MARY LYNN SCALISI (f/k/a Licata) v. JOSEPH D. LICATA, a/k/a DOMINICK G. LICATA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6755-04T46755-04T4

MARY LYNN SCALISI (f/k/a Licata),

Plaintiff-Appellant,

v.

JOSEPH D. LICATA, a/k/a

DOMINICK G. LICATA,

Defendant-Respondent.

________________________________________________________________

 

Submitted January 18, 2006 - Decided February 8, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-783-97.

Ansell, Zaro, Grimm & Aaron, attorneys for appellant (Donna L. Maul, of counsel and on the brief; Tracey L. Schneider, on the brief).

Respondent did not file a brief.

PER CURIAM

Plaintiff, Mary Lynn Scalisi, appeals from a post-judgment order designating her former husband, defendant Joseph D. Licata, the parent having primary residential custody of the parties' children, Veronica, who was born on February 16, 1991, and Gabriella, who was born on November 28, 1994.

The parties separated in 1996 and divorced in 1997. They were awarded joint custody of the children, with plaintiff designated as the parent having primary residential custody. By 1998, both parties had remarried and were living with their respective new spouses. During the next several years, the parties had frequent disputes regarding child support and parenting time issues, resulting in a number of legal proceedings between them, both civil and criminal. Defendant became estranged from his daughters for a significant portion of this time, but by 2003, he began to re-establish contact with them and improve his relationship with them.

In the latter part of 2003, plaintiff determined that she and her husband wished to relocate to Arizona. Although defendant was devastated by the prospect, especially because he was in the process of rekindling his relationship with his daughters, he obtained legal advice that convinced him he had little chance of blocking plaintiff's intended move. On December 18, 2003, the parties entered into a consent order authorizing plaintiff to remove the children to Arizona. The order provided for parenting time for defendant.

During the ensuing year, the girls, particularly Veronica, reported to their father a pattern of conduct by their mother by which they were neglected and verbally and psychologically abused, and, on at least one occasion, Veronica was subjected to physical abuse. They reported that their mother was consuming large quantities of alcohol. They also reported ongoing domestic violence in the household to which they were exposed.

In December 2004, when the children were in New Jersey visiting with defendant, they related additional information to him about their living conditions in Arizona and expressed their strong desire not to be forced to return there. Defendant had the children interviewed by his therapist, Andrew Miller, who opined that the children were being truthful and that the circumstances of their living conditions in their mother's household was detrimental to them.

On December 30, 2004, defendant filed an order to show cause seeking a change in the designation of the parent having primary residential custody. Custody was temporarily transferred to defendant. Plaintiff filed an order to show cause seeking return of the children to her and dismissal of the proceeding initiated by defendant. The judge ordered the Division of Youth and Family Services to conduct an evaluation and file a report. The judge interviewed in camera both children on January 14, 2005. Based upon the information available, including that submitted by both parties, the judge issued an order continuing the temporary transfer of primary custodial residence to defendant pending a full evidentiary hearing.

Judge Millard tried the matter on six days between June 14, 2005 and June 27, 2005. He received the testimony of both parties, defendant's wife, Leslie Licata, the therapist we previously mentioned, Andrew Miller, plaintiff's custody expert, Charles Katz, Ph.D., and defendant's custody expert, Lillian Haber Gordon, L.C.S.W. Katz and Gordon each submitted lengthy reports, which were admitted, by the consent of both parties, in evidence. The judge re-interviewed both children in camera during the course of the trial. Both parties were represented by counsel.

