RUSSELL D. COOMBS, JR v. MICHELLE M. COOMBS
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0479-09T4
RUSSELL D. COOMBS, JR.,
Plaintiff-Appellant,
v.
MICHELLE M. COOMBS,
Defendant-Respondent.
___________________________________________________
May 13, 2010
Submitted March 16, 2010 - Decided
Before Judges Wefing, Messano and LeWinn.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Cape
May County, Docket No. FM-05-23-03.
Beverly Sharps McCall, attorney for appellant.
Goldenberg, Mackler, Sayegh, Mintz, Pfeffer,
Bonchi & Gill, attorneys for respondent
(Michael A. Gill, on the brief).
PER CURIAM
Plaintiff Russell D. Coombs, Jr., appeals from an order of
the Family Part that "modif[ied] the existing parenting
configurations" between him and his former wife, defendant
Michelle M. Coombs. The order of September 8, 2009 maintained
the status quo regarding the joint legal custody of the parties'
two sons, ages 12 and 10 at the time, but named defendant "the
primary residential parent," instead of plaintiff, who had
served in that capacity for several years pursuant to a prior
court order.
Before us, plaintiff contends that the judge "failed to
consider all of the relevant statutory criteria in determining
the best interests of the children . . . ." We have considered
this argument in light of the record and applicable legal
standards. We reverse.
I.
The parties were married in July 1996, and relocated to
South Carolina shortly before the birth of their first son in
November of that year; their second son was born in June 1999.
They remained in South Carolina until January 2001, when, with
the exception of a few months, they returned to and resided in
New Jersey. By the summer of 2002, the parties separated, and
the children resided with plaintiff.
Although the exact circumstances that prompted it are
undisclosed by the record, in December 2002, the court ordered a
comprehensive custody and visitation evaluation that resulted in
the October 20, 2003 report of Dr. John F. McInerney.1 At the
1
Although the record contains no judgment, it is undisputed that
the parties divorced in June 2003. The record also fails to
disclose the date of the first order that designated plaintiff
as the parent of primary residence.
A-0479-09T4
2
time of the evaluation, which occurred months earlier, the
parties were still separated; plaintiff was living with his
parents and maintained primary residential custody of his two
sons. Defendant was exercising supervised, weekly parenting
time, pending a final determination by the Family Part judge.
McInerney detailed some of the events that led to the then-
current custody and parenting time arrangement. In November
2000, defendant developed an "excessive concern with exercise
and weight loss[,]" ultimately affecting her mental and
emotional disposition. She became "somewhat erratic and
irrational in her thoughts and behaviors." In February 2001,
defendant continued to decompensate, and plaintiff and
defendant's sister "[e]ffect[ed] an involuntary hospitalization
of defendant at [a psychiatric hospital] in Columbia," South
Carolina. While there, defendant was diagnosed with bipolar
disorder.
In June 2002, defendant had a manic episode marked by
"disordered thinking, irresponsible behavior and a refusal to
comply with treatment." Defendant was subsequently admitted to
the Atlantic City Medical Center for psychiatric treatment on an
in-patient basis in July, and again in August. The latter
admission resulted in a transfer to Ancora State Pychiatric
A-0479-09T4
3
Hospital, where defendant remained until October 2002. She
commenced out-patient treatment thereafter.
In his report, McInerney noted defendant's concern
regarding plaintiff's alleged excessive use of alcohol,
something plaintiff "acknowledged . . . and felt the need to
reduce . . . ." Nevertheless, he concluded that plaintiff was
"a well-oriented, cooperative and forthcoming individual"
without any evidence of "thought disorder . . . ." On the other
hand, McInerney opined that defendant had a "severe" disorder
that would likely "be persistent given the occurrence of at
least three separate[,] very severe episodes occurring since
February." In his opinion, however, defendant was in remission,
and showed "no symptoms of major depression . . . ."
McInerney also performed a bonding evaluation. He opined
that plaintiff was the "primary source of security and
permanence" for the children. The children's relationship with
defendant was "more problematic," and marked by "a degree of
anxiety and uncertainty." McInerney recommended that the
children remain in the care and custody of plaintiff, and that
defendant exercise supervised parenting time.
