JANET BEDDINI v. ROBERT MONAGHAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7112-03T57112-03T5

JANET BEDDINI,

Plaintiff-Appellant,

v.

ROBERT MONAGHAN,

Defendant-Respondent.

_____________________________________________________________

 

Argued September 26, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-13975-92.

Janet Beddini, appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff, Janet L. Beddini, appeals the May 9, 2003 Family Part order that granted sole legal custody to defendant, Robert J. Monaghan, and designated him the primary care taker for the parties' two sons, Christopher, then age seventeen and one-half years, and Eric, then age thirteen years, and established a parenting time schedule. Plaintiff further appeals the June 18, 2004 order denying plaintiff's request for a change of Eric's custody, but directing defendant and Eric to strictly comply with the court's order regarding parenting time. This order permitted plaintiff, at her own expense, to obtain a custody evaluator to make recommendations as to Eric's best interest with regard to custody and parenting time. It further ordered defendant to obtain reports of Eric's counseling for review by the court and ordered Eric to be interviewed by the court to discuss Eric's relationship with his father and mother, his progress in counseling and school, and defendant's compliance with the court's parenting time order. Plaintiff additionally appeals the June 30, 2004 order denying her motion for reconsideration of the court's June 18, 2004 order. Plaintiff, on September 13, 2005, filed with this court a motion for stay of the trial court's orders of August 15, 2005 and September 6, 2005. The August 15, 2005 order was entered by the court in response to an order to show cause filed by plaintiff that was filed without first seeking leave of this court as required by Rule 2:9-1. See Kiernan v. Kiernan, 355 N.J. Super. 89 (App. Div. 2002).

According to plaintiff's certification in support of her motion for stay, the impetus for her filing the order to show cause arose from incidents in defendant's home on August 2 and 4, 2005, in which Eric was knifed in several places by his brother Christopher, after they had been arguing and drinking alcohol, while defendant was out of the house. The knife wounds resulted in Eric receiving several stitches at a hospital emergency ward. As a consequence, Eric had chosen to live with her from August 4, 2005, prompting plaintiff to file the order to show cause.

Judge Dilts' August 15, 2005 order, by virtue of paragraphs three through fourteen, substantially modified his orders of May 9, 2003 and June 18, 2004, which are the subject of this appeal. The paragraphs of the August 15, 2005 order that modify the June 18, 2004 order provide:

3. Ms. Beddini and Mr. Monaghan shall have temporary joint physical custody of Eric until September 2, 2005. Eric, age 15, shall decide where he wants to spend the night as well as when he would like to be with each parent. The court has not yet determined whether there is a substantial change in circumstances and this is solely a temporary physical custody arrangement pend-ing the report from the guardian ad litem.

4. When Eric is in the physical custody of either party, Eric shall not be left alone with Christopher because of the threat to his safety. If Christopher and Eric are together, either Ms. Beddini or Mr. Monaghan shall be present to ensure Eric's safety.

5. Child support shall not change and shall continue during this temporary joint physical custody arrangement without interruption.

6. James B. Johnson, located at 37 South Bridge Street, Somerville, NJ 08876, (908)526-4888, shall be appointed as guardian ad litem to represent the interests of Eric Beddini Monaghan.

7. Mr. Johnson shall be compensated at the rate of $250 per hour, plus reimbursement for expenses.

8. Each party shall advance to James B. Johnson, Esq. the sum of $1,500 as a retainer not later than August 22, 2005. Said sum shall be held in escrow by Mr. Johnson in trust. Upon rendering of services in excess of $3,000, Mr. Johnson shall send an interim certification of services to the court for review and approval, and upon approval by the court, shall be authorized to release the $3,000 from escrow. The balance of funds shall be paid by the parties as directed by the court during this litigation. No disbursement shall be made, however, before September 2, 2005.

9. Mr. Johnson, as the guardian ad litem, shall meet with Ms. Beddini, Mr. Monaghan, and Eric and give recommendations to the court with respect to the issue of custody, not later than August 31, 2005. The guardian ad litem's recommendations shall include an opinion on whether or not there has been a substantial change in circumstances to warrant modification of the custody arrangement as it existed prior to August 3, 2005 as well as whether Eric's best interests are served by a continuance of sole legal and physical custody with his father.

