BHARATI RATH v. RAJIB MISHRA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3450-05T33450-05T3

BHARATI RATH,

Plaintiff-Respondent,

v.

RAJIB MISHRA,

Defendant-Appellant.

___________________________________

 

Submitted March 28, 2007 - Decided June 27, 2007

Before Judges Lefelt, Parrillo, and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1787-03.

Hanlon, Dunn & Robertson, attorneys for appellant (Robert E. Dunn, of counsel and on the brief).

Kanengiser & Kalish, attorneys for respondent (Arthur D. Malkin, on the brief).

PER CURIAM

Defendant Rajib Mishra appeals from the provisions of a dual Final Judgment of Divorce (FJD) entered on February 7, 2006, that: (1) awarded plaintiff Bharati Rath primary residential custody and the tax exemption for the minor child born of the marriage; (2) permitted plaintiff to travel internationally with the child; (3) authorized the local police, where defendant resides, to enforce the parenting provisions of the divorce decree; (4) directed defendant to pay $239 per week in child support; (5) ordered defendant to reimburse plaintiff for medical insurance premiums; and (6) awarded plaintiff $6,000 in counsel fees towards her total bill. The trial judge expressed his reasons for his decision both orally and in an extensive letter opinion dated January 27, 2006. We affirm.

The contested issues were tried over two consecutive days in November 2005. Because the parties stipulated that they mutually waived issues of equitable distribution and alimony, the trial focused primarily upon custody and parenting issues.

The marriage was a short-term arranged union that took place in India on February 17, 1997. The parties emigrated to the United States and eventually settled in Matawan, Monmouth County. Plaintiff holds an engineering degree in electronics, a master's degree in management, and is employed by Lucent Technologies. Defendant has a master's degree in computer science and has worked in various jobs in the area of consulting software engineering and development. The parties' marriage was apparently never a happy one, a circumstance that did not change upon the birth of their son on December 9, 2001.

The parties presented conflicting versions as to who was the primary caregiver in the child's first year. Defendant asserted that he dropped off and picked up his son from daycare, supervised the child's apnea monitor, fed him and took care of him every evening until plaintiff returned from work. On the other hand, plaintiff claimed that she cared for the child while on maternity leave for two months, was responsible for selecting child care, checked on the child at daycare during lunchtime, that defendant denied the child's paternity, and generally left the parenting to her.

A domestic violence incident on December 23, 2002, ultimately resulted in the issuance of a final restraining order that, among other relief, permanently restrained defendant from returning to the marital residence, awarded custody of the minor child to plaintiff, granted supervised visitation to defendant, required defendant to undergo a risk assessment, ordered defendant to pay child support of $205 per week, and also required defendant to pay one-half of the daycare costs.

Plaintiff filed a complaint for divorce on May 15, 2003. Shortly thereafter, in June 2003, plaintiff moved from the marital residence in Matawan to Pine Brook, Morris County. Plaintiff's relocation geographically separated the parties by approximately fifty miles. Over the next two years while the matrimonial action was pending, there were a number of pendente lite proceedings between the parties involving issues of visitation and child support. In addition, an order was also entered directing defendant to reimburse plaintiff for the medical insurance premiums she incurred for defendant's coverage on her plan.

The court appointed Dr. Amy Altenhaus, a licensed psychologist, to perform a custody evaluation. Her report was admitted into evidence as a court exhibit. Dr. Altenhaus concluded that defendant's interpersonal difficulties prevented him from being a positive custodian and that plaintiff was better suited to the task.

At the conclusion of the trial, the trial judge requested that each party submit written summations addressing child support, custody, and the use of a parenting coordinator. The court also permitted oral summations. The judge awarded joint legal custody of the minor child to both parties with primary residential custody awarded to plaintiff. Defendant's appeal followed.

On appeal, defendant raises the following points for our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING JOINT PHYSICAL CUSTODY.

A. The Trial Judge's General Predisposition Regarding Joint Physical Custody.

B. The Trial Judge Considered Inappropriate Factors In Determining Custody.

II. THE FINAL JUDGMENT OF DIVORCE IS ERRONEOUS IN THE AMOUNT SET FOR CHILD SUPPORT.

A. The Amount of Child Support Set In The Final Judgment of Divorce Is Contrary To The Evidence And Testimony During The Trial.

