RICARDO MANGUAL v. ROSEMARIE MANGUAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0419-05T50419-05T5

RICARDO MANGUAL,

Plaintiff-Respondent,

v.

ROSEMARIE MANGUAL,

Defendant-Appellant.

____________________________________

 

Submitted April 26, 2006 - Decided May 9, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Middlesex County, FM-12-986-97E.

Rosemarie Mangual, appellant pro se.

Jaffe & Falk, attorneys for respondent

(Kenneth B. Falk, on the brief).

PER CURIAM

Defendant, Rosemarie Mangual, appeals an August 19, 2005 order denying without prejudice her motion to return primary residential custody of the parties' daughter, Vanessa, to her. Residential custody was moved from defendant to plaintiff, Ricardo Mangual, by order of September 8, 2004. Defendant also appeals the provision ordering a "custody/parenting time investigation."

Certain background facts were before the judge, and likely explain the limited findings he placed on the record in September 2005. Three daughters were born to the parties, who were married in 1987 and divorced in 1997. Initially, residential custody of all three girls was with their mother, and their father was granted liberal visitation. In 2001, residential custody of Jessica, their oldest child, born August 16, 1987, and now more than eighteen years old, was transferred to her father. This change occurred after it was discovered that defendant's then boyfriend, who lived in the home with the girls and their mother, had been secretly videotaping Jessica in the shower. When confronted with likely criminal charges arising from his conduct, defendant's boyfriend committed suicide. Those circumstances directly led to Jessica's move from her mother's home to her father's home in Woodbridge, and she has remained resident with her father since then. The parties' second daughter, Melissa, born June 20, 1990, and now almost sixteen years old, has remained resident with her mother in Toms River since the divorce. The youngest child, Vanessa, was born November 17, 1992, and is now thirteen-and-one-half years old. This appeal concerns only residential custody of Vanessa.

On September 8, 2004, Judge Joseph L. Rea entered an order changing residential custody of Vanessa to her father. That order followed plenary hearings conducted between the summer of 2004 and the summer of 2005 concerning residential custody of Vanessa and her sisters and in camera interviews with each child. These were the judge's findings at that time concerning Vanessa:

Yes, she's a cute kid, and she's also very bright and, I mean, the few minutes that I had with her, she is extremely bright. She wants to give this she wants to come to live with you [plaintiff], and Jessica gave me some insight with regard to her. I think that maybe Vanessa doesn't meld well with some of the kids in Toms River and is doing very well with some of the kids that she met in camp in Woodbridge and really looks forward to that. By the way, she's really looking forward to that cruise you've got planned, so, I mean, she's right on the money where she said she'd like to give it a shot, maybe, you know, for a year or so, however, she wants an out so that, you know, if it's really bad she would have the opportunity to at least be heard about going back, and that goes without saying, and if it's really, really bad, maybe going back midyear, you know, and she also, I think, understands that you really can't split the school year up any more than that, but I suspect that she's going to do very well at Woodbridge, to be honest with you. I don't think you're going to come back . . . .

So, and I'm inclined to switch the custody arrangement with regard to Vanessa and basically flip-flop things, you know, so that whatever he had in visitation you [defendant] would then have in visitation, and maybe even expand it more, depending upon what the child wants to do and, hopefully, the two of you could work that out, but at a minimum, it would be just the inverse of what's in place now and I promised her with the provision that if things just don't work out that it would be brought back to Court either in December of at the end of the school year and it would go back to the way it was, because I told her, you know, she wanted that escape hatch, just in case.

Defendant did not appeal. Plaintiff contends that defendant actually consented to that change, whereas defendant contends that her consent was conditioned on her understanding that whenever Vanessa changed her mind about wanting to live with her father, she could return to her mother's home.

Addressing the residential custody issue generally, on July 25, 2004, the judge addressed these remarks to defendant:

Okay, let me my observation here, you compromised your daughter's safety by keeping that person around after it came to light what he was doing with regard to violating the privacy of your daughters, sexual misconduct. I can only find that the reason for that was financial. You've been fighting this custody battle and a big component, as far as you're concerned, is money. You don't want to lose child support and financial arrangements. That's a little unsettling to me because one should have absolutely nothing to do with the other. In talking to your daughters, I started to get the impression that that same concern was conveyed to them, that you were upset because you were losing child support, and one has absolutely nothing to do with the other. Child support flows from a situation as it exists, not the other way around, meaning it's not appropriate to say, well, I need this custodial arrangement because I need the money. That's backwards, it goes the other way. First we decide what's the appropriate custody situation and then the child support falls in place after that, but I can't help but conclude that a lot of what's driving your position with regard to custody is money-oriented, which it shouldn't be, and that's not only improper but it's somewhat offensive, and it's particularly offensive to the extent that that's conveyed to the children and they are made to either feel guilty or responsible for that, because I've got to tell you, I have a real problem with the fact that you allowed this individual to stay in your house after it became clear to you that he was videotaping your daughters in the bathroom with a camera that he had secreted in the vents and that you also instructed your daughters not to tell their father about it. I've got a real problem with that. You basically put your daughters in harm's way and I can't help but conclude that the reason you did that was because this guy was a meal ticket. So, the terms of the divorce as they exist and the law as may have modified the terms of the divorce since then will govern this case.

