ROBERT GOLDMAN v. GAIL MAUTNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4085-07T44085-07T4

ROBERT GOLDMAN,

Plaintiff-Respondent,

v.

GAIL MAUTNER,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 17, 2008 - Decided

Before Judges Lisa, Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-1478-03.

Norris, McLaughlin & Marcus, attorneys for appellant (Michael J. Stanton and Laurie C. Poppe, on the brief).

Einhorn, Harris, Ascher, Barbarito & Frost, attorneys for respondent (Stephen P. Haller and Jennie L. Osborne, of counsel and on the brief).

PER CURIAM

Defendant, Gail Mautner, appeals from an order awarding her and her husband, plaintiff Robert Goldman, joint legal and physical custody of their two children. The trial court decision came after a twenty-nine day trial. Although the trial was part of the divorce action, it was limited solely to the issues of custody and parenting time, with the financial issues arising out of the marriage deferred for future determination. Judge Camp presided over the portion of the trial that gives rise to this appeal. At the conclusion of that portion, Judge Camp retired. Because of his impending retirement, which would necessitate resumption of the trial to a final conclusion by a different judge, Judge Camp did not make any order regarding attorney's fees. However, in his written decision, he set forth findings and a recommendation as to certain aspects of an ultimate counsel fee determination based upon the portion of the case over which he presided.

On appeal, defendant argues:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING THE DEFENDANT TO PRESENT HER LAY WITNESSES AND BY PREJUDGING THE ISSUES PRIOR TO HEARING THE DEFENDANT'S EVIDENCE.

POINT II

THE TRIAL COURT ABUSED IT DISCRETION BY NOT REQUIRING THE EXPERTS TO PROVIDE UP-DATED REPORTS.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION BY NOT INTERVIEWING THE CHILDREN WHO WERE NINE AND TWELVE AT THE TIME OF TRIAL.

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION BY RENDERING A RECOMMENDATION AS TO COUNSEL FEES WITHOUT PROVIDING THE REQUISITE STATUTORY FINDINGS AND WITHOUT HAVING HEARD TESTIMONY AS TO THE FINANCIAL ASPECTS OF THIS LITIGATION.

We decline to adjudicate Point IV. We reject defendant's remaining arguments and affirm.

The parties married in 1993. Their son was born on February 27, 1996, and is now twelve years old. Their daughter was born on June 29, 1998, and is now ten years old. Plaintiff filed a complaint for divorce on January 6, 2003. He also sought sole custody of the children. Defendant promptly filed an answer and counterclaim, in which she also sought a divorce and sole custody.

Both parties are physicians. Plaintiff is an orthopedic surgeon, and defendant specializes in dermatology. Although the divorce action was initiated in January 2003, the parties continued living together. They separated in the aftermath of a domestic violence complaint brought by defendant on March 7, 2003. Defendant alleged that plaintiff grabbed her by the arm and punched and shoved her. Police came to the home. A temporary restraining order was issued and plaintiff was removed from the home.

The parties came before Judge Camp on March 13, 2003 for a final hearing in the domestic violence proceeding. Both parties were represented by counsel, who had been representing them in the divorce proceedings. After a long day of negotiations, the parties entered into a custody and parenting time agreement, which was spread upon the record and reduced to a written order. Both parties acknowledged to the court that they entered into the agreement freely and voluntarily. Upon his removal from the marital home, plaintiff rented a house in the same neighborhood. As a result, the sharing of parenting time was facilitated. The detailed schedule embodied in the agreement provided for approximately equal time for both parties to have the children. None of the parenting time was required to be supervised. The domestic violence complaint was dismissed.

In October 2004, the parties' son alleged that plaintiff abused him and his sister. The Division of Youth and Family Services (DYFS) conducted an investigation. Dr. Barry Katz, a clinical psychologist and contract provider for DYFS was retained by DYFS to assist in the investigation. Custody evaluations had previously been prepared by experts hired by each of the parties, namely Dr. Judith Brown Grife (for plaintiff) and Dr. Sharon Ryan Montgomery (for defendant). Katz reviewed the evaluations prepared by Ryan and Grife, as well as school records and other materials. He interviewed both parties and the children. He issued a comprehensive report on January 15, 2005.

