V.U. v. L.U.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5395-04T55395-04T5

V.U.,

Plaintiff-Appellant,

v.

L.U.,

Defendant-Respondent.

_____________________________

 

Submitted August 29, 2006 - Decided September 22, 2006

Before Judges Payne and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0468-03-C.

V.U., appellant pro se.

Respondent L.U. did not file a brief.

PER CURIAM

Following a forty-nine day bench trial between January 26, 2004, and February 4, 2005, plaintiff, V.U., appeals from a final judgment of divorce entered on May 5, 2005, that awarded defendant, L.U., full custody of the parties' two daughters, Mary, born November 19, 1989, and Carol, born October 12, 1993. Plaintiff does not challenge the trial court's findings of fact, but only the court's legal conclusions. We affirm.

The parties were married on May 10, 1986. Four children were born of the marriage: Mary; Carol; Michael, born November 24, 1987; and William, born April 13, 1991. The parties temporarily separated in 1996, and reconciled in 1997. On August 31, 2001, Michael was placed in a residential group care or emergency care facility. On October 11, 2001, the Division of Youth and Family Services (DYFS) filed a complaint under Docket No. FN-15-24-02, alleging abuse and neglect against both parents. In November 2001, while plaintiff was in Florida attending flight school, defendant moved out of the family residence in Toms River with the remaining three children, and continued to reside separate and apart from plaintiff.

By order of February 26, 2002, Judge Foster determined that plaintiff had abused and neglected the children, and defendant had neglected the children. On September 17, 2002, Judge Foster determined that defendant had "removed the minors, [William], [Carol], and [Mary], from the State of New Jersey without authorization of the court . . . ." Judge Foster awarded legal custody of the three children to DYFS "for the purpose of facilitating the minors' return to the State of New Jersey and not for the purpose of placement into foster care." On September 19, 2002, a temporary restraining order was entered in favor of defendant and against plaintiff under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -30.

On September 24, 2002, an order was entered directing that upon the return of the three children to New Jersey, the children's legal custody would revert back to defendant, while remaining under the care and supervision of DYFS. A second order entered the same date appointed Dr. Michele Rabinowitz to complete a custody evaluation.

On September 27, 2002, plaintiff filed a complaint for divorce alleging adultery, and sought custody of their four children, asserting that defendant had abused and neglected them while they were in her care. On November 14, 2002, Judge Foster entered an order dismissing the abuse and neglect action, and transferred custody and removal issues to the divorce proceeding before Judge Franklin. On November 18, 2002, a final restraining order was entered against plaintiff in the domestic violence action, and defendant filed her answer to the divorce complaint. On May 16, 2003, an order was entered appointing a Guardian Ad Litem for the four children. On or about June 16, 2003, plaintiff filed an amendment to the divorce complaint, asserting the tort of intentional infliction of emotional distress by engaging in a course of conduct designed to alienate their children's affection from plaintiff. On September 19, 2003, defendant filed a counterclaim for divorce on the grounds of eighteen months continuous separation.

The trial commenced on January 26, 2004, before Judge Franklin. At the outset, Judge Franklin outlined the issues the parties needed to address including, but not limited to, dissolution, custody of their four children, reunification protocol, defendant's alienation of plaintiff's parental rights, damages for intentional torts, alimony, and child support. On February 2, 2004, the third day of trial, defendant sought leave not to participate in the balance of the trial proceedings. Judge Franklin granted defendant's request to absent herself from the trial proceedings, except on issues affecting their children, including their financial support.

On April 8, 2005, Judge Franklin entered an order, granting plaintiff's application to bar defendant from presenting an affirmative case on financial issues, except as to their children, as a result of defendant's failure to supply financial information required by the court's order of November 8, 2004. During the course of the proceeding, Judge Franklin interviewed all children twice, with the second interview occurring on April 27, 2005.

On May 4, 2005, Judge Franklin rendered a 165-page written opinion, by which, after finding that neither plaintiff nor defendant were "very credible during this trial," he determined: 1) plaintiff proved a cause of action for dissolution based on extreme cruelty; 2) defendant proved a cause of action for dissolution based on eighteen-months continued separation; 3) Michael was emancipated; 4) defendant should have sole custody of Mary and Carol; 5) plaintiff should have sole custody of William; 6) plaintiff was to undergo counseling with a psychologist of his choice with respect to parenting issues, and to complete a parenting class approved by the Ocean County Probation Department; 7) defendant was to undergo counseling with a psychologist of her choice with regard to parental alienation issues, and to complete a parenting class approved by the Middlesex County Probation Department; 8) the final restraining order entered on November 18, 2002, against plaintiff would continue; 9) plaintiff was to pay $86 per week as child support; 10) defendant had committed the tort of intentional infliction of emotional distress against plaintiff by attempting to alienate their four children from plaintiff; and 11) plaintiff was entitled to $5,000 in compensatory damages and $20,000 punitive damages. The court also ruled on other issues raised at the outset of the trial.

