N.D v. M.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5748-10T2

A-6022-10T2

N.D.,

Plaintiff-Appellant,

v.

M.D.,

Defendant-Respondent.

____________________________

N.D.,

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant.

_____________________________

November 30, 2012

Submitted October 2, 2012 - Decided

Before Judges Reisner, Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1345-08.

Gilberto M. Garcia, attorney for appellant in A-5748-10 and respondent in A-6022-10.

M.D., respondent pro se in A-5748-10 and appellant pro se in A-6022-10.

PER CURIAM

Plaintiff N.D. appeals from a Final Judgment of Divorce dated June 30, 2011.1 His ex-wife, defendant M.D., likewise appeals from the judgment. Plaintiff appeals from the order's provisions awarding defendant alimony and counsel fees, granting her sole custody of the couple's children, and granting her a divorce on extreme cruelty grounds. Defendant appeals from the provision of the order addressing reunification of the children with plaintiff. We have consolidated the appeals for purposes of this opinion, and, finding no merit in either appeal, we affirm the judgment in its entirety.

I

Background

We briefly summarize the background leading up to the divorce trial. The parties married in June 2000, and have two children, a daughter born in 2001 and a son born in 2003. Both parties are highly educated professionals. Plaintiff earns about $200,000 per year; defendant will likely be able to earn about half that sum when she returns to the work force full-time.

On July 26, 2007, plaintiff filed a complaint for divorce from defendant on the basis of extreme cruelty. He alleged that defendant was not emotionally supportive of him and that during the marriage defendant had alienated him from their two children, refusing to allow him to be alone with them or to have any input into decisions regarding them. He alleged that in May 2006 and May 2007, defendant made false complaints to the Division of Youth and Family Services (DYFS);2 he contended that, in order to keep him from seeing the children, plaintiff falsely alleged that he had sexually abused them. As a result of the DYFS complaint, plaintiff was indicted for sexual assault and endangering the welfare of a child. In addition to seeking a divorce, plaintiff's complaint charged defendant with defamation, malicious prosecution and intentional infliction of emotional distress based on her allegedly false complaints that he sexually abused the children.

On October 17, 2007, defendant filed an answer denying the majority of plaintiff's allegations and filing a counterclaim for divorce on the basis of extreme cruelty. Thereafter, on plaintiff's motion, the Family Part stayed the matrimonial action while the criminal case proceeded.

On April 23, 2009, pursuant to a plea agreement, plaintiff pled guilty to one count of child neglect and one count of child endangerment, both of which involved only the daughter. As part of the plea deal, plaintiff agreed not to deny, in any future proceeding, that he committed the acts to which he admitted under oath during the plea allocution. The sentencing judge required plaintiff to complete thirty-six months in the pre-trial intervention program (PTI) and ordered him to undergo sex-specific counseling. If plaintiff successfully completed the PTI program, the charges against him would be dismissed. The criminal judge precluded defendant from having contact with his children, unless the contact occurred by way of counselor-led and supervised sessions.

At the end of 2009, plaintiff filed a motion with the Family Part, seeking visitation with his children. He and his attorney told the court that in the criminal matter, the court had not imposed any restrictions on his having contact with his children. The Family Part judge reserved decision until she reviewed documents from DYFS and documents relating to the criminal matter. The judge denied plaintiff's request for visitation on December 29, 2009, explaining that contrary to plaintiff's and his attorney's representations, the criminal court had imposed restrictions on plaintiff's ability to have contact with his children, including sex-specific counseling and approval of his counselor.

On February 22, 2010, Judge Ronny Jo Siegel, who was then presiding over the divorce case, appointed a psychologist, Dr. Daniel A. Sugarman, to evaluate plaintiff and provide an opinion on whether he should be reunited with his children. The following month the judge ordered DYFS to release to the court all documents related to its investigation of plaintiff.

On July 7, 2010, Dr. Sugarman issued an opinion recommending that reunification between plaintiff and the children begin as soon as possible. He opined that the children were suffering from parental alienation syndrome and that the complete absence of contact with plaintiff was harmful to them.

