JOHN APOSTOLIDIS v. ANASTASIA TAGIDOU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6202-08T3

JOHN APOSTOLIDIS,

Plaintiff-Respondent,

v.

ANASTASIA TAGIDOU,

Defendant-Appellant.

________________________________

October 15, 2010

Submitted: July 13, 2010 Decided:

Before Judges R.B. Coleman and C.L. Miniman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-236-07.

Lesnevich & Marzano-Lesnevich, LLC, attor-neys for appellant (Walter A. Lesnevich, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Anastasia Tagidou appeals from one part each of two orders entered on June 26, 2009. First, she appeals the portion of the order entered on her post-judgment application that denied her request for an order compelling plaintiff John Apostolidis to notify her as to custodial arrangements for the children were he to be admitted into a hospital. Second, she appeals from the portion of the order on plaintiff's cross-motion that compels her to pay $1000 in counsel fees to plaintiff. Because we are satisfied that there was no abuse of discretion in entering the two provisions from which defendant appeals, we affirm.

Plaintiff and defendant were married on February 6, 1991, in the Town of Boonton. Three children were born of the marriage, two in New Jersey in 1992 and 1993, and one in Greece in 2000. The two oldest children are citizens of Greece and the United States; the youngest child is a citizen of Greece. The parties were divorced in New Jersey on July 3, 2007. An amended judgment regarding custody was entered on February 5, 2008. Plaintiff was awarded sole legal custody of the eldest and youngest children, and defendant was awarded custody of the middle child. Prior to entry of the amended Judgment of Divorce (JOD), the parties litigated on two fronts New Jersey and Greece. Defendant appealed and we affirmed the amended judgment.

There have been two post-judgment applications respecting parenting time and related issues. The first was filed on April 13, 2009, as an order to show cause why defendant should not have parenting time with her sons during a trip to the United States. Plaintiff filed an answering certification. At oral argument on April 24, 2009, the parties entered into a consent order, which afforded defendant parenting time for three consecutive days during her visit to New Jersey. The consent order obligated each party to notify their relatives to advise the other party of any terminal illness or death.

The second post-judgment application was filed on May 15, 2009. This time defendant sought to have vacation parenting time with her sons in Greece for two weeks. Other relief was a request for a webcam communication schedule with the two children in the United States and an order compelling plaintiff to notify defendant with respect to the custodial arrangements he might make for the children upon his admittance into a hospital. Plaintiff filed a response and cross-motion on May 27, 2009, for an order denying the relief sought in defendant's motion, finding her in violation of litigant's rights, compelling her to pay the February 13, 2008, counsel-fee award by a date certain, ordering a custodial evaluation by a court-appointed expert, and compelling defendant to pay plaintiff's legal fees in connection with the application.

Oral argument took place on June 26, 2009. The Family Part judge granted defendant's request for webcam communications and denied her request for summer parenting time in Greece. The judge, however, did permit defendant to see the children in New Jersey for the last two weeks in August 2009 with the initial visit to be supervised by Dr. Kalellis, who was to thereafter make recommendations to the court respecting additional parenting time during the two-week period. No appeal was taken from any of these rulings, except for the court's denial of defendant's application to compel plaintiff to communicate with defendant as to the custodial arrangements he might make for the children upon his entry into a hospital and an award of $1000 in counsel fees in favor of plaintiff.

Before making his award, the judge placed his decision on the record. In pertinent part, he summarized the history of the two parallel proceedings in New Jersey and Greece and then addressed the merits of each issue on the two motions before him. With respect to defendant's request that plaintiff notify her of custodial arrangements for the children in the event of plaintiff's hospitalization, the judge said:

I'm also not going to order the plaintiff to immediately notify the defendant upon any admissions to the hospital. There's nothing she can do about it. She's not established to me that she would immediately come to this country and . . . as I've already just indicated, I'm not sure that I would even order the kids to stay with her while he's in the hospital because there's been virtually no relationship.

So, therefore, there's no obligation for him to notify her when he goes to the hospital. He has an obligation to take care of the children. He has a network of relatives in Boonton. And he satisfied me that he would do that. . . .

The judge had earlier indicated that he would not grant a two-week vacation in Greece for a number of reasons, including the children's lack of familiarity with defendant as a parent. He stated that if defendant were in New Jersey and had had a separation as long as the one in this case, he would order only a gradual reintroduction of the children to the parent and would not permit a two-week vacation without such a reintroduction. He also expressed concern about the animosity between the parties as requiring careful reintroduction. He also noted that "something obviously happened when [defendant] was here with the kids. Maybe it was the plaintiff, maybe it was the defendant. I have an opinion, I'm not going to suggest - - all I know is it didn't go as well as we had hoped. So clearly there's got to be a reorientation part."

