KEITH REPACK VS. SHANNON KEAVY (FD-13-0333-12, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-5433-17T3
KEITH REPACK,
Plaintiff-Respondent,
v.
SHANNON KEAVY,
Defendant-Appellant.
_______________________
Submitted September 10, 2019 – Decided August 10, 2020
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FD-13-0333-12.
Brian P. Latimer, attorney for appellant.
Ansell Grimm & Aaron PC, attorneys for respondent
(Donna L. Maul, of counsel and on the brief).
PER CURIAM
This child custody and child naming dispute returns to us after our
remand. See Repack v. Keavy, No. A-5537-13 (June 9, 2015). We assume the
reader's familiarity with our prior decision. In brief, we held the court erred in
establishing joint legal and residential custody without first holding a plenary
hearing, which we directed the trial court to conduct. Regarding the parties'
dispute over their child's surname, we remanded for the trial court to conduct a
best-interests-of-the-child analysis. Consistent with Gubernat v. Deremer, 140
N.J. 120 (1995), we directed the court to presume the name selected by
defendant-mother, as the primary custodial parent, served the child's best
interests.
After an extensive hearing consuming multiple trial days, the trial court
issued a comprehensive written opinion resolving these issues. In contrast to its
prior order granting equal residential custody, the trial court determined that the
child should reside mainly with her mother during the school year, and with her
father during summer breaks, with significant opportunities for parenting time
for the other parent during those periods. That resulted, roughly, in a four-
sevenths to three-sevenths split of parenting time. However, the judge ordered
that plaintiff assume responsibility for meeting the child's regular medical and
dental needs. The court also ordered that the parties' daughter bear the surname
"Keavy-Repack."
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Defendant contends: the court should have designated her the parent of
primary residence, consistent with her exercising more overnights than plaintiff;
the allocation of health care authority violated her rights as the parent of primary
residence; the court abused its discretion in reducing defendant's summer
vacation time from two weeks to one; the evidence did not support the court's
naming decision; and the court erred in relying on the report of a testifying
expert which was not entered into evidence. Defendant also alleges the trial
judge displayed bias, and the case should be remanded for a new hearing before
a different judge.
Having reviewed the record in light of the applicable principles of law,
we affirm in part and modify in part.
I.
We apply a deferential standard of review to the Family Part's factual
findings. They are binding if supported by "adequate, substantial, credible
evidence," and we will disturb them only if they are so inconsistent with the trial
record "'as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394,
412 (1998) (quoting Rova Farms Resort, Inc. v. Inv'rs. Ins. Co., 65 N.J. 474, 484
(1974)). This limited scope of review is especially appropriate in light of the
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Family Part's expertise, and its opportunity to assess parties' credibility based
on live testimony. Ibid.
Decisions regarding the appropriate arrangement to resolve a custody
dispute is left "to the sound discretion of the trial courts." Pascale v. Pascale,
140 N.J. 583, 611 (1995). A trial judge's child custody determinations 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). The trial court's
discretionary decisions — reflecting "conscientious judgment" and accounting
for "the particular circumstances of the case" — are binding unless they lack
"rational explanation, inexplicably depart[] from established policies, or rest[]
on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012) (first quoting Hand v. Hand, 391 N.J. Super. 102, 111 (App.
Div. 2007); then quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002)). Absent compelling circumstances, we are not free to substitute our
judgment for that of the trial court, which has become familiar with the case.
Schwartz v. Schwartz, 68 N.J. Super. 223, 232 (App. Div. 1961). Nonetheless,
we owe no special deference to the trial court's legal conclusions. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
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II.
We turn first to defendant's contentions regarding custody and parenting
time. The court endeavored to fashion a parenting time arrangement that came
as close as possible to constitute an equal allocation of time. However, in the
final analysis, plaintiff was awarded roughly three-sevenths of overnights.
