LISA MECCIA v. JOSEPH MECCIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5740-05T35740-05T3

LISA MECCIA,

Plaintiff-Respondent,

v.

JOSEPH MECCIA,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 16, 2008 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2936-03R.

Joseph Meccia, appellant pro se.

Weinstein Snyder Lindemann Sarno, attorneys for respondent (Angelo Sarno, of counsel; Mr. Sarno and Stacey A. Cozewith, on the brief).

PER CURIAM

Defendant Joseph Meccia appeals pro se from a final judgment of divorce entered on November 29, 2005; an order entered on April 11, 2006 denying his motion for reconsideration and for a new trial; and an order entered on June 28, 2006 denying his second motion for reconsideration.

The facts relevant to this appeal are as follows. The parties were married on August 13, 1993. Two children were born of the marriage: a daughter in 1996, and a son in 1998. Plaintiff filed the complaint for divorce on June 11, 2003, and defendant counterclaimed.

Plaintiff was forty-two years old at the time of trial. She was graduated from Lebanon Valley College in 1985 with a degree in accounting and is a CPA. She has worked for various accounting firms in New Jersey and was employed by Hertz Claim Management, a subsidiary of the Hertz Corporation, at the time of trial. At the time of the marriage in 1993, plaintiff's income was approximately $31,000. In 2004, her W-2 form showed gross wages of $71,722. In 2005, she anticipated earning a bonus that would bring her income for that year to $80,000. She testified that the bonus was based upon how well the company did during the previous year. She did not know whether she would receive a bonus in any given year.

Defendant was forty years old at the time of trial. He was graduated from Pace University in 1986 with a degree in accounting and information systems. In 1992, he earned an MBA in finance at Seton Hall University and in 2000, he obtained a certificate in client server applications development from the Chubb Institute.

When the parties married in 1993, defendant's income was approximately $44,500. Shortly after the marriage, however, he was discharged from his job at American Reinsurance and spent several years investigating self-employment opportunities. In 1996, the year their first child was born, defendant opened his own beer and wine making store in Pennsylvania. He earned little income from the business and it closed in 1999, resulting in a substantial loss. The parties filed for personal bankruptcy in 2000.

Because he could not find a job after the business closed, defendant attended the Chubb Institute and, after earning his certificate, obtained a job earning $50,000 per year. He was fired from that job, however, after only a few months. Again, defendant remained unemployed but told plaintiff that he was employed and working from home during 2001 and 2002. Plaintiff later learned that he was not employed but was engaged in internet gambling. In 2001, defendant reported $13,813 in gambling proceeds on the parties' joint tax return. He failed to report an additional $28,000 in gambling proceeds, however, and later filed an amended return.

Defendant testified that he did, in fact, work at home for an internet company earning between $1,000 and $2,500 per month as a "forum moderator" for the offshore sports betting industry. He produced no W-2 form to confirm that employment, however. Defendant claimed that he stopped working for the website in 2002 and remained unemployed until plaintiff filed the complaint for divorce. After the complaint was filed, defendant obtained a job at Target, earning $11.65 per hour, or approximately $24,500 per year. He was working for Target at the time of trial and claimed that he could not find any other full-time employment in the fields of his education and expertise. He did not obtain any additional part-time employment because he was busy "researching the divorce process" and looking for full-time work in his field.

When the parties' first child was born in 1996, defendant was occupied with his business in Pennsylvania and lived with siblings in Pennsylvania and Flemington. Meanwhile, plaintiff lived with defendant's brother in Cedar Grove, worked full-time and cared for the children.

In 1998, when their second child was expected, the parties purchased a home in West Orange. Defendant was still involved in the Pennsylvania business and plaintiff continued to be the primary caregiver for the children. Although defendant was rarely at home, he considered himself an active parent.

After defendant's business failed, he began to assist more with child care and household chores and claimed that he was the children's primary caregiver between 1999 and 2003. The children were in daycare and school at the time.

Defendant continued to live in the marital home during the pendency of the divorce, except for one month during which plaintiff insisted he leave and she changed the locks. While they shared the marital home, the parties spent weekends apart and alternated weekends with the children.

