TAMARA LATORRE v. SALVATORE LATORRE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4982-05T54982-05T5

TAMARA LATORRE,

Plaintiff-Appellant,

v.

SALVATORE LATORRE,

Defendant-Respondent.

_______________________________

 

Argued April 23, 2007 - Decided May 22, 2007

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-566-98.

Ronald G. Lieberman argued the cause for appellant (Adinolfi and Spevak, attorneys; Mr. Lieberman, on the brief).

Jeffrey S. Craig argued the cause for respondent (Kelley, Wardell, Craig, Annin & Baxter, attorneys; Mr. Craig, on the brief).

PER CURIAM

This is an appeal from the denial of the application of plaintiff Tamara LaTorre ("the mother") for the appointment of a professional to perform a custody evaluation based upon the expressed desires of her thirteen- and ten-year-old children to live with their mother. The Family Part judge denied the application. We reverse and remand for the appointment of a custody evaluator and for judicial interviews of both children.

The mother and defendant Salvatore LaTorre ("the father") were married on July 8, 1994. This was the mother's second marriage. Two children were born of the marriage, Taylor V. LaTorre, born February 9, 1993, now fourteen years old, and Samuel L. LaTorre, born October 28, 1995, now eleven years old. The parties were divorced on March 20, 1998. In a property settlement agreement ("PSA") executed that day, the parties agreed that they would have joint legal custody and that the two children "will reside with Husband at the present time." The agreement also provided that the father would take Taylor for counseling if she had a difficult time adjusting to the change in her living arrangements and that, if either of the two children were not adjusting by December 1998, the father would permit such child to live with the mother. In addition, both parties agreed that a change of circumstances would arise if the mother returned to the State of New Jersey, permitting the mother to request a change of custody.

The mother's application was filed on March 13, 2006. In her supporting certification, the mother stated that she had lived in California for some time after the divorce, but at the time of the application resided in Hanson, Massachusetts, with her current husband, a dentist, and her two older children from her first marriage, Anthony, then age seventeen, and Alyssa, then age fifteen. She informed the court that since the divorce she had returned to school, obtained an undergraduate degree in political science and philosophy and, more recently, a law degree. She related that Taylor and Samuel were suffering from the constant fighting between the father and his current wife, that they telephone or text message her about their unhappiness, and expressed a desire to live with her. She then related the concerns her children expressed about the environment in the father's home and sought appointment of a custody evaluator.

The father filed a cross-motion to limit the mother's telephone visitation to a reasonable time and duration. In opposition to the mother's application, the father acknowledged "that custody is a fluid issue, that can change based upon the 'best interest of the children.'" He certified that the problems the mother reported were exaggerated, that the children were doing very well socially and in school, and that the home environment was supportive and nurturing. The father accused the mother of manipulating the children's expressed desires over a two-week period preceding the filing of the motion. He also contended that none of the conditions precedent to a change of custody as specified in the PSA had been shown.

In response to the father's charge of recent manipulation, the mother submitted letters and text messages which had been sent to her by her daughter over a two-year period, refuting his contention that the concerns expressed by his children were of recent vintage. She attached a letter from Taylor dated August 18, 2003, expressing how much Taylor missed her and that Taylor wanted to live with her. She also attached a July 1, 2005, text message from Taylor in which Taylor stated that she hoped that her wish would come true and that she was depressed, but she would be very happy if she lived with the mother. On August 31, 2005, Taylor again expressed the desire to live with her mother and stated that "dad is really starting 2 bother me." In the Fall of 2005 Taylor again wrote to her mother saying that she hated being where she was, that she wanted to live with her mother badly and that, although she loved her father, she did not "want to live with him anymore." The mother also reminded the court that she had not applied for a change of custody yet, but rather sought only the appointment of a custody evaluator.

Following oral argument the trial court denied the motion for appointment of a custody evaluator. In doing so, he inferred that the problems began when the father remarried, although he acknowledged that the record did not establish when that happened. He noted that Taylor was an adolescent, which from his experience was a very difficult time in the life of a child. He found that Taylor was not reacting very well to the presence of her step-mother in the house. He concluded that the mother had "seized" upon what was transpiring and that the mother's responses to the daughter's communications were not terribly constructive to the situation. He found that, if the mother were to move back to New Jersey, there would clearly be a change of circumstance. Because the school year was about to end, the judge stated:

We're on the eve of the end of school. I see nothing here that would warrant my fueling the fire that's burning here, and my suggestion is this. That the children be permitted to complete the school year. That they receive whatever counseling dad feels is in their best interest at this point in time and certainly have access to the school counselors. That they be permitted to initiate whatever correspondence they want with their mother. That their mother be asked not to telephone or text message them in anyway that would interfere with their normal recreational and academic activities and that both parties be cautioned against any negative comments and unsupportive comments about the children's current living situation or circumstance.

He found that "the appropriate time for a custody evaluation would be when and if mom moves to New Jersey or lives in close proximity, and then a change in the visitation or parenting schedule would be appropriate." The judge refused to appoint a custody evaluator and, apparently, did not believe that there would be any benefit from speaking with the children.

The mother's application was one for the appointment of an expert pursuant to R. 5:3-3, which empowers a Family Part judge to appoint an expert to make recommendations regarding custody disputes. We have held that the parties to a Family Part matter must have an appropriate opportunity for experts' assistance in custody contests. Kinsella v. Kinsella, 150 N.J. 276, 318-19 (1997); Fehnel v. Fehnel, 186 N.J. Super. 209, 215-16 (App. Div. 1982). As a consequence, the application was consistent with the Rules of Court and applicable case law.