Katz's report found "no objective evidence to support" the allegations that plaintiff physically abused his children, noting that "[i]n fact, there has been a noticeable absence of such data." At trial, Katz testified consistently with his report, stating there was "no documentation of physical abuse" and "the findings of abuse were unsubstantiated." And, he did not characterize plaintiff's "interactions with the children one-to-one as being psychological abuse."

Katz described his interview with the then eight-year-old son, in which the son stated that he was "trying" to live with his mother so that his father "doesn't hit and kick [him] any more." The son said his father hit and kicked him three times a day, called him and his mother names, and threatened to send him to jail if he did not tell the truth. Katz testified that as he interviewed the son, the son added information "not prompted," seemed to be "generating a story that was very amusing to him," and, as the statements escalated, became "very much gratified by the statements . . . wanting my attention to hear more and more of them because he's really proud of himself [and] of what he's doing."

Katz opined that the children "were exposed to a high degree of conflict by the parents" and that neither parent was taking responsibility for their part in the conflict that itself was harming the children. He recommended individual therapy for the parents and children, and that unsupervised visitation with plaintiff "should not occur until there's enough time for a therapeutic change to occur with treatment." Katz was concerned "that there would in fact be false allegations presented if there was unsupervised contact." He believed that supervised visitation was in the best interests of the children because the son was "empowered by this control that he had over his father" and "was integrating a glee and even a[n] intensified feeling of control from this situation." As Judge Camp later summarized, what was perceived as "false allegations" was "empowering the children."

In his report, Katz recommended weekly therapy sessions for both parties individually, for both children individually, and for each child separately with each parent. Katz's recommendation against unsupervised visitation was "not due to an imminent threat of physical abuse by Dr. Goldman toward his children, but more due to the potential that there will be false allegations presented by the children about their father."

Thus, at that point, plaintiff's parenting time with the children was supervised and on a limited basis. It is important to note that this was not because of any suggestion by defendant or any professionals that the children were at risk of harm while in plaintiff's custody. On the contrary, it was to protect plaintiff from false allegations by the children.

This arrangement continued through the commencement of trial in May 2007. The supervisors provided reports and trial testimony. They, of course, were neutral and in the best position to observe the conduct of plaintiff and the children and the interaction between them. The information they provided convinced the court that plaintiff always acted appropriately, was not abusive either physically or emotionally, and provided no risk of harm to the children. Further, as the years went by, the relationship between the children and their father was improving significantly. A typical pattern that was exhibited was that the children seemed more distant and hostile when they first came into plaintiff's care. Then, things improved, until one of the children would call their mother on the telephone, after which they again became hostile and accusatory towards their father and anxious to get back to their mother. As a result, the court had ordered that the children could not call their mother while they were with their father.

A significant incident occurred in this regard on June 10, 2006. As described by the testimony of Amy Castellano, one of the parenting time supervisors who was present during the episode, plaintiff and the children were in a restaurant. When the parties' daughter was told she was not permitted to telephone her mother, the daughter left the table and cried to a waitress that she wanted to call her mother, to which the waitress responded she was not allowed to let the girl use the phone. When plaintiff and the children arrived back at plaintiff's house, the daughter grabbed the phone and dialed 9-1-1, but plaintiff "took the phone from her and hung it up." The daughter "was crying and yelled at [Castellano] stating, 'you saw that, you fucking bitch.'" Plaintiff "scolded" his daughter about her language. The 9-1-1 operator called back. Both plaintiff and his daughter reached for the phone. According to Castellano's report, "Dr. Goldman touched [his daughter's] shoulder to get by her, and she yelled that he hit her." Castellano demonstrated plaintiff's action in touching his daughter's shoulder, which the court described as "there possibly could've been some body contact in a brushing manner as he was in the process of going to the phone." Castellano did not see any bruises on the daughter's shoulder. While the police were on their way to the house, plaintiff told his daughter that "her behavior was terrible and that she would not be going to camp this summer." When the officer arrived, the daughter was crying and told the officer that plaintiff hit her, and she showed the officer her shoulder. The children told the officer that their parents were separated and that plaintiff would not let them call their mother. Plaintiff showed the officer the court order prohibiting the calls, and his son asked if the order was "fake."

