ARSEN AREYAN v. DARLENE AREYAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4241-07T24241-07T2

ARSEN AREYAN,

Plaintiff-Appellant,

v.

DARLENE AREYAN,

n/k/a DARLENE KATZ,

Defendant-Respondent.

___________________________

 

Argued March 16, 2010 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-743-04.

Michael H. Nieschmidt argued the cause for appellant.

Ellen F. Schwartz argued the cause for respondent (Ramatowski, Spilka & Schwartz, attorneys; Ms. Schwartz, on the brief).

PER CURIAM

Plaintiff, Arsen Areyan, appeals from a series of orders of the Family Part culminating in the August 29, 2007 order designating defendant, Darlene Areyan n/k/a Katz, as the parent of primary residence of the parties' now nine-year-old daughter, and ordering that the child be enrolled in private school commencing with the 2008-2009 school year with the parties sharing the cost equally, and further ordering that the parties shall "equally share[]" parenting time-related transportation. Plaintiff also appeals from the March 24, 2008 order, which established his child support obligation for the child, and provided that defendant "shall have the right to use the income taxation deduction of . . . the . . . child . . . ." We reverse both orders and remand for further proceedings.

I.

The facts pertinent to our decision may be summarized as follows. The parties were married on August 11, 2000, at which time defendant was pregnant with the parties' daughter who was born in November. Plaintiff is an migr from the former Soviet Union, having lived in the United States since the age of eighteen. Defendant was born in the United States and is of West Indian background.

The parties separated in 2002, and were divorced by a final judgment entered on February 13, 2004, which incorporated their Property Settlement Agreement (PSA). The PSA includes the following provisions pertinent to the issues on appeal: (1) "[t]he parties shall share joint legal custody and control of [their daughter]" and "shall enjoy and participate in a shared parenting arrangement with equal time allocated to each party"; (2) "[n]either party shall have an obligation to be solely responsible for transporting the child [for parenting time] unless that spouse relocated [sic] more than thirty (30) miles from their present residence"; (3) defendant "shall be entitled to claim the child . . . as a deduction/exemption on her income tax return in odd years and [plaintiff] shall be entitled to claim the child . . . as a deduction/exemption on his income tax return in even years"; and (4) "[i]f the parties cannot agree on parenting time, then the parties shall submit such dispute to a mediator selected by both parties."

At the time of the parties' separation, plaintiff moved into his mother's residence in Plainsboro, and defendant moved into her mother's residence in Edison. The child resided with defendant, and plaintiff had parenting time from Thursday to Monday afternoon every other weekend and Thursday overnights on the alternate week.

In October 2003, the parties agreed to send their daughter to a Montessori preschool in Edison from Tuesday through Thursday each week, and to share equally the $1000 monthly tuition. At some point the decision was made to have the child attend preschool on Monday, thereby eliminating plaintiff's parenting time on that day; his schedule changed to Thursday to Sunday one week and Thursday night to Friday on alternating weeks; at this point, the child did not attend preschool on Fridays so that she could spend time with plaintiff. The parties shared transportation.

In the Fall of 2005, two significant events occurred: (1) upon the preschool teacher's recommendation, the child's attendance increased to include Fridays, thereby eliminating plaintiff's parenting time on that day; and (2) defendant advised plaintiff of her intention to relocate with the child to Long Branch and marry David Katz, whom she had been dating since January 2005. Communication between the parties "broke down" as a result.

Plaintiff researched the community and school system of Long Branch and expressed concern that the area was "crime infested" with approximately eleven sex offenders living there. Plaintiff also determined that the school system was not equal to the one where he lived in Plainsboro.

In November 2005, plaintiff asked defendant to reconsider her plan to relocate to Long Branch because of the superiority of the West Windsor-Plainsboro regional school system, and also because Long Branch was more than thirty miles from his residence. Defendant declined and, in July 2006, she married Katz and moved to Long Branch with the parties' daughter. Defendant, without discussing the question with plaintiff, enrolled the child in the Anastasia School, a magnet school in the public school system, for the 2006-2007 school year.

By this time, defendant had retained an attorney and in December 2005, filed the application which is the subject of these proceedings; she sought to designate herself as the child's parent of primary residence and to establish plaintiff's child support obligation. Plaintiff cross-moved to compel mediation pursuant to the PSA. These motions were not heard until February 3, 2006, and by order entered on February 14, 2006, the parties were required to attend mediation within thirty days on the issues of school attendance, parenting time and child support.

When mediation proved unsuccessful, the trial judge established a discovery schedule in anticipation of a plenary hearing, and required all discovery including expert reports to be completed by July 15, 2006. By order entered on September 1, 2006, the trial judge required that pendente lite the child would attend the Anastasia School and that such attendance would "not be a factor in the ultimate custody/parenting time determination . . . ."

