M.I. v. J.I.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.I.,

Plaintiff-Appellant,

v.

J.I.,

Defendant-Respondent.

___________________________________________

April 11, 2016

August 16, 2016

Resubmitted June 8, 2016 Decided

Before Judges Messano and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-47-11.

Haber, Silver & Simpson, attorneys for appellant (Karin Duchin Haber, of counsel; Jennifer M. Russoniello, on the brief).

J.I., respondent pro se.

PER CURIAM

As outlined in our earlier opinion, M.I. v. J.I., No. A-3211-13 (App. Div. Apr. 11, 2016) (slip op. at 2-3), following a hotly-contested divorce trial, the judge awarded defendant sole legal custody of the parties' two daughters, named him the parent of primary residence and accorded him the right to select the children's schools, fashioned a shared parenting schedule and denied plaintiff an award of counsel fees. The judge failed to specifically address defendant's admitted violation of pendente lite support orders. Id. at 3.

In considering plaintiff's challenge to the custody award, we concluded "the judge's factual findings were supported by credible and substantial evidence" and found "no fault with [his] credibility findings." Id. at 9. We also rejected plaintiff's argument that the judge applied an improper legal standard in making the custody determination. Id. at 9-10. Nevertheless,

we remand[ed] the matter to the trial judge to address three issues. First, the judge shall address in greater detail why his factual determination that defendant was more likely to follow court orders served the best interests of the parties' children. Second, the judge shall address in greater detail the testimony of the jointly-agreed-upon custody evaluator, Dr. Rosenberg, provide an assessment of that testimony and explain what impact, if any, it had upon the judge's ultimate legal conclusion to award defendant sole legal custody of the parties' children. Third, the judge shall consider and decide plaintiff's request for reimbursement of pendente lite expenses pursuant to the March 2011 court order, which defendant admittedly refused to pay.

[Id. at 27.]

We retained jurisdiction. Ibid.

The judge responded to our remand order in a timely fashion and addressed the three areas as directed in a comprehensive written decision. Specifically, the judge stated that defendant's "greater propensity to follow [c]ourt [o]rders, especially as the [o]rders relate to custody and parenting issues, inures to the best interests" of the children. He explained that joint custody was ordered pendente lite, but that plaintiff failed to provide notice to defendant and failed to discuss custody matters with defendant.

Further, the judge found that defendant was more responsible for "name calling, swearing and demeaning epithets," and this conduct was not in the children's best interests. However, the judge explained that by awarding defendant sole legal custody, the children would not be exposed to this behavior and their best interests would be served. The judge reiterated that he remained confident that defendant would abide by court orders, and he had "no parallel confidence" that plaintiff would continue to involve defendant in parenting issues. He also explained that "[p]art of the problem with [plaintiff's] parenting was her judgment," and he gave specific examples from the evidence adduced at trial.

In our earlier opinion, we noted the lack of any detail or credibility determinations in the judge's initial decision regarding Dr. Rosenberg's testimony. Id. at 22. We found it "puzzling" that the judge rejected the expert's ultimate trial opinion, i.e., that defendant's parenting time with the children should be supervised, especially since some of the judge's factual findings seemingly supported the opinion. Id. at 23.

On remand, the judge explained that Dr. Rosenberg's preliminary report recommended joint legal custody with plaintiff as the parent of primary residence. The judge characterized Dr. Rosenberg's change of opinion as an "obtuse turn" that resulted from hearing the tape recording of a single incident during which defendant physically broke plaintiff's new computer and berated her in abusive, derogatory terms. The judge explained in detail other "incidents" that Dr. Rosenberg was questioned about and concluded, "Dr. Rosenberg was fed a lopsided account of the parties' lives and experiences for which plaintiff's counsel deserves credit[,] but the [c]ourt's obligation is different when parsing the same information."

The judge also found "problems with Dr. Rosenberg's approach and opinions." The expert had not reviewed any of J.I.'s medical records, and accepted M.I.'s versions of some events, though the judge found they were not true. The judge pointed to other inconsistencies in Dr. Rosenberg's testimony. He noted that Dr. Rosenberg found J.I.'s parenting skills were superior to M.I.'s. In short, the judge "found too many facts wrong; too many opinions unsupported; too many conclusions inconsistent; too many recommendations which did not flow from the rest of the report and evidence to give weight to Dr. Rosenberg's report."

