RABINDRA N. KARMAKAR v. ANIMA MALLICK f/n/a KARMAKAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0318-05T30318-05T3

RABINDRA N. KARMAKAR,

Plaintiff-Appellant,

v.

ANIMA MALLICK f/n/a KARMAKAR,

Defendant-Respondent.

________________________________________________________________

 

Submitted October 31, 2006 - Decided December 12, 2006

Before Judges Payne and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2024-01.

Rabindra Karmakar, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from a Family Part order denying his motion to terminate the services of a court-appointed guardian ad litem (GAL), R. 5:8B, and requiring him to pay his pro-portionate share of the GAL's fees. We affirm.

The parties' final judgment of divorce was entered on July 31, 2003, after a trial on all issues. Numerous post-judgment applications to enforce the terms of the judgment were filed. On May 23, 2005, plaintiff filed an ex parte order to show cause, seeking an immediate change in custody of the parties' youngest child. The temporary order granted his request; however, after a hearing on the return date, a different judge returned the child to the primary residence of her mother, and increased plaintiff's parenting time. The motion judge also appointed a GAL, allocating the responsibility for payment of her retainer between the parties, sixty percent by plaintiff and forty percent by defendant.

Several applications followed regarding review of the child's medical and psychological records, as well as the investigative reports performed by the Division of Youth and Family Services. The GAL requested an additional retainer. Plaintiff objected to the GAL's involvement and her requested payment. After a hearing, the motion judge: (1) ordered the provision of the child's medical records for an in camera review, subject to further argument on their release; (2) denied plaintiff's request to terminate the services of the GAL prior to her preparation of a report to the court on the child's psychological and physical status, and her recommendation as to the best interests of the child in the custody dispute; and (3) required the parties to pay the GAL's balance for services rendered of $892.50, in the percentages previously established, without prejudice to either party's right to seek reallocation at the final hearing.

Plaintiff filed a motion for reconsideration. In that application, plaintiff stated he was withdrawing his request to change custody. Thus, the GAL could end her investigation. Plaintiff also wanted no further responsibility for payment of the GAL's fees. The motion judge denied the application by order dated September 14, 2005.

Plaintiff argues, on appeal, that the motion judge erred by denying his motion, as the GAL's investigation became unnecessary after he withdrew his request to modify residential custody. Plaintiff additionally asserts claims that the motion judge exhibited bias "because litigant was a pro se and of [a] different culture, and [of] male gender."

Our review of the record in the light of the written arguments advanced by plaintiff discloses that these contentions are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following comments.

Rule 5:8B provides that "[i]n all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment." Ibid. The court-appointed GAL, acts as an independent fact finder, investigator and evaluator on behalf of the court, submitting a report to assist in furthering the best interests of the child. See In re M.R., 135 N.J. 155, 173-74 (1994); In re Adoption of a Child by J.D.S. II, 353 N.J. Super. 378, 402 (App. Div. 2002).

This was a highly contentious, longstanding custody proceeding involving the parties' very troubled teenage daughter, who had attempted suicide. The court appointed the GAL to determine the parties' daughter's best interests. We find a proper exercise of discretion in this regard. Notwithstanding plaintiff's withdrawal of his application for residential custody the needs of the child, and whether those needs were sufficiently met by her parents, remains of paramount concern to the court, which must safeguard the interests of the child. See Kinsella v. Kinsella, 150 N.J. 276, 317-18 (1997). The motion judge expressed reservation on whether defendant was appropriately providing for the child's needs as her primary custodian. The exercise of the State's parens patriae interest grants the court sufficient latitude to satisfy itself that the child's welfare is secure. See Fantony v. Fantony, 21 N.J. 525, 535 (1956). Under this inherent authority vested in the Family Part judge, we find no misapplication of discretion in the continuation of the appointment of the GAL to protect the interests of this child.

We also find no misapplication of discretion in the order for payment of the GAL's fees. Payment to the GAL should be born by both parents because the expense furthers the interests of the child. The motion judge properly entered the order without prejudice to either party's right to challenge the payment allocation once final disposition was made. See D.H. v. D.K., 251 N.J. Super. 558, 565-66 (App. Div. 1991).

Affirmed.
 

 

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A-0318-05T3

December 12, 2006