In 2006, the parties entered into a consent order agreeing
that defendant would undergo another psychological evaluation by
McInerney to assess the continued need for supervision of her
A-0479-09T4
4
parenting time. In a report dated February 9, 2006, McInerney
opined that defendant evidenced marked improvement in coping
with her disorder, made "very significant progress[,]" was
compliant with treatment, and had gainful employment. He
recommended that defendant be granted joint legal custody and
unsupervised parenting time.2
In August 2007, plaintiff was arrested and subsequently
indicted for conspiracy to possess cocaine. This prompted yet
another evaluation by McInerney that resulted in his report of
May 28, 2008. He noted initially that the parties continued to
experience difficulties in co-parenting. Plaintiff believed
defendant interfered with the children's school activities by
complaining that their athletic events interfered with her
parenting time. Plaintiff expressed concern about defendant's
complaints to the children regarding his use of alcohol.
McInerney referenced a recent drug and alcohol evaluation of
plaintiff that noted positive findings regarding cocaine and
alcohol use, but also concluded that plaintiff did not evidence
"psychoactive substance abuse disorder."
Defendant expressed concern that plaintiff used the
children "as 'messengers'" to communicate with her, and left
2
An order to this effect was apparently entered on June 6, 2006,
but it is not contained in the appellate record.
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5
"angry phone calls and messages" on her phone, to which the
children were privy; she again expressed concern over
plaintiff's use of alcohol. McInerney took note of the report
from defendant's treating physician who opined that her manic
disorder was likely due to a psychotic reaction to over-the-
counter diet supplements that contained an amphetamine-like
substance and were no longer sold commercially. McInerney
believed that defendant's relationship with her children was
"appropriate, reciprocal, concerned, and thoughtful."
McInerney also interviewed both boys. Each one felt
anxiety by being "in the middle" of their parents' disputes.
The younger boy reported that he was concerned about driving
with his father "'after [his father] and a friend have had a few
beers.'"
McInerney recommended that the children remain in
plaintiff's custody; he reasoned, however, that if plaintiff was
incarcerated on his criminal charge, defendant should be granted
custody "since she [wa]s fully capable of appropriate parenting
. . . ." McInerney also recommended expanded parenting time for
defendant, counseling for both parents, continued counseling for
the children, and that plaintiff refrain from alcohol use in the
children's presence. He also recommended reconsideration if
plaintiff and defendant failed to co-parent effectively.
A-0479-09T4
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On October 21, 2008, the judge entered an order (the
October order) granting defendant expanded parenting time. In
his brief letter opinion, the judge noted there was no evidence
that defendant would exhibit another manic episode "or that the
children were ever put in danger for any reason related to . . .
defendant's mental health." The judge implored plaintiff,
[P]lease hear your son . . . when he tells
Dr. McInerney: "My dad just won't talk to
my mom about plans." Please try as hard as
you can to understand his pain when he
reports that he generally finds himself in
the position of being the "messenger"
between you and his mother. It really ought
not to be so hard for an 11-year-old boy.
Citing McInerney's report, the judge determined that there were
two "eventualities" that would "trigger a serious review of the
plaintiff's primary custodial designation": (1) "colorable
evidence that . . . plaintiff ha[d] driven the boys . . . while
impaired . . ."; and (2) the parties' failure to lessen "the
intensity of conflict . . . ."
However, the tension between plaintiff and defendant did
In November 2008, they had a disagreement regarding
not abate.
the existing parenting time
Thanksgiving Day plans. Under
schedule, the children were supposed to spend Thanksgiving with
defendant, but plaintiff wanted to take the children to a
Philadelphia Eagles football game as a birthday present for his
The conflict resulted in defendant and the boys
older son.
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7
exchanging text messages in which they pleaded with their mother
to let them attend the football game. In March 2009, the
parties had another disagreement when plaintiff scheduled a
vacation that interfered with defendant's parenting time,
providing her, she claimed, with virtually no notice.
On January 22, 2009, the parties' older son reported to his
guidance counselor that he was "afraid for his father . . .
because he ha[d] a drinking problem." The guidance counselor
reported this to the Division of Youth and Family Services
(D.Y.F.S.) which interviewed both boys. The older son reported
that plaintiff would consume alcohol in front of him and his
brother, and "drive[] [them] around while under the influence."
D.Y.F.S. determined that any allegation of neglect was
unfounded, but nevertheless implemented a "safety protection
plan" under which plaintiff and his parents, with whom he and
his sons still resided, agreed that he would not drive while
intoxicated. D.Y.F.S. also recommended that plaintiff attend
outpatient alcohol abuse counseling.
