LISA M. TRAYNOR v. GERARD TRAYNOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3630-09T4

LISA M. TRAYNOR,

n/k/a DALLARA,

Plaintiff-Respondent,

v.

GERARD TRAYNOR,

Defendant-Appellant.

March 29, 2011

Submitted February 7, 2011 Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-844-03X.

Law Office of Mark J. Molz, P.C., attorneys forappellant (Justin Van Dyke, onthe brief).

Archer & Greiner, attorneys for respondent (Kathleen P. Stockton and Jennie A. Owens, on the brief).

PER CURIAM

Defendant Gerard Traynor appeals from the March 26, 2010 denial of his application to become the parent of primary residence (PPR) of the parties' then eleven-year-old daughter, and the award of $1530 in counsel fees to plaintiff Lisa M. Traynor, n/k/a Dallara. For the reasons that follow, we affirm.

The parties divorced on May 19, 2003. Since that time, they have sought post-judgment relief on at least twelve occasions. Six of these proceedings were before Judge Haas, who rendered the decision now appealed. This was defendant's third application to become PPR since 2008.

The child has expressed a preference to live with her father, although she currently does very well both in- and out-of-school. She enjoys a good relationship not only with her biological parents, but with her step-parents and her blended families. When the child was approximately eight years old, she was given the mistaken impression, by one or both of her parents, that she had the right to choose the home where she preferred to live. As Judge Haas found, however, there are indications defendant may be unwittingly pressuring the child to live with him. An example of this conduct was his gift to the child of a backpack bearing the logo of the grade school in his district.

After defendant's initial application in 2008, evaluations were completed and a parenting coordinator, Kim Fendrick, was appointed. Fendrick's summary issued in May 2009.

The court's most important subsequent directive was that the parties and the child engage in counseling because, regardless of the outcome of the motions, they would need assistance in adjusting to the status quo, particularly the child. No such counseling has occurred.

On appeal, defendant raises the following points:

POINT I: JUDGE HAAS ABDICATED HIS ROLE AS PARENS PATRIAE

POINT II: JUDGE HAAS ABUSED HIS DISCRETION BY INDICATING THAT INTERVIEWING WITH A 12 YEAR OLD WOULD BE "SCARY" AND BY REFUSING TO CONDUCT THE INTERVIEW

POINT III: JUDGE HAAS ABUSED HIS DISCRETION BY FACT FINDING IN THE FACE OF CONTESTED CERTIFICATIONS

POINT IV: JUDGE HAAS AWARDED ATTORNEY'S FEES TO THE PLAINTIFF WITHOUT ASCERTAINING NEED AND ABILITY TO PAY AND OTHER STATUTORY FACTORS

POINT V: JUDGE HAAS ABUSED HIS DISCRETION BY FAILING TO REQUEST A REPORT FROM PARENTING COORDINATOR KIM FENDRICK

We affirm, essentially for the reasons stated in Judge Haas's thorough, detailed, and considered statements of reasons. We principally rely upon his factfinding and legal analysis, and make only the following brief comments.

The standard of review on matters of custody and parenting time is highly deferential. 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).

a.

In his first two points, defendant asserts Judge Haas "abdicated his role" by refusing to interview the child. We do not agree. Rule 5:8-6 vests in the trial court only the discretion to interview a child if there is a genuine and substantial issue of custody. It does not impose a mandate. As defendant has not established changed circumstances since entry of the 2008 order, and as the only basis for his application is the child's continuing expressed wish, no genuine and substantial issue exists in the present case.

Defendant's reliance on Mackowski v. Mackowski, 317 N.J. Super. 8 (App. Div. 1998), is misplaced. There, the court found an interview necessary in order to assess the real circumstances of the family, unfiltered by lawyers. Id. at 13. The Rule change enacted since Mackowski, however, requires an interview only when the judge determines the circumstances compel it. R. 5:8-6. The reasons for the amendment seem obvious: a child's stated preference should not be controlling, see Mackowski, supra, 317 N.J. Super. at 12, 15 (Kestin, J.A.D., concurring), and, furthermore, such interviews can be quite emotionally damaging to a child.

In any event, as Judge Haas explained in his March 26, 2010 decision,

Defendant continues to point to what he describes as [the child's] "consistently expressed desire" to have him become the PPR. But, it is clear to the Court from the parties' certifications that defendant continues to engage the child in these discussions, to the point of giving her presents emblazoned with his local school's logo. [The child] is 11 years old. Obviously, at that young age, she responds to parental cues. While the Court cannot make a clear finding that defendant is attempting to pressure the child to live with him, it is very clear that he is continuing a campaign that began years ago when he, and plaintiff, first thought it would be a good idea to have the child decide where she should live. The October 2008 order found that, because of the parents' actions, [the child] was going to need counseling regardless of where she resided. Because [the child] was doing well under the current arrangement, that arrangement was kept in place. And, this arrangement will remain in place until there has been a significant change of circumstances that requires a modification in order to serve [the child's] best interests. That is not the case here. What this family needs is counseling. They do not need constant litigation.

Judge Haas was well aware of the child's expressed wish, which no doubt would only be reiterated during an interview. Hopefully by the time of this writing, the parties and the child have become involved in therapy to assist everyone in adjusting to their current status.

In our view, Judge Haas's factual findings were amply warranted and entitled to the deference customarily given to such findings by the Family Part. His application of the relevant law was also correct. As he stated, "a child's preference, even if clear and 'persistent' is not a change of circumstances warranting a modification." His interpretation of the law, as applied to the facts of this case, reflects a judicious assessment of the family dynamics presented to him. We therefore do not agree that he abdicated his role as a judge, abused his discretion, or was required to interview the child or order a plenary hearing.

b.

Defendant also asserts the judge abused his discretion by failing to request an updated report from Kim Fendrick. Defendant filed his motion nearly a year after her initial report issued; however, it was not an evaluation nor was it binding upon the court. As Judge Haas explained, the coordinator's task was merely one of assisting the parties in arranging counseling for themselves and their daughter, and to help the parties work through any disputes about scheduling actual parenting time. Given Fendrick's limited function, no updated report was necessary and the denial of this request was therefore also reasonable.

c.

Further, defendant contends that the judge abused his discretion by awarding counsel fees without "ascertaining need and ability to pay and other statutory factors." This is not correct, as Judge Haas stated in his decision that defendant's application for a change in custody was "little more than a rehash of the motion that led to the October 2008 order. There has been no significant change of circumstances to warrant a modification . . . . Defendant is better financially suited to continue to file motions and to relitigate settled issues. Defendant's motion was not successful." Accordingly, he awarded plaintiff $1530 in counsel fees.

In its supplemental statement of reasons, the court noted that defendant did not provide financial information with his current application. When financial issues were decided in 2008, however, plaintiff's gross weekly income was imputed at $845 per week, whereas defendant actually grossed $1983 per week. Under the circumstances, the court's reliance on the relatively recent financial records, where no claim was made that those circumstances had changed and the application was similar to prior ones filed by defendant, constituted a sufficient basis for the decision to award plaintiff a portion of her requested counsel fees. Judge Haas was not bound to refuse the request merely because no up-do-date information was available. If that were the case, counsel fees would rarely be awarded unless a case information statement accompanied the motion. Given the frequency with which parties file motions, this result would not be desirable.