10. Upon receipt of the Order to Show Cause filed by Ms. Beddini on August 5, 2005, the court made a referral to the Division of Youth and Family Services. The Division of Youth and Family Services shall therefore complete a report in this matter no later than August 29, 2005 and include any recommendations that they have in its report to the court.

11. The court shall hear oral arguments on September 2, 2005 at 1:30 p.m. to determine what percentage share if any each party shall pay for the guardian ad litem fee, and whether or not there shall at a later date be a plenary hearing regarding issues of custody and parenting time.

12. Both parties shall file an updated Case Information Statement not later than August 20, 2005.

13. Mr. Monaghan and Ms. Beddini shall both cooperate with Family Consulting Services located at 205 West Main Street in Somerville, (908)704-8590, to have Eric evaluated and submit to substance abuse treatment. Family Consulting Services shall submit a report to the court and James B. Johnson, Esq., not later than August 29, 2005.

14. Both parties shall call Family Consulting Services to make an appointment on Monday, August 15, 2005 and take the first available appointment for Eric.

On September 6, 2005, Judge Dilts, after receiving the report of Family Consulting Services dated August 26, 2005 and the report of the court-appointed guardian ad litem dated August 31, 2005, and after having interviewed Eric, entered an order which further modified the order of August 15, 2005 concerning Eric's custody and which states in applicable part:

[the court] has found based upon the arguments made that a substantial change of circumstances since the time the court awarded sole physical and legal custody of Eric to his father, Robert Monaghan, in the following respects: (a) the August 3, 2005 incident between Eric and his brother, Christopher, resulting in injury to Eric while at their father's house; (b) the apparent fact that Eric abuses alcohol and conflicting arguments by both parents that it is the other parent who has intentionally allowed Eric to consume alcohol (see report from Family Consulting Services); (c) the passage of time and Eric now being almost 16-years-of-age; and (d) Eric's apparent desire to spend more time with his mother and to have a closer relationship with her; and the presence of these changed circumstances requires that there be a plenary hearing to determine future custody and parenting time arrangements between the parties; and as to the question of financial responsibility of the legal fees of James B. Johnson, Esq. for his report dated August 31, 2005; the court finds having considered both case information statements and recognizing that neither party wishes the other party to know their financial circumstances the court nonetheless notes that Ms. Beddini has not answered questions with respect to income, but discloses a substantial budget and does not account for how her monthly expenses are paid for; and it appearing that Ms. Beddini does in fact own a residence and has equity in that residence; and it appearing that Mr. Monaghan also has substantial assets and substantial income; and good cause appearing;

IT IS on this 6th day of September, 2005 ORDERED as follows:

1. Mr. Monaghan shall be responsible for 75 percent of James B. Johnson's fees as guardian ad litem. Janet Beddini shall be responsible for 25 percent of James B. Johnson's fees. Future fees shall be paid in accordance with the Order to be entered upon submission by Mr. Johnson with a detailed affidavit of services.

2. The court shall schedule a plenary hearing on the first available date after November 1, 2005 for the purpose of hearing from the parties and any expert that either party chooses to call and any fact witnesses either party chooses to call with respect to Eric's best interest in terms of custody and parenting time.

3. The court shall schedule a case management conference with the parties on Monday, October 31, 2005, at 9:00 a.m. The parties shall be present to discuss the status of the case and preparation for the plenary hearing.

4. In accordance with the recommendation of the guardian ad litem, between now and until conclusion of the plenary hearing, Mr. Monaghan shall continue to have sole legal and physical custody of Eric. With respect to actual time spent with Ms. Beddini, the court will continue the Order entered on August 15, 2005 that Eric shall decide where he wants to spend the night as well as when he would like to be with each parent. The court observes that this arrangement has been in effect for three weeks and at oral argument neither party raised any major problem with this arrangement pending litigation. If either party believes that it is contrary to Eric's best interest because of circumstances that develop after the entry of this Order, either party may bring their concerns to the court by way of Order to Show Cause.

