LORI DEPASQUALE v. WILLIAM WEYERHAEUSER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0223-05T40223-05T4

LORI DEPASQUALE,

Plaintiff-Appellant,

v.

WILLIAM WEYERHAEUSER,

Defendant-Respondent.

__________________________________________________________

 

Argued March 7, 2006 - Decided May 15, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-278-99.

James P. Yudes argued the cause for appellant (James P. Yudes, attorneys; Kevin M. Mazza, on the brief).

William J. Thompson argued the cause for respondent (Archer & Greiner, attorneys; Mr. Thompson and Stephanie J. Zane, on the brief).

PER CURIAM

Defendant, William Weyerhaeuser, and plaintiff, Lori DePasquale, were married on August 19, 1996. One child was born of the marriage, Curtis Weyerhaeuser, date of birth (DOB) May 25, 1997. A complaint for divorce was filed by plaintiff in or about September 1998, following the parties separation the previous month. A Final Judgment of Divorce was entered on June 26, 2001. The judgment provided that:

As to custody, the parties have agreed that they will share true, joint, equal shared custody. Said shared custody shall include both physical and legal custody with the understanding that the parties shall have equal time sharing, equal parenting time, and also equal decision making as to all significant decisions affecting Curtis'[s] health, education, welfare and upbringing.

The judgment further recites that in order to effectuate the joint custody arrangement, defendant had agreed to relocate from the Baltimore area to New Jersey. Defendant, however, expressly reserved "the right to return to the Baltimore area and on application to [the] court, seek primary custodial status of Curtis" if plaintiff did not comply with the agreement.

The parties were unable to carry out the joint custody in the agreement effectively and required court intervention on numerous occasions related to the issues of custody and parenting time. As a result of their continuing difficulties, on March 5, 2004, the court appointed a guardian ad litem, Deborah O'Donnell, Esq. (the guardian), to act in Curtis's best interests pursuant to R. 5:8B. The guardian interviewed Curtis, the parties twice, Curtis's school representatives and both of Curtis's therapists. The guardian's recommendation was that the joint legal and physical custodial arrangement was not in Curtis's best interest. In her view, the current arrangement was adversely affecting him. She recommended sole custody of Curtis be granted to defendant with parenting time for plaintiff on two weekends per month.

The court believed it necessary to conduct a hearing to consider the guardian's recommendation. A plenary hearing occurred over five days in April and May 2005. The court found that custody of Curtis should be immediately transferred to defendant. The court granted plaintiff parenting time on every Tuesday after school until 8:00 p.m., and on the first two weekends of every month and denied defendant's request to relocate to Maryland.

Plaintiff then requested a custodial evaluation. The court appointed Patricia Ronayne, Esq. as Curtis's attorney. The court requested information from the parties, from Curtis's lawyer and from his therapist concerning the name of the intended therapist, the reason for the evaluation and whether Curtis could withstand the evaluation. The court denied plaintiff's application for a custodial evaluation because of the potential harm it might cause to Curtis.

The court allocated the fees incurred as a result of a therapist's involvement, the appointment of the attorney for Curtis and the guardian ad litem's services to be split equally between the parties. The court also ordered plaintiff to pay child support in the amount of $97 per week in accordance with the child support guidelines worksheet.

On appeal, plaintiff contends that she was misled with respect to the nature of the hearing because she expected that it would be an interim hearing with a final determination to be made at a later date; that the court changed custody without a finding of imminent danger to the child; that the evidence did not support the judge's findings and that those findings were nothing more than the adoption of the guardian's recommendations; that the findings could not have been made without a custody evaluation that was improperly denied to plaintiff; and that the court erred in determining plaintiff's child support obligation and her contribution toward the fees related to the cost of the child's attorney, therapist and the guardian ad litem. We find no merit in any of plaintiff's contentions, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed in Judge Marie E. Lihotz's thorough written opinion dated August 26, 2005.

Ordinarily, the scope of our review of a trial court's findings of fact is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). An appellate court should not disturb the trial judge's factual findings and legal conclusions unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412. Additionally, Family Courts' are given greater deference since they "have special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 399 (1998). "The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000) (citing Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1998)).

The court found that plaintiff "deliberately acts to counteract defendant" and she "is hostile, demeaning, [and] derogatory in her e-mail communications" with defendant. Moreover, it found that plaintiff has "serious issues" in understanding Curtis's current situation and plaintiff's denial of the situation is "astounding." The court explained that:

Plaintiff is insensitive to Curtis's feelings. He adores his father, yet she wants Curtis to compartmentalize his life so that the time with his father is the time with his father and the time with her is the time with her. She does what she wants to do, in a way, without regard to the impact on Curtis.

Plaintiff has exaggerated facts, contradicted herself, and frankly, much of her testimony is not credible.

According to the court, plaintiff either "doesn't have a clue, or she's just flat out lying." The court concluded that a continuation of the present situation "is emotionally harming Curtis." Therefore, the court determined that "an immediate modification of custody is warranted."

The court's decision is more than amply supported by substantial credible evidence and we affirm on that basis. The judge reached her decision after a thorough and comprehensive review of the evidence in light of the applicable law. The findings were not, as plaintiff contends, simply the adoption of the guardian ad litem's recommendations. Although, in many respects, the court agreed with the guardian ad litem's recommendations, that is simply attributable to the fact that the court accepted the testimony of the guardian with respect to her evaluations and findings.

We make two observations with respect to this appeal. First, plaintiff was provided full notice at the start of the trial as to defendant's burden. The court stated:

[This] hearing . . . is . . . to determine whether pursuant to Mackowski v. Mackowski[,] [ 317 N.J. Super. 8 (App. Div. 1998),] there needs to be an immediate change of the custodial arrangement. Obviously, the ultimate issue is a question of whether the joint custodial and shared physical custody arrangement needs to be modified as it no longer serves the interest of this child. And if it is modified, how it would be modified.

Therefore, plaintiff's due process rights were not violated.

Second, the court properly rejected plaintiff's contention that it could not make a determination to transfer custody of Curtis without a custodial evaluation. The court denied plaintiff's request for a determination as to her bond with Curtis because it was concerned Curtis could not withstand such an evaluation. A bonding evaluation, however, was not necessary. Whether or not Curtis and plaintiff have a bond is not determinative. The controlling determination is Curtis's best interest. See Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984). The court has the power to modify custody if it is in the child's best interest. Ibid. It is implicit that where physical custody is switched from one parent to the other that the original custodial parent had a bond with the child.

As pointed out by the court:

Bonding is not the issue. The relationship between the parent and the child -- bonding is an issue that comes when the child is very young, it comes from the initial interaction between parent and child. I mean, bonding is something we investigate, for example, in termination of parental rights cases, when abandonment is the issue. I mean, bonding is not the issue. I mean, Curtis loves his mom. There is no doubt in my mind he loves her.

Plaintiff's bond with her child does not preclude an order granting defendant sole custody when the court determines, as it did here, that such an order is in Curtis's best interest.

We affirm the trial court's denial of the requested evaluation based on the harm it could produce to Curtis.

Affirmed.

 

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A-0223-05T4

May 15, 2006