The trial testimony included descriptions of many incidents like this one illustrating the significant strife among these family members and how the parties dealt with it. Throughout this lengthy process, there was never a suggestion by defendant or any of the parenting supervisors, parenting coordinators, experts, custody evaluators, DYFS, or anyone that the children would be at risk of harm if plaintiff had unsupervised parenting time with them. As a result, and in light of the information received from the parenting supervisors that the relationship between plaintiff and his children had significantly improved with the passage of time, the judge took under consideration on September 11, 2007 the prospect of allowing unsupervised parenting time for plaintiff. This was mid-trial. The judge believed that he had the inherent authority to grant pendente lite relief as appropriate throughout the course of the proceedings. He ordered unsupervised parenting time with plaintiff. Defendant sought a stay of that order, which was denied by the trial court, by this court, and by the Supreme Court. From that point forward, plaintiff had unsupervised parenting time, and there were never any reports of abuse or improprieties.

At the trial, both parties testified at length, describing many incidents throughout the course of their marriage, and even prior to their marriage. The judge later lamented that he probably allowed much too broad a scope of testimony, because most of the information bore little or no relevance to the issue before him, which was limited solely to custody and parenting time.

In addition to the parties, the judge heard, as a fact witness, the testimony of Dr. David M. Brodzinsky, who was appointed by the court on March 18, 2005. When asked, Brodzinsky affirmed that his position was to clinically assess and treat "[plaintiff] and the children with regard to the issues of reunification" and that he also performed functions as a "visitation coordinator." Brodzinsky did not interview, evaluate or test defendant.

Brodzinsky testified that it was difficult for the children to "openly express . . . anything positive, really positive about their dad" because "they understood how their mother viewed their dad negatively" and "[t]heir security was tied to their mother." The children might believe that if they expressed positive things about their father "it would be a betrayal" of their mother. At several points in this process, Brodzinsky indicated that defendant should support the process and "take a stand with the children about the way they treat their father." He observed that defendant's "worry and reservations" about plaintiff's unfitness as a father were communicated to the children, and contributed to the children's hostility and anger toward their father. In fact, Brodzinsky felt that the children misrepresented, distorted and "maybe even purposely lie[d]" about incidents in order "to create negative incidents so that they can confirm their beliefs and their mother's beliefs that their father is insensitive, uncaring, demanding, and abusive."

In his final update of April 25, 2006, Brodzinsky concluded that he found "no evidence that Dr. Goldman has been physically or emotionally abusive toward his children during the supervised visitations" and no "objective cause" for the children's rude behaviors. He reported "that there has been virtually no progress in facilitating an emotionally healthy and normalized relationship between the children and their father." Brodzinsky stated that "[i]n [his] clinical opinion, the primary reason that the children's behavior remains out of control rests with Dr. Mautner, and specifically, in her refusal to become involved in a behavioral intervention plan." He did not "dismiss[]" defendant's claims of abuse of the children and thus he could not recommend unsupervised visitation, but he was "not in a position to validate the alleged abuse by their father."

On cross-examination on August 8, 2007, Brodzinsky admitted that he had not seen the children since June 2006, when his "role" in the case ended. He also admitted that, as of the last time he saw the children, his therapeutic efforts at reunification had failed and the children were not yet "emotionally connected" to plaintiff. The children continued to be angry at plaintiff and not interested in having a relationship with him.

In addition to Katz, Judge Camp also received the expert testimony of Grife and Montgomery, as well as Evan Stark, a sociologist engaged by defendant as an expert on battered woman syndrome. Grife, plaintiff's expert on custody and parenting time, testified based on her February 1, 2004 report. She had not interviewed the parties or had any contact with them since January 2004. She testified that defendant never once mentioned that she felt plaintiff's time with the children should be supervised. Grife found no reason for recommending supervised visitation, nor did she feel that the children were at risk in spending time alone with plaintiff. Grife concluded that, despite the conflicts between the parties, both parents had "a strong attachment to" and "a genuine desire to play a significant . . . caretaking role" in their children's lives. She recommended making the temporary parenting arrangement permanent so that the parties could continue to share legal custody, but also that a parenting coordinator should be appointed to help with communication.

Montgomery, defendant's expert on child custody and parenting, testified based on her report of January 2004. Like Grife, she had had no further contact with the parties since that time. Montgomery also saw no reason for requiring supervised visitation with plaintiff. Noting the very high level of conflict between the parents, she concluded that joint physical custody would not be successful and the children would be "in the war zone" without good communication between the parties. She found that neither parent "purposefully" intended to deny the other parent a relationship with the children but they both perpetuated the conflict between them. Montgomery would not opine on the children's best interests at present because she had not seen the children in a long time. She suggested it might be advisable for the court to interview the children based on their then-current ages. She also felt that the repetitive mental health interviews between the children and the various professionals could become counterproductive and "abusive."