Mindful of the forty-to-sixty-minute drive-time separating the parties, and the
fact that the child had already become accustomed to attending school near
defendant, the court determined that it served the child's best interests to reside
with defendant each night before a school day, with one exception. As plaintiff
would exercise parenting time three weekends a month during the school year
(or four weekends in months with five weekends), the child would stay with
plaintiff on the night before the school day during those weekends. Also, the
child would spend the summer break with plaintiff, except for two weekends per
month, and a summer vacation.
Defendant challenges the court's order granting plaintiff primary
responsibility "for [the child's] regular medical and dental needs" and exclusive
authority to select all medical providers, while requiring him to notify defendant
of any appointment and medical results. Defendant contends that decision is at
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odds with her status as the primary residential parent, which is a function of her
exercise of four-sevenths of overnights. We are unpersuaded.
We acknowledge that presumptively, the primary residential parent will
exercise authority over "minor day-to-day decisions," including a child's routine
medical care. Pascale, 140 N.J. at 596-98, 611; see also Gubernat, 140 N.J. at
142 (noting "the parent having physical custody of the child is generally
accorded broad responsibility in making daily child-rearing decisions").
Nonetheless, the Family Part retains discretion to fashion custody and visitation
rights as it determines will serve a child's best interests. Pascale, 140 N.J. at
611. Thus, the court retains the authority to carve out an area of decision -
making authority for the parent of alternate residence, if the co urt determines
that would serve the child's best interests. Notably, N.J.S.A. 9:2-4(c) authorizes
the trial court to order "[a]ny other custody arrangement as the court may
determine to be in the best interests of the child."
The reason the primary caretaker usually has broad control is not to
vindicate his or her "parental rights" but to foster stability for the child, who
would suffer from a secondary caretaker's constant interference with the child's
regular routines. Pascale, 140 N.J. at 599-600 (noting that granting the primary
residential parent authority avoids "endless discussion with the secondary
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caretaker"). Where unique circumstances defuse that concern, and instead
counsel against the custodial parent's full autonomy over an aspect of the child's
life, the primary custodial parent's presumptive authority may give way.
The primary custodial parent's authority is also based on the "'practical
ground that the parent in daily contact with the child is better able to make
[daily] decisions about his [or her] welfare.'" Gubernat, 140 N.J. at 142 (quoting
Beverly S. Seng, Like Father, Like Child: The Rights of Parents in Their
Children's Surnames, 70 Va. L. Rev. 1303, 1311 (1984)). However, when the
parties' daily contact approaches equality, that factor may carry less weight.
With those considerations in mind, we discern no abuse of discretion in
the court's decision to allocate to plaintiff authority over medical and dental
treatment. Here, the court found, with sufficient record support, that "from the
very beginning, . . . [plaintiff] demonstrated an appropriate willingness to co -
parent and [defendant] attempted to marginalize him out of [the child's] life."
That included impeding plaintiff's access to the child's medical information, and
excluding him from decisions regarding selection of medical providers. The
court's decision would prevent that interference in the future. Also, scheduling
regular check-ups and related tasks are more amenable to delegation to the
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secondary custodial parent than say, decisions regarding a child's grooming,
dress, and other decisions that must be made on a daily basis.
The court also concluded that defendant decided to move away from the
area where she and plaintiff had resided in order to make infeasible a truly equal
residential custody. The court was unpersuaded by defendant's claimed
reasoning for her move. She claimed she moved to be closer to her new
husband's parents, yet they lived a twenty-minute drive north of her new home,
closer to plaintiff, and they resided out of state almost half the year. Defendant
also did not substantiate her claim that she moved to her new home for financial
reasons. The court's allocation of medical and dental decision-making was
intended to offset, to some extent, the advantage defendant obtained through her
move. We shall not disturb that decision.
Defendant also challenges as arbitrary and insufficiently explained the
trial court's final order of July 26, 2018 (Amended Order), which reduced her
summer vacation time to one, instead of two weeks, as provided in the court's
initial order, issued on June 14, 2018. The court explained that it amended the
order because it was "the court's intention that parties have a split parenting time
arrangement." In short, the court was endeavoring to equalize, to the extent
feasible, the parties' parenting time. Although the explanation for the
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amendment was brief, it was consistent with the court's extensive opinion
explaining its decision to fashion an almost-equal parenting time arrangement.
