I.O. v. M.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

I.O.,

Plaintiff-Respondent,

v.

M.C.,

Defendant-Appellant.

_____________________________________

September 2, 2014

Argued May 21, 2014 Decided

Before Judges Grall, Waugh, and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-1488-05.

Theodore Sliwinski argued the cause for appellant.

Steven M. Resnick argued the cause for respondent (Budd Larner, P.C., attorneys; Mr. Resnick, on the brief).

PER CURIAM

Defendant M.C. (Mary)1 appeals the Family Part's June 28, 2013 order transferring legal and residential custody of the parties' son, M.J.C.O. (Mark), to his father, plaintiff I.O. (Ian), and temporarily restricting her to one hour of supervised parenting time per week. Following oral argument in this case, we entered an order of partial remand to allow the Family Part the opportunity to manage the issue of parenting time in light of Mary's pending evaluation by a psychologist.2 We now affirm.

I.

We discern the following facts and procedural history from the record on appeal.

After his parents had been dating for a few years, Mark was born in December 2003. According to Ian, from the time of Mark's birth, he and Mary had regular disagreements with respect to his role in Mark's life. He asserts that she took the position that he should not participate in Mark's life, as a result of which Mary sought to control all decisions regarding Mark without consulting him.

In February 2005, Ian made an application to determine custody and child support, in part because Mary would not allow him to have parenting time with Mark. In April, Ian and Mary entered into a consent order that included a parenting schedule and an agreement to attend family counseling. According to Ian, Mary began to disregard the agreed-upon schedule shortly after she consented to it. As a result, the first Family Part judge assigned to this case entered an August 16 order appointing Marcy Pasternak, Psy. D., as parenting coordinator.

Ian then alleged that Mary failed to cooperate with Pasternak, and "wouldn't answer [her] questions." He described Mary's demeanor at their meetings as "indignant" and claimed that Mary would scream and, on one occasion, became so violent that Pasternak had to restrain her. During that period, Mary enrolled Mark in preschools without Ian's knowledge. Ian also learned that Mary had done so using her surname instead of Mark's full legal name. Mark's surname, C.O., which was on his birth certificate, included the surnames of both parents.

In July 2006, Ian filed a motion seeking enforcement of the previously ordered parenting time and the requirement that Mary attend the parenting sessions with Pasternak. In September, Ian and Mary entered into a consent order in which they agreed that Mathias R. Hagovsky, Ph.D., would conduct a best interests evaluation. Mary also agreed to appear at appointments with Pasternak.

Ian filed another motion on September 26. Ian's primary request was for an order requiring Mary to comply with previous court orders related to parenting time and parenting coordination. The judge entered an order on December 28, reiterating the requirement that Mary attend sessions with Pasternak and comply with her recommendations. The order also warned Mary that if she failed to cooperate with Ian, the judge might appoint a guardian ad litum to resolve the parties' differences.

Hagovsky completed his best interests evaluation and issued a report in March 2007. He described Mary's "commitment to Mark" as "very proprietary." He opined that Mary "espouses a child-focused philosophy, she appears to express her understanding of the application of this approach in terms only of her best judg[]ment as to what is in the child's best interests, minimizing [Ian's] involvement as a result." Hagovsky concluded that "the key to unlocking this terrible contentiousness lies with [Mary] who . . . would greatly benefit from a priority shift in her understanding of the importance of [Mark's] father in his life." Hagovsky recommended that the parties continue to seek Pasternak's help as a parent coordinator.

In May and June,3 the judge held an evidentiary hearing during which he observed that he had "serious problems" with Mary's credibility. He also noted her "misguided" belief that she was the only person who took Mark's best interests into account, which he concluded contributed to her refusal to listen to recommendations from Pasternak and Hagovsky. The judge cautioned Mary to use Mark's full legal name, stating that it "clearly reflects a lack of concern for the child's interest, that if acts like that continue you very well could lose custody of your child." The judge entered an order on June 28, providing, among other things, that Pasternak remain parenting coordinator, that the parties confer to select a preschool for Mark, and that they use Mark's full legal name.

An August 13 report completed by Pasternack notes that Ian and Mary could not agree on the preschool. Although Ian consented to Mary's second choice, Mary nevertheless raised objections to enrolling Mark in that school. Pasternak recommended that the parties enroll Mark there because it was the only school on which Ian and Mary could reach some level of agreement. On August 21, Ian sought an order to show cause because Mary refused to enroll Mark in the preschool. In an order dated January 2, 2008, the judge required Mary to pay a portion of Ian's counsel fees as a sanction. Mark was eventually enrolled at the preschool.