The court became aware that defendant intended to call numerous fact witnesses, and her attorney submitted a list of thirty-five such witnesses, including "schoolteachers, friends, neighbors, people who've observed the children's concerns." Judge Camp requested a written proffer on the testimony of these witnesses. As we will describe in greater detail, upon receiving the proffers, the judge concluded that the information was substantially based on hearsay, and regarded events remote in time and of virtually no significance to the issues before him. He thus concluded that if the testimony were presented it would have little or no relevance and would not be helpful in his decision-making process. Rather than bar the testimony altogether, the judge accepted the written proffers in evidence, thus making them part of the trial record. Through this procedure plaintiff was deprived of the opportunity to cross-examine the proffered witnesses.

On March 28, 2008, Judge Camp issued a thirty-three page written decision, recounting the relevant evidence, and setting forth his factual findings in detail. As he had repeated throughout the trial, Judge Camp noted that "[t]he sole issue before this Court is the custody and time sharing of two children." The judge detailed the procedural history of the case, including the domestic violence and child abuse allegations, the initial parenting agreement "providing for almost equal time sharing," and DYFS's involvement.

While detailing what he found to be the relevant testimony of the parties from the trial, Judge Camp specifically noted that, after the separation, the children "became extremely hostile and made accusations against [plaintiff], which [plaintiff] vehemently denied, and as shown below were found unsubstantiated by Katz and DYFS. More impressively, the children's fabrications made during supervised visitation were completely repudiated by the supervisors that were present." The judge also found that the children's relationship with plaintiff had improved since the unsupervised and overnight visitation orders. Significantly, Judge Camp accepted the conclusions of Katz, found plaintiff to be "sincere and credible," and found that plaintiff "has neither abused nor neglected his children."

In describing defendant's testimony, Judge Camp noted that defendant alleged that plaintiff abused her but she did not testify that she ever saw plaintiff abuse the children; she accused him only of poor judgment. The judge found defendant's position seeking only supervised and limited visitation for plaintiff with the children "to be unrealistic and supported by neither evidence presented nor the law" and that she has actively tried to alienate the children from their father. He did not find defendant to be a credible witness and found that "even accepting all her testimony as being truthful (which the Court certainly does not) there still would be absolutely no justification for either granting her sole custody or restricting Plaintiff to supervised visitation."

Defendant had claimed that she was coerced into the March 13, 2003 parenting agreement. The judge heard her testimony on that point as well as that of the attorney that was representing her at that time. He found the attorney credible and defendant totally incredible. And, of course, he had first-hand knowledge of the demeanor of the parties when they attested to him their voluntariness. Judge Camp found defendant's claim that she was coerced into the parenting agreement to be "totally without merit." He further found that agreement as support for his conclusion that there was no basis to restrain plaintiff's involvement with his children. In fact, the judge noted that "in all probability" he would not have found domestic violence even if there had been a hearing on the allegations in March 2003. The judge found Stark's testimony about defendant being a battered woman to be "disturbing and totally without merit." The judge completely rejected Stark's testimony. But he did not "hold it against Defendant in determination of the issues."

The judge was persuaded by the fact that the DYFS investigation after the October 2004 incident found the abuse to be unsubstantiated and by Katz's finding that the children lied about their father. Despite the fact that supervised visitation was recommended by Katz only to protect plaintiff from the false allegations of the children, defendant continued to insist on continuing the supervised visitation "with no rational basis and no supporting expert." The judge found defendant's actions in refusing to cooperate with the mental health professionals and photographing the children to document her allegations of abuse and neglect to be "shameful." Judge Camp also found that "Defendant purposefully set her daughter up in a further attempt to alienate her from her father" by not telling her children of the court order prohibiting phone calls.

The judge then summarized the experts' opinions. None of them recommended supervised visitation, except Katz for plaintiff's protection, and "all concluded that it was in the best interest of the children to have equal or close to equal time sharing." The judge "place[d] a great deal of weight" on the testimony of the parenting supervisors, who witnessed "the children's outrageous behavior, and, simply put, outright lies and false accusations as to the conduct of Plaintiff" but found no misconduct by plaintiff.