While plaintiff agreed to joint legal custody of the children, she insisted on primary residential custody with defendant having parenting time on weekday afternoons after school, one overnight per week and every other weekend. Plaintiff testified that she did not believe defendant should be the residential custodian of the children because he had anger issues, lacked good judgment and would be living with his parents after the divorce.

Defendant maintained that he should have joint legal and residential custody of the children. He wanted an equal division of parenting time with the children. He further insisted that he be permitted to reside in the marital home until the children went to high school. If plaintiff were permitted to buy out his interest in the marital home, however, he would reside with his parents and the children could share a bedroom there. Defendant acknowledged that he did not have the financial ability to buy plaintiff's interest in the marital home.

Prior to trial, the court appointed a child custody expert, Dr. Edwin A. Rosenberg, and ordered the parties to share the expert's fees equally. Dr. Rosenberg recommended that plaintiff have primary residential custody because she was "better able to organize" and "handle" the children. She was more successful in dealing with the children's different personalities than defendant. Dr. Rosenberg characterized plaintiff as a structured and dependable person who was better able to take care of the children's day-to-day physical and emotional needs, provide them with a stable home and inculcate appropriate values in them.

Dr. Rosenberg found defendant passive in dealing with the children. Defendant had an elevated score on the child abuse potential inventory test, which evidenced a rigid and authoritarian view of the parent-child relationship. Dr. Rosenberg considered this problematic because it could result in defendant having a confrontational relationship with his strong-willed daughter and an inability to engage with his son who suffered a speech development problem.

Dr. Rosenberg did not consider joint physical custody workable in this situation. He noted that there was too much competition between the parties and believed that the children would be "shredded up in that process." Moreover, the children, who were very young, needed a "home base." Dr. Rosenberg found, nevertheless, that both parents were bonded with the children and recommended that defendant have significant amounts of parenting time and that the children have regular visits with their paternal grandparents. He further recommended that defendant spend after-school time with the children and bring them to his parents' home every other weekend.

Dr. Rosenberg recommended that defendant attend parenting classes to learn how to interact better with the children, but he did not believe that defendant was motivated to change. Indeed, defendant did not believe he needed parenting classes. Dr. Rosenberg also recommended that the parties' daughter receive therapy to deal with the anxiety she suffered as a result of the tension between her parents and to address her attention-seeking behavior.

With respect to child support, plaintiff asked the court to impute income in the amount of $60,150 per year to defendant because that was the mean annual wage of an accountant/auditor. She requested child support in the amount of $1,183 per month. Plaintiff agreed to maintain life insurance for the children's benefit but did not want defendant to be the trustee of the funds because of his gambling. She requested that her sister be named the trustee of the fund.

Defendant objected to the imputation of $60,150 annual income to him. He maintained that he should not pay any amount of child support but that each party should be allowed to claim one child as a dependent on their income tax returns. He also insisted that he be the trustee of the children's life insurance policy.

With respect to equitable distribution, the parties had a money market account that plaintiff had opened prior to the marriage. She added defendant's name to the account after the marriage, but he had withdrawn $4,900 from the account. As of the date of the complaint, the account had a balance of $6,295.10. Plaintiff sought a credit of $1,752.45 to effect an equal distribution of the account.

Although defendant admitted he withdrew $4,900, he claimed it was to compensate himself for money plaintiff withdrew from the joint checking account. Plaintiff acknowledged withdrawing $3,000 from the joint checking account but testified that she used the money to pay the family's bills.

Plaintiff further sought credits of $187.87, $400, $122 and a credit for the joint tax obligations for which she had paid more than her fifty percent share. She disclaimed any liability for the taxes owed on defendant's belatedly disclosed gambling income of $28,000. Defendant admitted that he had under-reported his gambling proceeds by approximately $28,000 on the parties' 2001 tax return but claimed that plaintiff should be jointly responsible for the tax consequences of his omission.

In rendering a decision after the trial, the court awarded plaintiff primary residential custody and ordered the children to spend every Wednesday night and every other weekend with defendant. When his work schedule allowed, defendant could provide weekday after-school care for the children.

