SAMUEL A. MAGARINO v. CRISTINA MAGARINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SAMUEL A. MAGARINO,

Plaintiff-Respondent,

v.

CRISTINA MAGARINO,

Defendant-Appellant.

____________________________________

December 10, 2013

Argued December 2, 2013 Decided

Before Judges Harris, Kennedy, and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-433-09.

Nancy C. Ferro argued the cause for appellant (Ferro & Ferro, attorneys; Ms. Ferro, of counsel and on the brief).

Bonnie C. Frost argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Ms. Frost, of counsel and on the brief).

PER CURIAM

Defendant Cristina Magarino appeals from certain provisions "child custody and financial issues" contained in the May 24, 2011 dual judgment of divorce, and as modified by the May 31, 2011 supplemental order. We affirm.

I.

The parties met in September 2004, began living together in November 2004, and were married on June 6, 2006. Their only child, Manny,1 was born fifty days later. Plaintiff filed for divorce on April 6, 2009; defendant's counterclaim was filed two months later. This was a short-duration marriage.

Plaintiff was general manager of Magarino Ford, a family-owned automobile dealership located in Sussex Borough. In 2008, his salary was approximately $185,000. Defendant was a college graduate who initially stayed home to care for Manny at plaintiff's request. However, in December 2008, plaintiff requested that defendant return to work. Thereafter, she obtained employment as a receptionist; at the time of trial, defendant had stopped working and was a full-time student enrolled in pre-nursing school courses.

In June 2009, the parties filed domestic violence complaints against each other, and the court signed temporary restraining orders. Plaintiff moved out of the marital home, and began living with his parents. On June 25, 2009, pending a trial on the domestic violence complaints, the Family Part entered an order determining a parenting time schedule, which granted plaintiff two overnights and defendant five overnights each week. The parenting time schedule also provided that each party have daily telephone contact with Manny, and that defendant be permitted to reside in the marital home until July 31, 2009. On July 30, 2009, plaintiff dismissed his domestic violence complaint. On July 31, 2009, defendant began living in her parents' home in West Paterson.

On September 22, 2009, the parties signed a consent order confirming that both domestic violence complaints had been dismissed, and they agreed to have no further contact with each other except for non-harassing text messages concerning the pick-up, drop-off, or health emergencies concerning Manny. The parenting time schedule set forth in the June 25, 2009 order remained in effect.

On November 16, 2009, the court entered a comprehensive pendente lite order. Among its provisions were a requirement that plaintiff pay unallocated support of $350 per week to defendant, as well as, make car payments and pay automobile insurance for defendant's vehicle. The court also ordered that the parenting time schedule continue, and that plaintiff pay pendente lite counsel fees of $5000 to defendant's attorney.

In January 2010, the parties jointly retained Mathias R. Hagovsky, Ph.D., a custody evaluator, "to provide a recommendation in the best interest of the child." Although Dr. Hagovsky was hired by both sides, plaintiff assumed full responsibility for paying his fees. Both parties met with Dr. Hagovsky. Apparently, a report with recommendations was prepared, but it was not introduced at trial and was not included in the record on appeal.

Even though the court had entered an order strictly limiting the parties from communicating, defendant continued to call plaintiff and send him harassing texts. For example, on February 20, 2010, plaintiff was in Las Vegas when defendant called him fifty-seven times in one day. She later claimed that she had called so many times because Manny wished to speak to plaintiff. However, several of the calls were made around midnight.

On March 19, 2010, the court increased plaintiff's parenting time to three overnights per week. The court found defendant to have violated the September 22, 2009 consent order, which restricted communication between the parties but permitted Manny to have daily telephone contact with plaintiff. The court also ordered defendant to disclose her cell phone number to plaintiff.

On June 11, 2010, the court granted defendant's attorney's motion to be relieved as counsel. In support of the attorney's motion, she indicated only that "defendant and [the attorney] have come to an impasse, including but not limited to, the best course of [action] in her matter."

On August 12, 2010, the court entered a final case management order, which, among other things, scheduled the trial to commence on September 13, 2010,2 and required the parties to exchange the names of their witnesses, and attempt to create a joint exhibit list. At this juncture, defendant was representing herself.

