MELISSA FISHER v. GREGORY SZCZYGLOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1496-15T4

MELISSA FISHER,

Plaintiff-Appellant,

v.

GREGORY SZCZYGLOWSKI,

Defendant-Respondent.

______________________________________

January 12, 2017

Argued July 20, 2016 Decided

Before Judges Leone and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-0038-15.

Ted M. Rosenberg argued the cause for appellant.

Ronald G. Lieberman argued the cause for respondent (Adinolfi & Lieberman, P.A., attorneys; Mr. Lieberman, of counsel and on the brief; Melissa R. Knoerzer, on the brief).

The opinion of the court was delivered by

O'CONNOR, J.A.D.

Following a custody hearing, a Family Part judge entered an order on January 8, 2015 directing the parties share, on an alternating weekly basis, equal parenting time with their only child, Tom.1 Plaintiff Melissa Fisher (mother) appeals from that order, contending the parenting time of defendant Gregory Szczyglowski (father) should have been limited to Thursday through Sunday on alternating weeks.2 After reviewing the record and the applicable legal principles, we affirm.

I

The pertinent evidence adduced at the custody hearing is as follows. Most of the evidence is derived from the parties' testimony. However, while never characterized as stipulations, at the outset of the hearing counsel for both parties provided limited, uncontested background facts. We include some of these undisputed facts for clarity.

By the time of Tom's birth in January 2014, the parties had been in a dating relationship for approximately two years. The mother lives in New Jersey and the father in Maryland, approximately 200 miles away. Both parties are employed by the United States Navy; the mother works at the naval base in Philadelphia and the father at one of the naval bases in Maryland. Because of their respective paternity and maternity leave benefits, the parties were able to live together after the baby was born until June 2014. From the time of Tom's birth until the father's paternity leave ended in March 2014, the parties lived in the mother's home. When the father resumed work, the parties lived in his home in Maryland during the week and in the mother's home on weekends. Therefore, for approximately the first five months of his life, Tom lived in the same household as and was cared for by both parents.

After the mother returned to work in June 2014, the parties' relationship ended. On July 10, 2014, the mother filed a verified complaint under a non-dissolution or "FD docket"3 seeking, among other things, that she have custody of Tom. On August 25, 2014, the father filed a verified counterclaim seeking joint legal but physical custody of Tom.

The parties' participation in mediation was unsuccessful. Pending the custody hearing, the parties agreed upon a temporary parenting time arrangement whereby, on alternate weeks, the father had parenting time with Tom from Thursday through Sunday. The father's work schedule permitted him to take every other Friday off; his parenting time coincided with those weeks he worked only Monday through Thursday. The time of day the father's parenting time began on Thursday and ended on Sunday is not in the record.

By the time of the hearing on December 9, 2014, the father had abandoned his request for physical custody and instead advocated each parent have equal parenting time. He requested each party have Tom on alternating weeks, exchanging the baby every Sunday. He argued the child should spend equal amounts of time with each parent so he could bond to both. The mother was willing to have a shared parenting arrangement, but not one where the parties' parenting time was equal. She wanted to be the parent of primary residence, with the father having parenting time every other week from Thursday to Sunday.

The mother testified her parenting time plan was better than the father's because, if the father had the child for an entire week, the child would have to be in daycare while the father worked. The mother contended attending daycare would be too "disruptive" for the child. She noted Tom's maternal grandmother cared for him while the mother worked; the mother believed this work-related caretaking arrangement should remain in place for the child's stability. Further, she was apprehensive about the child being exposed to other children's germs if placed in daycare.

Second, while her reasoning was unclear, the mother was concerned about the amount of traveling Tom would have to endure if the parents equally shared parenting time on an alternating weekly basis. She believed it would be harder for Tom to be in a car every Sunday for a 200 mile drive than if he had to travel the same distance every other Thursday and Sunday.4

Third, the mother noted she had been the primary caretaker since the baby's birth, referencing the five-month maternity leave she enjoyed following the baby's birth, as well as the months she was the primary caretaker during the pendente lite period. Fourth, the mother claimed the father's parenting time should not be expanded because on one occasion the father threatened he would keep and not bring Tom back to her. However, she conceded the threat never materialized and the father never in fact kept the baby from her. Finally, she testified she was still breast-feeding the baby, precluding any expanded parenting time for the father.