With respect to child support, the court found that defendant's education and experience warranted his earning an income greater than the $25,000 a year he earned at Target. Accordingly, the court imputed $40,000 per year in income to defendant for the purpose of calculating child support. Defendant was ordered to pay $18 per week in child support pursuant to the Child Support Guidelines (Guidelines). Expenses for child care, summer camp and unreimbursed medical care greater than $250 would be shared equally by the parties. The parties were ordered to exchange their tax returns on an annual basis so that child support could be adjusted and calculated accordingly.

With respect to other financial issues, the parties stipulated that they waived alimony, that plaintiff would maintain defendant on her employer-provided health insurance through the entry of final judgment and that she would maintain medical insurance for the children. The parties agreed that the children would be emancipated at age eighteen or after completing their post-high school education, but no later than age twenty-three. The parties further agreed that they would not liquidate or withdraw money from specified savings bonds, IRAs, bank accounts and stock accounts, which were intended to finance the children's college expenses. They each agreed to maintain at least $100,000 in life insurance for the benefit of the children.

The parties stipulated to the value of the marital home in West Orange and agreed to divide the proceeds equally. They further agreed to equally divide the IRA, 401(k), pension, investment, and stock accounts, and to equally distribute furnishings, motor vehicles and certain credit card debt.

With respect to financial matters on which there was no agreement, the trial court ruled that the money market account with a balance of $6,295.10 would be divided equally between them, with plaintiff receiving a credit of $1,752.45. Plaintiff also received a credit of $411.86, representing one-half the balance of the American Express credit card which she had paid in full. Plaintiff would purchase defendant's interest in the marital home, which defendant was ordered to vacate. Each party would claim one child as a dependent for income tax purposes and, upon emancipation of the first child, would claim the second child as a dependent in alternate years. The parties were also required to indemnify and hold each other harmless with respect to any tax liability, except for the 2001 tax year for which defendant was solely responsible for any interest or penalties accrued as a result of defendant's failure to properly report his gambling proceeds.

Upon plaintiff's purchase of the marital home, defendant was ordered to pay plaintiff $187.87 representing half of an overpayment by plaintiff of the 2002 federal income taxes; an additional $122 representing half of an overpayment for 2002 taxes which the IRS incorrectly credited to defendant; and $400 representing half of the tax credit the IRS sent to defendant in October 2003. Defendant was further ordered to reimburse plaintiff for half of Dr. Rosenberg's fee for testifying in court. All of these amounts were to be deducted from the amount plaintiff must pay defendant to buy out his share of the marital home.

Finally, the court specifically found that defendant was unreasonable and did not proceed in good faith on the issue of custody. Accordingly, it ordered defendant to pay $10,000 in plaintiff's counsel fees, to be deducted from the amount plaintiff was to pay defendant for her purchase of his interest in the marital home.

Defendant has appealed pro se and argues a myriad of points. We have carefully considered the record in light of defendant's arguments and the applicable law and find that all of his arguments lack merit. We will, nevertheless, discuss certain points.

1. Defendant argues the trial court erred in denying his late motion for discovery and to retain an adversarial expert on the issue of child custody. We review the trial court's resolution of discovery motions for an abuse of discretion. Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005); Smith v. Estate of Kelly, 343 N.J. Super. 480, 503 (App. Div. 2001).

Shortly before the trial date, defendant moved for additional discovery, including the right to retain his own expert witness on child custody. In an order entered on April 29, 2005, the court denied the motion and stated that the trial would commence, as scheduled, on May 9, 2005. The trial court rendered a decision on the motion, which was not included in the appendices on appeal. In its opinion at the close of trial, however, the court explained the discovery ruling:

There was a case management conference held on August the 7th of 2003, March the 1st of 2004, March the 5th of 2004, at which point the court appointed Dr. Edwin Rosenberg as the court's expert on both custody and parenting. At that point neither party had opted to retain a party expert. Although defendant requested a delay of trial by motion to permit him to have an adversarial expert, this was a week before the actual trial date. And also to take additional discovery.

The court denied this motion by order dated April 29th, 2005. And for the reasons that were stated on the record at that time.

[Emphasis added].