These incidents were set forth in defendant's certification
that accompanied her pro se motion filed in March 2009 seeking
modification of the October order and designation as the parent
of primary residence for her two sons. In addition, she claimed
that eight days after the October order was entered, she
A-0479-09T4
8
received a phone call from her oldest son that plaintiff had
taken the children to a World Series game in Philadelphia, then
to a bar, where he became intoxicated. Defendant's motion went
unopposed, and the court entered an order on April 24, 2009,
designating her as the parent of primary residence beginning "on
or about June 12, 2009[,]" after completion of the school year.
On May 9, plaintiff filed a notice of motion to vacate the
April order. He had appeared in court on the return date --
ostensibly to oppose the motion orally -- and was unaware that
he could only respond through written submissions. In his
certification, plaintiff contended that the children were well-
adjusted at his residence, had many friends in the neighborhood,
and were involved in extra-curricular activities at school. He
denied taking the children to a bar in Philadelphia, instead
characterizing it as a family-style restaurant, and noted that
his fiancée had driven him and the children to and from the
game. Plaintiff also rebutted defendant's claims regarding the
Thanksgiving incident and the March vacation, claiming that in
both instances defendant was aware of the plans and had agreed
to them.
On June 5, the judge entered an order vacating the April
2009 order, reinstating the October order, and scheduling the
matter for further argument. On August 12, 2009, the judge
A-0479-09T4
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entered an order finding there were "genuine and substantial
factual disputes regarding the welfare of [the children]"; he
scheduled a plenary hearing for August 24, 2009. We have not
been provided with the transcript of the August 12 proceedings.
Defendant appeared pro se, but plaintiff had retained counsel.
Apparently, no testimony was taken since, in his written
statement of reasons that accompanied the August 12 order, the
judge indicated that the plenary hearing was necessary based
upon "the written submissions as supplemented by oral argument
and by the records of [D.Y.F.S.] . . . ."
Starting with what he "consider[ed] to be the blockbuster"
issue, plaintiff's use of alcohol, the judge detailed the
reports both children gave to D.Y.F.S. He then noted that
although D.Y.F.S. referred plaintiff for substance abuse
assessment and recommended that he attend "Intensive Outpatient
Treatment," plaintiff "outright refus[ed] to accept th[at]
without a court order." The judge was critical of D.Y.F.S.'s
failure to seek the court's intervention at that time, noting
D.Y.F.S. "'blinked' in this standoff" with plaintiff, and
"folded its tents in the face of [his] obstinacy."
The judge then addressed the "[c]o-parenting [c]onflict"
that continued to exist between the parties. Reciting the
conflicting versions plaintiff and defendant gave in their
A-0479-09T4
10
certifications regarding the Thanksgiving incident and the March
vacation, the judge essentially concluded defendant's versions
were more credible. For example, noting the boys' text messages
with their mother regarding the Thanksgiving football game, the
judge concluded defendant had been "set up."
There is little question but that these boys
were drawn into this vortex by their
father's (probably artful) lack of precision
about his plans for Thanksgiving and his
anger when defendant offered resistance --
once it finally became clear what he truly
wanted. His anger became theirs -- and
[defendant] was painted into a corner where
the boys could only see her as the spoiler.
Addressing the March vacation, the judge discounted
plaintiff's version -- that the vacation had been agreed to by
defendant -- and concluded "the balance of credibility on this
point weighs in favor of defendant -- who says there was no
agreement." The judge suspected plaintiff's plans
had been made for some time -- but that the
announcement of the plans was delayed until
shortly before the event -- so that
defendant would have to choose between
capitulation or resistance. If she chose
the later, she could be portrayed (again) as
the spoiler. And the angry e-mails from the
children could begin anew.
detailed factual findings
As noted, the judge reached these
based upon the conflicting certification of the parties and his
but apparently without any
review of the D.Y.F.S. file,
testimony.
A-0479-09T4
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The plenary hearing was held on August 24 and 31.
Plaintiff's friends, James Brown and Andrew Mallon, testified
that they had never witnessed plaintiff drive while intoxicated.
Plaintiff's boss, Daniel Powell, testified that plaintiff had
been employed as the manager of his restaurant in Wildwood since
2007. Powell had never seen plaintiff intoxicated, and had
never seen him have "any drinks at work at all."
