JARRED CIPRIANI v. ASHLEY FONTANA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3872-12T4

A-5740-12T4

JARRED CIPRIANI,

Plaintiff-Appellant,

v.

ASHLEY FONTANA,

Defendant-Respondent.

_____________________________________

JARRED CIPRIANI,

Plaintiff-Respondent/

Cross-Appellant,

v.

ASHLEY FONTANA,

Defendant-Appellant/

Cross-Respondent.

__________________________________________________

Submitted (A-3872-12) and Argued (A-5740-12)

October 21, 2014 Decided November 21, 2014

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-1381-10.

Stolfe & Zeigler, attorney for appellant A-3872-12 (Abigale M. Stolfe, on the brief).

Jay Turnbach, L.L.C. and Bressler Amery & Ross, P.C., attorneys for respondent A-3872-12 (Mary Jane McNicholas Dobbs and Jerome Turnbach, on the brief).

Jerome Turnbach argued the cause for appellant/cross-respondent A-5740-12 (Jay Turnbach, L.L.C. and Bressler Amery & Ross, P.C., attorneys; Jay Turnbach and Mary Jane McNicholas Dobbs, on the brief).

Richard A. DeMichele argued the cause for respondent/cross-appellant A-5740-12 (Stolfe & Zeigler, and DeMichele and DeMichele, attorneys; Abigale Stolfe, on the brief).

PER CURIAM

We have consolidated these two appeals which are the fourth and fifth filed by the parties since 2012. In order to provide some context, we refer to our prior opinion in which we consolidated the first three appeals for decision. Cipriani v. Fontana, Nos. A-0080-12; A-0082-12; A-0906-12 (App. Div. Apr. 28, 2014).1

Plaintiff Jarred Cipriani and defendant Ashley Fontana are the parents of a son born in January 2010. Id. (slip op. at 3-4). Plaintiff filed a complaint in April 2010 seeking sole legal and residential custody of the child. Id. (slip op. at 4) Defendant answered, seeking sole legal and residential custody herself, as well as a determination of plaintiff's support obligations. Ibid.

Following a lengthy trial that included the testimony of several experts, judgment was entered on July 25, 2012 ("the 2012 judgment"), making defendant the parent of primary residence and awarding plaintiff two weeks of parenting time during summer 2012. Id. (slip op. at 14-15). The judgment further provided that "[i]n the future," plaintiff could exercise eight consecutive weeks of parenting time every summer. Id. (slip op. at 15). The judgment also provided a schedule for parenting time during the upcoming Christmas holidays: "Defendant . . . shall have parenting time from December 23, 2012 at noon until December 26 . . . at noon. Plaintiff . . . shall have parenting time . . . December 26 . . . at noon until January 1, 2013 at noon." Both parties filed appeals from the 2012 judgment.

While those appeals were pending, both parties filed motions seeking to enforce litigant's rights and impose sanctions for alleged violations of the Christmas parenting time provision of the 2012 judgment. Judge Madelin F. Einbinder, who was not the trial judge, heard those motions and entered an order dated March 15, 2013 ("the March 2013 order"). The order refused to impose sanctions against either party, although it specifically stated that plaintiff "violated" the 2012 judgment "due to a misunderstanding and his attorney's advice." The order additionally advised plaintiff "that upon further violation of any order, a bench warrant w[ould] issue for his arrest."

Also, while the initial appeals were pending, on May 15, 2013, we granted defendant's motion "seeking a remand 'for the limited purpose of conducting a hearing on the issue of summer parenting time.'" Cipriani, supra, No. A-0080-12 (slip op. at 15-16).2 Following remand, Judge Einbinder entered an order on June 14, 2013 ("the June 2013 order") that awarded plaintiff six weeks of summer parenting time in three blocks, each of two consecutive weeks, during summer 2013. She also determined that during summer 2014, plaintiff would have six weeks of parenting time divided into two blocks, each of three consecutive weeks.