N.J.S.A. 9:2-4 sets forth the appropriate factors to be considered in any custody decision. The views of a "child of sufficient age" are to be considered, but are not controlling. Ibid.; see also Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div. 1977), certif. denied, 75 N.J. 28 (1977); Ali v. Ali, 279 N.J. Super. 154, 169 (Ch. Div. 1994). When the judge ordered the change in residential custody for Vanessa in 2004, he explained his reasons, including Vanessa's expressed preference and her reasons.

In a July 26, 2005 court appearance, apparently scheduled to review Melissa's progress, defendant informally raised the issue of Vanessa's residence:

THE DEFENDANT: She has indicated to myself and my neighbor's kids that she would like to go back to my school system for September when school goes back into play.

THE COURT: Why?

THE DEFENDANT: I really don't have the whole story on that. Due to my illness, she doesn't she isn't as open with me because she's afraid of hurting her father slash hurting myself.

The following colloquy ensued:

THE PLAINTIFF: I had a talk with her yesterday about it and, yeah, she does show some interest in going to her mother. And the reason that she told me was because she just misses her mother. I expressed to her that, basically, my feelings are she's doing excellent in school and, to me, her school means more. And if she wants to spend more time with her mother, that's fine. I mean, we can talk to each other and make arrangements for that.

THE COURT: How often does she see her mother?

THE PLAINTIFF: Right now we alternate the weekends, and into the summer it's alternating weeks.

THE COURT: How far apart do you live?

THE PLAINTIFF: 54 miles one way.

THE COURT: What town do you live in?

THE DEFENDANT: I live in Toms River, Ocean.

THE PLAINTIFF: And I live in Woodbridge.

MR FALK: If I have to add something, Your Honor, I think Mrs. Mangual is ill and I think somehow or other that's got into the mix of Vanessa's sympathy.

THE COURT: Perhaps it might be best to maintain the status quo for now and just reassure the child that she can see you whenever she wants.

THE DEFENDANT: That

THE COURT: She's probably scared because she knows about your illness.

THE DEFENDANT: Well, for the most part, I'm recuperating and doing well. This is my third bout with it, so she has seen the worst of it and what I have to go through yet and knows that I will recover; however, because she has strongly told everybody else that those were her plans, she was under the impression that it was her choice. And with all due respect, if her father isn't listening when she says she wants to go back and I'm not able to do anything, I'm afraid being 12 going into 13 years old that [she] might rebel against both of us.

The judge then addressed defendant:

THE COURT: My only concern is, ma'am, given everything you have on your plate right now, don't you think it might make more sense for her to just stay with her father until you get through what you're going through?

Defendant answered "yes." Thereafter, Judge Rea addressed defendant:

THE COURT: All right. Look, this is a pretty major issue that you're bringing up out of the blue. Let her know that if you feel, ma'am, that this is something that really needs to be heard, file an application, a formal application, and we'll hear it. But I'm not going to get into something this important informally, all right? I think that would be reckless to do that.

We note that the judge's August 2005 order denying defendant's motion for Vanessa's return to Toms River was issued "without prejudice." The judge obviously intended to revisit the question of Vanessa's best interest after completion of the investigation then ordered. That investigation, however, apparently has not proceeded during the pendency of this appeal. While defendant challenges the appropriateness of such an investigation, it is clearly provided for by the Rules of Court, see R. 5:3-3; R. 5:8-1; R. 5:8-3, and defendant's argument on that issue is without merit. See R. 2:11-3(e)(1)(E).

After careful review of the record, giving due deference to the Family Part judge's findings, see Cesare v. Cesare, 154 N.J. 394, 413 (1998); N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005); State v. Wahl, 365 N.J. Super. 356, 369 (App. Div. 2004), we are satisfied that there was neither error nor abuse of discretion in the order from which defendant appeals, and no basis for our intervention. In fact, transcripts of the parties' appearances before Judge Rea on different dates between June 2004 and August 2005 demonstrate the judge's sensitivity to each child's needs and his attention to the best interest of each. Our decision is without prejudice to defendant's renewal of her application in the event that the investigation previously ordered, or other circumstances not before us, warrant a change.

Affirmed.

 

The hearings concerned Melissa's residence and custody as well. Although she apparently was not doing well in school, and discipline problems had arisen, the judge concluded and the parties agreed that for the time being, a move to her father's home was not in her best interest.

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A-0419-05T5

May 9, 2006