Plaintiff's two brothers, both of whom lived in close
proximity to plaintiff and the children, testified that he only
drank "occasionally," and that his drinking was much less
frequent than in the past. Plaintiff's sister-in-law and father
also testified. Both corroborated that plaintiff did not drink
and drive with the children, and that his drinking had become
less frequent. Both described a close-knit family that actively
participated in social gatherings with plaintiff and his two
sons.
Plaintiff's fiancée testified. She corroborated that
plaintiff did not drink and drive with his children, and that he
was a moderate drinker. She was present at the World Series
game, having driven plaintiff and his sons to and from
Philadelphia. She indicated that plaintiff had little to drink
that evening.
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Plaintiff lived with his two sons and his parents in their
home in North Cape May; his sons shared a bedroom. He testified
that since the October order, he had not driven the children
while intoxicated. He acknowledged having an alcohol problem
prior to his relationship with defendant, and that he sought
treatment as a result. He further testified that he did not
follow D.Y.F.S.'s recommendation to attend outpatient counseling
because he had recently completed Pre-Trial Intervention on the
drug charge, was subjected to random urine monitoring for six
months, and produced no positive samples. Plaintiff
acknowledged his 2007 arrest was a "wake up call."
Plaintiff then testified regarding the "co-parenting
issues" that had arisen between him and his ex-wife. He
basically reiterated the contents of his earlier certification.
Defendant testified that she lived in Egg Harbor Township
in a rented, two-bedroom apartment. She worked as a bartender
at Bally's casino in Atlantic City, and during that summer had
worked the 6:00 p.m. to 1:00 a.m. shift with Monday and Tuesday
off, but was hopeful she could change her hours if awarded
residential custody of her sons. She acknowledged that
plaintiff had told her about his plan to take the boys to the
Eagles football game as early as August, and that she "said
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13
okay." She expressed a deep concern for plaintiff's continued
use of alcohol in the presence of his children.
The judge interviewed both children in camera. The younger
boy did not "want to live at [defendant's] house" because he and
his brother had lived with plaintiff "all [their] li[ves],"
"like[d] [their] school district and love[d] [their] dad."
While he loved his mother, he did not want to live with her. He
told the judge, "We need our dad when we're boys." Noting the
fact that he "got straight A's last year" in school, he told the
judge that his father helped him with his homework, whereas when
his mother helped him, his grades were not as good.
The older son told the judge, "I want to live with my dad
. . . ." Having been in the same school system "all his life,"
he was about to enter a new middle school and was excited about
the prospects. He told the judge that he "had twelve and a half
years to . . . get up [his] reputation in school and with the
whole community," and he did not want to "have to start all over
again" by moving in with his mother and going to a new school
system. He acknowledged loving his parents "equally[,]" but
told the judge that as "a young man and at this point in time
[he] . . . need[ed] [his] father."
He further told the judge that "some of the stuff [his] mom
said were lies," noting that he had never told defendant that he
A-0479-09T4
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was in a bar with his father at the World Series game, or that
he and his brother "were scared to death because our father was
drinking." He told the judge that plaintiff no longer drove
after drinking, and that he had not drunk around him in almost
one year.
Notably, the judge asked virtually no questions of either
boy regarding their father's use of alcohol. When the older boy
told the judge that his father had never drunk "ten beers around
us," the judge asked him "[h]ow do you know about ten beers?"
The child answered
Because my mom was telling me about it, how
. . . irresponsible [plaintiff] was to drink
ten beers around us. And I said that he
didn't never [sic] drink ten beers.
On September 3, 2009, the judge rendered his decision
orally on the record. It suffices to say that the first eleven
pages of the twenty-one page transcript are a recitation of the
events and reports related to plaintiff's use of alcohol and
cocaine. The judge then explained how he considered this
information, noting he approached "the custody question . . .
On "one side of the
through the prism of a continuum."
continuum [wa]s defendant's significant psychiatric illness. On
the other side, the plaintiff's substance use problems." Early
on, because of defendant's mental health, the judge believed the
plaintiff, "[e]ven though
children rightfully belonged with
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15
indications were that [plaintiff's] lack of insight regarding
alcohol use were . . . rather serious insight deficits." The
judge noted, "[W]e could afford to leave things alone in light
of a number of things, including the residence of the boys
within the home with the grandparents and the involvement of
siblings and in-laws in the neighborhood."