The plenary hearing was not held until almost one year later, in July and August 2007. The delay was at least partially attributable to defendant seeking several adjournments in order to retain and obtain a report from a custody expert.

Plaintiff testified that he had experienced "significant cutbacks" to his parenting time once the child was enrolled in the Anastasia School. In order to exercise his Thursday overnight parenting time, plaintiff stated he would have to wake the child up at 5:00 a.m. to get her to school on time; because, he stated, he would not do that to the child, plaintiff gave up his Thursday overnight and asked defendant to give him an extra weekend each month to compensate. Defendant, however, only offered plaintiff parenting time on Thursday without an overnight.

The custody/parenting time issues were extensively addressed not only by the parties, but by their respective expert witnesses as well: Dr. Mark White on behalf of defendant and Dr. Alan Gordon on behalf of plaintiff. Both experts agreed that the parties are "loving, caring, decent parents," and that the child loved them both.

White concluded that defendant should "continue to function as the school week custodian for [the child]" and that her residence "be considered [the child's] primary residence for school district purposes." This opinion was based, in part, on White's recognition that the child had been "in her mother's primary residential custody" since the summer of 2006. Dr. White also recommended that the parties consider sending the child to private school; that they continue to raise her primarily within the Russian Orthodox faith (plaintiff's religion); and that plaintiff be "compensated" for lost parenting time.

White testified that in addition to the "goodness of gender fit," defendant's "personality style" was "a closer fit to [the child's] personality" than plaintiff's. Noting that the child is "biracial[,]" White further opined that defendant would also be a better "cultural and racial consultant . . . for the child."

The fact that the parties' child is biracial also appeared to factor significantly into White's assessment of her school attendance. While acknowledging that he was "not an evaluator of educational institutions or curriculum or the relative quality of educational procedures of one district to another[,]" White nonetheless testified that he could evaluate the "quality of environment, community environment, . . . education system, and . . . those environmental or extrinsic factors in an overall analysis of the child."

White opined that although the West Windsor-Plainsboro schools may be a better choice based on academic statistics, the Long Branch schools have "a great deal of cultural diversity," which he considered important in light of the child's biracial status. White opined that that status was "a very robust social factor in terms of . . . how people are identified and how, ultimately, people come to form an identity within themselves." White placed considerable significance upon the fact that the Long Branch schools had "nearly four times the amount of African-American [children], plus [twice the amount of] biracial children" and that it was important for the parties' child to identify with other students who looked like her. Acknowledging that the child would encounter other biracial children in the West Windsor-Plainsboro schools, White nonetheless reiterated that defendant was in a better position "to assist the child with racial . . . and cultural issues" and to foster her identity.

White opined that plaintiff's expert, Gordon, had focused exclusively on the comparative quality of the school districts; White did not accept Gordon's conclusion that the child should live with plaintiff based upon that analysis, because White felt that there was more to the issue than which school was better statistically.

Gordon did extensively address the comparable academic virtues of the two school districts, and concluded that the child "would have her best chance for success, based on a lot of factors, residing with her father and having liberal visitation with her mother." Gordon stated that in reaching this conclusion, he was persuaded by the fact that West Windsor-Plainsboro "had a much superior school district" to that of Long Branch; he did not consider private school because he "didn't think the parties had the money to do it."

Gordon also expressed "problems" with defendant's decision to move to Long Branch, which he opined was based upon her own best interest without concern for the impact upon plaintiff's relationship with their child. Gordon acknowledged that defendant did not purposely withhold visitation from plaintiff, but stated that she had made such visitation difficult because of the distance between the parties' residences. Gordon opined that the child's biracial status was a "non-issue" because she is "color blind."

By the time of the plenary hearing, defendant had another child, a son, with her new husband. In his report, White had identified as a "benefit[] intrinsic to [the child's] relationship with her mother" the "importance to [the child] of maximizing time with a younger sibling -- also biracial . . . ." Gordon did not factor in the child's relationship with her new half-sibling, because defendant was not pregnant at the time of his evaluation.

In his decision, the trial judge determined to give "much more weight" to White's opinions because the judge considered that witness to be "quite thorough, quite detailed" and had "arrived at an opinion which this [c]ourt finds to be well thought out." The judge stated that, generally, he adopted "page[s] 39 through 44 of [White's] expert report, . . . as the [c]ourt's own analysis and conclusions, with the exception of . . . [the reference] . . . to the biracial mix . . . in the Long Branch schools versus the West Windsor-Plainsboro schools . . . ."

Within the portion of White's report adopted by the judge, the doctor noted that plaintiff "immigrated from Russia at approximately age 18, having been raised in an eastern European culture, and in a homogeneous eastern European family-of-origin[,]" and that defendant "is an American-born woman of West Indian ethnicity," which resulted in their child being "not only a biracial child, but also a bicultural child."