The mother noted Tom was a very happy, stable, and healthy child, and defendant was a "good father" but had "anger issues." She testified on one occasion the father became angry when a sausage casing exploded and he slammed his fist on the counter. On another occasion, he yelled and cursed at her and kicked a stool across the room when they were arguing about their relationship. She also claimed the parties did not communicate well because the father had sent her emails attacking her character. However, she stated communicating by email with the father would be "great," as long as he did not make any harassing comments.

The mother introduced a letter from the child's pediatrician in which the doctor recommended Tom be kept in a stable home environment with "consistent caregivers" familiar with him, and who can provide a "similar routine." The doctor further stated that, because the baby was being breastfed, it was "preferred" he spend as much time as possible in close proximity to the mother until he was no longer breastfeeding.

During his testimony, the father detailed the care he rendered to Tom during the typical day he had parenting time. The father conceded if Tom were with him every other week, the child would have to be in daycare Monday through Thursday. The father further testified the mother devalued his parenting and ignored his questions about the child, but felt the parties might better communicate after the case "settles down." He stated he would be willing to communicate by email and confine their subject matter to the child.

Only the parties testified. The court's pertinent findings were as follows

I've had an opportunity to hear the testimony in this matter. I've heard from two responsible, caring people who have different points of view with respect to their relationship with each other, but certainly not [in] relationship to the child. . . .

Both of you are responsible for the child now. Both of you are responsible for the conception of the child, and both of you have a right to spend as much time as necessary with the child. . . .

The fact that Mom apparently took maternity leave and cared for the child on a regular basis for a period of time doesn't seem to me to be terribly relevant to an ultimate decision as to how one shares the time. If both of you were residing together, obviously the time for Dad would be significantly greater with the child than it is at the present moment.

The distances are difficult. It comes with employment . . . . But with respect to caring for the child, it seems to me to be an inconvenience for both of you, but that's the way it is. This is something that you elected to do, but it has nothing to do with the child rearing experience.

Now these are the formative years for the child. They're the bonding years. This is where the child develops a relationship with both parents. The child has a right to a relationship with both parents and it's not for both of you in your relations to deprive him of that opportunity with respect to spending time as much as he can with each parent.

The distance complicates it. It doesn't make it impossible. It would appear to me to be the appropriate thing, and given his age, that there should be true shared parenting in this situation. The court recognizes, and frankly appreciates, the fact that we have two responsible parents who are fully employed. . . .

With respect to designat[ing a] parent of primary residence, I don't think it's necessary at this point. . . . [H]owever, I'm going to have mom designate her [choice of] doctor as the [child's] primary [pediatrician]. . . .

I want to address Mom's concern about Dad's daycare situation. Mom's concerned about germs. There are germs in the world, mom, okay? . . . . You're experiencing them even as we speak. . . . We can't have [Tom] live in a glass bubble. He's going to interact with other kids and kids are basically germ carriers, okay?

That's the way it is. I'm sure that we want to minimize that, but I don't think it's going to be any great disaster. If [Tom] catches a cold on occasion, that will be it so let's think about the world in which we live.

He's going to have interaction with other kids as long as you know, and Dad, you advise Mom as to where this daycare is going to be. If she wants to check it out, she's certainly welcome to do that what the circumstances are, how many kids are involved in it and the like.

Emails are more than acceptable because we can keep records of them. You've heard Mom's concerns about the tone or at least what she perceives to be the tone of your emails.

They should be related to the child only. They should not be judgmental with respect to her caretaking anymore than she should be judgmental of yours. It should be for informational purposes only. . . .

[W]ith respect to the breast feeding issue, at one year old, I just don't see it being an issue. . . . I don't know what he eats when Mom is at work, but I suspect we're not making house calls, so whatever the regimen is it can continue.

II

Our scope of review of child custody determinations is exceedingly limited; the conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).

"[T]he decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.]" Pascale v. Pascale, 140 N.J. 583, 611 (1995).