We also reject defendant's argument that the court's parenting time
decision rested on a misconception that joint physical and legal custody are
"presupposed" to serve the child's best interests. We recognize that there is no
presumption in favor of joint legal and residential custody. Beck v. Beck, 86
N.J. 480, 488 (1981). The Supreme Court eschewed such a presumption because
it "might serve as a disincentive for the meticulous fact-finding required in a
custody case." Ibid. Nonetheless, the Court held that "joint custody is likely to
foster the best interests of the child in the proper case" and "joint custody will
be the preferred disposition in some matrimonial actions." Ibid. We do not
interpret the trial court's decision to be at odds with the Court's holding in Beck.
Defendant also challenges the trial court's determination that the parties
"shall share equal . . . residential custody." The court held, "When describing
an arrangement in which each parent is authorized to reside with the child for a
nearly equal amount of time, the parents are deemed to share equal residential
custody." (Emphasis deleted). Defendant argues that the court's finding is at
odds with the substance of its order, which granted defendant over fifty more
overnights than plaintiff.
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We agree. The difference in parenting time is not de minimis. Thus, it is
inaccurate to characterize the parenting time arrangement as "equal."
Furthermore, the court found that the parties have been unable "to agree,
communicate and cooperate in matters relating to their daughter," yet the ability
to do so is essential to the success of a truly equal parenting arrangement. See
Beck, 86 N.J. at 498-99. Consistent with Pascale, defendant shall be deemed
the primary custodial parent and plaintiff the secondary custodial parent. And,
consistent with Pascale, defendant shall retain authority over "minor" matters.
The only exception to that authority over minor matters is the one the court
expressly addressed — pertaining to medical and dental matters. We emphasize,
however, that the parties' joint legal custody requires them to share authority
regarding "major" decisions affecting their child's welfare. Emma v. Evans, 215
N.J. 197, 219 (2013). 1 We therefore modify paragraph one of the court's July
26, 2018 order to provide, "The parties shall henceforth share residential custody
in the proportions set forth below, of the minor child . . . ."
1
The trial court referred to Emma in support of its statement, "In this situation
as true equal custodians, the parents are obligated and charged with the
responsibility to make decisions together." However, as noted, Emma was
referring to joint legal custody, not equal residential custody, and decisions
regarding major matters, not the daily minor matters vested in the primary
residential parent.
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III.
We turn to the issue of the child's surname. Defendant contends the court
failed to apply the presumption favoring defendant's surname choice, which
Gubernat requires, see 140 N.J. at 144-45, and made factual and evidentiary
errors. We disagree.
The issue of a child's surname carries great weight as a potentially
powerful factor in the child's self-image and identity. Emma, 215 N.J. at 214-
15. The guidepost for a court's decision in a naming dispute is the child's best
interests, evaluated without a gender-based preference for either parent's
surname. Gubernat, 140 N.J. at 141. The Court rejected the notion that retaining
a paternal surname "is essential to maintenance of the father-child relationship,"
and attributed it to "forsaken, gender-based notions of parenthood." Id. at 147.
Instead, the Court recognized a "presumption favoring the custodial parent's
choice of name." Id. at 144-45. That presumption rests on another presumption:
"The custodial parent is presumed to act in the best interests of the child . . . ."
Id. at 142. Consequently, the non-custodial parent bears "the burden of
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demonstrating by a preponderance of the evidence that . . . the chosen surname
is not in the bests interest of the child." Id. at 145.2
In evaluating the child's best interests in a naming dispute, the court must
examine "all factors relevant to the best interests of the child and should avoid
giving weight to any interests unsupported by evidence or rooted in
impermissible gender preferences." Ibid. Included among relevant factors are:
"the length of time that the child has used one surname, the identification of the
child as a member or part of a family unit, [and] the potential anxiety,
embarrassment, or discomfort the child might experience if the child bears a
surname different from the custodial parent." Id. at 141. The child's own
preferences, where he or she has "sufficient maturity to express a relevant
preference," are also relevant. Ibid. But, the Court's recitation of factors was
not an exclusive list.