White's report also contained the opinion that plaintiff has a "tendency to be judgmental of or out of synchronization with the mainstream, American culture[,]" but provided no support for, or further analysis of this statement. White concluded that this is a "distinct disadvantage compared to . . . [defendant] relative to gender issues and issues related to biracial identity."

In this section of his report, White also identified what he considered to be "benefits intrinsic to [the child's] relationship with her mother[,]" which included: the importance of "[defendant's] psychosocial history as a racial minority to the ultimate formation of [the child's] biracial identity"; defendant's "greater familiarity with the national culture in which [the child] is being raised"; the "importance to [the child] of maximizing time with a younger sibling -- also biracial"; plaintiff's "distinct disadvantage compared to that of [defendant] relative to . . . issues related to biracial identity"; and the child's "social, gender and biracial identity issues" which would be negatively affected if plaintiff were awarded primary residential custody.

The trial judge adopted White's findings that the child should continue to reside with her mother, with "substantial visitation" with plaintiff. Since White had also recommended that the parties consider enrolling the child in private school, the judge ordered that she be enrolled in the Seashore School commencing with the 2008-2009 year; this was, the judge stated, a school selected by defendant and "acceptable" to plaintiff in terms of its programs, quality and cost. The judge further ordered the parties to share private school expenses equally.

Finally, the judge adopted White's suggested parenting time schedule, giving plaintiff three out of four weekends per month.

II.

On appeal, plaintiff presents the following issues for our consideration:

I. THE TRIAL COURT ERRED IN MODIFYING PLAINTIFF'S PARENTING TIME AND IN DENYING PLAINTIFF ADDITIONAL PARENTING TIME WHEN THE PLENARY HEARING WAS UNREASONABLY DELAYED, PENDENTE LITE

II. THE TRIAL COURT ERRED IN ORDERING THAT [THE CHILD] ENROLL IN LONG BRANCH SCHOOL DISTRICT FOR SCHOOL YEAR 2006-2007, PENDENTE LITE

III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S ADJOURNMENT REQUEST FOR THE OCTOBER 2006 PLENARY HEARING DATE, THE NOVEMBER 2, 2006 PLENARY HEARING DATE, AND THE MAY 10, 2007 PLENARY HEARING DATE

IV. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S APPLICATION TO MODIFY PARENTING TIME AND GRANTING DEFENDANT A SECOND PLENARY HEARING ADJOURNMENT, PENDENTE LITE

V. THE TRIAL COURT ERRED IN ADOPTING THE FINDINGS OF DEFENDANT'S EXPERT WITNESS WITHOUT IDENTIFYING THE SPECIFIC FACTS AND FACTORS CONTAINED THEREIN

VI. THE TRIAL COURT ERRED IN COMPELLING [THE CHILD] TO ATTEND PRIVATE SCHOOL, AND THE PARTIES TO PAY FOR SAID PRIVATE SCHOOL

VII. THE TRIAL COURT ERRED AND VIOLATED PLAINTIFF'S CONSTITUTIONAL RIGHTS IN RELYING UPON ISSUES OF RACE, NATIONAL ORIGIN, GENDER AND MARITAL STATUS IN AWARDING CUSTODY TO DEFENDANT

VIII. THE TRIAL COURT ERRED IN MODIFYING THE PSA BY COMPELLING PLAINTIFF TO SHARE PARENTING TIME TRANSPORTATION AND BY CONFISCATING PLAINTIFF'S EQUAL SHARE OF [THE CHILD'S] TAXATION BENEFITS

Plaintiff's first four issues concern proceedings prior to the plenary hearing which resulted in the orders under appeal. Therefore, we do not consider these issues on the merits; we note, however, that the chronology they document contributed in significant part to the outcome. Despite the trial judge's statement that his order of September 1, 2006 requiring the child to attend the Long Branch public school pendente lite, would "not be a factor in the ultimate custody/parenting time determination[,]" the "fait accompli" of that situation, as recognized by White in his report, factored significantly in the outcome.

The "conclusions and recommendations" adopted by the judge contained White's observation that "since summer, 2006, [the child's] experience has been that of a child in her mother's primary residential custody." Nowhere in his decision did the trial judge address the status quo ante, during which the parties' parenting time was of much more equal proportions.

Moreover, notwithstanding the trial judge's exclusion of White's reference "to the biracial mix, . . . in the Long Branch schools versus the West Windsor-Plainsboro schools," when adopting the conclusions and recommendations set forth in part of his report, the trial judge took no such exceptions to White's discussion of other factors related to the child's biracial status such as: the importance of defendant's history "as a racial minority" to the child's "biracial identity"; defendant's "greater familiarity with" the "culture" in which the child was being raised; the importance of a biracial half-sibling; plaintiff's "distinct disadvantage" relative to "issues of biracial identity"; and the negative impact upon the child's "social, gender and biracial identity" that would result from awarding plaintiff primary residential custody.