In A-5740-12, defendant appeals from those provisions of the June 2013 order that set the summer parenting schedule for 2014. She argues that Judge Einbinder exceeded her authority on remand by setting a schedule for summer 2014 parenting time, that the 2014 schedule was not supported by the record or applicable law, and that it resulted from the judge's refusal to permit expert testimony during the remand hearing and the judge's erroneous conclusion that defendant was unwilling to permit reasonable parenting time.

Plaintiff filed a cross-appeal. He contends that Judge Einbinder exceeded her authority by fixing the summer 2014 parenting schedule, although he argues the judge did not abuse her discretion by refusing to permit further expert testimony. He also contends defendant's claim that the child cannot tolerate prolonged absence from his mother is unsupported by the record.

In A-3872-12, plaintiff contends the March 2013 order should be vacated because the parties agreed to mutually modify the Christmas parenting schedule in 2012, or, alternatively, if there was no modification, Judge Einbinder should have imposed sanctions against defendant for violating the 2012 judgment. Defendant counters that plaintiff violated the Christmas parenting provisions of the 2012 judgment, and the judge could have imposed even harsher sanctions.

We have considered these arguments in light of the record and applicable legal standards. We affirm the orders under review in both appeals.

As to A-5740-12

We first address the contention raised by plaintiff at oral argument before us that the appeal is moot. That argument is premised upon a consent order that the parties entered into in June 2014, after the appeals were filed, setting the summer parenting schedule for 2014.

"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006)). However, "if a party 'still suffers from the adverse consequences to her caused by [a] proceeding,' an appeal from an order in that proceeding is not moot." Id. at 262 (alteration in original) (quoting Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 51 (App. Div. 2008), aff'd as modified on other grounds, 198 N.J. 382, 387 (2009)).

We agree that the consent order moots both parties' argument that Judge Einbinder exceeded the jurisdiction of our remand by fixing the summer 2014 schedule. We also agree that the consent order moots defendant's argument that Judge Einbinder's decision to award six weeks of parenting time in summer 2014 was unsupported by the record.

However, the consent order does not eliminate the potentially adverse consequences, from defendant's viewpoint, if the June 2013 order applies to plaintiff's allotted parenting time in the summer of 2015 or beyond. "That is so because, as we have noted in another context" regarding custody determinations, "even 'a temporary decision to change custody can take on a life of its own, creating a new status quo." Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009) (quoting Peregoy v. Peregoy, 358 N.J. Super. 179, 203 (App. Div. 2003)), certif. denied, 203 N.J. 435-36 (2010). "The status quo ante is significant because [a] party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[]." Ibid. (alterations in original) (internal quotation marks omitted). In short, the consent order did not moot defendant's challenge to the award of summer parenting time to plaintiff contained in the June 2013 order.

We therefore first consider defendant's argument that the judge erred in denying her request to produce expert testimony at the remand hearing. Both plaintiff and defendant testified at the hearing. Defendant requested that she be permitted to call Dr. Charles Katz, one of the experts who testified on behalf of defendant at the trial in 2012. Cipriani, supra, No. A-0080-12 (slip op. at 13). The specific proffer made by defense counsel was that it was "very highly important for a psychologist to talk to us about the importance of lots of long parenting time involving children who are young . . . ." The judge declined the request, noting that she had all the expert reports from trial, as well as the expert testimony and "snippets" of testimony that counsel had brought to her specific attention.

Defendant argues that Dr. Katz's testimony from the trial was one year old and focused broadly on custody issues, rather than on summer parenting time specifically. She claims the judge erred in refusing her request to call Dr. Katz again as a witness at the remand hearing.

The record of proceedings before Judge Einbinder does not reflect that Dr. Katz had actually prepared an updated report, and no such report is contained in the appellate record. The judge had the benefit of Dr. Katz's original report. Although that did not specifically address summer parenting time, it did include Katz's opinions regarding the amount of time a child should spend away from his primary attachment figure.