However, by 2007, "the balance . . . beg[an] to tip
. . . ." The judge found that defendant "demonstrated the
resiliency of her remission and recovery of stability," but
plaintiff "demonstrated by his cocaine arrest even less insight
about the problems . . . caused . . . by [his] use of
psychoactive substances." The judge found that plaintiff was "a
problem user of substances and . . . [had] been so for many,
many years."
He referenced the children's accounts of their father's
drinking made to their guidance counselor in January, finding
those accounts to be credible, despite plaintiff's "effort[s] to
essentially discredit the boys . . . ." Noting that he
"resisted" any in camera interview with the boys, the judge
"relented" and found both children to be "wonderful, bright,
engaging, beautiful boys."
Regarding the "issues [of] communication" between the
parties, the judge found defendant's accounts more credible. He
A-0479-09T4
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found that plaintiff "minimize[d] the importance of [defendant]
in the children's lives," and blamed his ex-wife for his
problems, refusing to recognize the improvement in her
condition. The judge found that plaintiff "need[ed] to get on
with it and stop blaming and stop discounting and stop
rationalizing."
The judge concluded:
[T]he evidence . . . is sufficient to
establish that the circumstances, in an odd
sort of twist, have not changed sufficiently
since the October . . . order and that the
absence of those required or expected
changes does . . . support a change in the
primary custodial designation.
Referencing the statutory factors, N.J.S.A. 9:2-4(c), the judge
thought two "in particular [we]re very apt." He found plaintiff
"consistently demonstrated an unwillingness to agree,
communicate and cooperate in matters relating to the . . .
children," and that "his untreated persistent psychoactive
substance use issues negatively affect[ed] the safety of the
boys and put them at a risk of harm." The judge gave the boys'
preferences "minimum weight" because "they would [not] be able
to offer a genuine and true statement . . . in the context of
th[e] superheated period" since the plenary hearing was ordered.
The judge entered an interim order designating defendant as
"the primary custodial parent," and ordered D.Y.F.S. to "reopen
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its file on [plaintiff] and schedule him for an updated
substance abuse evaluation." Pending receipt of that report,
and plaintiff's "compliance and successful completion of" any
treatment recommendations, the judge ordered plaintiff "not to
drive a car in which either one (or both) of his sons is a
passenger." In addition to these provisions, a subsequently-
entered final order included a parenting time schedule. This
appeal followed.
II.
Plaintiff contends that the judge failed to properly
consider all the statutory factors that govern resolution of any
custody dispute and that guide the court's determination of what
is in the children's best interests. See Kinsella v. Kinsella,
150 N.J. 276, 317 (1997) ("[T]he primary and overarching
consideration is the best interest of the child."). In
considering this argument, we recognize some basic principles
that guide our review.
(a)
We accord great deference to the fact findings made by the
trial judge, recognizing his ability to access the credibility
of the witnesses actually testifying before him, as well as the
special expertise he brings to matters in the Family Part.
Cesare v. Cesare,
154 N.J. 394, 411-13 (1998). Thus, a "trial
A-0479-09T4
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court's factual findings 'should not be disturbed unless they
are so wholly unsupportable as to result in a denial of
In re Guardianship of J.N.H.,
172 N.J. 440, 472
justice.'"
(2002) (quoting In re Guardianship of J.T.,
269 N.J. Super. 172,
188 (App. Div. 1993) (in turn quoting Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am.,
65 N.J. 474, 483-84 (1974))).
However, no such deference is extended to the trial court's
interpretation of issues of law. "A trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special
N.J. Div. of Youth and Family Servs. v. R.L., 388
deference."
N.J. Super. 81, 88 (2006) (quoting Manalapan Realty v. Twp.
Comm. of Manalapan,
140 N.J. 366, 378, (1995)).
"Custody issues are resolved using a best interests
analysis that gives weight to the factors set forth in N.J.S.A.
Hand v. Hand,
391 N.J. Super. 102, 105 (App. Div.
9:2-4(c)."
2007) (citing V.C. v. M.J.B.,
163 N.J. 200, 227-28, cert.
denied, 531 U.S. 926,
121 S. Ct. 302,
148 L. Ed. 2d 243 (2000)).
That statute requires a judge to consider a myriad of factors
before making any custodial determination:
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
A-0479-09T4
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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.
[N.J.S.A. 9:2-4(c)]
A prior custody order "whether reached by consent or
adjudication, embodies a best interests determination." Todd v.
Sheridan,
268 N.J. Super. 387, 398 (App. Div. 1993). "A party
seeking to modify custody must demonstrate changed circumstances
Hand, supra, 391 N.J.
that affect the welfare of the children."
