ROBERT VARVAR v. GLORIANA VARVAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4422-05T34422-05T3

ROBERT VARVAR,

Plaintiff-Appellant,

v.

GLORIANA VARVAR,

Defendant-Respondent.

_____________________________________

 

Argued December 6, 2006 - Decided December 22, 2006

Before Judges Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FM-21-395-02.

Kenneth W. Thomas argued the cause for appellant (Lanza & Lanza, attorneys; Mr. Thomas, of counsel and on the brief).

J. Edward Palmer argued the cause for respondent (Houston & Palmer, attorneys; Mr. Palmer, on the brief).

PER CURIAM

Plaintiff Robert J. Varvar ("the father") appeals the Family Part's denial, following a plenary hearing, of his seventh motion to transfer to him from defendant Gloriana Varvar ("the mother") primary residential custody of the parties' two children.

The parties were divorced in 1997. Pursuant to the divorce settlement, the mother obtained primary residential custody of the two children of the marriage, a daughter born January 10, 1993 and a son born August 14, 1995. The parties also agreed to share joint legal custody, with significant parenting time awarded to the father, mainly in the summer and on school year weekends and periodic weeknights. The mother has a lengthy history of unilateral deprivations of parenting time to the father, resulting in many enforcement orders and the father receiving compensatory ("make-up") time. However, at the time of the plenary hearing, the mother did not owe the father any such make-up days with the children.

The mother is a school bus driver and lives in a house in Warren County. She has a third child through another relationship, who was about age two when the custody hearing on this appeal was conducted. The mother has lived in at least six different locations since the divorce. She had a cohabitating relationship with the third child's father which ended shortly before the instant proceedings in December 2005, although she apparently still has periodic contact with him.

The father lives a considerable distance away in Freehold, where he has been steadily employed as a service manager for over seventeen years. He remarried five years before the hearing. His present wife has no children.

Before the hearing the court appointed a psychologist, Charles Most, Psy. D., to perform an evaluation. After clinical interviews and testing, Dr. Most recommended that primary custody of the children be transferred to the father because he offered the kids "a more stable and secure home without a sense of constant transition."

At the December 2005 hearing, the parties agreed to the admission of Dr. Most's report without his live testimony. They each testified, and the court also extensively interviewed the children in camera.

Despite the psychologist's contrary recommendation, the Family Part judge decided, in a detailed written opinion, to retain primary custody with the mother. However, as an unusual condition of that order, the judge ruled that the mother would have to spend in jail any future makeup time for the father's parenting time that she might cause.

The father now appeals the Family Part's determination. We affirm that determination, substantially for the reasons comprehensively expressed in the April 21, 2006 decision of Judge Pfeiffer. We offer several additional observations.

Our scope of review of child custody determinations is exceedingly limited. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).

A significant factor in producing those determinations is the trial judge's opportunity to see and hear the testimony of the witnesses and to evaluate their credibility. Such credibility assessments deserve great deference, particularly given the special jurisdiction and expertise of family judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Although the trial judge here did not have the benefit of in-court testimony from Dr. Most, he did have the opportunity to assess the veracity of the parties, particularly that of the children.

The trial judge's opinion meticulously applied the fourteen custody factors set forth in N.J.S.A. 9:2-4. Because we fully agree with his analysis, we shall not repeat it here at length.

Among other things, the judge did note that factor 8, "the stability of the home environment offered," weighed "slightly in favor of awarding custody to the father." Additionally, factors 1 ("[t]he parents' ability to agree"), 2 ("the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse") and 5 ("[t]he safety of the children . . . from physical abuse by the other parent") favored the father. On the other hand, the judge found that factors 3 ("[t]he interaction and relationship of the child with parents and siblings"), 9 ("[t]he quality and continuity of the children's education"), and 11 ("the geographic proximity of the parents' homes") weighed in the mother's favor. The remaining factors, with the exception of the children's preferences (factor 6), were either neutral or inapplicable.

The pivotal consideration in the judge's analysis was factor 6, "[t]he preference of the children when of sufficient age and capacity to reason to form an intelligent decision." The judge evaluated that factor with the benefit of two extensive in camera interviews of the parties' son and daughter. We have reviewed the transcripts of those interviews, which are impressive in their comprehensiveness in eliciting detailed insight from the children, each of whom the judge found credible. The judge specifically determined that the children, who were respectively ages twelve and ten at the time of the interviews, were "mature enough to form a preference regarding custody." The trial judge noted the children were "articulate," and appeared "mature and well educated compared to children of similar ages."