Dr. Katz endorsed literature in the profession that opined "'a three- or four-year old will usually not be ready for a two-week summer vacation away from the primary nurturing caregiver . . . .'" In his second report, dated September 16, 2011, Dr. Katz opined

Vacations for [the child] and [plaintiff] should be no more than a maximum of [two] to [three] overnights at a time away from [defendant] . . . . Overnights can and should be extended as [the child] gets older and is better equipped psychologically to handle longer separations.

Similarly, in his trial testimony, Dr. Katz acknowledged that "parenting plans [were] dynamic agreements that change[d] as the developmental needs and interests of the child change and as circumstances change."

"We grant substantial deference to the trial judge's discretion on evidentiary rulings, and will only reverse when the trial judge's ruling was so wide of the mark that a manifest denial of justice resulted." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (citations omitted) (internal quotation marks omitted). Applying this highly deferential standard to the record presented to us, Judge Einbinder did not mistakenly exercise her broad discretion and bar defendant from calling Dr. Katz as a witness at the remand hearing.

Defendant also contends that the award of six weeks of summer parenting time was arbitrary, not in the child's best interests and unsupported by the record. She argues that Judge Einbinder failed to consider "the entirety of the parenting schedule" before setting the summer 2014 schedule.

The judge carefully considered the statutory factors contained in N.J.S.A. 9:2-4(c). Focusing on the age of the child, the judge noted he was now three-and-one-half years old, "significantly older than he was when the initial Custody Order was determined." Referencing the expert testimony at trial, the judge determined that the child was "now at an age where he can be away from his primary attachment figure, i.e., his mother, for a longer period of time."

Judge Einbinder accepted "the general concept of a block of time for [plaintiff] to enjoy parenting time with [the child]," but found that "a more practical approach than eight consecutive weeks" was necessary. She based this conclusion upon the uncontroverted evidence that the child had never "spent more than two weeks consecutively away from his mother." She concluded that the child's best interests would be served by a "summer parenting time schedule that [would encompass] a total of six weeks broken up in blocks of two weeks at a time." The judge also determined that "in keeping with the concept of gradually increasing [the child's] time with his father," summer parenting time in 2014 would be six weeks, but broken down into two three-week blocks.3

We have recognized that "[m]ore than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parenspatriae, 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)). "In fact, interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review." Ibid. Nonetheless, the scope of appellate review is limited. "'[T]he decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.]'" Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (second and third alterations in original) (quoting Pascale v. Pascale, 140 N.J. 583, 611 (1995)).

In this regard, we owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration omitted) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)) (internal quotation marks omitted). And, while we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995), we

"should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion.

[Parish, supra, 412 N.J. Super. at 47 (quoting Cesare, supra, 154 N.J. at 412).]

We "reverse only to 'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

We need not recapitulate the extensive expert testimony from the trial. See Cipriani, supra, No. A-0080-12 (slip op. at 10-14). It suffices to say no expert on either side supported the proposition that an extended stay of eight weeks away from defendant was in the child's best interests, at least not in 2012, when he was not yet three years' old. Id. (slip op. at 31). However, there was support from plaintiff's expert, Dr. Neal Rosenblum, that in another year or two, i.e., 2013-14, the child would be ready for two weeks of consecutive parenting time with plaintiff. Id. (slip op. at 12). As we noted above, Dr. Katz did not think a child of three or four years of age would be equipped to handle two weeks of consecutive parenting time, however, he acknowledged the probability that parenting time could and should increase as the child grew older.

The judge carefully considered the statutory factors, including the additional non-summer parenting time plaintiff was entitled to exercise under the 2012 judgment. She thoughtfully evaluated the record evidence in light of those factors and the child's best interests. As we have said, "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, we 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). The award of summer parenting time to plaintiff contained in the June 2013 order was supported by the record evidence and was not the result of a mistaken exercise of the judge's discretion.