5. Child support shall not change and shall continue during this temporary arrangement.

6. All prior Orders entered in this matter shall continue in full force and effect except as expressly modified by this Order.

In her present appeal of the orders predating the August 15, 2005 and September 6, 2005 orders just mentioned, plaintiff raises the following issues:

POINT I

WHETHER THE PARTIES REACHED A SETTLEMENT AGREEMENT PERTAINING TO CUSTODY. (Appellant's issue II restated.)

POINT II

WHETHER IT WAS IN THE CHILD'S BEST INTERESTS TO CHANGE CUSTODY. (Appellant's issues IV and V restated.)

POINT III

WHETHER APPELLANT SATISFIED GROUNDS FOR RECONSIDERATION UNDER RULE 4:50-1.

POINT IV

WHETHER LACHES, EQUITABLE ESTOPPEL, AND RES JUDICATA BAR RESPONDENT FROM REQUESTING A CHANGE IN CUSTODY. (Appellant's issue III restated.)

POINT V

WHETHER APPELLANT CAN BRING SUIT AGAINST JUDGE DILTS FOR INCOMPETENCE, BIAS, AND ENDANGERING THE WELFARE OF A CHILD. (Appellant's issues I and VII restated.)

POINT VI

WHETHER PERJURY IS AN ISSUE ON APPEAL. (Appellant's issue VI restated.)

After reviewing carefully the record in light of the arguments advanced by plaintiff, we conclude that the issues presented are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A) and (E) We, therefore, affirm the orders of Judge Dilts. We are satisfied that the findings and conclusions of the judge were properly entered and did not constitute an abuse of the trial court's discretion. We add the following:

The law is clear that the court has the authority to modify a custody award after a finding of changed circumstances. It is undisputed that "both parents have a fundamental right to the care and custody of their children." Sacharow v. Sacharow, 177 N.J. 62, 79 (2003). Since the parent has this fundamental right, the State's intrusion is limited to situations either with "exceptional circumstances" or where harm could befall the child. Ibid. Sometimes, however, when both parents seek custody of their child, it is not the State that seeks to impair a parent's rights. Ibid. In this situation, both of the parents possess this fundamental right, and neither parent has a stronger right than the other. Ibid. When the adversarial parents submit their custody issue to the court, the State effectively becomes a "mediator by necessity." Id. at 79-80. Each party "invok[es] the jurisdiction of the Family Part, . . . [and] assent[s] to the possibility that there will be some curtailment of what would otherwise be the ordinary rights concomitant to parenthood." Id. at 80. For example, the parties consent to the possibility that they could lose custody rights, visitation rights, and vacation time. N.J.S.A. 9:2-2; N.J.S.A. 9:2-4. The court is, however, limited in these situations, as it must correctly apply the law to the facts subject to the appropriate appellate review standards. Sacharow, supra, 177 N.J. at 80. "In such cases, the sole benchmark is the best interests of the child." Ibid.

When determining what is in the minor's "best interest[s]," "'the paramount consideration is the safety, happiness, physical, mental and moral welfare of the child.'" Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). The statutory scheme specifically addresses some, but not all, of the factors a court should consider when determining the custody arrangement that is in the minor's best interests.

In making an award of custody, the court shall consider but not be limited to the following factors: 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.

 
[N.J.S.A. 9:2-4c.]

In addition to the statutory factors, the court is also required to "consider and articulate why its custody decision is deemed to be in the child's best interest." Terry, supra, 270 N.J. Super. at 119.

On May 9, 2003, Judge Dilts transferred custody of Eric and Christopher to their father. While the transcript of the hearing is unavailable, the findings of fact and conclusions of law are contained in the judge's eleven page letter opinion of May 9, 2003. Judge Dilts stated that plaintiff conceded that the children do not respect her, and that she cannot "compete with things" by providing the same "worldly possessions and creature comforts" as defendant. The judge considered plaintiff's testimony that she quit her job and dedicated her life to caring for Christopher, who required an Individualized Education Program (I.E.P.).