Then, after detailing the legal standard for joint custody and the factors to be considered under N.J.S.A. 9:2-4, the judge awarded joint legal and physical custody of both children. Specifically, he did not award defendant sole custody despite the inability of the parties to communicate because "to do so would reward the parent the Court finds primarily responsible for the hostilities."

We will defer to the trial judge's factual findings and deem them "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This deferential approach is especially warranted in Family Part cases, because of the judge's "special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413. We will not interfere with the factual findings and the legal conclusions of the trial judge in a Family Part case 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." Id. at 412.

Applying this standard, we have no hesitancy in concluding that Judge Camp's factual findings are well supported by the record. Likewise, the judge correctly applied the law pertaining to custody and parenting time. He considered each factor under N.J.S.A. 9:2-4 and applied those factors in light of his factual findings. His conclusion that joint legal and physical custody with approximately equal parenting time was appropriate and in the best interests of the children is well supported by the facts and the law.

The arguments defendant raises on appeal do not directly pertain to the judge's factual findings and legal conclusions. Instead, they deal with the manner in which the trial was conducted, alleged bias on the part of the judge, and evidential issues. We will address the arguments in turn.

In her first point, defendant argues that the judge erred "by not allowing her to present her lay witnesses and by prejudging the issues prior to hearing her evidence." Defendant claims she was denied procedural due process because plaintiff "was permitted an unfettered opportunity to present his case," while she was required to submit written proffers of the testimony of her intended witnesses and ultimately barred from presenting live witnesses. She argues that the evidence would have demonstrated plaintiff's lack of good judgment when interacting with and caring for the children and would have been relevant to the issue of "whether equally shared parenting time would be in the children's best interests." Defendant further claims that the judge "exhibited an extraordinary bias against the defendant and presided over this matter in anything but a fair and impartial manner."

At mid-trial, on September 19, 2007, the judge asked the parties their position on sole custody and whether defendant had any witnesses who were going to testify "that in the best interest of the children there should be continued supervised visitation." Plaintiff reported that he was now seeking joint (not sole) custody. Defendant continued to seek sole custody and reported that she had thirty-five lay witnesses she intended to call. The judge asked for a written proffer as to each intended witness. These discussions continued as the trial progressed. Written proffers were submitted. On January 31, 2008, after hearing oral argument on the issue, the judge said that "the issues are so easy in this case, and this testimony is so far removed from the present," that there was no need to allow the testimony, which was "all corroborative and dependent" on what defendant told the witnesses and was not independent testimony. The judge again reiterated that the issue before him did not deal with allegations of domestic violence but only the "time sharing" with the children.

The judge summarized each proffer and ruled that, under N.J.R.E. 611, the proposed testimony from 2003 and 2004 was irrelevant to the issue of time sharing in 2008. The judge noted that the defense "has proffered they have no expert who will stand for the proposition that there should be ongoing supervised visitation." Notwithstanding plaintiff's objection that he was being deprived of the opportunity to cross-examine the witnesses and defendant's objection claiming a double standard because plaintiff was not required to submit written proffers of his witnesses, the judge accepted the proffered testimony as true for the purpose of corroborating defendant's testimony of past events, and he did not see the "need" for cross-examination "given their cumulative nature and corroborat[ive] nature."

"N.J.R.E. 403 provides that evidence, otherwise admissible, may nevertheless be excluded if the judge, in his discretion, finds that its probative value is substantially outweighed by any of the factors enumerated in the rule." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2008). That rule provides that such factors include "(a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Further, pursuant to N.J.R.E. 611(a), the trial judge has the discretion to control the "mode and order of interrogation and presentation" so as to, among other things, "avoid needless consumption of time." "Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion which has deprived a party of a fair trial." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003).

Significantly, Judge Camp did not exclude defendant's evidence. He accepted the proffered testimony as true for the purpose of corroborating defendant's testimony of past events. Nonetheless, defendant claims she was prejudiced by the court's refusal to allow her to present "live testimony." However, a close look at the written proffers supports the judge's conclusion that the testimony offered by defendant, even if true, was merely cumulative of defendant's testimony and therefore might not have been necessary.

