BRIAN WILSON v. TAMMY WILSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3626-04T43626-04T4

BRIAN WILSON,

Plaintiff-Respondent,

v.

TAMMY WILSON,

Defendant-Appellant.

_______________________________

 

Submitted: February 28, 2006 - Decided April 3, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County, FM-04-298-00.

David S. Rochman, attorney for appellant.

Ferguson & Anderson, attorneys for respondent (David Anderson, on the brief).

PER CURIAM

Defendant Tammy Wilson (mother) appeals from the order of the Family Part judge, following a plenary hearing, directing a change in residential custody of the parties' two minor children. She contends that plaintiff Brian Wilson (father) failed to demonstrate sufficient factors to constitute a change of circumstances and failed to present sufficient evidence for the court to conclude that a change in custody would serve the best interests of the children. We affirm.

The parties were married in 1992, and on May 5, 1993 their son Glenn was born, and on July 13, 1996 their son Eric was born. Pursuant to the final judgment of divorce entered on February 23, 2000, the parties shared joint legal custody of the boys, with mother being designated as the parent of primary residence (PPR) and father having extensive parenting time on Tuesdays from 4:30 p.m. until 8:00 p.m., every other weekend from 4:30 p.m. Friday through Sunday at noon, and Thursdays of the off-weekend from 4:30 p.m. until 8:00 p.m.

In May 2001 father applied for a change in custody in Gloucester County, where the divorce had occurred, which precipitated a transfer of the matter to Camden County, where both parties then resided. The custody matter, however, was not scheduled by the court. In March of 2003, father renewed his application for a change in the custodial arrangement. In support of the motion he certified that his children constantly expressed their desire to live with him and did not want to return to their mother's home at the end of their visitation. He expressed further concern about their progress in school, particularly his nine year-old son Glenn's failure to turn in homework assignments and his six year-old son Eric's placement in a special class because of his lack of skills, with the possibility of repeating first grade. Father also indicated a concern that his former wife was not adequately supervising the boys' hygiene or providing them with properly-sized and weather-appropriate clothing. Additionally, he detailed problems with visitation.

In June 2004 Judge Meloni conducted in camera interviews of the parties' then eight and eleven year-old sons. The boys indicated to the court a desire to live with their father, which they also shared with the psychologist. The court perceived there to be several reasons for the children's preference: their father was more attentive to them and did more "fun things"; they felt it was easier to live under their father's rules than their mother's because if they did something inappropriate, rather than yell at them, he would explain what they did wrong and why they should not do it again; and they also indicated they had a loving and caring relationship with their father's current wife. In contrast, their mother took them to the carnival but, as a general rule, she just allowed them to play in the yard; her rules were stricter and punishment usually resulted in them being confined to their room; and her fiancé played a part in rule enforcement, which caused some tension and stress.

The court then conducted a three-day trial, during which testimony was taken from father and his wife Cathy and mother and her friend Tammy Boner. The testimony at trial was that when the parties separated in 1999, mother moved with the children approximately seven times within one and a half years. She then moved into her fiancé's house in Audubon, and resided there for the past three and a half years. The home has three bedrooms: the boys share one bedroom, she and her fiancé's two year-old daughter has a room, and she and her fiancé share the third room. Mother is a homemaker.

Father remarried about four years prior to the hearing and moved into a four-bedroom house in Lindenwold, which is about twenty minutes away from Audubon. The boys have made friends in the neighborhood during their extensive time with their father. Father and his present wife Cathy have no children together. They testified at length about problems with the children's hygiene, completing homework assignments and physical and emotional problems, which they believed resulted from mother's inadequate supervision and parenting skills. For example, they explained that the children often arrived at visitation with their hair uncombed and unwashed; their teeth unbrushed; and wearing socks that they had on for three or four days at a time. They also discussed the tension and problems they had encountered with parenting time and telephone contact with the children.

Father indicated a belief that if he became the primary residential parent, he and Cathy would be in a better position to assist the boys in their schoolwork and provide the necessary guidance and supervision to ensure that their homework assignments were current. Father identified the middle and high schools the boys would attend in the Lindenwold district. As he and Cathy work a regular workday outside the house, he testified to child care options for the short period of time before and after school. He would plan for the boys to go over to their neighbor Jeff's in the morning and ride the bus with his children who were the same age, and in the afternoon, they would either ride the bus home with them and stay with the neighbor or stay in the school latch-key program until he or his wife returned home from work.

Both father and Cathy testified as to their close relationship with the boys and the activities they shared with them. Cathy explained how she was in the process of teaching eleven year-old Glenn how to comb his hair. Father described his relationship with the boys as follows:

I think I have a great relationship with my children. They're very respectful. I don't have any problems with them. I mean if they, you know, any little thing occurs or whatever, we sit down and we discuss it. I really don't have to -- hardly ever have to discipline them, because I don't have [any] troubles with them, because we can sit and talk, and they trust me and they know that they can come to me if there's something going on or you know, whatever they need to say, they know they can come to me and they're not going to get in trouble for it, if they did something wrong, or whatnot like that. I think they look up to me.