Here, the trial court found that plaintiff established that the length of time
that the child used only the mother's surname was not a significant factor, as the
child was then only in the first grade and could "easily adjust" to the court's
2
The Gubernat presumption applies "when a parent seeks to change the name
given by the only custodial parent at birth." Emma, 215 N.J. 221 n.1. It does
not apply where a custodial parent unilaterally seeks to change a name on which
both parents previously agreed. Id. at 221-22.
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order. Notably, the child's surname will begin as it did before; it will simply be
elongated to include the father's surname. To the extent the child has been
assigned seats or classes in school based on where her name falls in an
alphabetical listing, nothing will change. Likewise, the child's three initials,
signifying her first, middle and last name, remain the same.
As for identification with the family unit, the court noted that the child
will spend a significant amount of time with each parent. Defendant remarried
and gave birth to a son who bears her husband's last name. Plaintiff was living
with a fiancé with three children from her prior marriage. As a result, multiple
people in both households have names other than the child's. Under those
circumstances, the court found that including plaintiff's surname "is very
significant for [the child's] ability to identify herself as a member of both family
units" and would enable the child "to identify with both the maternal and
paternal sides of herself."
The Court in Gubernat declared that a bond between a child and parent
should not depend on bearing that parent's name. Yet, we do not interpret
Gubernat to preclude considering, in connection with a naming decision, a
primary custodial parent's effort to weaken the bond that would otherwise exist
between the child and the secondary custodial parent. Notably, the Gubernat
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presumption favoring the custodial parent is premised on that parent's good faith
effort to act in the child's best interest. Plaintiff effectively rebutted that
underlying premise, as the court found that defendant attempted to marginalize
and limit plaintiff's role in the child's life.
In Staradumsky v. Romanowski, 300 N.J. Super. 618, 621 (App. Div.
1997), we held, consistent with Gubernat, that it was appropriate to modify a
child's name by including the father's surname as a middle name in order "to
preserve some of the father's heritage." We recognized that a name can
strengthen a bond with a parent, stating "'[a]nything that can reinforce the bonds
between the child and her individual parents is to be encouraged, provided that
the focus is through the eyes and needs of the child.'" Ibid. (quoting M.D. v.
A.S.L., 275 N.J. Super. 530, 536 (Ch. Div. 1994)).
The court also found that the child would not suffer any anxiety,
embarrassment or discomfort bearing a surname different from her mother's,
since the name includes that of both her parents. The court's conclusion is
reasonable, particularly inasmuch as her half-brother and step-father, and
plaintiff's fiancé and her children have different names.
It is notable that defendant conceded at the plenary hearing that it would
be appropriate for the child to have her given first name and middle name,
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followed by her father's surname, then followed by defendant's surname. In
short, the dispute here boils down to the naming sequence and a hyphen. The
court's determination that the surname shall be a combination of the parents'
names, with defendant's first, followed by a hyphen and then plaintiff's, will
maintain a pre-eminent position for defendant's surname, while incorporating
plaintiff's surname.
Finally, we reject defendant's argument that we should reverse the court's
naming decision because the court referred to the joint custody expert's opinion
on the matter, which defendant contends was a net opinion. See Townsend v.
Pierre, 221 N.J. 36, 53-55 (2015) (discussing net opinion rule). Although the
court noted the expert's opinion in its recitation of the expert's testimony, the
court did not rely on the expert's opinion in the section of its opinion explaining
its naming decision. In any event, the court was free to consider the expert's
opinion as it would the opinion of any person "who can demonstrate relevant
knowledge about the impact of a proposed surname change on a child, such as
. . . a teacher or other adult with a close relationship with the child." Emma, 215
N.J. at 217.
We are satisfied that the court's naming decision is supported by sufficient
evidence in the record, and should not be disturbed.
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IV.
Defendant's remaining points, including her argument that the court's
order should be reversed because of the trial judge's alleged bias against her,
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed in part, and modified in part.
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