Following a conference in October 2008, the second Family Part judge assigned to handle the case entered a consent order in January 2009. The parties agreed to a parenting time schedule proposed by Hagovsky and to continue to seek assistance from Pasternak. On May 13, however, Pasternak resigned as parenting coordinator. She explained that, "[b]ased upon [Mary]'s statement that she will not speak to [Ian] and my observations that confirm her statement, I have concluded that Parenting Coordination is not a useful process for them."

Ian filed a motion in July 2010 seeking enforcement of the prior orders, including attendance at meetings with a parenting coordinator and use of Mark's full name. Following a hearing, the judge entered a consent order on September 28. The parties agreed to the appointment of Ann Ordway, a member of the New Jersey bar, as the new parenting coordinator. They also agreed to use Mark's full legal name on "all official school records and other formal documents." In a separate order entered the same day, Ian and Mary stipulated that Ian would be responsible for two-thirds of Ordway's fees and that Mary would pay the other one-third. The fees were to be paid within fourteen days of Ian and Mary's receipt of Ordway's retainer agreement. However, Mary delayed payment of her portion of Ordway's fee. She then informed Ian that their meeting with Ordway would have to be postponed unless Ian paid her share of the fees.

As a result, Ian filed a motion to enforce the order requiring Mary to pay her share of the cost of parent coordination. Oral argument was held on January 31, 2011. Mary claimed that she could not afford to pay the fee. The judge disagreed. He found that, because Mary's income was over $100,000 a year, she could afford to pay Ordway. The judge described Mary as "combative" and "disrespectful" to him. He noted that Mary demonstrated "bad faith" in claiming to lack the funds to pay Ordway. He also expressed concern that she would not comply with his order that she pay her portion of Ordway's fee. The judge entered an order the same day determining that Mary was in violation of the September 28, 2010 order. Mary was ordered to pay her share of Ordway's retainer within fourteen days. The judge further ordered that Mary pay a sanction of $100 for each day she failed to comply.

Mary filed a motion for reconsideration. The judge held oral argument in March 2011, and denied the motion. In assessing whether to order Mary to pay Ian's attorneys' fees, the judge observed that she "manifested significant bad faith through the parties' litigation to date by intentional non-compliance with court orders [and] voluntary agreements." The judge entered an order denying reconsideration and reiterated Mary's obligation to submit her portion of Ordway's fees. When Mary continued her refusal to pay Ordway's retainer, Ian paid her share "to facilitate the process."

On July 21, Ordway sent a letter to the judge, outlining the difficulties she faced in scheduling an appointment with the parties. She specified that Ian "has been cooperative and flexible with regard to scheduling appointment dates. It has been very difficult to secure a return call from [Mary,] and when she does return the call, the dates proposed have not been good for her." Ordway also provided the judge with recommendations concerning parenting problems, which she suggested that the judge order the parties to follow.

The parties appeared in court again on October 31. The judge adopted Ordway's suggestions and included them in the resulting order, filed the same day. In reaching his decision, the judge observed that Mary "has been uncooperative in the parent coordination process, with respect to scheduling and attending parenting coordination sessions, and in failing to cooperate with Ms. Ordway's recommendation, [with which] she does not agree." The judge found that Mary's "lack of flexibility continues to have a substantial effect on [Ian's] parenting time and the best interest of the child." He also noted Mary's continuing belief that "she is the one who knows what is in the best interest of [Mark]."

In December, Ian sought an order changing custody, based on allegations that one of Mary's relatives choked Mark during the Thanksgiving holiday. In a December 7 order, the judge denied Ian's request for an immediate change. The order provided that the parties were to complete custody evaluations and attend scheduled parenting coordination sessions with Ordway. The judge scheduled a plenary hearing, to be preceded by discovery.

While on vacation with Mark, Ian learned for the first time that he had received his first holy communion in April 2012 and that only Mary's surname was used at that time. According to Ian, Mark informed him that Mary had instructed him not to tell his father he had received first communion. Ian later discovered that Mary had enrolled Mark in religious classes without his knowledge and using only her surname.

The plenary hearing was held on August 23. At the hearing, when discussing Mary's unilateral decision to have Mark receive first communion without involving Ian, the judge characterized Mary's actions as

a clear example of her willful exclusion of [Ian] from significant milestones in [Mark's] life, an event that [Ian], as a practicing Catholic, has certified is extremely significant to him and cannot be recreated. And it's also a clear example of her repeated violation of court orders, which she blatantly disregards.

In an order entered the same day, the judge denied Ian's request for an immediate transfer of custody, but ordered that the parties were to share joint legal and residential custody of Mark on a pendente lite basis, pending another plenary hearing.

The second plenary hearing was held before a third Family Part judge over eleven days from January 18 to May 23, 2013.4 Ian and Mary each testified on their own behalf. William Campagna, Ph.D, who conducted a parenting evaluation prior to the hearing, provided testimony on behalf of Ian. Ian also called Ordway to testify. Lisa Tomasini, Ph.D., testified on behalf of Mary. Mary called six additional witnesses, including Mark's second and third grade teachers. The judge interviewed Mark in camera.5 Mark expressed no preference with respect to residential custody.