On appeal, plaintiff raises the following issues for our consideration:

POINT I.

THE TRIAL COURT ERRED IN AWARDING SOLE CUSTODY OF TWO CHILDREN TO AN UNFIT PARENT.

POINT II.

THE TRIAL COURT FAILED TO PROTECT PLAINTIFF'S FUNDAMENTAL LIBERTY RIGHTS TO RAISE HIS CHILDREN.

POINT III.

HAVING FOUND SEVERE PARENTAL ALIENATION[,] THE TRIAL COURT FAILED TO INSTITUTE THE RECOGNIZED PROTOCOL: REMOVAL OF THE CHILDREN FROM THE ALIENATING PARENT - AS RECOMMENDED BY THE COURT'S CUSTODY EXPERT.

POINT IV.

THE TRIAL COURT FAILED TO EXERCISE ITS PARENS PATRIAE OBLIGATION TO PROTECT THE CHILDREN FROM SEPTEMBER 27, 2002[,] THROUGH ENTRY OF THE JUDGEMNT OF DIVORCE AND DOWN TO THE PRESENT DATE.

POINT V.

THE TRIAL COURT FAILED TO TAKE CONTROL OF THIS FAMILY DISPUTE. BY DEFAULT, MULTIPLE JUDGES IN MULTIPLE COURTS HANDLED PORTIONS OF THIS CASE[,] RESULTING IN PROCEDURAL PREJUDICE TO APPELLANT AND AN ON-GOING MISCARRIAGE OF JUSTICE.

"The scope of appellate review of a trial court's fact-finding function 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). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.

We have carefully considered plaintiff's arguments in light of the applicable law. We conclude that his contentions are without merit, and do not warrant extended discussion in a full, written opinion. R. 12:11-3(e)(1)(A) & (E). We affirm substantially for the reasons expressed by Judge Franklin in his thoughtful, oral decision of May 5, 2005. We add the following comment concerning plaintiff's challenge that defendant be awarded sole custody of the parties' two daughters.

Plaintiff contends that the trial judge erroneously awarded custody of the parties' two daughters to defendant because the facts found by the judge established that defendant was an unfit parent, i.e., defendant had: 1) intentionally alienated the children from plaintiff by her conduct; 2) subjected the children to multiple and unnecessary moves to different school districts since time of separation; 3) violated various orders of the trial court throughout the proceeding; and 4) failed to provide a stable home environment for the children. Defendant asserts the awarding of custody of the parties' two daughters to defendant was contrary to the report of Dr. Michele Rabinowitz, a psychologist appointed by the court to conduct a custody evaluation.

"[B]oth parents have a fundamental right to the care and custody of their children," and neither parent has a stronger right than the other. Sacharow v. Sacharow, 177 N.J. 62, 79 (2003). When the adversarial parents submit their custody issue to the court, the State effectively becomes a "mediator by necessity." Id. at 79-80. Each party "invok[es] the jurisdiction of the Family Part, . . . [and] assent[s] to the possibility that there will be some curtailment of what would otherwise be the ordinary rights concomitant to parenthood." Id. at 80. For example, the parties' consent to the possibility that they could lose custody rights, visitation rights, and vacation time. N.J.S.A. 9:2-2; N.J.S.A. 9:2-4. In determining custody issues, "the sole benchmark is the best interest of the child." Ibid. N.J.S.A. 9:2-4c.

When determining what is in the minor's "best interest[s]," "'the paramount consideration is the safety, happiness, physical, mental[,] and moral welfare of the child.'" Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). The statutory scheme specifically addresses some, but not all, of the factors a court should consider when determining the custody arrangement that is in the minor's best interests. N.J.S.A. 9:2-4c. In deciding the issue, the court is required to "consider and articulate why its custody decision is deemed to be in the child's best interest." Terry, supra, 270 N.J. Super. at 119.

Expert testimony is admissible in both jury and non-jury cases if the testimony is helpful to the trier of fact. New Jersey Div. of Youth and Family Servs. v. Z.P.R., 351 N.J. Super. 427, 439 (App. Div. 2002). Rule 5:3-3(a) authorizes a court hearing a custody dispute to appoint "a physician, psychiatrist, psychologist, or other health or mental health professional" to assist the court in the disposition of the matter. Although "[i]n implementing the 'best-interest-of-the-child' standard, courts rely heavily on the expertise of psychologists and other mental health professionals," Kinsella v. Kinsella, 150 N.J. 276, 318 (1997), the court is not obligated to accept the testimony of an expert witness. State v. M.J.K., 369 N.J. Super. 532, 549 (2004).