B. The Trial Court Improperly Imputed Income To The Defendant In Determining Child Support.

III. THE COURT DID NOT CONSIDER THE INEQUITIES OF ALLOWING POLICE INTERVENTION FOR FAILURE OF DEFENDANT TO RETURN CHILD FROM PARENTING TIME.

IV. THE COURT DISREGARDED THE EVIDENCE BY ALLOWING THE PLAINTIFF TO TRAVEL INTERNATIONALLY WITH THE CHILD.

V. IT WAS INEQUITABLE FOR THE COURT TO GRANT PLAINTIFF THE TAX EXEMPTION FOR THE CHILD IN 2005.

VI. THE COURT[']S ORDER FOR DEFENDANT TO REIMBURSE PLAINTIFF FOR MEDICAL INSURANCE WAS AGAINST THE WEIGHT OF THE EVIDENCE.

VII. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT STATUTORY CONSIDERATIONS TO SUPPORT AN AWARD OF ATTORNEY FEES.

We have considered the contentions in light of the record and applicable law and, with the exception of Points I, II, III and VII, find them without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

I.

A.

Defendant contends that in awarding primary physical custody to plaintiff, the court demonstrated its predisposed bias towards him, ignored his role in his son's development, did not consider his relocation closer to the minor child, improperly relied upon a contested and incomplete expert report, and disregarded the utter lack of credibility in plaintiff's testimony.

In granting primary physical custody to plaintiff, the court stated:

At the trial, the Court heard the passionate testimony of both parties. The trial afforded the Court the opportunity to assess credibility. As a result, the Court is in complete agreement with the findings and parenting recommendations advanced by the Court-appointed expert, Dr. Amy Altenhaus, in her report dated October 12, 2004. The Court agrees with Dr. Altenhaus that the plaintiff would be the more suitable primary, residential custodial parent . . ., a role which she has in fact exercised since the separation of the parties on 12/23/02, and throughout the pendency of this divorce action.

As stated, by Dr. Altenhaus on page 26, paragraph 2 of her report, "I am concerned about Mr. Mishra's difficult interpersonal style, his suspiciousness and accusations of others, most importantly, Ms. Rath. This style makes it difficult for him to be in a cooperative relationship and detracts from his being a joint custodian. Ms. Rath has a history of making good decisions for [their child]. She is capable of being a good, sole custodian."

. . . .

The Court finds the defendant and plaintiff have difficulty communicating due to defendant's conduct as set forth in the Altenhaus report. Also, there is a Domestic Violence FRO as a result of defendant's actions.

Plaintiff has been the primary custodial parent since birth and has tried to facilitate visitation. The defendant has been difficult to communicate with and is much less flexible.

. . . .

As noted, there is a FRO in place as a result of defendant's actions and anger which appears, from his testimony and demeanor, to be unabated. As a result, parental exchanges are at police stations, which is not in the child's best interests.

. . . .

The child is extremely attached to the plaintiff as she has been the primary caretaker since birth. She clearly puts the child's needs ahead of all of her personal concerns. The same can not be said about the father.

. . . .

The Court finds the plaintiff is extremely fit to be the primary caretaker of the child. For the reasons articulated in this opinion and the Altenhaus report, the Court does not find the defendant equally fit.

. . . .

At the trial, the Court had an opportunity to hear the extensive, passionate testimony of the parties, which graphically illustrated the personality traits of each. The Court is deeply concerned with the extreme anger which is being harbored by defendant and remains unabated. This anger interferes with all aspects of defendant's relationship with plaintiff, as well as with his ability to effectively or suitably parent the minor child of the marriage.

This testimony was supplemented by evidence of defendant's unsubstantiated allegation to DYFS; his failing to pick up the child from the day care facility on several occasions without adequate notice to either plaintiff or the facility itself; his failing to send the child to the day care with lunch; and his failing to contribute to the child's speech therapy costs.

It is clear to this Court that the best interests of [the child] are served by plaintiff being awarded primary residential custody of the child with defendant being designated the parent of alternate residence in a joint legal custody arrangement.

Trial courts are given due deference in their evaluation of testimony and determinations of credibility in any situation, particularly when adjudicating family issues. P.B. v. T.H., 370 N.J. Super. 586, 601 (App. Div. 2004). 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). In our view, defendant's claimed trial court errors related to custody amount to little more than dissatisfaction with the result. As such, defendant's bare allegations on this issue do not warrant further consideration.

