thursday morning. The
court determined that it would be unduly disruptive and burdensome
for the children to commute to accommodate a weekday overnight.
However, the court permitted defendant to pick up the children
from school at 3:00 p.m. on Fridays with plaintiff's consent, and
also permitted defendant to keep the children until 6:00 p.m. on
those Saturdays when plaintiff is scheduled for parenting time but
works until 6:00 p.m.
The court also denied defendant's request that he be allowed
to keep the children with him when plaintiff is away overnight.
Plaintiff acknowledged that she left the children with her
boyfriend with whom she resides while she went away for a week on
a business trip. Reiterating a prior ruling, the court determined
that plaintiff had the discretion to choose who to leave the
children with when required to travel for work during her parenting
time. However, the court ordered that defendant be given the
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option to take the children when plaintiff is required to travel
for work for a period longer than five days. Defendant now appeals
these three rulings.
We provide substantial deference to the Family Part's
findings of fact because of its special expertise in family
matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus,
"[a] reviewing court should uphold the factual findings
undergirding the trial court's decision if they are supported by
adequate, substantial and credible evidence on the record."
MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279
(2007))(alteration in original). While no special deference is
accorded to the judge's legal conclusions, Manalapan Realty v.
Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we "'should 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'
or when we determine the court has palpably abused its discretion."
Parish v. Parish, 412 N.J. Super., 39, 47 (App. Div. 2010) (quoting
Cesare, supra, 154 N.J. at 412). "We reverse only to 'ensure that
there is not a denial of justice' because the family court's
'conclusions are [] "clearly mistaken" or "wide of the mark."'"
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Id. at 48 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196
N.J. 88, 104 (2008)) (alteration in original).
Generally, when courts are confronted with disputes
concerning custody or parenting time, the court's primary concern
is the best interests of the child. See Sacharow v. Sacharow, 177
N.J. 62, 80 (2003); Wilke v. Culp, 196 N.J. Super. 487, 497 (App.
Div. 1984), certif. denied, 99 N.J. 243 (1985). The court must
consider "what will 'protect the safety, happiness, physical,
mental and moral welfare of the child.'" Mastropole v. Mastropole,
181 N.J. Super. 130, 136 (App. Div. 1981) (quoting Beck v. Beck,
86 N.J. 480, 497 (1981)) (internal quotation marks omitted). "A
judgment, whether reached by consent or adjudication, embodies a
best interests determination." Todd v. Sheridan, 268 N.J. Super.
387, 398 (App. Div. 1993). When a parent seeks to modify a
parenting time schedule that parent "must bear the threshold burden
of showing changed circumstances which would affect the welfare
of the [child]." Ibid.
Before us, defendant argues that the trial court failed to
adequately consider the best interests of the children in denying
his requests to take the children outside the country on a Disney
cruise, for increased parenting time, and to take the children
when plaintiff is away overnight for work. Defendant further
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asserts that the motion judge was mistaken in his analysis of the
underlying facts and law, thus resulting in an abuse of discretion.
We have considered defendant's arguments in light of the
record and the applicable legal principles and conclude they lack
sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E). When defendant filed this motion
in March 2015, Judge Johnson was abundantly familiar with the
parties, the arguments they had previously raised, and those they
continued to advance. We affirm substantially for the reasons
embodied in the judge's April 17, 2015 order, which are consistent
with the law and adequately supported by the record.
Affirmed.
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