EVERETT JACKSON v. LADEEN HAGANS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6023-05T56023-05T5

EVERETT JACKSON,

Plaintiff-Appellant,

v.

LADEEN HAGANS,

Defendant-Respondent.

__________________________________

 

Argued September 11, 2007 - Decided October 17, 2007

Before Judges Wefing, R. B. Coleman, and Lyons.

On appeal from Superior Court of New Jersey,

Chancery Division - Family Part, Essex County,

No. FD-07-520-06.

Sidney Shaievitz argued the cause for appellant

(Shaievitz & Berowitz, attorneys; Mr. Shaievitz,

on the brief).

Edward H. Hill argued the cause for respondent

(Mattleman, Weinroth & Miller, attorneys; Mr.

Hill, on the brief).

PER CURIAM

Plaintiff appeals from a trial court order denying his motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Plaintiff and defendant are the father and mother, respectively, of a nine-year-old daughter who is the subject of this litigation. Although the parties were never married, they had a dating relationship of many years. They did not formally live together, but plaintiff stayed with defendant for several months after their daughter was born to assist in her care. Defendant has a child by another relationship, a son now more than twenty years old. At the time of trial, he was a resident student at Kean University, returning to his mother's house during school vacations. Plaintiff has a child from another relationship as well, a daughter in her mid-twenties who lives in Baltimore.

From the time their daughter was born, she resided with her mother and half-brother until shortly before this litigation commenced, at which point she was seven years old. During those seven years, the parties had an informal understanding on custody. The child lived primarily with her mother, but plaintiff saw her almost daily. She would spend overnights with him and go on trips with him as well. When the child started school, plaintiff, who was a teacher, would pick her up from school and take her to defendant's home where he would see to her homework and prepare dinner for the three of them.

Despite the long-standing nature of the relationship between plaintiff and defendant, plaintiff and defendant's son did not develop a close relationship with each other. As the boy entered his teens, their relationship became strained. Eventually, plaintiff decided that the young man was not a positive influence over his daughter. His view was triggered by several episodes, in particular, his belief that the young man had abused the young girl's pet cat. The parties had, moreover, begun to quarrel between themselves about visitation and pick-up times. At one point, the child, who had been visiting with her father, did not want to return to her mother's house and the police were summoned.

Plaintiff's concerns with regard to defendant's older son led him to file a pro se complaint on July 5, 2005, seeking sole custody of the girl. The trial court entered an order on July 21, 2005, granting temporary physical custody of the girl to defendant but joint legal custody to both and directing that a best interests evaluation be conducted. That order also set out a parenting schedule. It provided that until September 2, the child would spend Monday through Friday with plaintiff and weekends with defendant. Beginning September 3, the child would reside with defendant but be with plaintiff every day after school. The order also provided that commencing September 3, the parties would alternate weekends.

The matter proceeded to trial. That trial was unfortunately protracted. The primary reason for the delay was a report by defendant's attorney to the trial court that she had received a telephone call from an individual who identified herself as a therapist treating plaintiff's older daughter. According to the attorney, the therapist stated that based upon her conversations with plaintiff's daughter, she was concerned about the possibility that plaintiff was sexually abusing his young daughter. The attorney advised the court that her client had taken the child to a pediatrician and a gynecologist, who found no physical evidence of abuse and that, based upon the therapist's recommendation, had engaged the services of a psychologist for the child.

Although no corroboration was ever supplied for this hearsay accusation, the trial court immediately ordered a complete cessation of plaintiff's visitation and ordered the Division of Youth and Family Services ("DYFS") to conduct an investigation. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005) (noting that "an unsworn uncross-examined letter [is not] a basis for changing custody"). That DYFS investigation consumed several months. After DYFS could find no support for the accusation, the trial court permitted a resumption of visitation but directed that it had to be supervised. At the close of the proceedings, the trial court rendered an oral opinion in which it stated its reasons for denying plaintiff's application for sole custody. It then proceeded to add that it had concluded plaintiff "shows an extreme lack of judgment around children" and awarded sole physical and legal custody to defendant, relief which she had never requested. The trial court directed that defendant was "to make both the day-to-day decisions as well as the major decisions about this child."