The proffered testimony from numerous witnesses, including school personnel, friends, neighbors, the children's pediatrician, the housekeeper, and others, all asserting that defendant was the more hands-on parent was not necessary because that fact was not disputed. Defendant's friend and several teachers would have testified that the children had expressed fear of their father at various times after the separation but defendant had already testified to that, although it was contradicted by the testimony of the various mental health experts.

Another friend of defendant was to testify about an incident on the soccer field when plaintiff allegedly took the parties' daughter out of defendant's arms by force. However, again, both parties had already testified about their personal observations of the same incident. This same friend was to testify about an occasion in April 2002, when defendant arrived at her house after plaintiff allegedly assaulted defendant during an argument over whether defendant would drive plaintiff to the doctor in the morning and plaintiff then continually called defendant's cell phone, speaking in a "threatening" tone. This testimony would have corroborated defendant's testimony about that incident. Plaintiff, while denying the physical abuse alleged by defendant, did not deny that they had a fight that night and that he called defendant "a number of times to try to find where she was."

The housekeeper's proffer recounted witnessing "numerous incidents" of plaintiff's "extreme fits of anger," verbal abuse and temper. She also would have corroborated defendant's testimony that the children were afraid of plaintiff and that they returned home upset after visits with him. Because the judge ruled that the issues before him were limited to custody and visitation, and because he found no evidence of any abuse of the children, the judge did not think the marital history or past incidents of violence to be relevant.

Along the same lines, the testimony of the police officers who were present after the incidents of March 7, 2003 and June 10, 2006 was repetitive of the testimony of defendant and her mother. The proffer about the March 7, 2003 incident does note that the officer would testify that plaintiff was condescending and "somewhat resistive" to the questioning, and the proffer about the June 10, 2006 incident indicates that the officer first did not see "an injury worth noting" on Cynthia's shoulder but later saw "some redness and a small bruise." Again, this evidence was accepted by the court as true for the purpose of the hearing and defendant has not offered any reason as to why the live testimony would or could change the ultimate result.

In addition, the karate instructor would testify about the night the daughter hit her head in the car when plaintiff swerved to avoid an accident, and that plaintiff did not take her to the hospital until after the son's class. Again, this testimony was not disputed by plaintiff and had already been described to the court by both parties.

First, we reject defendant's claim of a double standard. While plaintiff did testify at length regarding the marital history, the judge interrupted his testimony on several occasions asking for a proffer and imposing a limit on the number of examples of defendant's asserted shortcomings. Plaintiff was not permitted to testify as to each and every incident as he intended. Instead, over defendant's objection, the judge accepted a proffer of that testimony from plaintiff's counsel. Thus, plaintiff was also limited in the testimony he was permitted to present. Indeed, the judge later realized that he had given plaintiff too much leeway and, as a result, he allowed defendant to respond to what he felt was irrelevant testimony. At one point, the judge said he was allowing defendant "equal time" because he had previously given plaintiff "much, much, too much leeway in developing the history of this thing ad nauseum from the beginning."

We also disagree with defendant's contention that the proffered witnesses who were not allowed to give live testimony were necessary to enable the judge to make an informed decision. Plaintiff's witnesses were limited to himself, the mental health professionals, and the parenting time supervisors. These witnesses provided information directly relevant to the issue of custody and whether supervised parenting time should continue. Plaintiff did not offer the testimony of friends, teachers or others, as defendant attempted to do. Because the judge accepted the lengthy written proffer of each of defendant's proposed witnesses as true, however, the testimony defendant argues should have been allowed was actually in evidence for the court's consideration in making the custody decision, although not in the format defendant desired.

Defendant fails to articulate what, if any, difference the live testimony would have made in the ultimate decision. Indeed, defendant did not even include the written proffers in her appendix. They were submitted by plaintiff in his appendix.

This trial, which was limited to a very discrete issue, was greatly protracted by the conduct of both parties in the manner in which they litigated the issue. We find no error in the judge's conclusion that defendant's proffered evidence from these multiple witnesses was of very little or no probative value and was, for the most part, incompetent because it was based on hearsay. Accordingly, the exclusion of this evidence under N.J.R.E. 403 would have probably been sustainable. However, we need not reach that issue because we are satisfied that under N.J.R.E. 611, in light of the very low value of the proffered evidence and the very lengthy time its live presentation would have added to an already over-lengthy proceeding, the judge did not mistakenly exercise his discretion in the method he used to receive the evidence, which he made part of the record and considered true, without cross-examination. Considering the entire record, this procedure did not deprive defendant of a fair trial.