The following month, testimony in the divorce trial began. Around the same time, defendant moved to exclude Dr. Sugarman's report and preclude his trial testimony. Defendant contended that Dr. Sugarman was biased against her because, without notice to defendant or the court, plaintiff had provided Dr. Sugarman with information favorable to his case. Defendant also complained that Dr. Sugarman had not reviewed the transcript of defendant's plea allocution. The court scheduled oral argument, but neither party appeared on the designated date. Before rescheduling the argument, the court ordered the parties to provide Dr. Sugarman with additional information, and permitted defendant to take his deposition.

On September 21, 2010, Dr. Sugarman issued a supplemental report after reviewing additional documents relevant to the sexual abuse allegations. He once again recommended reunification of plaintiff and the children. The court rescheduled oral argument of defendant's motion to preclude Dr. Sugarman from testifying at the trial, and denied the motion on October 29, 2010, reasoning that defendant's concerns about his possible bias could be addressed through cross-examination.

On November 3, 2010, in the midst of the trial, plaintiff withdrew his claim for divorce on the grounds of extreme cruelty and instead pursued only his claim of irreconcilable differences. His counsel also requested that the court allow plaintiff visitation with his children. The judge denied the motion, pending the outcome of the divorce trial.

In the beginning of January 2011 plaintiff filed a motion to immediately begin the reunification process and asked Judge Siegel to recuse herself from considering that motion. On January 21, 2011, the judge denied the motion, for reasons she explained at length on the record.

Also on January 21, 2011, the judge heard argument on defendant's challenge to Dr. Sugarman's report. The court explained that, due to a misunderstanding, neither party had appeared for argument on the date the court had initially scheduled. Thus, the court agreed, with the consent of both parties, to hear argument as if it were deciding for the first time whether to exclude Dr. Sugarman's report from evidence. Again, the court found that defendant's objections to Dr. Sugarman's reports should be addressed through cross-examination.

The trial

The vast majority of the trial was taken up with testimony in support of plaintiff's marital tort claims. While the tort claims were eventually dismissed, and are not the subject of this appeal, we briefly summarize that evidence, together with the evidence on economic issues, because it is relevant to the judge's eventual decision on child custody, reunification, and counsel fees.

The parties met in Cuba, and married after immigrating to the United States. In his testimony, plaintiff described defendant as being intelligent and well-educated, but very rigid and extremely religious. He testified that she refused to use birth control for religious reasons, and as a result, the couple had two children before plaintiff believed they were economically ready to support them. Defendant, who had a career as a chemist, declined to return to work after their second child was born, and as plaintiff's work hours in the computer field extended, he perceived that defendant was monopolizing the children, putting them to bed too early, and not giving him an opportunity to spend time with them when he got home from work. This led to frequent "heated" arguments; plaintiff often yelled at defendant, because he felt powerless to change her parenting style.

According to plaintiff, by 2005, the parties were no longer sleeping together. They began discussing a separation or divorce, and defendant threatened to take the children and move to California. However, after plaintiff had a discussion with defendant's mother in Cuba, the parties agreed to try to stay together for the children's sake. Tensions resumed after defendant enrolled the daughter in a private pre-kindergarten without consulting plaintiff. She was also attempting to potty train the son by letting him wander about the house with no diaper, leading to many accidents on the floor.

According to plaintiff, in June 2006, defendant unexpectedly called plaintiff at work and asked him to come home early so that someone could talk to him about how he was "supposed to treat" the children. Plaintiff did not come home early, but eventually, in August 2006, he had a meeting with a social worker from DYFS who interviewed him about allegations that he had improperly touched his son. At the time, he believed that defendant had made a complaint about him; he later learned that defendant had taken the son to see a pediatrician, who in turn called DYFS. However, after speaking with the DYFS worker in August, plaintiff asked defendant what the issue was, and she told him she had seen him touching the son's penis.