The trial court also directed that any motion by plaintiff for a change in custody would have to be supported by a psychological evaluation. Plaintiff filed a motion for reconsideration, which the trial court denied. Plaintiff included in his moving papers a psychological evaluation prepared by Andrew P. Brown, Ph.D., and submitted on the letterhead of Neurobehavior Consultants, Inc. The trial court declined to consider the report, however, because it did not state that Dr. Brown was a licensed psychologist. Three days later plaintiff sent to the court a copy of Dr. Brown's current licensure from the State of New Jersey as a practicing psychologist, but this did not produce any modification. This appeal followed.

We note at the outset the limited scope of our review. The general rule is that findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This principle is particularly applicable in a matter such as this. Recognizing "the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. This court has noted that "the opinion of the trial judge in child custody matters is given great weight on appeal." Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994).

"The court has broad discretion in dealing with the custody of a child, being always aware that the welfare and happiness (best interests) of the child is the controlling consideration." Mayer v. Mayer, 150 N.J. Super. 556, 562-63 (Ch. Div. 1977). The court is, however, required to analyze the evidence in terms of the statutory criteria to determine which decision is in the best interests of the child. Terry, supra, 270 N.J. Super. at 119. The statute provides as follows:

In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of children. A parent shall not be deemed unfit unless the parents' conduct has substantial adverse effect on the child.

[N.J.S.A. 9:2-4(c).]

Joint legal custody involves sharing "the authority and responsibility for making 'major' decisions regarding the child's welfare." Nufrio v. Nufrio, 341 N.J. Super. 548, 551 (App. Div. 2001) (quoting Pascale v. Pascale, 140 N.J. 583, 596 (1995)). Although joint legal custody may be preferred, Grover v. Terlaje, 379 N.J. Super. 400, 406 (App. Div. 2005), a court should analyze both legal custody and physical custody in reaching its conclusion whether joint legal custody is appropriate or not. Pascale v. Pascale, 140 N.J. 583, 595-96 (1995). Our review of the trial court's oral opinion convinces us that it focused on physical custody and premised its award of sole legal custody to defendant on its conclusion that defendant should have physical custody. This was error.

Further, throughout its opinion, the trial court focused almost exclusively on the nature of the relationship that existed between plaintiff and defendant's son. While we might concur with the trial court that plaintiff's behavior on several occasions was not appropriate, and may only have had the effect of goading the young man, we cannot perceive that the incidents referred to at trial justified the drastic step of awarding sole legal custody of the parties' daughter to defendant. That is particularly so in light of the fact that, as we have noted, defendant never sought such relief.

The trial court also noted in its oral opinion that defendant's relationship with her daughter had improved during the course of these proceedings. That improved relationship, however, is an insufficient basis to vest defendant with sole decision-making authority with respect to all issues involving the child. Custody issues must focus on the best interests of the child, not the parent.

The trial court also noted that the girl's schoolwork had improved after plaintiff's visits and decision-making role were reduced. We find an insufficient evidential basis in the record for this finding. The evidence is clear that the child always did well in school.

At the motion for reconsideration, the trial court stated:

Based on the fact that [plaintiff's] complaint was not sustained by his own evidence, moreover, the perspective that he presented to the Court not only insisting that I interview [the girl] but also the interpretation that was given to these -some of the conduct engaged in by [plaintiff's son], led this Court to conclude, and as well his testimony about the things that he does with the child, his own testimony that she knows about everything, that she's a very mature little girl, she's seven years old, and that his view of the child was disturbing to this Court and led me to conclude that it was in her best interest to have mother make the decisions about the major issues.

That plaintiff presented insufficient evidence to warrant granting him the sole custody he requested is not a basis to award sole custody to defendant.

We are satisfied, however, that the trial court engaged in a correct analysis when it discussed the question of physical custody. Moreover, it is clear that plaintiff presented insufficient evidence in support of his own case seeking a transfer of physical custody to himself.

Because we have determined that the matter must be reversed in part and remanded to the trial court for further proceedings, it is unnecessary to address plaintiff's remaining contentions. In particular, there is no need to address plaintiff's request that the matter on remand be heard by a different judge; the judge who presided over these proceedings is no longer sitting in the Family Part.

The trial court's award of sole legal custody to defendant is reversed, and the matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.

 

There is no indication in the record before us that the parties were referred to mediation. R. 5:8-1.

The reference to "she knows about everything" came from plaintiff's statement at the time the trial court ordered a best interests investigation. The trial court interpreted the remark to mean that plaintiff was discussing the litigation with the child. In context, it was more likely a statement that the child could speak about her own relationship with her half-brother, as well as her father's.

(continued)

(continued)

10

A-6023-05T5

October 17, 2007