Expert testimony . . . 'need not be given greater weight than other evidence[,] nor more weight than it would otherwise deserve[,] in light of common sense and experience.' Indeed, a judge is not obligated to accept an expert's opinion, even if the expert was 'impressive.' The factfinder may therefore accept some of the expert's testimony and reject the rest, and may do so even if that testimony is un-rebutted by any other evidence. Respecting expert opinions of psychiatrists or psychologists, the court, sitting as a factfinder, must use its 'common sense and ordinary experience.' This is particularly true when, as here, the factfinder is confronted with directly divergent opinions expressed by the experts.

[Ibid. (internal citations omitted).]

In awarding custody of the parties' two daughters to defendant and the custody of William to plaintiff, Judge Franklin meticulously considered all factors contained in N.J.S.A. 9:2-4c, and based his custody awards on what he determined to be "in the best interests of the children."

[Mary] and [Carol] are hereby placed in the sole custody of [defendant]. I have seriously considered, but rejected Dr. Rabinowitz's recommendation to transfer the custody of [Mary] and [Carol] to [plaintiff]. []. Dr. Rabinowitz suggests such a transfer as the result of [defendant's] conduct in disregarding [c]ourt [o]rders, in alienating the children from their father through various means, and in failing to provide any stability for these children. [] Indeed, there is a natural inclination to punish [defendant] for her conduct by removing the girls from her custody.

But my responsibility is to do only what is in the best interests of the children. Despite the instability that [defendant] has imposed upon [Mary] and [Carol], these girls appear to be healthy and [are] doing well in school.

[Carol] has involved herself in school activities, including the announcing of the gym show. She is planning to participate in soccer for the upcoming school year. She had advised me that she has been on the High Honor Roll for the entire present school year. She has many friends at school. [Carol] states that she goes to church every Sunday, helps out with the [c]hurch nursery periodically, and sometimes attends youth group activities. [Carol] also reads a lot, and enjoys watching C.S.I (Crime Scene Investigation) on television. I observed that [Carol] was relaxed, poised[,] and well-spoken during her interviews.

Most of [Mary's] extra[]curricular time is taken up by her participation in several individual and relay team events on her high school track team. She is in charge of the children's nursery at her church. She has lots of friends at school[,] and sometimes participates in youth group activities. [Mary] enjoys flying with her father, and hopes to fly solo by her next birthday. [Mary] was also relaxed, poised[,] and extremely well-spoken during her interviews.

Both [Carol] and [Mary] seem to be very independent minded, and [Carol] told me that nobody can tell her what to say. This was in response to questioning from me as to whether [defendant] had told [Carol] what to tell me during either or both of my interviews with [Carol].

I fully recognize Dr. Rabinowitz's concern that because of [defendant's] parental alienation of the children, that these children cannot be considered "valid reporters concerning their feelings about their father, their feelings about their mother, past behavior, and past life events." [] For this reason, I decided to interview all of the children a second time in an effort to truly determine whether the children are well-adjusted and happy. I believe that [Mary] and [Carol] are thriving[,] and doing very well with [defendant].

I am disturbed by [Carol's] position that she wants nothing to do with her father. I am encouraged, however, by the fact that [Mary], who previously felt the same way, now shares a developing relationship with [plaintiff]. Dr. White observed that "[Mary] wants an ongoing, positive[,] and supportive father/daughter relationship." []

I am also influenced by the children telling me that [defendant] does not attempt to control their decisions about spending time with [plaintiff]. [Mary] makes her own arrangements to visit with her father, and she told me that [defendant] never gives her a problem about going to see [plaintiff].

We are satisfied from a review of the facts determined by Judge Franklin and accepted by plaintiff, that the trial judge's decision, concerning the award of custody of the parties' two daughters, was amply supported by the facts in the record. The judge interviewed each child twice in order to assess what was in the best interests of the children. The judge was not bound to accept the opinion of the court-appointed expert, but rather was entitled to accept or reject all, or part, of the expert's opinion. Although another judge may have reached a different conclusion based upon the same facts, we determine that Judge Franklin did not mistakenly exercise his discretion in awarding custody of the parties' two daughters to defendant.

 
Affirmed.

Because we reference abuse and neglect proceedings, N.J.S.A. 9:6-8.21, we have designated the parties by their initials and referenced their children by fictitious names.

Although not included in plaintiff's appendix, the transcript of the decision indicates that the trial court entered a judgment of divorce the same date as the oral opinion that "[would] evidence the Dissolution of the Marriage, and [would] incorporate all the rulings announced today in this Opinion."

Effective July 1, 2006, the functions of the Office of Children's Services in the Department of Human Services (DHS), as well as the licensing of childcare center's youth residential programs and resource family homes, were transferred to the newly-established Department of Children and Families (DCF). P.L. c 47.

A copy of the order was not included in plaintiff's appendix. Because the hearing was conducted by Judge Foster on February 26, 2002, and February 27, 2002, it is presumed that the order was actually entered on the latter date.

(continued)

(continued)

13

A-5395-04T5

RECORD IMPOUNDED

September 22, 2006