According to plaintiff's trial testimony, he touched the son's genitals, but the touching was in no way sexual. Rather, he was emphasizing to his son that he should wear pants when he walked around the house. Plaintiff testified that on occasion he may also have touched his son's genitals or buttocks in the course of playing a rough-housing sort of game called "monster." He also admitted patting his son's buttocks "with affection" but not with sexual intent.

When DYFS first contacted him, plaintiff believed that the discussions with the social worker stemmed from what he perceived as defendant's prudish attitudes. He had no idea that he was being investigated for molesting the children. He later learned that DYFS concluded that the complaints were unfounded. Meanwhile, the marriage continued to founder, and defendant started telling the children that their father "was a bad person." Defendant continued her practice of sleeping with the children instead of with plaintiff, and of being present almost all the time when plaintiff was with the children. In May 2007, defendant made a complaint to DYFS that plaintiff was inappropriately touching the children, and plaintiff was arrested.

On cross-examination, plaintiff admitted that in connection with his PTI admission, he was examined by a psychologist, Dr. Witt, but he had not participated in the therapy that Dr. Witt recommended. On re-direct, he clarified that Dr. Witt did not recommended sex offender therapy, but instead recommended therapy for his depression and to help him prepare to reunite with his children. Plaintiff contended that he did not believe therapy would help him address his children's alienation from him.

In addition to presenting evidence in support of his tort claims, plaintiff addressed the economic issues pertaining to the divorce. He testified that, for the past three and one-half years, he had been paying between $4600 and $5000 per month in pendent lite support. Those payments were made pursuant to a court order as of October 2009; prior to that time he made those payments voluntarily to support his family.

According to plaintiff, his gross income for 2009 was approximately $200,000, and his average annual gross income for the past three years was about that amount as well. He testified that his savings had been exhausted by his counsel fees from the criminal matter and the divorce. He also testified that after taxes, deductions for his 401k plan, medical plan, and other expenses, his net take-home pay for the prior year was about $86,000. He claimed he was paying his uncle one thousand dollars per month in rent for a two-room basement apartment. He agreed that it made financial sense to sell the marital home, which would allow him to stop paying the carrying costs on the house.

In his testimony, plaintiff contended that the court should not award defendant alimony, because she made false criminal accusations that had to be resolved before the divorce trial could begin, and he had paid her pendente lite support during that three-year period. Based on his review of Labor Department salary data, plaintiff also contended that defendant was capable of earning at least $50,000 or $60,000 a year as a scientist. He testified that during the marriage, the family income was about $90,000 a year, and if defendant earned up to her potential and received about $16,000 a year in child support, that would be equal to the prior marital income. Plaintiff also testified that he never agreed that defendant could remain a homemaker during the marriage, but rather he repeatedly urged her to go back to work.

Plaintiff called defendant to testify as part of his case. She testified that she worked as a scientist in the private sector after she came to the United States. When the younger child was born, the parties agreed that she should stay home with the children. Later the parties argued about this, because plaintiff wanted her to return to work. According to defendant, she became concerned that plaintiff was inappropriately touching the children, based on what she saw and based on what the children told her. On direct examination in her own case, defendant elaborated, explaining that while she was trying to potty train their son, she saw plaintiff touching the child's genitals on several occasions. She thought it was odd but did not become worried until the child started having nightmares and hitting his sister.

In the spring of 2006, she took the son to a pediatric psychologist, who called DYFS. After DYFS investigated in 2006 and concluded that "nothing was wrong" and the children were "okay," defendant was "relieved." However, in May 2007, defendant called DYFS after she learned from the daughter that plaintiff was inappropriately touching her and her brother. This time, plaintiff was arrested and charged criminally. Defendant testified that she disagreed with Dr. Sugarman's recommendation that plaintiff be reunified with the children, because she was concerned that plaintiff had not undergone the recommended therapy. She feared that he would molest the children if he had unsupervised visitation with them.

On the financial issues, defendant testified that she was working part-time as a chemist. She anticipated that at some point her employer would offer her full-time employment. She also provided detailed testimony concerning the monthly expenses listed in her case information statement.