Regarding the pendente lite support issue, the judge painstakingly re-examined the record of payments and concluded that J.I. owed $1391 to M.I. for his half of the costs of karate and dance lessons for the children that he failed to pay. Regarding the violation of prior orders, the judge noted it was M.I. who "first violated" the parties' consent order. After re-examining the trial proofs, the judge concluded that M.I.'s "exhibits, especially her compiled charges, were determined to be faulty" and demonstrated that J.I. actually contributed more than M.I. did to the expenses.

The judge also concluded that despite court orders compelling equal contribution, M.I. had "sole occupancy of the marital residence for years." She had stopped paying the mortgage in March 2012 but was still residing there in December 2013 as the trial concluded. The judge determined that, with limited exception a total of $1391 "[a]fter offsets and after consideration of benefits [M.I.] enjoyed during the pendente lite stage of the trial, [J.I.] should not have to repay his ex-wife monies she contends are due."1

We gave the parties an opportunity to respond to the judge's remand opinion. J.I. argued that the judge's decision on remand was thorough and rooted in the evidence. He also contended that, as the judge stated, he paid more in pendente lite expenses than did M.I., and, therefore, he should not be required to pay even the modest amount for the karate and dance lessons.

In her response, M.I. stated that the judge's supplemental opinion "gives one the impression the court was acting as an advocate for [J.I.] rather than a fair and unbiased trier of fact." She reiterated that the trial record was replete with examples of J.I.'s "violations of the court's orders," yet the judge awarded him custody, in large part, because he found J.I. would better follow court orders regarding the children.

M.I. contends that on remand, the judge ignored her initial findings regarding J.I.'s significant mental health issues, and, instead, now focused on "[p]laintiff's mental state." She further contends that the judge discounted Dr. Rosenberg's testimony that he previously found credible. She argues the judge essentially cherry-picked from Dr. Rosenberg's report and testimony, accepting what was favorable to defendant and rejecting what favored plaintiff. M.I. reiterates at great length an argument we addressed in our prior opinion, namely that the judge erred by not ordering defendant to continue to participate in the custody evaluation or delay the trial and permit Rosenberg to update his report. Id. at 18-21.

Lastly, as to the pendente lite support, M.I. argues the judge again went "to great lengths to adopt [J.I.'s] position." Although the judge acknowledged J.I.'s violation of the orders, he suffered no consequence.

Having had the benefit of the judge's explanation and reasoning regarding the interplay between the best interests of the children and defendant's greater propensity to follow court orders, at least pertaining to his children, we affirm the custody award contained in the judgment under review. In short, we are convinced that the judge fairly evaluated the relative parenting ability of the parties, their inability to work together and the likelihood that the children's best interests were served by awarding defendant legal custody.

We are further satisfied that the judge found much of Dr. Rosenberg's testimony to be incredible and rejected the expert's ultimate recommendation as a result. Plaintiff's contention that the judge credited some parts of the report and testimony, but not others, is of no moment. See, e.g., Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.) (holding a trial judge may accept or reject an expert's opinion in its entirety, or may accept only some of the expert's opinion), certif. denied, 174 N.J. 193 (2002). The judge who had Dr. Rosenberg testify before him on multiple days during trial was entitled to accept or reject the evidence and opinions, and we will not substitute our judgment for the trial judge's.

In our prior opinion, we specifically reserved decision on plaintiff's contention that the judge's denial of counsel fees was an abuse of discretion. M.I., supra, slip op. at 24. In light of our conclusion, we affirm the denial of any fees. In his initial decision, the judge gave the issue careful consideration in light of the factors contained in Rule 5:3-5(c). We find no mistaken exercise of the court's broad discretion. Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013).

Lastly, we accept the judge's re-evaluation of the pendente lite expense scorecard. In his initial opinion, in the context of making an equitable distribution award, the judge provided a brief explanation, noting the evidence was "impossible to sort out to any reasonable informed distribution." We now appreciate the difficult task the judge faced. We also accept the judge's determination that the contentious nature of the litigation revealed itself in violations of interim support agreements and orders motivated by conduct on both sides.

Additionally, we also accept the judge's conclusion that defendant failed to pay $1391 he was obligated to pay. We therefore remand the matter for entry of an amended judgment reflecting this award of pendente lite support expenses to plaintiff. In all other respects, the judgment of divorce under review is affirmed.

1 At the conclusion of his opinion, the judge stated that "[i]f directed to do so upon further review by the Appellate Division, this [c]ourt would issue an order to implement minimal additional relief [that] [J.I.] pay [M.I.] $1491." We believe this to be a typographical error.