In reaching his decision to transfer custody to defendant, the judge addressed the factors set forth in N.J.S.A. 9:2-4c to determine what was in the best interests of the children. Judge Dilts addressed the statutory factors as follows:

1. The parents' ability to agree, communicate and cooperate. The parents are unable to agree, cooperate or communicate regarding Eric and Christopher. The court has been involved in handling this case since the time it was filed in or about 1992. Although the parties reached settlement at the time of divorce, since that time, the court has had far in excess of 50 motions and several years ago a lengthy plenary hearing. . . [T]he children have obviously been impacted by the parents' inability to cooperate. Ms. Beddini always blamed Mr. Monaghan for that failure to cooperate, and Mr. Monaghan basically accused her of being emotionally abusive. The court . . . indicate[s] . . . that this is one of the most long-term, contentious cases that it has been called on to handle since 1992.

2. The parents' willingness to accept custody. Both parents will accept custody.

3. Interaction and relationship of the child with its parents and siblings. The court finds that both Eric and Christopher have a good relationship. They have had physical fighting with each other, but have indicated that this is decreasing and both want it to. The court was impressed with Chris' statements that he watches movies with Eric, plays chess with him, and engages in other activities with him. Both indicated that they have a good relationship with each other, and the court finds that they need to be together to support one another.

The relationship that each boy has with Mr. Monaghan is a positive one. Although the court is mindful of the restraining order, and the . . . dynamic of domestic violence, Mr. Monaghan . . . does not appear to be vengeful to Ms. Beddini, and . . . attempts to cause [the children] to not speak ill of their mother and to let go of their negative feelings toward her. His parenting style is mature, cooperative and effective. Ms. Beddini, . . . is nearly totally alienated from both sons. She is so alienated that she is unable to parent her children. They are in fact at risk with her because of her inability to parent them. Eric describes the life with her as "hectic." "Everything is a fight, whether big issues like custody or small issues like a day at school." He said that only five to ten percent of the time is good and that 90 to 95 percent of the time involves arguing or fighting. Eric testified credibly that in December his mother while angry, got physical with him and that he had difficulty breathing as a result of her actions. Christopher testified with credibility that in the dispute with his mother in January that he left the argument that he had with his mother and went to his bedroom and locked the door. The court finds . . . that she ran into the door so as to knock the bedroom door down. Then, in anger, he said that he too could knock down doors and commenced to knock down three doors. Then he took a screw driver in anger and placed it to his mother's neck, . . . because he was angry at her for calling his friend and getting his friend's mother involved in the family dispute. Ms. Beddini was wrong in knocking down Chris' door and continuing her badgering and emotional abuse.

The relationship that Eric and Christopher have with their mother is destructive and dangerous to all three of them.

4. History of domestic violence. Ms. Beddini has a domestic violence order against Mr. Monaghan. The court has not been made aware of any violations . . .Beddini acknowledges that there was not physical violence but emotional abuse.

5. The safety of the children and safety of either parent from physical abuse. The court finds that the boys are safe from physical abuse when with their father. The court is unable to find that they are safe from physical abuse with their mother. . . . The testimony . . . support[s] on-going emotional abuse by their mother.

6. The preference of the children. Both children expressed strong and unequivocal desire to live with their father. Christopher wants to be able to see his mother only when he wishes to do so. . . he will turn 18-years-old in November. . . [he says] I hate my mother. . . . Eric indicated a strong desire to have a better relationship with his mother and indicated a willingness to participate in counseling.

7. The needs of the children. Eric and Christopher both need a safe and stable home . . . [a] firm, but gentle, parental hand who will guide them . . . a place where they can recover from the emotional abuse and trauma that they have suffered. They need an environment . . . free from the stress created by the animosity between Ms. Beddini and Mr. Monaghan.

8. The stability of the home environment offered. This has not been an issue raised . . .

9. The quality and continuity of the children's education. This is not an issue as both parents live in Montgomery Township.

10. The fitness of the parents. Neither parent has raised fitness as an issue except that Mr. Monaghan has accused Ms. Beddini of abuse and not meeting the children's needs.

11. The parents' employment responsibilities. Ms. Beddini is apparently looking for employment. Mr. Monaghan is employed and has been.