B.

The weight assigned by the trial court to the psychological evaluation, in light of the parties' testimony, was part of its fact-finding function and, as such, is given due deference if adequately supported by the record. Ibid. Here, there is adequate support in the record. The expert report found that defendant was "suspicious[]," often accusatory, and had a "difficult interpersonal style," all of which the court found would interfere with his ability to cooperate in a joint custodial relationship. Thus, the trial court was "in complete agreement" with the expert report.

Contrary to defendant's contention, the court's concurrence with the expert's findings did not reflect a delegation of its decision-making authority to the expert. See P.T. v. M.S., 325 N.J. Super. 193, 215-16 (App. Div. 1999). The trial court evaluated the testimony and evidence that was presented to it. That the judge ultimately expressed agreement with the expert does not translate into a relinquishment of the trial judge's decision-making role. See In re Guardianship of J.C., 129 N.J. 1, 22 (1992) (noting that a court has a duty to "make sense of the competing views presented by the experts" to enable it to make a sound determination consistent with the child's best interests). In short, the trial court's findings are well-supported by the record and reflect proper application of the standards for awarding custody. N.J.S.A. 9:2-4(c); Beck v. Beck, 86 N.J. 480 (1981).

Nor do we agree that defendant was denied his right to cross-examine the expert. See Kinsella v. Kinsella, 150 N.J. 276, 319-20 (1997). Specifically, defendant claims that error occurred when the trial court cut off his testimony related to his grievances with the expert. During defendant's testimony, he commenced to render his opinion about Dr. Altenhaus' report. The trial court interrupted this testimony and stated, "Sir, I am not the least bit interested in your criticism of Ms. Altenhaus."

As the court-appointed expert, Dr. Altenhaus was subject to subpoena and equally available to both parties. See R. 5:3-3; R. 4:14-7. Defendant did not choose to subpoena the witness and did not object to her non-appearance at trial. In as much as the issue was not raised before the trial court, we are not obliged to consider this issue on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

II.

Prior to the entry of judgment, defendant was paying $209 per week in child support. The FJD directed defendant to pay an additional $30 per week in child support based upon an $85,000 annual income, of which $15,000 was apparently imputed to defendant based upon his testimony that he expected to earn $85,000 annually in the coming year. Defendant contends that the change in child support made by the trial court was neither sufficiently explained nor appropriately based on a Child Support Guidelines worksheet (worksheet). We disagree.

Rule 5:6A requires that courts apply the Child Support Guidelines (guidelines) when considering a child support award, although the rule also authorizes courts to modify or disregard the guidelines on good cause. Caplan v. Caplan, 182 N.J. 250, 264 (2005). "The guidelines were developed to give the court clear economic information in determining initial or modified fair and adequate child support awards." Ibid. (Internal quotation marks omitted). Moreover, Rule 5:6A requires that an order or judgment of child support is based upon a completed worksheet.

The sequence of events that led to the change in the child support award took place as follows. First, plaintiff's post-trial written summation included a completed worksheet that set defendant's obligation at $209 per week. However, during oral summations, plaintiff's counsel alerted the court to the error in the calculations and, without objection from defendant, offered a new worksheet. Later that same day, the court released its written opinion which had been prepared in advance as a preliminary decision prior to oral summations. The original $209 weekly child support figure was included in the preliminary decision. The dual FJD incorporating the court's decision was filed February 7, 2006, and included a space for the entry of the weekly child support figure. The court handwrote $239 in that space. Thus, the events that led to this change are clear. The change from $209 to $239 was based upon the supplemental worksheet, and because no objection was raised on this issue before the trial court, we decline to consider it on appeal. Nieder, supra, 62 N.J. at 234.

Defendant also argues the trial court erred when it imputed income to him. At trial, the following testimony was elicited regarding defendant's income:

THE COURT: Are you an employee of your company or an independent contractor?

[DEFENDANT]: This, I'm an independent -- I'm an employee of Craftware.

THE COURT: And then they send you out to various assignments[?]

[DEFENDANT]: Yes.

THE COURT: And when the assignments are gone do they terminate your employment or put you on unemployment?