We find no error in the court's ruling. A trial court has the authority to control its calendar and to prevent trial delays. State v. Coolack, 43 N.J. 14, 16 (1964); State v. Johnson, 274 N.J. Super. 137, 147-48 (App. Div.), certif. denied, 138 N.J. 265 (1994); State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). The case had been pending for approximately two years and discovery was completed before defendant made his motion. Dr. Rosenberg had already been appointed as the court's independent custody expert in March 2004 and had issued his report in October 2004. By April 2005, when defendant made the discovery motion, the case was scheduled for trial within weeks. On this record, we find no abuse of discretion in the trial court's denial of defendant's motion.

2. Defendant argues the trial court erred by requiring that the matter be tried over four consecutive days. He claims that as a pro se litigant, he could not reasonably be expected to present his case in that compressed period of time, and he was thereby denied his constitutional rights of due process and a fair hearing.

The trial schedule was consistent with Rule 5:3-6, which provides that: "Insofar as practicable, civil family actions should be tried continuously to conclusion . . . ." See also Rule 4:35-4. Moreover, "New Jersey has a long-standing tradition of allowing the trial court 'wide discretion' in supervising the conduct of a trial." State v. Tilghman, 385 N.J. Super. 45, 53-54 (App. Div.) (quoting Sullivan v. State, 46 N.J.L. 446, 447 (Sup. Ct. 1884), aff'd, 47 N.J.L. 151 (E. & A. 1885)), certif. granted in part, remanded, 188 N.J. 269 (2006). Nothing in the record indicates that defendant was in any way prejudiced by the four-day schedule. When a litigant undertakes to represent himself, he must abide by the Rules of Court and the Rules of Evidence as does every other litigant. Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997).

3. Defendant contends that the trial court erred in denying his right to call three witnesses who could testify regarding his parenting skills. On the third day of trial, the court asked defendant if he had any non-party witnesses to call, and he responded that he wanted to call three "character witnesses" - his aunt, his cousin, and a friend - to testify to contradict Dr. Rosenberg's testimony on the parenting issue. Defendant acknowledged that all three witnesses would "basically [be] saying the same thing." Based upon that representation, the court advised defendant he could present one of the three proposed witnesses. The court also informed defendant that the witness of his choosing must be available to testify before the scheduled end of trial.

The following day, the last scheduled day of trial, defendant informed the court that none of his witnesses were available to testify. The court ruled as follows:

So what I'm going to do is this -- I'm going to break until two o'clock, I'm going to give you the opportunity to call your witness. If the witness is available to you that's fine, if the witness isn't available to you I think that your testimony has in great detail indicated your ability to structure and that you take issue with Dr. Rosenberg. And I know we've discussed with him and now you have discussed why you felt that there was a problem at that interview and you know, I've got a pretty good idea of where you're coming from with that. I wouldn't say no to your presenting a witness for very brief testimony today for that reason, but I really was not expecting to carry this case any further than today. I would like to get it done today. So make a call, see if she can get here sometime between two and three and hopefully we can [take] care of her.

Ultimately, defendant presented no non-party witnesses.

The New Jersey Rules of Evidence permit trial courts to exclude cumulative evidence, notwithstanding its relevance. N.J.R.E. 403. Defendant was well aware of Dr. Rosenberg's report and if he wanted his witness to testify, he should have ensured her availability through a subpoena. R. 1:9-1. He did not do so and we find no abuse of discretion in the trial court's determination on this issue.

4. Defendant argues that there was "attorney error in the handling of [defendant-appellant's] case," by which we assume he means that the two attorneys he employed prior to trial were ineffective in assisting him. Defendant complains that his attorneys did not pursue claims on his behalf for counsel fees, alimony, a portion of the money plaintiff allegedly removed from a joint checking account before filing for divorce and errors in Dr. Rosenberg's report. He also complains that his counsel did not document some of their communications with the court, and that they did not discuss those communications with him.

Some of the issues about which defendant complains were raised in his post-trial motion for a new trial. The trial court denied the motion, finding that defendant had not met the standard for a new trial under Rule 4:49-1 because he had not shown a miscarriage of justice under the law. Moreover, he had not met any of the standards for relief from final judgment under Rule 4:50-1. We agree. Any claims that defendant may have against his attorneys based on their alleged inadequate representation are beyond the scope of this appeal.

