GEORGE FALCONE v. JODI CIPRIANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3992-08T13992-08T1

GEORGE FALCONE,

Plaintiff-Appellant,

v.

JODI CIPRIANO,

Defendant-Respondent.

 
 

Submitted March 24, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1631-04.

Toni Ann R. Marcolini, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

The parties are the parents of an almost twelve-year-old daughter, over whom they have squabbled since the child's birth. This appeal is the latest chapter in their persistent, contentious litigation stretching over the course of the last decade following the entry of a December 18, 1998 consent judgment that incorporated the parties' "Support and Parenting Agreement."

Although agreeing to joint legal custody, defendant was designated as the primary custodial parent. After more than twelve trips to the Family Part, and an earlier foray to this court, the parties remain engaged in unremitting litigation.

The present round of proceedings involved a change in the parties' parenting time arrangements. Plaintiff appeals from the order entered on April 1, 2009, which terminated his overnight parenting time on Thursdays and Sundays if the next day is a school day. The order also denied plaintiff's request for the court to appoint a psychologist "to conduct a best interest evaluation as to the issues of residential custody and parenting time." Finding neither legal error nor an abuse of discretion in these decisions of Judge Maureen B. Mantineo, we affirm.

I.

The most recent friction point between the parties flared up in April 2008, when plaintiff's overnight parenting time on school nights was suspended by the court on an emergency basis. Instead of being afforded the previous practice of driving his daughter to school on the mornings following his overnight parenting time, plaintiff became obligated to return his daughter to the custody of her mother by 8:00 p.m. the evening before a school day. The former practice involved a pickup of the child at school on the Thursday afternoon and a transport of the child to her school early on Friday morning. These arrangements had been implemented after the court interviewed the child about her personal concerns and preferences.

Plaintiff's parenting time on school nights was truncated due to the court's serious concerns about the means plaintiff utilized in order to get his daughter to school. Plaintiff currently resides in Matawan; defendant formerly resided in Secaucus, but now resides in Little Ferry. Prior to September 2008, the child attended elementary school in Secaucus and it is now an approximate forty to forty-five minute automobile drive from Matawan to Secaucus.

On multiple occasions in the early morning of a school day, plaintiff had his parents the child's grandparents drive the girl from his Matawan residence to the Secaucus school in a van. While en route, the daughter would sleep in the back of the van without a seatbelt or other restraint, sometimes along with her grandmother, and then change into her school clothes inside the van before departing for the school building to attend classes. After defendant brought these circumstances to the attention of the court, together with photographs to document the practice, Judge Mantineo entered an order on April 9, 2008, which suspended plaintiff's overnight visitation on school nights pending a full hearing. The hearing was not scheduled for several months, after a new school year commenced, because the court wanted to conduct an interview with the child, who was by that time ten years old.

In response to defendant's request for suspended parenting time, plaintiff filed a motion seeking the appointment of a psychologist to conduct an evaluation of the child's best interests. He claimed that changed circumstances sufficient to warrant a review of the custodial provisions of the parties' 1998 agreement were present, which included: "[my daughter] was a baby then [and] is now [ten] years old; [b]oth defendant and I have married, so [my daughter] has a new step parent at both houses; [b]oth defendant and I have another child; [d]efendant has relocated to Little Ferry and changed [my daughter's] school this year; and [d]efendant has become emotionally controlling and abusive towards our daughter."

As several examples of defendant's "emotionally controlling and abusive" behavior, plaintiff pointed to: (1) defendant's aggressive conduct in collecting photographic evidence regarding the manner of transporting the child to school; (2) defendant's three-day banishment of the child to the maternal grandmother's home after the child said some uncomplimentary things about defendant to Judge Mantineo in a 2007 interview; and (3) defendant's allegedly continuous behavior of telling the child that plaintiff is a liar.

Plaintiff also brought to the court's attention his concern about the overall parenting skills of defendant, and mentioned incidents involving the child's vomiting blood; riding on the back of defendant's new husband's motorcycle; the child's supposed fear-inspired stomach aches; and the child being harangued by defendant over learning how to ski. Finally, plaintiff emphasized that the child had told Judge Mantineo directly that she would like to go back to overnight parenting time on Thursdays and Sundays, even if the next day were a school day.

Judge Mantineo reviewed all of the parties' submissions and felt it proper to interview the child again, since it was not the first such interview, and the judge and child had a comfortable speaking relationship. After consideration of all relevant evidence, Judge Mantineo determined that maintaining the status quo was the appropriate course of action for this family. She upheld the truncation of plaintiff's parenting time on school nights and denied his application for a best interests evaluation by a court-appointed psychologist. This appeal ensued.

II.