Called as plaintiff's witness, Dr. Sugarman testified, consistent with his reports, that reunification with plaintiff was in the children's best interests. Dr. Sugarman based his opinions on his interviews with, and psychological testing of, the parties and the children, as well as his review of all relevant records supplied to him. In Dr. Sugarman's opinion, the accusations against plaintiff stemmed in part from his habit of rough-housing with the children without considering how they would feel about the way he was touching them, and in part from defendant's coaching the children to exaggerate the significance of whatever occurred. Dr. Sugarman concluded that much of the children's psychological stress stemmed from seeing the parents fighting and from defendant's obsession with plaintiff's conduct. He concluded that the past accusations against plaintiff had "taken on a life of their own," and the children were trapped between their desire to have a relationship with their father and fears based on their mother's portrayal of him as a monster.

Dr. Sugarman opined that it was very important for the children's long-term psychological well-being that they renew their relationship with their father. Otherwise, they would go into adolescence carrying with them unresolved anxiety and anger that could affect their ability to form important relationships.

The trial court's decision

On June 30, 2011, the court issued a final judgment of divorce, addressing all issues presented in the trial.3 Judge Siegel issued a comprehensive, sixty-one page written opinion explaining her decision.

After considering all of the relevant factors set forth in N.J.S.A. 9:2-4, the judge awarded defendant sole legal custody of the children. Plaintiff's criminal prosecution and the conditions of his PTI supervision were a significant factor in the decision. The judge appointed a reunification counselor for plaintiff and the children, "to commence the reunification process between [p]laintiff [N.D.] and the parties' two children." However, she noted that plaintiff had not seen the children in four years, and "it is unknown when the children and their father will be reintroduced" through the reunification process. The judge concluded that defendant "has clearly demonstrated that she is a fit, conscientious and loving parent." On the other hand, she noted that "[p]laintiff's fitness will be demonstrated once he commences reunification therapy."

In reaching her conclusions, the judge found Dr. Sugarman to be "a credible witness who gave fair and full consideration to all the information presented to him." She denied defendant's application to strike his testimony.

Based on a thorough analysis of all the applicable statutory factors set forth in N.J.S.A. 2A:34-23, Judge Siegel awarded defendant three years of term alimony at $52,000 a year. She considered, among other things, that plaintiff earned in excess of $200,000 a year, while defendant, who was just re-entering the workforce after being a homemaker, was earning about $32,000. The judge also considered the parties' pre-divorce lifestyle, and each party's reasonable living expenses.

The judge further ordered plaintiff to pay $18,668 annual child support. She ordered the parties to sell the marital home, with plaintiff receiving 25% of the proceeds and defendant receiving the remaining 75%. In making that determination, she considered the parties' relative assets and earning power. She ordered the parties to equally divide personal marital property, and with the parties' consent, awarded defendant 50% of plaintiff's retirement funds acquired from the date of the marriage until the filing of the complaint for divorce. The judge denied defendant's request for an interest in stock that plaintiff held and denied her request that plaintiff contribute to her credit card debt of about $46,000.

Judge Siegel dismissed plaintiff's causes of action for defamation, malicious prosecution and intentional infliction of emotional distress. She found that plaintiff failed to prove that defendant's allegations were untrue, considering, among other things, that a grand jury indicted plaintiff and he eventually entered into a plea agreement. She also concluded that defendant's complaint to DFYS was absolutely privileged and could not be the subject of a defamation action. The judge further found that defendant's complaint to DYFS was not negligent but was reasonably motivated by statements her children made to her. She concluded that plaintiff's claim for malicious prosecution was barred because the criminal case was not resolved favorably to him. The judge also found no merit in plaintiff's claim for intentional infliction of emotional distress.