Super. at 105 (citations omitted); Todd, supra,
268 N.J. Super.
at 398. The "party seeking such modification bears the burden
of proof . . . ." Innes v. Carrascosa,
391 N.J. Super. 453, 500
(App. Div. 2007) (citing Sheehan v. Sheehan,
51 N.J. Super.
276, 287-88 (App. Div.), certif. denied,
28 N.J. 147 (1958)).
The welfare of a child has been construed to mean "the
safety, happiness, physical, mental and moral welfare of the
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20
child." Fantony v. Fantony,
21 N.J. 525, 536 (1956). The
concept "includes many elements and concerns more than the
physical well-being resulting from the furnishing of adequate
food, clothing and shelter. It concerns, inter alia, the
Sheehan, supra, 51
spiritual and social welfare of the child."
N.J. Super. at 292.
In child custody matters, we accord "great weight" to the
trial judge's opinion. Terry v. Terry,
270 N.J. Super. 105, 118
(App. Div. 1994) (citing Palermo v. Palermo,
164 N.J. Super.
492, 498 (App. Div. 1978)); Sheehan, supra,
51 N.J. Super. at
295; Scanlon v. Scanlon,
29 N.J. Super. 317, 324 (App. Div.
1954)). "Yet we must evaluate that opinion by considering the
statutory declared public policy and criteria which a trial
court must consider . . . ." Terry, supra,
270 N.J. Super. at
118.
Our obligation in reviewing a custody determination, no
less a modification of previously-ordered custodial
arrangements, is to assure that the trial court has considered
the statutory factors and thoroughly explained its reasons in
light of those factors. "[T]he articulation of reasons by the
trial court in a child custody proceeding must reference the
pertinent statutory criteria with some specificity and should
reference the remaining statutory scheme at least generally, to
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21
warrant affirmance." Id. at 119. Moreover, "[s]uperimposed
upon an analysis of the statutory scheme is the additional
requirement that the court consider and articulate why its
custody decision is deemed to be in the child's best interest."
Ibid.
Applying these general principles to the facts of this
case, we are convinced that reversal is warranted.
(b)
Defendant sought modification of the October order.
Therefore, when she filed her March 2009 motion, she was
required to demonstrate a change of circumstances that affected
the welfare of her children. As we see it, the alleged changed
circumstances were two-fold: plaintiff's unwillingness to
cooperate in co-parenting his sons had exacerbated the conflict
between the parties; and, his use of alcohol around his children
had been reported to their guidance counselor causing D.Y.F.S.
to investigate the allegation.
We are somewhat puzzled by the judge's finding that the
evidence at the plenary hearing was "sufficient to establish
that the circumstances, in an odd sort of twist, have not
changed sufficiently since the October . . . order." There is
nothing contained in that order requiring plaintiff to do
anything, although it did mandate that both parties were to
A-0479-09T4
22
cooperate in their co-parenting plan. The judge's written
memorandum of reasons that accompanied the October order
specifically concluded that the substance abuse evaluation
plaintiff had undergone in 2007 "did not recommend treatment,"
and the judge eschewed ordering any "without more concrete or
conclusive evidence that there [wa]s a current manifestation of
a problem . . . ." Despite this curious choice of words by the
judge, we accept that he essentially determined that defendant
had met her initial burden, and that a plenary hearing was
required. We have no quarrel with that conclusion whatsoever,
because the events set forth in defendant's certification,
combined with the intervening D.Y.F.S. investigation, were
causes for substantial concern.
Additionally, the judge's August 2009 order that set the
date for the plenary hearing was supported by an extensive
written memorandum of reasons. We believe such a hearing was
Hand, supra,
appropriate "to resolve the factual dispute[s]."
391 N.J. Super. at 105; see also Mackowski v. Mackowski,
317 N.J. Super. 8, 10 (App. Div. 1998) (plenary hearing warranted
based upon conflicting certifications); Dorfman v. Dorfman,
315 N.J. Super. 511, 518 (App. Div. 1998) (holding that a plenary
hearing was necessary based upon mother's certification and
school social worker's report of child's behavioral problems).
A-0479-09T4
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As we noted above, however, it is quite clear to us, and
plaintiff has so argued, that the judge assessed the credibility
of the parties regarding both issues, i.e., co-parenting
problems and plaintiff's use of alcohol around his children,
before hearing any testimony, and had already concluded that
defendant's version of the events was more credible.