Defendant's remaining claim under her first point of argument is that the judge exhibited bias and did not conduct the trial in a fair and impartial manner. We have reviewed the record, and we deem this argument lacking in sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In her second point, defendant argues that the trial court "abused its discretion by not requiring the experts to provide up-dated reports" and that the court "was under an obligation to order the experts' reports to be updated."

Nothing in Rule 5:3-3 requires the court to order updated reports from mental health experts. The experts in this case were not appointed by the court, but were private experts hired and paid for by the parties. If defendant felt that an updated report was necessary, she could have requested that her expert provide one. Instead, defendant proceeded to try this custody issue in 2007 and 2008 with expert reports from 2004. It is disingenuous for her to proceed to trial complaining that the expert reports were outdated but failing to engage even her own expert to provide an update and then to claim that the trial court erred in relying on the old reports. There is nothing in this record to suggest that defendant was somehow barred from requesting or submitting additional reports. "It is axiomatic that '[t]rial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 296 (App. Div. 1998) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)).

In any event, the judge did have the benefit of more current testimony regarding the relationship between plaintiff and his children. The parenting time supervisors testified about their observations of the interaction between plaintiff and his children up through and including September 2007. Although not mental health professionals, these supervisors did provide their firsthand observations.

Defendant's reliance on Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001), is misplaced. It does not support her contention that the judge was obligated to order updated reports. In that case, the trial court appointed a psychiatrist to evaluate the parties and prepare a report addressing the mother's request to relocate to another state with the child. Id. at 206. In remanding the case, we noted that "[s]ince it is now well over a year since the experts issued these reports, new evaluations should be conducted. . . ." Id. at 218. However, there is nothing in that case that modifies the court rule or somehow mandates the trial court to order updated expert reports in all custody cases.

As Judge Camp noted, all of the experts concluded that it was in the best interest of the children to have "equal or close to equal time sharing" with both parents. The court had the testimony of the parenting time supervisors, who "were able to observe the actual interaction between the children and Plaintiff" during visitation sessions between 2005 and 2007. The supervisors saw no abuse and saw that "[t]he children also began to show less animosity as the positive relationship was growing."

The absence of updated reports from the mental health professionals did not deprive defendant of a fair trial and provides no basis for reversal of the custody decision made in this case.

In her third point, defendant contends that the court "abused its discretion by not interviewing the children who were nine and twelve at the time of trial." Rule 5:8-6 no longer mandates that judges interview children in these cases. In response to plaintiff's request that the judge interview the children or, alternatively, place them on the witness stand for testimony, the judge said:

I am delighted that the wisdom changed "shall" to "may." I don't think a judge, even an experienced judge, has the expertise, has the ability to have children of any age come into court, even in the confines of a relaxed setting, and have the ability without a mental health background to ask questions, however well-prepared, and be able to ask the correct questions so that the children give honest and sincere and genuine answers.

Mental health experts wor[th] their salt, don't dare render an opinion until they've seen the children on occasions more than an hour or a half-hour, after testing, after seeing their interrelationships with their parents, singly and collectively; and then and only then, do they render an opinion as to the veracity of the children's statements or the best interests of their desires of where they want to live. And that's in a case -- an ordinary case.

In a case such as this, there are serious accusations and cross-accusations that have to be addressed. And we all know by discovery what the children have said. We all know by discovery what each of the parents have alleged as to the other parent vis- -vis the children. And to have before the Court has before it, the benefit of the body language, the testimony of the litigants particularly, and the experts, and the Court may want to posit certain germane questions to each of the experts, then and only then after all of that, will the Court consider it may or may not be in a position to interview the children.

I recognize and can see that the directive is that you must give reasons if you're not interviewing the children, but if you interview the children, they have to be before the case. This is the exception. And the Court, if it's going to be reversed. I'm giving my reasons, everything I'm doing is in the best interests of the children.

It is traumatic for children to come into a court, even a -- even in the relaxed setting of in camera, and speak to a stranger, albeit a judge. And I don't think under these circumstances anything that will assist the Court at this posture before any testimony will serve their best interests.

In his final decision, Judge Camp noted that Grife and Montgomery "testified that they did not recommend the Court interview the children," and he gave the following reasons for not interviewing the children:

1. This is not a case where there is a transfer of custody or relocation. The Court's decision is to determine time sharing between parents who live in the same neighborhood.