In addition, while we owe no deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), the scope of our review of the Family Part's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe substantial deference to Family Part judges' findings of fact because they possess special expertise in family matters. Id. at 413. Moreover, we defer to findings based on a judge's feel of the case and the opportunity to assess witnesses' demeanor. State v. Johnson, 42 N.J. 146, 161 (1964). Further, "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

The central objective of any custody decision is to serve the "best interests of the child." Sacharow v. Sacharow, 177 N.J. 62, 80 (2003); see also N.J.S.A. 9:2-4. This "best interests of the child" standard is, at its core, a safeguard to ensure the safety, happiness, and welfare of a child. Fantony v. Fantony, 21 N.J. 525, 536 (1956). In reaching a conclusion on how those interests are best served, a judge faced with this task must come to a decision that "foster[s], not hampers," a healthy parent-child relationship. Nufrio v. Nufrio, 341 N.J. Super. 548, 550 (App. Div. 2001). "[I]t is in the public policy of this State to assure minor children of frequent and continuing contact with both parents[.]" N.J.S.A. 9:2-4.

We turn to the mother's arguments on appeal. The mother contends the Family Part judge failed to consider and apply the fourteen custody factors in N.J.S.A. 9:2-4(c), warranting reversal. These factors are

[1] the parents' ability to agree, communicate and cooperate in matters relating to the child; [2] the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; [3] the interaction and relationship of the child with its parents and siblings; [4] the history of domestic violence, if any; [5] the safety of the child and the safety of either parent from physical abuse by the other parent; [6] the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; [7] the needs of the child; [8] the stability of the home environment offered; [9] the quality and continuity of the child's education; [10] the fitness of the parents; [11] the geographical proximity of the parents' homes; [12] the extent and quality of the time spent with the child prior to or subsequent to the separation; [13] the parents' employment responsibilities; [14] and the age and number of the children.

A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

[Id.]

As a preliminary observation, we note a number of these factors do not apply because they pertain to specific issues neither party raised during the hearing or are clearly irrelevant to the facts of this case. The decision of the judge to not address factors that have no significant bearing on a matter does not warrant a reversal.

Both parties are willing to accept custody and there is no evidence either is unwilling to allow the other parenting time. Tom has no siblings, and neither party contends the other's interaction with and relationship to the child has in any way been inappropriate in fact, the mother admitted the father is a good parent.

There is no history of domestic violence. The mother did testify that on two occasions the father expressed anger in a demonstrative fashion. Even if deemed inappropriate, these two outbursts do not disqualify the father from having substantial parenting time with Tom. Further, the mother failed to adduce expert testimony establishing the father's outbursts of anger had a negative effect on child. See New Jersey Div. of Youth and Family Services v. S.S., 372 N.J. Super. 13, 26 (App. Div. 2004). Certainly, there is no evidence either parent has physically abused the other parent or the child. There is no contention either parent is unfit, as that term is defined by N.J.S.A. 9:2-4(c).

The child is too young to express any preference on custody and parenting time. There is no evidence either parent ever failed to or cannot now meet the child's needs, or that the home environment of either parent is unstable. Obviously, there was no need for the judge to address the quality or continuity of the child's education.

As for the parents' employment responsibilities, each works full time. Every other week the father works from Monday through Thursday, enabling him to personally care for the child on the Fridays the child is with him. Both parents need to have some form of work-related daycare in place while they are working. The judge addressed the mother's concerns about the child's exposure to germs if he were to attend daycare, noting the child cannot be kept "in a bubble."

The judge addressed the parents' ability to agree, communicate, and cooperate in matters relating to the child. The mother herself testified communication between the parties would be "great" if the parties confined the form of their communication to email and if neither made harassing comments. The father agreed to communicate by email and confine their subject matter to the child. We note our Supreme Court does not mandate parents have an amicable relationship to engage in shared parenting. Beck v. Beck, 86 N.J. 480, 498 (1981). Further, the capacity of parents to cooperate should not be judged by their conduct while in the throes of custody litigation. See id. at 498-99. In Beck, the Court specifically observed

The most troublesome aspect of a joint custody decree is the additional requirement that the parent exhibit a potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Moreover, the potential for cooperation should not be assessed in the "emotional heat" of the divorce.

[Id. at 498 (citations omitted).]

Here, the father indicated he believed the parties' ability to communicate might well improve once the custody case was over. The mother expressed approval for communicating by email, as long as there were no harassing messages, stating that method of communication would be "great." The judge addressed the mother's concerns and ordered the parties to communicate in a fashion that addressed her apprehensions.

