ELIZABETH B. HADDAD v. LOUIS HADDAD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0674-07T30674-07T3

ELIZABETH B. HADDAD,

Plaintiff-Respondent,

v.

LOUIS HADDAD,

Defendant-Appellant.

___________________________________

 

Submitted August 13, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1910-03.

Louis Haddad, appellant pro se.

Newman Scarola, attorneys for respondent (Jennifer D. Varga, on the brief).

PER CURIAM

Defendant Louis Haddad ("the ex-husband") appeals various aspects of a post-judgment order that the Family Part entered in this matrimonial case on September 7, 2007. His appeal is opposed by plaintiff Elizabeth B. Haddad ("the ex-wife"). We affirm the challenged provisions of the order in all respects, except that we vacate paragraph four denying the ex-husband compensatory parenting time with his children, and we remand for further proceedings on that discrete issue.

The parties, who are the parents of seven daughters, have a protracted history of disputes and litigation in connection with their divorce, which was finalized after a lengthy trial through a judgment of divorce ("JOD") issued on December 20, 2006, accompanied by a 110-page trial court opinion. The ex-husband appealed from that JOD, which we recently affirmed in April 2008. See Haddad v. Haddad, No. A-2805-06T3 (App. Div. April 11, 2008). We shall not repeat the lengthy chronology of the divorce here, but instead incorporate by reference the details set forth in our April 2008 opinion and the trial court's underlying December 2006 opinion.

Following the entry of the JOD, the ex-husband filed motions with the Family Part in August 2007 seeking an audit of his child support account, a modification of his extensive arrearages, modifications concerning parenting time and custody, and other assorted forms of relief, including the incarceration of the ex-wife for alleged willful violations of the court-ordered visitation schedule. The ex-wife opposed most of the relief sought by the ex-husband, except that she consented to an audit of the child support account. She also cross-moved for a modification of the visitation schedule, a health insurance card, counsel fees, and various forms of enforcement of the ex-husband's support obligations, including a renewed bench warrant for his arrest.

The post-judgment motions were referred to the same judge who had presided over the divorce trial. After considering the parties' respective positions, the judge issued a detailed seventeen-paragraph order on September 7, 2007. The order (1) denied the ex-husband's application to find the ex-wife in violation of his litigant's rights; (2) denied his request to hold the ex-wife in contempt of a March 24, 2006 order; (3) denied his request for the immediate return of several of the children from New York State to Monmouth County, New Jersey; (4) denied his request for compensatory parenting time; (5) denied his request for joint physical custody of all of the children; (6) denied his request for $10,000 in economic sanctions; (7) denied his request for a bench warrant against the ex-wife; (8) granted, with the consent of both parties, the requested audit of the support account by the Probation Department; (9) denied a downward reduction in the ex-husband's arrears pending the audit calculations; (10) denied as moot the ex-wife's request for an additional bench warrant against the ex-husband; (11) denied, without prejudice, pending the audit, the ex-wife's application to fix arrears; (12) granted the ex-wife's request to prohibit the ex-husband from interfering with a bank account held jointly by the ex-wife and one of the children; (13) granted the ex-wife's request to prohibit the ex-husband from arranging to have mail for her redirected to his address; (14) denied, without prejudice, modification of the children's visitation schedule; (15) granted the ex-wife counsel fees; (16) compelled the ex-husband to provide the ex-wife with health insurance cards; and (17) compelled the ex-husband to advise the children's health insurer that the ex-wife is authorized to discuss with the insurer their coverage matters. The court subsequently issued an order on November 13, 2007 specifically awarding the ex-wife the sum of $2,280 in counsel fees and costs associated with the post-judgment motion practice.

In his present appeal, the ex-husband raises the following arguments:

POINT A

THE LOWER COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION, IN FA[I]LING TO DECLARE THAT PLAINTIFF VIOLATED LITIGANTS RIGHTS, WAS IN CONTEMPT OF THE VISITATION ORDER, IN DENYING RETURN OF THE CHILDREN TO THE STATE OF NEW JERSEY, IN FAILING TO AWARD COMPENSATORY VISITATION TIME TO THE DEFENDANT, IN FAILING TO AWARD JOINT PHYSICAL CUSTODY OF THE CHILDREN, IN FAILING TO AWARD DEFENDANT MONETARY DAMAGES AGAINST THE PLAINTIFF, AND IN FAILING TO ISSUE A BENCH WARRANT AGAINST THE PLAINTIFF FOR HER IMMEDIATE INCARCERATION FOR HER WILLFUL AND WANTON VIOLATION OF THE VISITATION ORDER OF THE COURT.

POINT B

THE LOWER COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN AWARDING COUNSEL FEES TO PLAINTIFF.