On the trial's first day, plaintiff's attorney indicated that his client would not be calling Dr. Hagovsky as a witness. Defendant represented that she had not seen Dr. Hagovsky's report, but the court responded,

That's why we have discovery. You had a right to insist on seeing the report, you had a right to call the witness yourself, if you had given notice to the other side, you were going to do that, but if you haven't done it, it may be too late now.

On October 15, 2010, after four trial days, the court ordered that plaintiff pay an additional $7500 for defendant to hire an attorney. Defendant's new attorney appeared on November 1, 2010, the ninth trial date, and represented defendant for the remainder of the trial.

On May 24, 2011, the Family Part issued a thirty-page written decision, which addressed all of the contested issues. Although joint legal custody was ordered, the court made the following conclusion concerning physical custody:

Having reviewed all the factors, the [c]ourt finds that [defendant] has been more involved in the day-to-day needs and development of [Manny], but her uncontrollable anger management problems outweigh and dwarf any arguments she should be designated as the parent of primary residence. [Defendant's] anger trumps all other factors.

The final judgment also set forth a parenting time schedule, which gave plaintiff four, and defendant three, overnights per week. In the summer and during school recesses, however, defendant would have four overnights, and plaintiff would have three. If defendant were to move closer to Manny's school, parenting time would be equalized. On May 31, 2011, the court supplemented the final judgment by adjusting non-material aspects of the parenting time schedule. This appeal followed.3

II.

On appeal, defendant challenges the Family Part's factual findings with respect to custody and parenting time. Additionally she asserts that the court "erred by refusing to admit into evidence the joint expert's report on the issue of custody." We conclude that these contentions are meritless.

We begin with well-established principles. "More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children." Parish v. Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010) (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)).

Family courts have special jurisdiction and expertise in family matters; accordingly, we accord deference to their fact-finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998); N.H. v. H.H., 418 N.J. Super. 262, 279 (App. Div. 2011). Moreover, their findings of fact will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

"Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, [appellate courts] do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Moreover,

we accord great deference to discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). "'[J]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). 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 Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

[Milne v. Goldenberg, 428 N.J. Super. 184, 197-198 (App. Div. 2012).]

On the other hand, we will not defer to a family court's decision where the court abused its discretion, see, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008), and we are not required to defer to the Family Part's legal analysis because "the trial judge's interpretation of the law and the legal consequences that flow from the established facts" are not entitled to any special deference. Barr v. Barr, 418 N.J. Super. 18, 31 (App. Div. 2011) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).

In light of these principles, we are completely satisfied that the trial judge, through eighteen trial days (over the span of several months), was in the best position to assess the nature and character of Manny's parents. He marshaled the essential facts necessary to parse the best interests standard, N.J.S.A. 9:2-4(c), and he explained in detail the facts undergirding each relevant factor of that standard. We have no basis to substitute our view of the evidence, even if we were to disagree with his assessments, which we do not, because we had no opportunity to observe the witnesses and measure their ability to parent. Defendant's arguments simply reflect the findings she wished the trial judge to make; her disappointment does not detract from the solid factual matrix that supports the judge's custody and parenting time decisions.

The Family Part is routinely charged with making heart-wrenching decisions based upon the court's evaluation of the parties, and these determinations are entitled to our respect and deference. Hand, supra, 391 N.J. Super.at 111. The court is dutibound to consider the best interests of the child, including anything that might interfere with the happiness, safety, and physical and emotional well-being of the child. Here, the court's conclusions that defendant had a short fuse, had anger management issues, and had demonstrated an inability to control herself were record-based concerns bearing on defendant's ability to provide Manny with a safe environment that will promote his happiness and wellbeing.

Furthermore, we detect no mistaken exercise of discretion in the manner that the trial judge managed the presentation of evidence, including not admitting the report of Dr. Hagovsky. SeeKuehn v. Pub Zone, 364 N.J. Super.301, 319-21 (App. Div. 2003) (a trial court's decision to admit expert testimony is reviewed on an abuse-of-discretion standard), certif. denied, 178 N.J.454 (2004). This potential expert witness, jointly retained, was well within the subpoena power of both sides. He was not a court-appointed expert, and instead, was merely selected by the parties (and paid for by plaintiff). Any fault for being unaware of Dr. Hagovsky's report at the commencement of the trial was defendant's alone. Any error in not producing the witness was invited by defendant's inaction, which does constitute grounds for a (self-created) reversal.