As observed by our Supreme Court, a court must be mindful to not base the potential of parties to effectively communicate upon conduct exhibited while in the midst of a contentious custody battle. See Beck, supra, 86 N.J. at 498-99. The Family Part judge appropriately adhered to this admonition. Moreover, email, for which a record of all communications is maintained, encourages many to refrain from engaging in harassing communications.

One of the factors in N.J.S.A. 9:2-4(c) is the geographical proximity of the parents' homes. The Family Part judge specifically noted the distance "complicates" matters. However, he implicitly found the problems in his decision presented by the distance are surmountable. More important, when before the Family Part judge, the mother did not advocate the distance between the parents' two homes precludes parenting time for the father. Her argument was it was more stressful for the child to travel from one home to the other every Sunday than to travel to the father's home every other Thursday and return the following Sunday. It is implicit in the judge's decision he rejected the mother's argument, the logic for which is certainly questionable, as the same number of trips are required under either scenario.

Finally, as for the factor addressing the extent and quality of the time spent with the child prior and subsequent to the separation, the child was only eleven months old at the time of the custody hearing. Nonetheless, both parents cared for Tom during his first two months of life. The father's paternity leave was not as generous as the mother's but, until her leave expired, both parties and the child lived under the same roof. After the parties separated, both filed applications for custody relatively quickly; for purposes of the pendente lite period only, the father agreed to having a parenting time schedule that was less than the mother's. Although the mother had spent more time with the child, the judge reasonably concluded such fact was not particularly relevant under these circumstances.

We next address the mother's assertion that various findings by the judge were not supported by the evidence. At the hearing, the judge noted the child appeared to be happy, well nourished, and cared for. The mother complains there was no evidence to support this conclusion. However, the mother in fact testified Tom is a very happy, stable, and healthy child.

The mother asserts the judge failed to review any home study, "custody neutral assessment," or a custody evaluation submitted by an expert before rendering his decision. First, there were no studies, assessments, or evaluations submitted to the judge for his review. Second, during oral argument before us, the mother conceded she could have but declined to obtain evidence of this kind.

During her testimony, the mother mentioned the father had reported to her that a pediatrician to whom the father had taken the child suggested Tom "may" have stranger anxiety. The mother testified she never observed Tom exhibit this kind of anxiety. On appeal, the mother argues the judge failed to make any findings whether placing Tom in daycare would have a "deleterious impact" upon Tom because he suffered from this form of anxiety.

First, there is no indication this physician opined the child suffered from this affliction within a reasonable degree of medical probability, see Germann v. Matriss, 55 N.J. 193, 202 (1970) (medical opinion testimony must be couched in terms of reasonable medical certainty or probability), and that the treatment for such disorder is a child not be placed in daycare. Second, the mother herself scoffed at the notion Tom suffers from this kind of anxiety.

The mother also complains the judge failed to take seriously the fact she was breastfeeding Tom at the time of the custody hearing and was "overtly hostile" toward her when addressing this topic. Read in context, the judge's comments do not depict hostility toward the mother but rather express skepticism over whether breastfeeding was or should be a true barrier to equal co-parenting.

The judge noted the child has a caretaker when the mother is at work, suggesting the child is being fed and nourished in ways other than breastfeeding. Further, the child was not being breast fed while in the father's care during his parenting time every other week. Implicit in the judge's comments is the child will not suffer harm if apart from his mother to have parenting time with his father.

Under the totality of the circumstances, we are satisfied the Family Part judge acted within his discretion and made appropriate findings under the law. We discern no error to warrant appellate intervention.

We have considered the mother's remaining arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The child's name is a pseudonym to protect his privacy.

2 Many months after she filed her notice of appeal, plaintiff filed another notice of appeal indicating she was appealing from not only the January 8, 2015 order, but also from an order entered on September 29, 2015. However, in the body of that notice plaintiff clarifies she was not appealing from any provision in the September 29, 2015 order.

3 The non-dissolution docket provides a mechanism for parents not married to each other to seek custody, parenting time, paternity, and child support. R.K. v. D.L., 434 N.J. Super. 113, 131 (App. Div. 2014).

4 The parents exchanged the baby at an approximate mid-point between their two homes. The 100 mile trip to the mid-point takes about two hours for each parent.