To the extent we have not specifically addressed the other arguments raised by the appeal or cross-appeal, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We affirm the June 2013 order.

As to A-3872-12

It is difficult to characterize this appeal as anything other than evidence of the parties' litigation strategy up until now, that is, tit-for-tat motion practice in the Family Part, followed by appeals to this court. Our prior opinion considered defendant's separate appeal from the denial of her motion for sanctions based upon plaintiff's breach of the 2012 judgment, specifically, his return of the parties' son on the day after Labor Day 2012, one day later than provided for in the judgment. Cipriani, supra, No. A-0080-12 (slip op. at 34-35). We briefly addressed the merits of defendant's appeal, before affirming Judge Einbinder's order. Ibid.

In this appeal, plaintiff contends the judge erred by not sanctioning defendant for her alleged breach of the Christmas parenting time schedule in the 2012 judgment, and by imposing a prospective sanction upon him, that is, the possible issuance of a bench warrant if plaintiff again breached the judgment. The issue arose as follows.

In January 2013, defendant again moved for sanctions. Her certification in support of the motion began: "Plaintiff has done it again." Defendant certified that contrary to the 2012 judgment, plaintiff returned the child from Christmas parenting time on January 2, 2013, instead of January 1.

Plaintiff filed a cross-motion for sanctions. He certified that based upon an exchange of text messages, he believed that defendant had agreed to modify the schedule because of inclement weather, such that he would have parenting time with his son from December 27, 2012, instead of December 26, through January 2, 2013, instead of January 1. Plaintiff claimed that he telephoned his counsel, who confirmed that, based upon defendant's decision to postpone the start of the parenting time, plaintiff could return the child on January 2.4

After hearing argument on the motion and cross-motion, Judge Einbinder stated

I have to indicate . . . specifically to [plaintiff] and [defendant] that there doesn't appear to be any respect or civility between the two of you despite the fact that you have a wonderful little boy in common who has the right to enjoy a relationship with both parents. That lack of civility has extended [in] some part to the attorneys in this case as evidenced by what I would characterize as snarky letters going back and forth between counsel. I had every intention of finding that [plaintiff] violated [the 2012 judgment] by not returning [the parties' son] until January 2nd until [plaintiff's counsel] through his letters and . . . his argument indicated to the Court that it was with his counsel that [plaintiff] did not return [the child] . . . .

The judge told plaintiff that, regardless of the date he picked up his son, "if there [was] no agreement on the return date, your remedy is not to keep him for that additional time despite what anyone might tell you. Your remedy is to apply to the Court for additional parenting time to be tacked on . . . ." She indicated that a bench warrant would issue if plaintiff again breached the 2012 judgment.

Plaintiff argues that there either was a mutual modification of the Christmas parenting provisions, in which case sanctions against him were inappropriate, or, alternatively, defendant violated the 2012 judgment by not agreeing to exchange the child on December 26. The arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

There was support in the record for Judge Einbinder's conclusion that plaintiff breached the 2012 judgment. Our review is limited to whether the judge mistakenly exercised her discretion in imposing sanctions. Milne v. Goldenberg, 428 N.J. Super. 197-99 (App. Div. 2012). We conclude the judge did not mistakenly exercise her discretion.

The March 2013 order is affirmed.

1 Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law . . . ." See Badiali v. New Jersey Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), certif. granted, 213 N.J. 387 (2013).

2 As we noted then, at the time we ordered the remand, plaintiff had already filed a fourth appeal, A-3872-12, which we refused to consolidate with the first three and consider now. Cipriani, supra, No. A-0080-12 (slip op. at 16 n.5).

3 Under the consent order, the 2014 summer parenting time reverted to three, two-week blocks.

4 We have synthesized in these two paragraphs what was contained in three hundred and thirty-four pages of certifications, exhibits and legal briefs filed with Judge Einbinder, at least that is what the appellate record contains of the record before the Family Part.