Defendant also contends that the Family Part erred in two financial matters: first, she claims that she is entitled to rehabilitative alimony so that she may attend nursing school, and second, she insists that the court erred in not awarding her all of her attorneys' fees. These arguments are unpersuasive.

As with other fact finding by the Family Part, we give deference to a trial court's findings regarding alimony if they are supported by the record. Reid v. Reid, 310 N.J. Super.12, 22 (App Div.), certif. denied, 154 N.J.608 (1998). A court may award rehabilitative alimony when a marriage is short and the supported spouse is young and capable of full employment based on experience, additional training, or further education. Heinl v. Heinl, 287 N.J. Super.337, 346, 348 (App. Div. 1996). Rehabilitative alimony is designed to enable the supported spouse to "complete the preparation necessary for economic self-sufficiency." Hill v. Hill, 91 N.J.506, 509 (1982). Payments cease once the dependent spouse has attained the ability to support oneself. Hughes v. Hughes, 311 N.J. Super.15, 31 (App. Div. 1998).

The party seeking rehabilitative alimony bears the burden of proof that such an award is appropriate. Finelli v. Finelli, 263 N.J. Super.403, 406-07 (Ch. Div. 1992). The litigant must show: the type of degree sought; colleges providing the degree; costs of attendance; hours necessary; childcare options and cost of childcare while in school; and the ability to coordinate studies with parental responsibilities. Ibid. Without such evidence, a court may not make an award of rehabilitative alimony, because to do so would be pure conjecture. Id.at 407.

Here, defendant was in her thirties, had earned a college degree, and was working outside the home. The parties had no joint assets; and during the time that they lived together before marriage defendant was not completely financially dependent on plaintiff. For most of the time that they were a couple, defendant had worked outside the home.

We concur with the trial court with respect to not awarding rehabilitative alimony because defendant is capable of earning what she earned prior to the short marriage; plaintiff had already paid twenty-two months of pendente lite support; defendant never updated her case information statement to reflect her change in employment and her school attendance; and defendant did not provide persuasive evidence of a plan for rehabilitation. The record amply supports the court's conclusion that "[i]t would be inequitable to require [plaintiff] to continue to support [defendant] any longer or to pay for her education."

With respect to attorneys' fees, we note that plaintiff was ordered to pay $12,500 towards defendant's legal fee obligation. In refusing to award a greater amount, the trial court observed that defendant was in an inferior economic position to plaintiff, which was partly due to her decision to quit her job. Nevertheless, even if she were employed, she would still earn considerably less than plaintiff; however, defendant had family support to help pay some expenses. Defendant essentially argues that the court erred because she was in a dramatically-inferior economic position to plaintiff, and that the court should not have penalized her for quitting her job to attend nursing school.

Generally, in matrimonial actions the award of counsel fees and costs rests in the discretion of the trial court. Williams v. Williams, 59 N.J.229, 233 (1971). We will not reverse a counsel fee ruling unless the aggrieved party can show "an abuse of discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super.248, 285 (App. Div. 2010), aff'd, 208 N.J.409 (2011). We are satisfied the trial court considered the appropriate factors and provided a reasonable basis for its findings of fact. Defendant's arguments merely disagree with the result. Our intervention is wholly unwarranted.

1 We use a fictitious name for the child.

2 The order optimistically allotted two days for trial. Instead, the trial consumed eighteen non-consecutive trial days between September 2010 and April 2011.

3 Pursuant to a limited remand, which was triggered by plaintiff's application alleging defendant's interference with the parenting time schedule, the Family Part found defendant to be in violation of litigant's rights for failing to comply with the May 24, 2011 judgment. Accordingly, the court modified defendant's transportation responsibilities, but it did not impose any other sanctions. The court found that defendant "made unilateral decisions[,] which adversely affect[ed] the plaintiff." Nevertheless, the court did not award plaintiff counsel fees.