Deference is generally accorded to a trial judge on discovery issues. Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997). Because discovery is committed to the sound discretion of a trial judge, we must review the denial of discovery for a mistaken exercise of discretion. Ibid. In Wilson v. Amerada Hess Corp., 168 N.J. 236, 253 (2001), our Supreme Court held that the denial of discovery where the discovery might have raised a jury question on an issue in the case was a mistaken exercise of discretion. Thus, in reviewing the Family Part judge's denial of discovery here, we must determine whether the discovery sought might have raised a triable custody issue.

Generally, in reviewing determinations of Family Part judges, we accord deference to their fact-finding "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Nonetheless, a judge may not decide contested issues of fact based on conflicting affidavits. Conforti v. Guliadis, 245 N.J. Super. 561, 566-67 (App. Div. 1991), modified on different grounds, 128 N.J. 318, 328-29 (1992). As we have cautioned previously,

This . . . decision obviously should not have been made on the basis of filed documents consisting of self-serving certifications by the parties, conflicting psychiatric reports, and an unseemly and irrelevant barrage of attorney certifications and inadmissible expressions of community sentiment. That it was so made without an evidential basis, without examination and cross-examination of lay and expert witnesses, and without a statement of reasons is untenable in the extreme.

[Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).]

Furthermore, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In addition, a trial court must relate its factual findings to relevant principles of law. Wertlake v. Wertlake, 137 N.J. Super. 476, 485 (App. Div. 1975) ("It is, of course, elementary that in every contested action tried upon the facts without a jury, the judge is required to find the facts specially and state separately his conclusion of law thereon. R. 1:7-4(a).").

Where a party seeks to modify a PSA regarding custody, that party bears the burden of showing a change of circumstances such that the PSA is no longer in the best interests of the child. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003). A court will not consider a custody agreement as binding. Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). Additionally:

Whenever there is presented to the court a motion to modify the terms of a judgment and the motion makes a prima facie showing that the moving party is entitled to relief and there are contested issues of fact, the motion should not be disposed of by affidavits, answers to interrogatories and depositions. There should be a plenary hearing. At the conclusion of the plenary hearing, the trial court must find the facts both subsidiary and ultimate and "state its conclusions of law thereon." R. 1:7-4.

[Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App. Div. 1971).]

Significantly, we have long recognized that the preference of the child is a factor that a Family Part judge must consider, along with all other factors. Lavene v. Lavene, 148 N.J. Super. 267, 271-73 (App. Div.), certif. denied, 75 N.J. 28 (1977); Sheehan, supra, 51 N.J. Super. at 291; Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952). Indeed, as part of a custody hearing, the court may interview the child as to his or her preference for custody if the child is of sufficient age and maturity. R. 5:8-6; N.J.S.A. 9:2-4; Ronan v. Adely, 182 N.J. 103, 108 (2004).

The pivotal issue before the court was whether the mother had made out a sufficient prima facie showing to support further investigation respecting whether the custody arrangement remained in the best interests of Taylor and Samuel. Clearly, Taylor was expressing significant dissatisfaction with that arrangement. The custodial preference of a teenager is a factor that a judge must consider. Yet the judge, without even interviewing the children, attributed that preference, expressed over a two-year period, to manipulation by the mother.

It also seems that the judge construed the PSA to limit a change of custody to a situation where the mother returns to New Jersey. Even if the agreement so provided, which it does not, we have held that an agreed custody arrangement is not binding. Sheehan, supra, 51 N.J. Super. at 287. This is so because the best interest of the child, not the parents, is paramount.

Considering the facts presented by the mother and assuming the truth of those facts, it becomes clear that the mother has made out a prima facie case for change of custody. Having done so, it then becomes readily apparent that the judge was mistaken when he exercised his discretion to deny the request for appointment of a custody evaluator. Such an expert would have provided "inestimable help" to the court and the parties in evaluating Taylor's expressed desire for a change of custody. Trotta v. Trotta, 59 N.J. Super. 597, 602 (App. Div. 1960). As a consequence, the denial of the motion for appointment of a custody evaluator is reversed and the matter is remanded to the Family Part for appointment of an expert and such other proceedings consistent with this opinion.

The development of the record in this matter is similar to that in Johnson v. Johnson, 390 N.J. Super. 269, 275-76 (App. Div. 2007):

Here, the motion judge resolved factual disputes against defendant without a hearing, and also expressed his belief in the credibility of the accountant. Under the circumstances, the evidentiary hearing must be conducted by another judge. See P.T. v. M.S., 325 N.J. Super. 193, 200 (App. Div. 1999) (remanded to a different judge when a necessary plenary hearing was not conducted and the appeal concerned orders imposing sanctions for failure to comply with orders); Carmichael v. Bryan, 310 N.J. Super. 34, 49 (App. Div. 1998) (remanded to another judge because the motion judge expressed an opinion regarding party's intent when weighing the evidence and may be committed to his findings).

Because the judge in denying this application drew inferences against the mother and resolved disputed facts based on conflicting certifications, the matter should be assigned to another judge. R. 1:12-1(d). See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617-18 (1986).

Reversed and remanded for proceedings consistent with this opinion.

 

Although the mother sought additional relief, the judge's determination of those issues is not the subject of this appeal.

(continued)

(continued)

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A-4982-05T5

May 22, 2007