[DEFENDANT]: Yeah, that's what they do do. But this particular specific assignment I have taken, they're going to eventually hire me after like six months.

THE COURT: For how much?

[DEFENDANT]: That I don't know. At six months they'll, you know, whatever it is. I'm expecting more than 70,000.

THE COURT: How much are you expecting?

[DEFENDANT]: About like reasonable, like about 85 or so, I'm expecting.

. . . .

Q Is this the second consecutive job you've held in this calendar year, at a $70,000 annual salary? You might have earned 70 because you've had periods of unemployment. But it's based on an annual salary of seventy. Is that right?

A Yes.

Q And this is in fact the second job in this calendar year at that same rate. Is that right?

A That's right.

Q And I have some exhibits here to show you, attempts to secure employment during the periods of unemployment this year. Are these some emails for some jobs you've sought?

A Yes. There are a lot of, I have a lot of --

THE COURT: I'll accept his testimony he's going to earn $85,000 this year.

[DEFENDANT'S COUNSEL]: Okay.

THE COURT: I don't think you dispute that, do you?

[PLAINTIFF'S COUNSEL]: No, Judge.

THE COURT: Okay.

[DEFENDANT'S COUNSEL]: Well, it previously was disputed, Your Honor. Okay, nothing further on the income, Your Honor.

THE COURT: Okay. Cross examine on that?

. . . .

Q Mr. Mishra, I show you what's been marked P-8 and P-9. Let's go in chronology. P-9 is your W2 for 2003. Now, it shows 117,260 for you[r] wages from your employment at Seamless. Right?

A Uh hum.

Q And also in 2003 you earned $3,856 from unemployment. Correct?

A Yes.

Q So the combined amount that you earned in 2003 wasn't 117,260, it's 120, it's almost $121,000 for 2003. Is that correct?

A Yes. That's right. That's right.

. . . .

Q Mr. Mishra, I show you what's been marked P-[9] and this is your 2004 W2. You have 35,400 from --

A Yes.

Q And then 60,000 from Craftware, which is the company that you're working for now. Right?

A Yes.

Q 60,000. So 60 and 35, so that's 95,400. Okay. So that matches. But the P-9, you had an extra almost $4,000 worth of income from unemployment. So it's really 121 and 95.

A Yes.

Ultimately, the trial court settled on an income for defendant of $85,000. Defendant testified that he expected to receive that amount in approximately six months. He also acknowledged that his income over the preceding years had fluctuated. Thus, based solely upon defendant's testimony, the trial court imputed an additional $15,000 of income. Since potential earning capacity, rather than actual income, is the determinative measure for support, Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999), we see no abuse of discretion in the court imputing an additional $15,000 of income to defendant. See Bonanno v Bonanno, 4 N.J. 268, 275 (1950) (holding earning capacity is a proper consideration in fixing an award of spousal support).

III.

Defendant argues that the trial court abused its discretion when it authorized police enforcement of the parenting provisions of the FJD. An abuse of discretion "arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks omitted).

The pertinent section of the FJD states, "Any local police department where [defendant] is located shall be authorized to enforce the parenting provisions set forth in this Judgment of Divorce.(ref;order dated 1/30/04, paragraph 7)[.]" Defendant contends that (1) plaintiff has abused this order in the past, (2) this order should apply to both parents, (3) it should be required that the parental coordinator is contacted before the police, (4) this provision should be invoked only under extreme conditions, and (5) sanctions should be issued for abuse.

The record reveals that defendant has had a history of making complaints about plaintiff to the police and DYFS that subsequent investigations reveal were unsubstantiated charges. Both parties accuse the other of failing to abide by the parenting schedules, but it is defendant who has the documented history of failing to give notice of his intention not to invoke parenting time. It is also defendant who has failed to provide his child with lunch, and it is defendant who has failed to comply, in a timely manner, with support orders.

Consequently, the court found that plaintiff was a credible and dependable parent, in contrast to the record of uncooperativeness the court found as to defendant. We discern nothing irrational, inexplicable, or impermissible on the part of the court in authorizing any local police department where defendant is located to enforce the parenting provisions of the FJD. Id. at 571.

IV.

Defendant challenges the $6,000 in counsel fees awarded to plaintiff. Defendant urges that the record fails to support such an award.