We start with first principles. Great deference to the discretionary decisions of Family Part judges is the touchstone of our review. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, in this case, there were no findings of fact based upon an evidentiary hearing. Alternatively, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

The primary issue in this appeal is whether plaintiff was entitled to actualize a custody review through a best interests of the child evaluation by a court-appointed psychologist. This implicates at least two hand-in-glove questions: (1) did plaintiff demonstrate sufficient changed circumstances to warrant the court going forward with a custody review and (2) did the judge abuse her discretion in not appointing an expert?

"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978)); Grover v. Terlaje, 379 N.J. Super. 400, 409 (App. Div. 2005). Once the court determines an event occurring post-judgment constitutes a "changed circumstance" warranting reevaluation of a custody arrangement, the "best interests" of the child control the subsequent custody award. Beck v. Beck, 86 N.J. 480, 497 (1981) ("The paramount consideration in child custody cases is to foster the best interests of the child.").

Rule 5:3-3, which empowers a Family Part judge to appoint an expert to make recommendations regarding custody disputes, is a salutary rule that is not intended to encourage fishing expeditions by litigants in the Family Part. Our courts have held that the parties to a Family Part matter must have an appropriate opportunity for an expert's assistance in custody contests. Kinsella v. Kinsella, 150 N.J. 276, 318-19 (1997). However, this presupposes that there is a demonstrated and genuine need measured by objective changed circumstances to engage in that expensive, time-consuming, and emotionally-charged process. For this reason we must trust the expertise and exercise of principled discretion by Family Part judges in their determinations whether and when to appoint a best interests expert.

Thus, plaintiff must surmount a fundamental threshold by providing sufficient competent evidence of changed circumstances that affect the welfare of the child. There is no absolute measuring tool that commends itself to the necessarily delicate weighing process that must be employed by the court, nor is a solution to the problem of custody determinations found in a computer algorithm. After our thorough review of the evidence presented to Judge Mantineo, we are confident that she properly exercised her discretion when determining that at present, a custody and parenting time evaluation was needless and inappropriate.

It is important to recall that the parties were not strangers to the Family Part or to Judge Mantineo in particular. This judge had been called upon to intervene in this family's controversies on many prior occasions. The court was familiar with the child, and sensitively approached the interview process. Our case law has underscored the importance of taking into account the custodial preferences of children who are mature and intelligent enough to express themselves. See, e.g., Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977).

We cannot quibble with the judge's conclusions about a lack of changed circumstances where the most variation that can be said to exist was engendered by the innocuous change of defendant's and the child's primary residence and school in 2008. The Family Part was not so wide of the mark in discounting not ignoring the child's expressed preference for restoring school night parenting time. This hardly calls for our intervention. We are confident that Judge Mantineo was familiar with, and applied, the jurisprudence of Hand v. Hand, supra, 391 N.J. Super. at 105. The court clearly evinced its understanding that "[c]ustody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Ibid.

"Although a joint legal custodial relationship among parents is the preferred arrangement since it is 'likely to foster the best interests of the child in the proper case, the decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court.'" Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (internal citation omitted). Therefore, if changed circumstances are shown, and the joint legal custody arrangement is no longer in the best interests of the child, it is aptly within the court's discretion to alter that arrangement. Ibid. The evidence presented in this matter did not reach such a level.

We are also firmly convinced that Judge Mantineo did not err in extending the ban on overnight parenting time for school nights. We find plaintiff's arguments on this issue to be sufficiently without merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). Suffice it to say that Judge Mantineo's hands-on approach, her review of the history of this family, and her insight into plaintiff's utilization of parenting time amply support her discretionary decision to leave matters alone for the present on the parenting time front.

 
Affirmed.

Among the disputes that the Family Part has been called upon to resolve because the parties were either unwilling or unable to compromise themselves were setting vacation parameters, scheduling holiday visitation, determining religious education, adjusting child support, tweaking parenting time pick-up and drop-off times, and reallocating counsel fees.

Falcone v. Cipriano, No. A-4826-03 (App. Div. Feb. 8, 2005), certif. denied, 183 N.J. 257 (2005).

Separately, on March 5, 2010, we temporarily remanded this matter to the Family Part for the limited purpose of addressing multiple open issues concerning, among other things, child support and vacation parenting time. This opinion does not address the issues presented to the Family Part as part of the temporary remand; any party aggrieved by the Family Part's order of April 30, 2010, shall be permitted to seek relief pursuant to our Rules of Court. We do not retain jurisdiction.

Among the descriptions of defendant's conduct that appear in plaintiff's certifications are that she "controls [my daughter] through fear and intimidation;" "[my daughter] is being bullied around by [d]efendant;" and "[d]efendant's primary concern is destroying my relationship with [my daughter]."

(continued)

(continued)

5

A-3992-08T1

May 10, 2010