After exhaustive consideration of the pertinent factors set forth in RPC 1.5(a), Rule 4:42-9(b) and Rule 5:3-5(c), the judge awarded defendant $75,000 in counsel fees. Among other things, the judge considered the parties' relative economic situations as well as plaintiff's pursuit of non-meritorious tort claims that occupied "most of the twelve day [t]rial." She also considered plaintiff's unsuccessful opposition to awarding defendant term alimony and child custody. The judge further noted various unfair litigation tactics in which she found plaintiff had engaged.

These appeals followed.

II

We first address defendant's appeal. In her somewhat rambling pro se appellate brief, defendant contends that Dr. Sugarman was biased and the judge should not have credited his opinions. She points out that plaintiff sent Dr. Sugarman biased, ex parte documents, including the report of a psychologist hired by plaintiff's attorney. She contends that once that happened, and Dr. Sugarman rendered his first report, he was hopelessly tainted. She argues that the judge should have stricken his reports and precluded him from testifying.

We review Judge Siegel's decisions on this issue for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We share the judge's disapproval of plaintiff's self-serving conduct in providing Dr. Sugarman with a favorable defense expert report from his criminal case, without advising the judge or defendant that he was giving Dr. Sugarman the report. However, the judge later required that Dr. Sugarman be provided with additional documents that would provide him with a more complete picture of plaintiff's conduct. She also permitted defendant to take Dr. Sugarman's deposition. We find no abuse of the judge's discretion in following that course rather than precluding Dr. Sugarman from testifying.

Based on our review of Dr. Sugarman's reports,4 as well as his trial testimony, we also find no evidence that he was biased against defendant. To the contrary, his testimony presented an objective and balanced view of both parties. Further, it was not Dr. Sugarman's role to decide whether plaintiff in fact abused the children; it was his role to opine on whether, given current circumstances, it was in the children's best interests to begin the process of reunification with their father, whom they had not seen in years. Dr. Sugarman testified that, even if plaintiff committed the acts of which he was accused, it was still in the children's best interests to resume contact with him, through a therapeutic process. He provided a cogent explanation for his opinions, and we find no error in the judge's decision to credit his testimony in that regard. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998) (we owe deference to the Family Part judge's credibility determinations).

Defendant's further arguments on this point are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

III

We next turn to plaintiff's appeal. He first argues that there was no basis to award a divorce on grounds of extreme cruelty. N.J.S.A. 2A:34-2c. Having reviewed the record, which includes evidence that he verbally abused defendant on a regular basis, and that he pled guilty to abuse of one of the children, we find that there is sufficient credible evidence to support the judgment. R. 2:11-3(e)(1)(A). Plaintiff's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Plaintiff next argues that the judge abused her discretion in awarding alimony. See Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part on other grounds, 183 N.J. 290 (2005). He contends that the alimony award exceeded defendant's financial needs and was not based on current financial information, and that defendant should have found employment in the three years during which he was paying pendente lite support. We conclude that the judge's decision was supported by sufficient credible evidence, Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993), and we affirm substantially for the reasons stated in Judge Siegel's thorough opinion. Plaintiff's remaining arguments on this point do not warrant discussion here. R. 2:11-3(e)(1)(E).

Plaintiff further contends that defendant's counsel did not support her fee application with a current affidavit of services. R. 4:42-9; R. 5:3-5(c). That argument is not consistent with the record. The judge reserved decision on defendant's initial fee application, which was appropriately supported with an affidavit of services. Defendant's counsel later updated her application before the judge rendered a final decision in the case. We find no abuse of the judge's discretion in awarding defendant a portion of her counsel fees.

Finally, defendant contends that the judge should not have awarded sole custody of the children to defendant.5 However, in light of the record evidence, that was clearly the correct result, for the reasons stated in Judge Siegel's opinion.

Affirmed.

1 We use initials to protect the privacy of the parties and their children.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 On July 14, 2011, the court amended the final order to provide for biweekly payments of alimony and child support.

4 Those reports were admitted in evidence at the divorce trial.

5 We do not address plaintiff's contention that the court should have permitted him to begin the process of reunification with the children before the trial began or while it was pending. In light of our decision affirming the judgment, that issue is moot.