Counsel fee awards are permitted in part as a means of affording parties with disparate financial positions an equal opportunity to litigate good faith issues. Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (citing Anzalone v. Anzalone Bros., Inc., 185 N.J. Super. 481, 486-87 (App. Div. 1982)). These awards are also designed "to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees" by "sanction[ing] a maliciously motivated position and indemnif[ying] the 'innocent' party from economic harm." Ibid. (citing Fagas v. Scott, 251 N.J. Super. 169, 194, 197-200 (Law Div. 1991)).

Counsel fees and costs, authorized in matrimonial cases by Rule 4:42-9(a)(1) and N.J.S.A. 2A:34-23, may be granted at the discretion of the trial court subject to a review of "the factors set forth in [Rule 5:3-5(c)], the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23; see also Williams v. Williams, 59 N.J. 229, 233 (1971). Rule 5:3-5(c) sets forth the following criteria:

In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[Ibid.]

Here, the trial court granted defendant counsel fees with the following observation in its opinion:

Although the parties possess equivalent earning capacities and have retained assets rendering each of them able to pay his/her own attorney fees in connection with this action, the Court finds that defendant's recalcitrant, uncooperative and unrealistic behavior throughout the course of this matter has led to the incurrence of attorney fees by plaintiff which would otherwise not have been incurred.

Of the $71,913.25 of attorney fees incurred by plaintiff since the inception of this matter (See Certification of Lawrence H. Kalish, Esq. and Certification of Michael Rothmel, Esq., submitted herewith) the Court finds that defendant's conduct was directly responsible for $6000 of the total attorney fees which the plaintiff has incurred (P-23). Defendant shall reimburse plaintiff the amount of $6000 for counsel fees within 90 days.

The trial court properly considered the financial status of both parties, the ability of the parties to pay, defendant's bad faith, and the fees incurred by plaintiff. A further examination of the record establishes that the trial court also considered the remaining factors set forth in Rule 5:3-5(c) at the oral summation hearing on January 27, 2006.

Also, during the trial the court considered whether fees were previously awarded and if they were paid:

[DEFENDANT'S COUNSEL]: [T]he Court did award counsel fees periodically, Your Honor.

THE COURT: How much was previously awarded? Do you know?

[PLAINTIFF'S COUNSEL]: $1,500 and then 250.

THE COURT: That's all?

[PLAINTIFF'S COUNSEL]: Both of which were paid. Those are for specific instances where the Court thought that they were warranted.

After accounting for prior awards, the trial court elicited the exact amount of attorney's fees requested by plaintiff:

THE COURT: In your counsel fee application you applied for -- How much was it, 17,000 as I recall?

[PLAINTIFF'S COUNSEL]: Yes.

[DEFENDANT'S COUNSEL]: Seventeen.

[PLAINTIFF'S COUNSEL]: Yes. We spent, the plaintiff has spent during the course of this litigation, a total of 71 --

THE COURT: $71,913.25.

[PLAINTIFF'S COUNSEL]: Correct.

THE COURT: You applied for 17,000.

[PLAINTIFF'S COUNSEL]: Of that we thought that the part of it that was attributable almost directly to [defendant's] conduct or his actions in this case, was the $17,000 figure.

Further, the trial court considered the results obtained by hearing argument on each item of the proposed fee award, and finally, inferentially, the trial court apparently contemplated the degree to which fees were incurred to enforce existing orders or to compel discovery, because only those fees incurred enforcing the 2003 tax deduction order and defendant's child support arrears were granted.

Therefore, the record demonstrates that the trial court properly considered all the relevant factors enumerated under Rule 5:3-5(c) before exercising its discretion to award $6,000 in counsel fees. N.J.S.A. 2A:34-23. A violation of discretion "arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg, supra, 171 N.J. at 571 (internal quotation marks omitted). Defendant has presented no basis upon which we could find that the trial court's decision was irrational, impermissible, or contrary to established policy. See Accardi v. Accardi, 369 N.J. Super. 75. 91-92 (App. Div. 2004) (where the court reversed the award of counsel fees because an analysis of the factors set forth in Rule 5:3-5(c) was not conducted).

Affirmed.

 

Subsequent to the entry of the FJD, defendant moved closer to plaintiff's residence.

(continued)

(continued)

21

A-3450-05T3

June 27, 2007