On July 15, 2005, Judge Millard issued a comprehensive twenty-one-page written decision. He critically analyzed all of the evidence presented, assessed the credibility of the witnesses, and made detailed findings of fact. The judge analyzed each of the factors required in custody matters, as set forth in N.J.S.A. 9:2-4c. The judge concluded that a substantial change of circumstances occurred during the year that the children were living in Arizona, thus warranting a review of custody and parenting time. The judge concluded that the evidence established that while in Arizona in the custody of their mother, the girls were subjected to verbal abuse and were regularly exposed to recurring domestic violence. He found that Veronica was subject to physical abuse. And he found that Veronica was "forced to baby-sit and clean the house well beyond the bounds of normal behavior and to the exclusion of any personal activities." Since living with their father, the children were well adjusted and happy, the environment in that household was positive and wholesome, and the children had an excellent relationship with their father and his wife. The judge concluded that the best interests of the children would be served by designating defendant the parent having primary residential custody.

On appeal, plaintiff argues:

POINT I

THE TRIAL COURT PLACED UNDUE WEIGHT ON THE PREFERENCES OF THE CHILDREN IN THE BEST INTERESTS ANALYSIS.

a. The children are not of "sufficient age and capacity to reason so as to form an intelligent decision" as to the parent with whom they wish to reside.

b. The Trial Court did not properly balance the in camera interviews of the children with the custody evaluation and findings of Dr. Charles Katz, Ph.D.

POINT II

THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE LACK OF SUPERVISION EXISTING IN THE DEFENDANT/EX-HUSBAND'S HOME AS PART OF THE BEST INTERESTS ANALYSIS.

POINT III

THE INITIAL EX-PARTE ORDER TO SHOW CAUSE SHOULD HAVE BEEN SET ASIDE WHEN THE PLENARY HEARING REVEALED NO DANGER OF IMMINENT HARM TO THE CHILDREN.

POINT IV

THE TRIAL COURT FAILED TO PLACE THE BURDEN ON THE DEFENDANT/EX-HUSBAND TO ESTABLISH A CHANGE OF CIRCUMSTANCES AND IN DOING SO, DID NOT GIVE DUE DEFERENCE TO THE EXISTING CUSTODIAL RELATIONSHIP.

Defendant has not filed a response.

Our standard of review of the findings of a trial judge sitting without a jury is narrowly circumscribed:

Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. New Jersey Turnpike Authority v. Sisselman, 106 N.J. Super. 358 (App. Div. 1969), certif. den., 54 N.J. 565 (1969). It has otherwise been stated that "our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963), and the appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions. Weiss v. I Zapinsky, Inc., 65 N.J. Super. 351, 357 (App. Div. 1961).

[Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).]

Because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

From our review of the record, we are satisfied that Judge Millard's findings are well supported by adequate, substantial and credible evidence in the record as a whole, and we have no occasion to disturb those findings on appeal.

We reject plaintiff's contention that the judge improperly considered his interviews with the children because they were too young to legitimately express a reasoned preference to live with one parent or the other. When the judge interviewed the girls during the trial, Veronica was fourteen and Gabriella was ten. We have no hesitancy in concluding that they were of sufficient age to express a reasoned view.

The judge did not merely accept what the children told him at face value. He analyzed it carefully and explained his analysis clearly. The children's ages factored into his analysis and the weight attributed to the factual information they provided and the preferences they expressed. The judge appropriately balanced the information learned from the girls against other evidence presented at the trial in reaching his ultimate decision. He did not, as plaintiff argues, merely order what the girls wanted.

The judge correctly applied the law, analyzing the pertinent evidence in light of each of the factors set forth in N.J.S.A. 9:2-4c, and in making an overall best interest determination. The thrust of plaintiff's arguments on appeal is to re-argue the issues of credibility and the weight to be attributed to different aspects of the evidence. Those arguments misperceive the scope of appellate review on those issues, which are left to the sound discretion of the trial court and which will not be disturbed in the absence of an abuse of discretion. The judge did not abuse his discretion in this case.

 
We affirm substantially for the reasons set forth in Judge Millard's thorough and well-reasoned written decision of July 15, 2005. Plaintiff's arguments on appeal lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

(continued)

(continued)

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A-6755-04T4

February 8, 2006