We note initially that a trial judge "is not obligated to accept an expert's opinion" and "may . . . accept some of the expert's testimony and reject the rest." State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). As factfinder, a trial judge is not bound by the opinion of experts on either side. County of Middlesex v. Clearwater Vill., Inc., 163 N.J. Super. 166, 174 (App. Div. 1978), certif. denied, 79 N.J. 483 (1979).

Where, as here, expert opinion provides a substantial basis for the trial judge's decision, the obligation to specify clearly and precisely the elements of that opinion relied upon is an integral part of the judge's duty to make specific findings of fact and to state the legal conclusions that flow from those findings. R. 1:7-4. Otherwise, the parties, as well as a reviewing court, are bereft of a basis on which to discern the rationale underlying the judge's decision, Orgler v. Orgler, 237 N.J. Super. 342, 358 (App. Div. 1989), and are left to speculation.

As a general rule, "appellate courts should accord deference to family court factfinding[,]" so long as such findings are supported by sufficient, credible evidence. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Where, however, the record causes us "doubt about the matter[,]" id. at 412, we are not bound by those findings and conclusions.

As noted, the judge relied upon a portion of Dr. White's report which included several opinions related to the child's biracial status. Neither party had raised this factor as an issue in their custody dispute. Yet the trial judge implicitly included it in his decision by adopting the portion of White's report which discussed the issue and rendered opinions on this basis. Because we cannot conclude with any confidence that the trial judge did not base his decision in significant part on an improper factor, namely the child's biracial status, we are constrained to reverse that decision and remand for further proceedings in which this factor shall not be considered.

Plaintiff next contends that the trial judge erred in ordering the parties to enroll the child in private school "starting in September of 2008[,]" and to share the cost equally. The judge premised this ruling primarily upon White's recommendation that "ultimately the parties should consider about [sic] enrolling [the child] in private school[,]" and upon the judge's recollection that the chosen school was "acceptable" to plaintiff.

We concur with plaintiff that this ruling was in error, as it was not based upon substantial credible evidence of record. First, as the judge acknowledged in his decision, plaintiff testified that he "accepted the Seashore School . . . as a satisfactory interim solution, until such time [as] this [c]ourt could resolve the issue of custody." (Emphasis added). Plaintiff testified that if the parties could work out "the parenting time [and] . . . the transportation issues, th[e]n for the time being during the litigation . . . [the Seashore School] is where [the child] should go." (Emphasis added.) Plaintiff stated that he did not regard private school as "an overall resolution of all the issues, . . . just a temporary solution[.]" Moreover, defendant herself did not seek private school placement for the parties' child as a permanent solution. The judge acknowledged that "neither of these litigants are wealthy[,]" but failed to address how they were to afford private school tuition.

We have recognized that prior to entering an order compelling parents to pay for a private school education, a trial judge must consider various factors including, but not limited to, the "[a]bility . . . to pay"; the "[p]ast attendance of one or both parents at . . . private school"; whether the child was "attending private school pre or post divorce"; the "[p]rior agreement of the non-custodial parent to pay to send [the child] to private school"; and whether it is "in the child's best interest to attend, or continue to attend, private school . . . ." Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd 288 N.J. Super. 478 (App. Div. 1996). Because the trial judge failed to address these factors in support of his decision compelling the parties to send their child to private school "starting in September of 2008[,]" we are compelled to reverse and remand this issue for further proceedings.

We briefly address plaintiff's contentions that the trial court erred by (1) compelling him to share in parenting time-related transportation; and (2) granting defendant the exclusive "right to use the income taxation deduction of [the child] . . . ." Because we concur with plaintiff that each of these rulings is in direct violation of the parties' PSA, and because the trial judge failed to articulate any reasons for deviating from those PSA provisions, we reverse these two portions of the orders on appeal.

This matter is reversed and remanded for further proceedings in conformity with this opinion. As the issue of the child's school attendance for the 2010-2011 school year now hangs in the balance, we urge the Family Part to complete remand proceedings well in advance of the commencement of the new school year in September 2010.

In her brief, defendant has designated herself as "respondent/cross appellant[,]" and raises issues concerning child support and counsel fees. We note, however, that defendant failed to file a notice of cross-appeal on these issues. R. 2:4-2(a). Therefore, we decline to consider them.

 
Reversed and remanded. We do not retain jurisdiction.

As we are reversing and remanding the trial court's custody determination, we need not address plaintiff's argument that that decision violated his constitutional rights.

The record does not disclose the amount of tuition at this school.

(continued)

(continued)

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A-4241-07T2

April 28, 2010