He further stated that he could tell that the children loved him by the way they behaved towards him and that they loved and respected Cathy by the way they "play[ed] with her and joke[d] with her." Cathy indicated that if residential custody were awarded to them, they would put the boys' interest first and they would "nurture them physically, emotionally [and] spiritually."

Mother offered no specifics as to her day-to-day activities with her sons and very little testimony as to her overall relationship with the boys, other than statements such as "[m]y entire life revolves around my children [and] [t]hey are my everyday life and I have no idea what I would do without them." She generally denied the allegations against her, and she contended that she was unfairly being put on her defensive by her ex-husband and his present wife and that the children were unfairly being placed under a microscope by father, DYFS and the professionals. Mother, however, acknowledged that the boys had a substantial number of missing homework assignments and admitted that she did not have "the faintest [idea]" how many homework assignments Glenn missed the prior year. According to mother, her ex-husband caused both boys' emotional problems, sought to bribe them with motorcycles and quads if they moved in with him and would work towards alienation of the children if he had custody. On cross-examination, mother was presented with a tax sale certificate against her fiancé's home for unpaid municipal real estate taxes. She was unaware that the taxes had not been paid and whether the certificate had been redeemed.

After hearing the testimony, the court also reviewed numerous trial exhibits, including DYFS reports, counseling reports and evaluations, the boys' school records and report cards, and the municipal tax sale certificate. The court thereafter issued a lengthy written decision dated October 29, 2004, memorialized in a November 17, 2004 order, which provided for the parties to continue to have joint custody of the two minor children, for father to be the PPR for the minor children commencing December 28, 2004, and for the parties to "flip-flop the present parenting time arrangement so that [mother] will then have the parenting time that [father] now enjoys." The order further terminated father's obligation to pay child support as of December 31, 2004. By order of January 28, 2005, the court denied mother's motion for reconsideration but granted her request for the written report of the court-ordered mediation, a copy of the in camera interview with the children and copies of the DYFS and counseling reports subject to a protective order.

In its written opinion, the court organized the testimony and evidence in the context of the sixteen factors set forth in N.J.S.A. 9:2-4c to be considered by a court in awarding custody. It cited the governing law that the party seeking to modify custody must demonstrate changed circumstances which affect the welfare of the children. Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). The court recognized this was not a situation where either party was unfit or the children were at risk in either parent's home. The court found, however, that the following factors, in combination, constituted a sufficient change in circumstances to warrant a transfer in primary physical and residential custody to father: (1) the lack of stability in the present living conditions; (2) the fact that the children were doing poorly in school and were not reaching their potential under mother's tutelage and supervision; (3) mother's failure to take proper care in the provision of the children's hygiene and appropriate clothing; and (4) the children's preference to reside with their father.

The court's determination was based on the following findings:

l. There is a change of circumstances caused not by one of the elements raised by the Plaintiff, but by a combination of all of them. The Plaintiff's argument that the Defendant does not provide a stable home environment is based in part upon the allegation that during the first year and a half of the parties' separation, she had moved some seven times. However, that is counterbalanced by the fact that with her current boyfriend she has enjoyed a three to three and one-half [year] relationship in the same home owned by the boyfriend. Of some concern to the Court is the sale of the tax certificate on that house which was produced by the Plaintiff during testimony. No testimony was offered by the Defendant, who was surprised at this revelation, and her boyfriend was not produced as a witness to clarify the status of the home. Accordingly, the Court is left with an impression that there is some risk the home may be lost in foreclosure, although the Court cannot quantify or qualify the nature or extent of that risk.

2. Secondly, the Plaintiff has raised the question of the children's ability to reach their highest potential in school. There is no question that Glen[n] and Eric have both suffered somewhat in school in their grades and their ability to perform to their fullest potential. There is late homework or missing homework, although frankly the grades that they do receive are for the most part average. The argument is that with some additional help, they could excel to their limit.

3. Plaintiff further contends that the children are not properly cared for. The Plaintiff so testified as did his current wife, and having had an opportunity to observe their demeanor, and their responses to questions, I have judged them to be credible and believable witnesses. They describe the occasions on which the children were brought back to their home in clothes that were soiled, ill fitting and dirty. In their conversations with me one of the children stated that he bathed every night and the other that he bathed every other day. There was only one occasion when DYFS found there to be a problem with Defendant's housekeeping and after her completion of the parenting class that did not repeat again. I also note that at the time of my interview with each of the children, they were appropriately attired.