5. Defendant contends that the trial court's imputation of income to him was inconsistent with its finding that he was not voluntarily underemployed. Although the court indicated that defendant "made reasonable efforts to try to find jobs in his particular area" it nevertheless found that it could "by no means . . . condone the amount of work that Mr. Meccia has chosen to do. . . ." The New Jersey Occupational Wages edition of February 2005 showed "significant other jobs" that defendant could perform based upon his education and experience, and earn significantly more than his current income of between $24,000 and $25,000 per year.

Based upon its findings, the court concluded that defendant was capable of earning at least $40,000 per year and imputed an additional $15,000 in annual income to him. The court noted that defendant could increase his income by finding employment in his field, working overtime hours at Target, or getting a second job. The trial court's findings respecting imputed income are supported by the evidentiary record and child support was properly calculated on the imputed income.

6. Defendant contends that the trial court erred in not including plaintiff's bonuses in its child support calculation. This argument is based on an incorrect premise. Plaintiff's W-2 form for 2004 showed gross wages of approximately $72,000, which included the bonus she earned for 2003. Although she expected to receive a bonus for 2004, and anticipated that her gross income in 2005 would be approximately $80,000, the bonus for 2004 was speculative and should not have been included in her income for calculation of child support. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2551 (2005) (guidelines). As we stated recently in Forrestall v. Forrestall, 389 N.J. Super. 1, 4 (App. Div. 2006):

There is no authority for, or logic in, utilizing a bonus declared, but not received, in 2004 to compute child support for the period commencing May 1, 2005. Rather, the income received in 2005, including the bonus, would be used to compute support for the period commencing May 1, 2006. The judge's treatment of this issue was correct.

The Forrestall principle applies to this case as well.

7. Defendant contends that the trial court erred in granting plaintiff a credit in the amount of $1,752.45, to compensate for money that defendant had withdrawn from the parties' joint money market account, without granting him a credit for money plaintiff had withdrawn from a joint checking account.

In its opinion, the trial court explained that plaintiff was entitled to the credit in order to offset the $4,900 that defendant had withdrawn from the account shortly after the divorce complaint was filed. The court acknowledged defendant's contention that plaintiff had withdrawn a similar amount from a joint checking account, but found that defendant failed to prove plaintiff used this money for anything other than household expenses. The trial court's decision is supported by the parties' testimony at trial.

8. Defendant argues that the trial court erred in its child support award because it did not account for the savings plaintiff receives as a result of defendant's caring for the children after school, or the expenses he incurs as a result of his taking the children to their extracurricular activities. He also argues that the circumstances have changed since entry of the judgment because plaintiff has changed jobs, now works longer hours and earns more money than she did at the time of trial.

The trial court considered all the parenting time issues raised by defendant. The savings achieved in child care expenses are an integral part of the child support calculation under the
guidelines, which provide that child care expenses may be added to a child support award "if incurred." Pressler, supra, Appendix IX-A to R. 5:6A, at 2514 (2005) (emphasis added). Thus, defendant's child support obligation is actually lower as a result of his providing after-school care for the children.

To the extent defendant is arguing that child support should be modified due to changed circumstances, he should make an appropriate motion in the trial court. N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 145-49 (1980); Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002); Chobot v. Chobot, 224 N.J. Super. 648, 652-53 (App. Div. 1988). We have no view as to the outcome of such a motion, if it is made.

9. Defendant contends that the trial court erred in allowing plaintiff to unilaterally modify the divorce judgment with respect to the marital home buyout amount, claiming he did not receive the correct amount in the buyout. He did not specify how much he is allegedly owed, however. He refers us to his "Appendix E," which contains his motion for reconsideration and the orders denying the motion. The motion contains a page captioned "Form B" in which defendant detailed the amount he claims he should have received from the marital home buyout. Even in that document, however, he did not identify the amount he actually received, or the amount to which he claims entitlement.

Plaintiff maintains that the offsets taken in the marital home buyout were permitted in the judgment and any errors in the credits to her in the buyout "were addressed in a timely manner and any clerical errors were amended." We are satisfied from our review of the record that the June 28, 2006 order corrected any overpayment by defendant in the sale of his interest in the marital home.