The judge then turned to the issue of plaintiff's application for an award of counsel fees. He granted the motion and explained:

I am going to award a [$1000] counsel fee because I think her request is so inconsistent with good thinking, clear reasoning, and parental duties given what I've seen and for all the reasons I've said. I think . . ., although I recognize her right and her interest in seeing the kids, her proposal was so far off the charts to think that a court would order the kids to go there for two weeks given what I've said about if she were in Kinnelon I wouldn't do it, but given the custody order that still exists in Greece . . . it's not an appropriate request. And for those reasons I'll order a [$1000] counsel fee.

Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Trial courts that "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this latter instance, we will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).

The Supreme Court has observed that matrimonial courts possess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412 (citation omitted). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), we will not "second guess [a Family Part judge's factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citation omitted).

Defendant's first point on appeal is that the trial court erred in awarding counsel fees. She urges that the award did not comport with the legal standard governing an award of counsel fees in a family action. The trial judge clearly premised his award of counsel fees on an implicit finding of bad faith on defendant's part in connection with her application for a two-week vacation in Greece. An award of counsel fees in a matrimonial action is committed to the sound discretion of the Family Part judge. N.J.S.A. 2A:34-23, R. 4:42-9(a)(1). We find no such abuse of discretion here. As the judge found, plaintiff's application for two weeks of parenting time in Greece was made at a time where neither party had acknowledged the jurisdiction of the other party's court. That is, defendant never conceded that Greece had no jurisdiction over the custody of the oldest and youngest child. In fact, she had an outstanding order from the courts in Greece awarding her custody of the oldest and youngest child. She knew that if the children went to Greece, she could refuse to return them with impunity under the protection of the courts in Greece. It is those facts which support the judge's implicit conclusion that plaintiff was acting in bad faith when she sought parenting time in Greece.

Where bad faith is found, the court need not consider the financial circumstances of the parties. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (stating that "where one party acts in bad faith, the relative economic position of the parties has little relevance")). This is so "because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Ibid.; see also Welch v. Welch, 401 N.J. Super. 438, 447-48 (Ch. Div. 2008) (noting that there is no need to consider financial circumstances and ability to pay "where one party acts in bad faith" (citation omitted)). Although defendant urges that her application was not prompted by some sinister motive, that is precisely what is implicit in the judge's findings that it was unlikely that plaintiff would return the children to New Jersey at the conclusion of the two-week parenting time in Greece. The limited amount of fees awarded clearly recognized that some of the relief sought by plaintiff was granted. We find no abuse of discretion in this instance.

Defendant's second point on appeal addresses the denial of her application to compel the father to notify her as to any custodial arrangements made upon his admittance into a hospital. Plaintiff already has the protection of paragraph 5 of the April 24, 2009, consent order which provides that "[e]ach party shall notify their relatives to advise the other of their terminal illness or death." That consent order resolved defendant's request for an order

compelling Plaintiff to advise Defendant in advance of his inability to personally care for the parties' children . . . and to afford Defendant the first opportunity to assume primary custodial rights responsibilities of [the parties' children] before relinquishing or delegating such rights to any third party.

This request was based on defendant's concern that plaintiff had a terminal illness. The parties resolved that demand for relief with a consent order, which also required the plaintiff to provide medical proof that he was not suffering from a terminal illness. He did so.

Defendant urges that the judge erred in denying the relief because the judge was not sure he would consider defendant an appropriate caregiver. She asserts that this constitutes an impermissible pre-judgment of the issue without a plenary hearing and findings of fact. She contends that the judge also ignored the presumption that exists in favor of a surviving biological parent having custody of the child, citing Watkins v. Nelson, 163 N.J. 235, 243 (2000) (citing N.J.S.A. 9:2-5; Todd v. Sheridan, 268 N.J. Super. 387, 397-98 (App. Div. 1993)). The latter concern has already been resolved by the language in the April 24, 2009, consent order. The former concern really relates to the issue of temporary custody during any type of hospitalization short of terminal illness. As to that, the court was clear that its concern over the tenuous relationship between the mother and her eldest and youngest children precluded a sudden reintroduction of the mother to the two children in New Jersey. Thus, it was based on fact-findings that were already made. We find no abuse of discretion in the trial court's denial of this relief, especially on the heels of the parties' resolution of the issue only two months earlier.