12. The age and number of children. Christopher is 17-1/2, Eric is 13.

During the hearing on June 18, 2004, to address plaintiff's motion to regain custody, plaintiff testified that there was some evidence that Eric is trying to establish a relationship with his mother. She stated that on Mother's Day 2004, Eric purchased a plant using his own money. Plaintiff also testified that Eric's grades were suffering, and that he was misbehaving in school. Judge Dilts found that plaintiff had not shown that there was a change of circumstances warranting a modification of the custody award.

On June 27, 2004, Eric and defendant had an altercation involving a knife. Although Judge Dilts did not re-open the custody issue or grant the motion to reconsider custody, he held an interview with Eric. During Eric's interview with Judge Dilts on July 1, 2004, Eric explained that plaintiff was "obsessive," and had an "overwhelming need to control." Eric stated that he saw an improvement in his mother's behavior, because she now spends less time insulting his father and brother. He explained away his falling grades and attributed his lack of academic focus to interest in his new girlfriend. Eric also told Judge Dilts that his father was aware of Eric's trouble in school, and that his father tried to motivate Eric by limiting his computer time and discussing the importance of school. During Eric's interview, they discussed the incident pertaining to the fight involving his father and a knife. Eric stated that he was sorry that he has residual anger stemming from his relationship with his mother, and that he wanted to go to therapy. Judge Dilts indicated that he would contact DYFS for their report on the incident. Further inquiry revealed that DYFS did not have a report on the incident, and Judge Dilts reiterated that the custody matter was closed.

We are satisfied that plaintiff has not made the requisite showing that the trial judge committed an abuse of discretion in the entering of the orders of May 9, 2003 and June 18, 2004. Because there is an absence of such a showing, the judge's order of June 30, 2004 denying plaintiff's motion for reconsideration was, likewise, not an abuse of discretion.

Additionally, plaintiff has not established the required proofs to successfully argue estoppel, laches, or res judicata. Plaintiff's allegations alleging bias, conflict of interest and malice against Judge Dilts are unsubstantiated and are clearly without merit.

We have decided the issues on appeal even though the post-judgment orders of Judge Dilts would ordinarily render those issues moot. See Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000). We are satisfied that the orders of May 9, 2003, June 18, 2004 and June 30, 2004 were properly entered.

As demonstrated by recent proceedings in the Family Division, to which we have eluded, Eric's best interest continues to be addressed by Judge Dilts, who has scheduled a full plenary hearing in November 2005. This appeal simply resolves the propriety of the orders of May 9, 2003, June 18, 2004 and June 30, 2004, which even in light of recent events remain essentially in full force and effect.

 
Affirmed.

In plaintiff's notice of appeal, plaintiff lists orders and letters based on orders of July 6, 2004, July 2, 2004, and July 1, 2004 and the June 30, 2004 order as the orders appealed from. We have been unable to locate an order or letter dated July 1, 2004. The July 2, 2004 order directed the Somerset County Division of Youth and Family Services (DYFS) to make available for in camera inspection, any report or information DYFS had in its possession relating to an incident occurring on June 27, 2004 involving Eric Beddini Monaghan and Robert Monaghan. By letter dated July 6, 2004, Judge Dilts informed the parties that DYFS advised that it had not received a referral but that a police report from the Montgomery Township Police concluded that defendant did not threaten Eric with a knife. The July 2 letter is a report to the parties by the judge concerning his in camera meeting on July 1, 2004 with the parties' son Eric. The judge concluded that Eric's expressed preference at that time was to continue living with his father.

We have not been supplied with the pleadings that were filed in support of and in opposition to the order to show cause filed by the plaintiff, or with a transcript of the court's findings as memorialized in Judge Dilts' order of August 15, 2005.

The reports of the Family Consulting Services and the guardian ad litem and the result of the interview with Eric Monaghan have not been made available for our review.

Judge Dilts' orders of August 15, 2005 and September 6, 2005 are not part of this appeal. However, we have denied plaintiff's motion for a stay of these orders.

We note that Christopher is now nineteen years of age and, therefore, emancipated.

(continued)

(continued)

18

A-7112-03T5

October 12, 2005