On June 28, the trial judge placed a brief oral decision on the record, with both Ian and Mary present. The judge "ordered that [Ian] shall have sole legal and residential custody of [Mark]," and that "[Mary] shall have court supervised parenting time with the child to start on July 13th, 2013 at 9:30 a.m. at Cooperative Counseling." The same day, the judge issued a written decision.

The trial judge found that Ian had proven changed circumstances that were detrimental to Mark's best interests, warranting a transfer of custody. Those circumstances included Mary's consistent non-compliance with court orders regarding parenting time, parenting coordination, and matters related to the use of Mark's full legal name in official documents.

The judge analyzed the applicable factors in N.J.S.A. 9:2-4 prior to arriving at his decision to transfer custody. Based on the expert testimony, he determined that Mary's continued non-compliance with court orders demonstrated a refusal to co-parent and agree on matters related to Mark. He found that Mary's insistence on not using Mark's full legal name created a stressor and an internal identity conflict that caused mental and emotional harm to the child.

This appeal followed. We denied Mary's several emergent applications for a stay and other interim relief.

II.

On appeal, Mary argues that the trial judge erred in transferring sole custody to Ian because he failed to apply the appropriate legal considerations and abused his discretion by effectuating a complete change of custody and strictly limiting her parenting time based on the record developed at the plenary hearing. She also contends that the judge's findings of fact are erroneous.

A.

We ordinarily accord great deference to the 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)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Finally, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A party who seeks modification of a judgment or order regarding custody or visitation "must meet the burden of showing changed circumstances and that the agreement is [no longer] in the best interests of the child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Finamore v. Aronson, 382 N.J. Super 514, 522-23 (App. Div. 2006). The issue is "two-fold and sequential." Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The party seeking the modification "must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[] . . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts." Id. at 127-28 (first three alterations in original) (citation and internal quotation marks omitted).

The Legislature has found and declared that it is "the public policy of this State to assure minor children of frequent and continuing contact with both parents . . . . and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4. Both parents have a fundamental right to "the custody, care and nurturing of their child[]." Watkins v. Nelson, 163 N.J. 235, 245 (2000) (quoting In re D.T., 200 N.J. Super. 171, 176 (App. Div. 1985)). Because neither has a right that is superior to the other, "the sole benchmark" to a determination of their parenting arrangements "is the best interests of the child," Sacharow v. Sacharow, 177 N.J. 62, 79-80 (2003), that is, what will protect the "safety, happiness, physical, mental and moral welfare of the child," Beck v. Beck, 86 N.J. 480, 497 (1981) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)) (internal quotation marks omitted). The child's best interests are controlling "no matter what the parties have agreed to." P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)) (internal quotation mark omitted).

Pursuant to N.J.S.A. 9:2-4, a judge determining custody shall consider 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 the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

"The age of the child certainly affects the quantum of weight that his or her preference should be accorded." Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977). However,

"[a] trial judge is not bound by a young child's preference to live with one parent over the other." The judge is only required to give "due weight to the child's preference;" the preference is a factor which the judge should consider along with all of the other relevant factors. Thus, stated preferences are not conclusive but must be considered in applications for modification.

[Ali v. Ali, 279 N.J. Super. 154, 169 (Ch. Div. 1994) (quoting W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989), appeal dismissed, 121 N.J. 630 (1990))].

See also Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958); Boerger v. Boerger, 26 N.J. Super. 90, 103 (Ch. Div. 1953). Courts should also evaluate the "'character, condition, habits and other surroundings' of the parents in considering their fitness and the welfare of the children." Sheehan, supra, 51 N.J. Super. at 291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952)).

B.

The trial judge determined that Ian was "a very credible witness" and "sincere" in "hop[ing] that the parenting coordination process would help facilitate the ability of the parties to co-parent." He found Campagna's expert testimony to be "very credible" and also characterized Ordway as "credible." In contrast, the judge found Mary's "testimony to lack credibility." He also determined that Tomasini's "findings appear to be based on flawed facts," including her understanding that any "past transgressions by [Mary] with respect to parenting issues . . . were 'overwhelmingly corrected.'"

The judge provided a careful explanation of his reasons in determining credibility, which finds ample support in the record. His findings of fact based on his view of the credibility of the witnesses also find ample support in the record. The Supreme Court has held that

The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Because a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)) (alterations in original). Therefore, an appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] 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." Rova Farms, supra, 65 N.J. at 484. The appellate court should "exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid.

[Cesare, supra, 154 N.J. at 411-12 (alterations in original).]