4. Lastly, the question of the preference of the children. Clearly the children had told the DYFS psychologist that they prefer to be with their father [and] the Court does get the impression they have also told the Defendant this as well. The Court recalls during the course of its interview with the children, it was very clear that that is where they wanted to stay. It is hard to determine whether or not the desire that they have to stay with their father is such that is spurring the Plaintiff's extraordinary efforts to change custody or whether the Plaintiff's aggressive quest for custody has encouraged the children's preference. The one thing seemed perfectly clear, that is, that the happiness of the children, as well as the physical and mental welfare of the children as set forth in Kinsella[v. Kinsella,] 150 N.J. 276 [(1997)], would be best achieved here by allowing the Plaintiff to have custody over the two minor children. Perhaps under this new arrangement, Eric's constant stomach aches and Glen[n]'s difficulties in school, will begin to resolve.

The trial judge acknowledged that the change in residential custody was a difficult decision to make as both parents loved the boys equally. He emphasized that his decision was guided by the best interests of the children at this point in their lives. He directed the transfer to occur during Christmas break to minimize the disruption to the normal school year, as the transfer would require a change in school districts from Audubon to Lindenwold. Recognizing the parties' difficulty in respecting each other's rights to be a parent, the court also directed them to participate in the "Choices for Children" seminar and the children to participate in the "Our Family Has Changed" program.

Judges of the Family Part are regularly called upon to make exceedingly difficult and delicate decisions as to the best interests of children, and we are obligated to give deference to both their findings and the exercise of their sound discretion. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 151 (App. Div.), certif. denied, 178 N.J. 34 (2003). In determining custody of minor children of divorced parents where the trial judge has had the opportunity to observe the demeanor of the witnesses, interview the children and, in general, has a "feel of the case," his or her conclusions are entitled to great weight on appeal. Beck v. Beck, 86 N.J. 480, 501 (1981); Palermo v. Palermo, 164 N.J. Super. 492, 498-99 (App. Div. 1978); Sheehan, supra, 51 N.J. Super. at 295. On appeal of custody cases, our review is limited to whether the findings could reasonably have been reached on sufficient credible evidence present in the record and if so, we should not disturb the result. Beck, supra, 86 N.J. at 496.

We recognize, as did the trial court, that this was a close case where both parents were fit, and several of the custody factors were in equipoise. The court was satisfied, however, that circumstances had substantially changed, and it was not in the children's best interests to continue living with mother as the primary residential parent. Contrary to mother's argument on appeal, residential custody was not changed because of an incident at a sporting event two years prior or a "vague hygiene issue." The record is replete with instances of specific problems with the boys' hygiene, missed homework and the escalating effect of the animosity and stress of the relationship between the parties on the physical, mental and emotional well-being of Glenn and Eric.

The trial judge summarized the in camera interviews, detailed the testimony of the witnesses, made credibility assessments, and set forth the four factors that he believed, in combination, tipped the scales and created a substantial change in circumstances that warranted the change in residential custody. A significant factor in the court's determination appears to be the boys' clear preference to live with their father, which they shared with the court and the psychologist, and the reasons they expressed to the court for their preference. The boys' preference was not just based on dad being more "fun", but it appeared he provided a more nurturing environment where he had discussions with them when they misbehaved rather than yelled at them. This communication made it easier to live under his rules. On the other hand, their mother's rules were stricter, and her punishments usually resulted in them being confined to their room. The boys further indicated they had a loving and caring relationship with Cathy, while they expressed that some tension and stress was caused by their mother's fiancé participating in rule enforcement.

After observing the parents at trial, Judge Meloni was in the best position to assess and reject mother's allegations that father was bribing the boys to support his custody application; was putting undue pressure on them, which was causing or contributing to their physical ailments; and was attempting to alienate the children from her. On the contrary, the court was not altogether satisfied that mother was sufficiently encouraging a relationship between the children and their father, stating:

The therapist found that [defendant] did not discredit the plaintiff and offered no resentment with regard to the current situation. The Court finds that hard to believe in light of her testimony and her demeanor during the trial.

A trial judge does not have a crystal ball. Based on the totality of the evidence presented, his feel of the case, and his expertise, the Family Part judge concluded that Eric and Glenn's happiness and physical and mental welfare would be best achieved by allowing their father to have residential custody of them. We are satisfied the record amply supports the trial judge's factual and legal conclusions. We reiterate that custody orders are temporary in nature and may be changed at any time in accord with future conditions and circumstances. Borys, supra, 76 N.J. at 111; Sheehan, supra, 51 N.J. Super. at 287.

Affirmed.

 

Information regarding the interview is taken from the court's October 29, 2004 opinion, as the transcribed interview was not a part of the record.

(continued)

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A-3626-04T4

April 3, 2006