As the transcripts reflect, both children expressed to the judge a "clear preference" to remain in the primary custody of their mother, notwithstanding the fact that, as the judge also found, they "love and adore both parents, as well as their stepmother." The judge elaborated:

This preference is based on the location of their friends, their school and their dance school. In this respect, the children had an opportunity to meet the children in their father's neighborhood and did not like the children who would be their classmates. . . . Additionally, there was no evidence that the father took the children to a dance studio in the area or researched competition teams that would [be] equivalent to the program [in which] [the son] currently participates.

Additionally, the court finds that the children feel more comfortable in their mother's home. Neither child complained about the mother's transitory nature or moving from one home to another. The preference is clear and the court finds this a significant factor weighing in favor of leaving primary physical custody with the mother.

In this vein, the trial judge gave appropriate consideration to Dr. Most's bottom-line recommendation on primary custody and ultimately found it unpersuasive. As the judge noted, "[a]lthough these are delightful children who are very well adjusted, the court does find that they would not be perfectly content at the father's house." We sustain that finding, and the trial judge's considered declination of the expert's opinion. The trial judge was by no means bound by the psychologist's recommendation, and the judge satisfactorily articulated his reasons for not accepting it. Cf. Terry v. Terry, 270 N.J. Super. 105, 119-120 (App. Div. 1994) (remanding an order directing a change in physical custody where the judge failed to articulate why he disagreed with a court-appointed expert's recommendation).

Our case law has underscored the importance of taking into account the custodial preferences of children who are mature and intelligent enough to express themselves. See, e.g., 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.), certif. denied, 75 N.J. 28 (1977). The father's counsel acknowledged at oral argument before us that he had no specific reason to believe that the children's responses during the in camera interviews had been manipulated by the mother or were otherwise insincere. The parties were provided an opportunity to suggest proposed questions prior to the interviews, consistent with R. 5:8-6, and the court supplied to counsel the transcripts of the interviews before the end of the case. There were no procedural irregularities identified, and the parties' counsel did not seek to present additional or rebuttal proofs.

As the judge summarized it:

[T]wo bright and vibrant children have clearly expressed a desire to maintain the status quo. Although the mother's style may not be conventional, there is no question that she has done a fantastic job in raising two remarkable children. Both children are honor students despite the fact that they devote a substantial portion of their time involved in extra-curricular activities. Both have dreams of becoming Broadway stars and have achieved success. [The daughter] had a significant role in the school play and [the son] had [h]is on the competition team. Additionally, both children are very sociable and have many friends that they see on the weekends when they are not with their father. Simply put, the mother managed to raise t[w]o children that are successful academically and socially, despite her unconventional style.

Therefore, the court believes that the mother shall remain the primary physical custodian. Although each of the factors [were] considered by the court, if the court were to transfer primary custody at this time it would be more to punish the mother than it would be in the children's best interest. This is not to say that the father has done anything wrong. In fact, the father has presented a living situation that is close to ideal for raising children. However, these are not just any children. These are mature children that are established in White Township. They live in a loving atmosphere with their mother and baby sister. They have numerous friends and they excel both inside the classroom and out. They have expressed a preference, and the court finds that the potential adverse effects that may result in transferring custody at this time and against their wishes simply outweigh the factors that would support transferring custody.

We sustain all of these observations, which are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

Lastly, we observe that the trial judge, quite equitably, provided the father with primary custody in the summer time mindful of the many positive factors about the father presented at the hearing:

[T]he court finds that the father shall have primary physical custody each summer. There is no question that the father has done everything he can to encourage and develop his relationship with his children. Therefore, the court believes that the father should be provided more time to further grow his relationship. In light of the distance between the parties, more time during the week is not a viable option. Therefore, the parties shall switch parenting time schedules during the summer, with the mother having parenting time on alternate weekends and alternate Tuesday nights. This will allow the father a large block of parenting time where he does not have to worry about cancellations or the mother being late.

This measure of relief, although short of the year-round primary custody sought by the father, has ample support in the record and is not challenged on any cross-appeal by the mother. The determination further illustrates the conscientious and pragmatic analysis of the trial judge, who was confronted with a difficult and delicate set of circumstances, common to the Family Part.

 
Affirmed.

The mother has not cross-appealed that proviso, nor is there any indication in the record that the father has sought to enforce it.

(continued)

(continued)

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A-4422-05T3

December 22, 2006