2. This is not a case where the children would be in danger in the unsupervised presence of Plaintiff. Notwithstanding Defendant's naked assertion of the children being abused by Plaintiff, the overwhelming and compelling evidence is to the contrary, including the testimony of all the mental health experts, including that of Defendant's.

3. The established compelling evidence by the uncontroverted testimony of the experts, particularly Dr. Katz, and the convincing testimony of the parent supervisors, is that both children made false accusations concerning the Plaintiff, so that notwithstanding Defendant's denial of this fact, whatever the children would tell the Court as to what the[ir] preference of time sharing would be, or accusations against the Plaintiff, or for that matter against the Defendant as well, would not be trustworthy and would not be considered by the Court. Thus based upon the unique facts of this case the testimony of the children would not assist the court in any way.

4. The last and perhaps most important, is the fact that these children have spent the past 6 years of their childhood in therapy, be it in connection with this litigation or personally. No one said it more succinctly than the Defendant herself when during cross-examination she said, "the children have been exposed to too many therapists -- and it has had an adverse impact on them." The Court could not agree more. A Court interview would only add to this sorry situation and serve no purpose.

Rule 5:8-6 provides that as part of a custody hearing, "the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren)." The preference of a child who is of sufficient age and capacity so as to form an intelligent decision is one factor that the court shall consider when making the custody determination. N.J.S.A. 9:2-4(c). A child's preference, however, is not determinative. Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). The desires of older children may be entitled to stronger consideration than that afforded to younger children. Ibid. Evidence of immature emotions and potential influence by the custodial parent can draw into question a judge's reliance on the child's stated preference. Id. at 497-98.

There are sufficient reasons on this record to support Judge Camp's decision not to interview the children. First, as the judge noted, the record is replete with evidence that both children fabricated to the various mental health professionals stories that plaintiff abused them, and even once claimed abuse during one of the supervised visitation sessions. As such, any statements made to the court during an interview may not be trustworthy or reliable. Further, the children's preference for their mother was clearly evident in the testimony of the mental health experts and parental supervisors.

Defendant made no proffer during the trial as to what the children would say to the court that would impact or change the court's ultimate decision. Similarly, on appeal, defendant offers nothing in her brief as to what the children would have said or could have said to the court that would have been of such import. On this record, therefore, it cannot be said that whatever marginally useful information the children may have provided to Judge Camp would have changed his decision to award joint physical and legal custody. As noted, all of the mental health experts agreed that it was in the children's best interests to have both parents in their lives and, without any credible evidence of abuse of the children, the record supports the judge's custody determination.

Finally, defendant contends that the trial court "abused its discretion by rendering a recommendation as to counsel fees without providing the requisite statutory findings and without having heard testimony as to the financial aspects of this litigation." Defendant claims that the decision was obviously intended to be "entirely punitive" against her and that the judge had no authority to make such a recommendation. She asks that this part of the judge's decision "be vacated and stricken from the record, so as not to be considered by the trial court hearing the economic portion of this trial."

In his written opinion, the judge noted that both parties sought an award of counsel and expert fees. He stated that he could "only make a recommendation as to the award for this phase of the trial, and, [he] will only consider factors (3) and (7)" of Rule 5:3-5(c), which pertained to the reasonableness or good faith of the parties and the results obtained.

The judge then set forth his findings on those issues, along with the reasons supporting them, and made his recommendation for consideration by the judge that would ultimately hear the remainder of the case. The recommendation is adverse to defendant. No mention of the recommendation is included the March 28, 2008 order that is before us on this appeal.

Appeals are taken from orders and judgments, not from opinions or reasons given for the ultimate conclusion. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). Accordingly, we need not reach this issue. The judge's recommendation is not binding on the judge who will ultimately decide the case and consider counsel fee requests. Indeed, Judge Camp's opinion states only that "[t]he succeeding Judge who will try the financial issues may consider this recommendation when he considers all of these factors" in Rule 5:3-5(c). (emphasis added). Because the recommendation is not part of the order being appealed, we will not grant the relief requested by defendant, and we decline to discuss the issue further.

 
Affirmed.

(continued)

(continued)

13

A-4085-07T4

RECORD IMPOUNDED

December 18, 2008