Having considered these arguments, the ex-wife's opposing contentions, the record as a whole (including our recent April 2008 opinion), and the applicable law, we conclude that, with one limited exception, the issues raised on appeal lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We comment only on the singular issue that should be reconsidered by the trial court: whether the ex-husband should be awarded future compensatory parenting time for certain missed visits in July 2007 and August 2007.

Briefly stated, the visitation issue in question evolves out of the JOD's provision that the ex-husband receive parenting time with the children who presently reside with the ex-wife near Syracuse, New York, on the third full weekend of every month. During those specified visits, the children are to be transported to New Jersey by the ex-wife by 2:00 p.m. on Saturday, and return with her to New York by noon on Sunday. In his post-judgment motion papers, the ex-husband contended that the ex-wife had not complied with this visitation schedule on several occasions. The ex-wife's opposing certification asserted that the missed visitations were excusable, and specifically noted that her father died of cancer on May 30, 2007, and that the children had been spending time with him while he was in the final phases of his illness instead of coming to New Jersey. She further noted that the children did come to New Jersey in June 2007. The ex-wife acknowledged that the children were not brought to New Jersey in July 2007, when they went on a vacation with the ex-wife's mother, and again in August 2007 when they attended a Masonic camp through a full scholarship awarded to them in honor of their late grandfather.

As we have already noted, the trial judge denied all of the ex-husband's requests for relief concerning visitation, including his request for compensatory time with the children to make up for missed visits. On the whole, we defer to the trial judge's sound judgment, and his application of discretion, in resolving these delicate issues of parent-child interaction. The conclusions of trial judges regarding custody and visitation matters 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). Moreover, as a general principle, we ordinarily accord great weight to the discretionary rulings of Family Part judges, given their special expertise in the subject and their ability to develop a "feel" for each case. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988).

Guided by these deferential principles, we have no difficulty in sustaining the trial judge in denying the ex-husband's specific requests to find the ex-wife in willful violation of her former spouse's litigant's rights, to issue a bench warrant for her arrest, to fine her $10,000, to strip her of sole physical custody of the children who reside with her in New York, and to direct that she bring the children "immediately" to New Jersey. There is ample reason for the trial judge to have found these drastic measures unwarranted. Surely the children in New York were entitled to be in the company of their dying maternal grandfather in May 2007, and their missed trip to New Jersey that month was clearly justifiable.

With respect to the specific missed visits in July and August 2007, we accept the trial judge's implicit determination that the children benefited from taking a trip with their maternal grandmother (who had just lost her spouse to cancer) and in taking advantage of the camp scholarships. However, the trial judge made no findings as to why these two particular missed visits should not equitably result in some compensatory time with their father. The record also suggests an unfortunate lack of communication between the parties concerning these scheduling matters. Consequently, we believe that the trial judge should reconsider the ex-husband's request for compensatory time.

In doing so, we do not wish to micro-manage the parties' disputes, nor to interfere unduly with the trial judge's ongoing and judicious management of this protracted and bitter litigation. We suspect that now that the principal appeal and the present post-judgment appeal have been concluded and jurisdiction is properly returning to the Family Part, there are apt to be new issues for the court to address concerning the children, based on the developing facts and the inevitable maturation of their interests and needs. Accordingly, we suggest that the compensatory time issue be combined on remand with whatever new visitation and custody disagreements may be forthcoming in the Family Part, although we would hope that the parties might be able to resolve all of their disputes concerning the children without further judicial involvement.

We therefore vacate paragraph four of the Family Part's September 7, 2007 order respecting compensatory parenting time, and remand for additional proceedings on that discrete item. All other aspects of the order, including the award of counsel fees and the implementing fee order of November 13, 2007, are affirmed.

Affirmed in part, vacated in part, and remanded for additional proceedings consistent with this opinion. We do not retain jurisdiction.

 

A bench warrant against the ex-husband, arising out of non-compliance with orders not germane to the present appeal, apparently remains outstanding.

As we noted in our April 2008 opinion, the five youngest daughters live with the ex-wife. The provision continues a custodial and visitation arrangement stemming from a prior order issued on March 24, 2006.

As part of recent correspondence to this court waiving oral argument, the ex-husband mentioned that visitation problems have persisted. Any such problems should be raised in the first instance in the trial court.

We are unpersuaded that the fee award represents an abuse of discretion or violates the tenets of Williams v. Williams, 59 N.J. 229, 233 (1971) or Rule 5:3-5, regardless of the ex-husband's partial success on this appeal in receiving compensatory parenting time. The fee in question is modest and reasonable, especially in view of the many post-judgment issues that had been raised and the ex-wife's overall degree of success on the motions.

(continued)

(continued)

9

A-0674-07T3

August 19, 2008