10. Defendant contends that the trial court erred in its ruling on the allocation of extra expenses not covered by child support. He argues that the court should have allocated these extra expenses pursuant to the "income-shared method," as called for by the guidelines, rather than fifty/fifty.

In its decision on the record, the court reasoned:

There's an issue of the allocation of work related child care. Because it's Mr. Meccia's position that because of his job that he's available for after school care. And that's been addressed. However, there clearly may arise the issue of work related care or summer care for these children. And I'm going to state that it's fair under the circumstances that the parties share equally in the costs of any work related child care.

Although there is a difference in income, a significant difference in income . . . I do feel under the circumstances that Mrs. Meccia bears a heavy burden here financially and it would not be fair under the circumstances that Mr. Meccia get the benefit of a proportional ratio of income to income with regard to the responsibility for child care, especially with the very minimal amount of child support that would be payable by Mr. Meccia to Mrs. Meccia. So the court will order that it be done on a 50/50 basis.

The court's deviation from the income shared approach in this instance is appropriate because plaintiff is paying a far greater share of child care expenses proportionate to her income than defendant. We note that plaintiff's income has increased but so have the number of hours she works, while defendant has not increased his hours or his income to balance the burden of supporting the children.

11. Defendant contends the trial court erred in granting plaintiff primary residential custody. He claims the court credited plaintiff's testimony over his, and relied upon "qualitative factors" as to which parent was more suitable to be the parent of primary residence, as opposed to the "quantitative factors" of which parent performed more child-rearing activities over the course of the children's lives.

"[D]ecision[s] concerning the type[s] of custody arrangement[s]" are left "to the sound discretion of the trial courts." Pascale v. Pascale, 140 N.J. 583, 611 (1995). We defer to the trial court's findings based upon its determinations of credibility and sense of the case from its first-hand observations of the witnesses. Ibid.; Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

12. Defendant claims the trial court was biased in its rulings and findings of fact. We have carefully reviewed the record and we are satisfied that the trial court was not only unbiased but was particularly patient with defendant in this difficult case.

13. There is no merit in defendant's constitutional claims that the trial court deprived him of his right to parent his children. Parents have a fundamental constitutional right to raise their children. New Jersey DYFS v. A.W., 103 N.J. 591, 599 (1986). Defendant, however, was not deprived of that right because he was granted joint legal custody, as well as significant parenting time. See Beck v. Beck, 86 N.J. 480, 495 (1981).

When parties cannot agree on custody, the court is obligated to resolve the issue "as the circumstances of the parties and the nature of the case . . . render fit, reasonable and just. . . ." N.J.S.A. 2A:34-23. See also N.J.S.A. 9:2-4 (addressing available options in child custody proceedings). The court's "paramount consideration . . . is to foster the best interests of the child[ren]," with that standard "described as one that protects the 'safety, happiness, physical, mental and moral welfare of the child[ren].'" Beck, supra, 86 N.J. at 497 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). The trial court's ruling on residential custody is consistent with this legal framework and does not deprive defendant of his constitutional right to parent his children.

14. Defendant contends that the best-interests-of-the-child standard is unconstitutional because it is unduly vague. We disagree. This long-used standard factors in numerous criteria in any decision affecting custody. See, e.g., N.J.S.A. 9:2-4; Pascale, supra, 140 N.J. at 595-600; Beck, supra, 86 N.J. at 495-501. For example, N.J.S.A. 9:2-4(c) provides, in pertinent part:

In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children . . . .

15. Defendant further contends that the trial court did not apply N.J.S.A. 9:2-4 constitutionally. He argues that the court "used legal 'sleight of hand' to justify labelling [sic] [him] an unfit parent" because "money is the true motive. The [S]tate is selling the constitutional rights of its parents and children citizens for federal money." Again, we disagree. The court neither labeled defendant an "unfit" parent, nor did it infringe upon his constitutional right to parent his children.

Finally, any issues raised by defendant in the appeal that are not specifically addressed in this opinion lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We have carefully reviewed the entire record in this matter and we are satisfied that the judgment of the trial court is based on findings of fact which are adequately supported by the evidence. R. 2:11-3(e)(1)(A).

Affirmed.

The 2005 Court Rules were in effect at the time of trial.

(continued)

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A-5740-05T3

October 23, 2008