In deciding to modify the existing custodial order that had
been in place for several years and that recognized what had
been the de facto custodial arrangement virtually since the
birth of both boys, the judge focused on two of the statutory
factors. He noted that plaintiff failed "to agree, communicate
and cooperate in matters relating to the child[ren]," and that
plaintiff's refusal to address his alcohol use posed a risk to
"the safety of the child[ren]." See N.J.S.A. 9:2-4(c). The
only other statutory factor specifically referenced, "the
preference of the child[ren]," was accorded "minimal weight" by
the judge.
In this regard, we recognize that the preference of the
children is only one factor to be taken into account in
determining the best interests of the children, and those
expressions are not controlling. See Chen v. Heller,
334 N.J.
Super. 361, 381 (App. Div. 2000) (citing Palermo, supra,
164 N.J. Super. at 499). However, as the judge noted, both boys in
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24
this case were "wonderful, bright, [and] engaging," with a clear
understanding of their parents' relationship and its problems.
The older boy expressed a very logical reason for wishing to
remain in his father's custody, noting that although he loved
his mother very much, he had spent his entire life in his
current school system, and did not wish to move and start anew.
The younger boy expressed similar wishes.
Although the judge was entitled to exercise his wide
discretion in considering the interviews of the boys, it is
clear that both children, who were excellent students, had
provided strong evidence that supported a finding that "the
quality and continuity of the[ir] . . . education," one of the
statutory factors, weighed heavily against any modification of
custody. The judge, however, did not even mention this factor
in his opinion.
We note several other factors, all of which the judge did
not discuss at all. The judge was obligated to consider "the
interaction and relationship of the child[ren] with [their]
parents," and "the extent and quality of the time spent with the
child[ren] . . . ." N.J.S.A. 9:2-4(c). It is clear that both
parties have done an admirable job in raising their sons, and
that both love their children and are active participants in
their lives. Nevertheless, plaintiff has been the parent of
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25
primary residential custody for both boys essentially since
their birth. Defendant, on the other hand, had been absent from
their lives during the early years, and had been exercising
unsupervised parenting time only since 2006.
The statute also requires the judge to consider "the needs
of the child[ren]," and "the stability of the home environment
These
offered," neither of which the judge addressed. Ibid.
two boys participated in a variety of extra-curricular
activities, including sports, that centered on their respective
schools. They had lived with their father and grandparents for
several years, with plaintiff's extended family being intimately
involved in their lives. By modifying residential custody, the
judge was ordering them to relocate to their mother's home,
forty minutes away, enter a new school system, and start their
lives, as the older boy stated, "all over again." Beyond
consideration of the statutory factors, the judge failed to
articulate "why [his] custody decision [wa]s deemed to be in the
child[ren]'s best interest." Terry, supra,
270 N.J. Super. at
119.
We appreciate the judge's concern regarding plaintiff's use
of alcohol and the potential harm this posed for his sons. It
is not our intention to minimize the risks of such behavior.
However, the judge had the power to specifically address that
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26
concern by ordering another evaluation and by further ordering
plaintiff to comply with any recommendations and treatment. In
the judge's final order, he did just that, but at the same time
granted defendant's request to modify the custody arrangements.
In attempting to address the issues regarding plaintiff's use of
alcohol through modification of the existing custodial
arrangement, we are convinced that the judge "was mistaken"
because he "undervalue[ed] the best interests of the children."
Chen, supra,
334 N.J. Super. at 381.
We therefore are compelled to reverse and remand the matter
for further proceedings. Since the determinations made by the
judge and his expressed level of frustration toward plaintiff
may make it difficult for him to conduct the remand hearing, we
direct that a different judge do so. See Entress v. Entress,
376 N.J. Super. 125, 133 (App. Div. 2005). In this regard, the
judge may consider whether any additional evaluations should be
conducted, and may specifically impose any reasonable and
necessary conditions upon plaintiff's continued designation as
the parent of primary residence.
We also hasten to add that several months have passed since
the modification order was entered. We have no way of knowing
what, if anything, has transpired in the interim. For example,
we anticipate that the two children have enrolled in a school
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27
near defendant, and forcing their transfer at this point in the
school year would be unwise. Therefore, in implementing our
order, we leave any questions regarding the scope of the
proceedings on remand to the judge's sound discretion.
Reversed and remanded; we do not retain jurisdiction.
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