Because the judge's credibility determinations and findings of fact are well supported in the record, we will not disturb them on appeal.

Having carefully reviewed the facts found by the trial judge in the light of the record and applicable law, we affirm the June 28, 2013 order transferring sole custody to Ian essentially for the reasons expressed by Judge Mark P. Ciarrocca in his thorough and thoughtful written opinion. We add only the following.

The trial judge provided detailed, fact-based reasons for the exercise of his discretion to change custody. It is clear from the record and the judge's findings that, as of the time of the 2013 plenary hearing, Mary was unwilling, and perhaps psychologically incapable, of engaging in co-parenting in any meaningful fashion. She was given many opportunities to comply with the numerous orders entered in this case, beginning in 2005. We note that many of them were consent orders, with which she failed to comply not long after they were entered. Mary consistently refused to cooperate with the professionals appointed to help resolve parenting issues and regularly acted as if there were no court orders. Mary's conduct and her belief that only she should be involved in parenting Mark, in addition to being contemptuous of numerous court orders, is inconsistent with New Jersey's strong policy "to assure minor children of frequent and continuing contact with both parents" and "to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4.

The change in custody at issue here followed years of concerted, but unsuccessful efforts by two prior judges to maintain residential custody with Mary, as long as Mark's and Ian's individual rights to meaningful co-parenting were respected. We find it significant that Judge Ciarrocca's views of Mary's conduct and credibility were consistent with those of his predecessors. Mary was advised of the potential for such a change as early as 2007, but her subsequent conduct showed little, if any, signs of real improvement.

A change in custody, of course, is not an appropriate sanction merely for a parent's failure to comply with court orders. See Nehra v. Uhlar, 168 N.J. Super. 187, 194 (App. Div.), certif. denied, 81 N.J. 413 (1979). It must be based on the best interests of the child. Sacharow, supra, 177 N.J. at 80; Beck, supra, 86 N.J. at 497; Abouzahr, supra, 361 N.J. Super. at 152. In that regard, the trial judge focused on Mary's behavior in depriving Mark of parenting time with his father, which New Jersey law seeks to foster.

Relying on Campagna's testimony, the judge pointed to (1) the risk caused by Mary's inability to allow "separation and individuation" between herself and Mark, (2) Mary's inability to set boundaries for Mark, such as allowing him to play age-inappropriate video games in contrast to Ian willingness to establish and enforce appropriate rules, (3) Mary's actions, such as her insistence that Mark not use his father's surname and enrolling him in religious education classes resulting in the first communion, without notifying or involving Ian, which the judge determined was "an incredible stressor" for Mark, and (4) Mary's focus on joint activities revolving around her and her limitation of activities in which Mark was involved with others.

The judge determined that, in contrast to Mary's efforts to exclude Ian from Mark's life, Ian would "make genuine efforts to include [Mary] in [Mark's] life so that he can continue to have a close relationship with his mother." The judge thus determined that the change in custody was "the only way to allow decisions for the child to be made in a manner which is least stressful and the best interest of this child." We are satisfied that the record and applicable law support that conclusion and the judge's exercise of discretion in making the change.

With respect to Mary's restricted parenting time, we observe that the judge ordered a psychological evaluation, after which he anticipated further proceedings to evaluate the report and establish "a comprehensive parenting time plan." That aspect of the June 28, 2013 order was clearly interlocutory and not appealable as of right. Because it was an interim exercise of discretion, we will not interfere, especially because the judge was clearly hoping to expand Mary's parenting time in the future. Doing so should be done on a priority basis, assuming of course, appropriate cooperation from Mary.

For too long, Mary promised cooperation by agreeing to consent orders, but those promises proved to be hollow. Mary has the opportunity to cooperate with the court and the professionals to establish a parenting plan that will allow her significant parenting time with Mark. She must demonstrate that real cooperation will be forthcoming.

The goal is "to assure [Mark] frequent and continuing contact with both parents." N.J.S.A. 9:2-4. However, that goal can only be achieved if both parents, but especially Mary, understand that "bothparents have a fundamental right to the care and nurturing of their children . . . . and neither has a preeminent right over the other." Sacharow, supra, 177 N.J. at 79. The overarching responsibility of the Family Part is to do what will protect the "safety, happiness, physical, mental and moral welfare of the child." Beck, supra, 86 N.J. at 497 (citation and internal quotation marks omitted).

Affirmed.

1 We use pseudonyms for the purposes of confidentiality and clarity.

2 We have requested and received copies of orders entered following the remand, along with emails from counsel, but have not considered them substantively in deciding this appeal.

3 A subsequent judge's decision states that the 2007 hearing occurred over at least two days in May and June. Mary supplied only one transcript, from June 7, 2007.

4 Mary represented herself at the hearing.

5 The transcript of the interview was not submitted as part of the appeal.