DAVID WEINMAN v. LAURA WEINMAN,
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4617-17T4
DAVID WEINMAN,
Plaintiff-Respondent/
Cross-Appellant,
v.
LAURA WEINMAN, n/k/a
LAURA WEINMAN-TRICHON,
Defendant-Appellant/
Cross-Respondent.
_____________________________
Argued telephonically April 22, 2020 –
Decided May 12, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-0509-14.
Brian P. McCann argued the cause for appellant/cross-
respondent (Callagy Law, PC, attorneys; Brian P.
McCann, on the briefs).
James P. Yudes argued the cause for respondent/cross-
appellant (James P. Yudes, PC, attorneys; James P.
Yudes, of counsel; Kevin M. Mazza and Elsie
Gonzalez, on the briefs).
PER CURIAM
Defendant Laura Weinman-Trichon appeals from an April 30, 2018 order
entered following a twenty-one-day post-judgment plenary hearing adjudicating
the issues of emancipation, child support, and college contribution. Plaintiff
David Weinman cross-appeals challenging the denial of counsel fees. We
affirm.
We recite the relevant facts, which are set forth in greater detail in Judge
Thomas J. Walsh's thorough and well-written forty-page opinion. The parties
married in 1992. The marriage lasted nine years during which they had a son
and a daughter born in 1998 and 2000, respectively. From the outset of the
parties' separation in April 2001, a few months before plaintiff filed the
complaint, defendant involved the children either directly or indirectly in the
parties' conflict. Even though pendente lite plaintiff enjoyed joint legal custody
and shared parenting, defendant continuously violated court orders by depriving
him of parenting time or disparaging him to the children, who were then just a
three and one-year old.
Defendant's conduct increased when plaintiff began dating his now wife.
Defendant began to control where plaintiff could enjoy parenting time and
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2
continued to limit it and involve the children in every unfortunate exchange and
incident with plaintiff. When defendant began dating a man whom she would
later marry, she enlisted his efforts in the conflict, leading to confrontations with
plaintiff and police involvement, which the children witnessed.
Notwithstanding these difficulties, the parties settled their case and
divorced in 2003. Their amended judgment of divorce stated they agreed to
share joint legal custody of the children, designated defendant the parent of
primary residence and awarded plaintiff parenting time one evening per week
and alternate weekends, shared the holidays on an alternating year basis, and
allotted him one week of his choice for summer vacation. Plaintiff agreed to
pay child support and provide medical insurance for the children.
Regarding college expenses, the parties' agreement stated:
At such time as each child graduates from high school
and has the academic ability and inclination to attend
college or other post high school educational
institution, the parties shall be responsible for payment
for the costs and expenses thereof according to their
respective incomes and financial ability. The parties
shall confer and consult with each other concerning the
choice of college and the cost. Each child shall apply
for all available loans, grants, and scholarships.
Post-judgment, defendant continued to interfere with parenting time,
leading plaintiff to file an enforcement motion in 2003. On July 25, 2003, the
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3
court granted plaintiff's motion and appointed a therapeutic mediator to work
with the family, with authority to "issue directives" and "report to the court."
Defendant's conduct did not abate. She signed municipal complaints against
plaintiff's then-fiancé alleging harassment; despite an agreement reached with
the aid of the therapeutic mediator, she refused to allow the children to attend
plaintiff's wedding, necessitating police involvement; and she complained to
municipal officials that the children were made to sleep in a basement in
violation of fire regulations.
Defendant continued to frustrate plaintiff's parenting time by relocating
from Passaic to Union County. As a result, plaintiff relocated his dental practice
and residence to Union County to be near the children, only to have defendant
move the children to Pennsylvania. Following more litigation, the parties
executed a consent order in June 2007 allowing defendant to remove the children
to Pennsylvania, with jurisdiction remaining in New Jersey.
Pursuant to the consent order, the parties agreed plaintiff would have
parenting time with the children every other weekend from Friday night until
Sunday. However, defendant frustrated plaintiff's contact with the children. She
refused to meet in person with the therapeutic mediator and refused to
communicate in a civil manner or cooperate with the parent coordinator.
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Defendant continued to enlist her now-husband's involvement to prevent
parenting time, which led to confrontations at the children's sports events and
email communications wherein defendant's husband purported to school
plaintiff on parenting. During 2008, the parties had several meetings with the
therapeutic mediator to address defendant's interference with parenting time, but
defendant did not cooperate.
Beginning in 2008, defendant started empowering the children, then ten
and eight years of age, to communicate directly with plaintiff regarding
parenting time. The children's communications uniformly offered excuses
defendant gave them as to why they would not see plaintiff. As a result, plaintiff
missed important holidays and did not see the children for several months.
Furthermore, defendant continued to assail plaintiff with vitriolic emails. When
plaintiff complained to the therapeutic mediator, defendant responded she would
not permit the therapeutic mediator to dictate to her how to write an email.
As a result, in February 2009, plaintiff filed an enforcement motion
regarding parenting time. The court entered an order requiring defendant to
cooperate in facilitating plaintiff's parenting time and to participate in quarterly
meetings with the therapeutic mediator.
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5
In March 2009, the court wrote to the parties, relaying the therapeutic
mediator's opinion that defendant was interfering with plaintiff's involvement
with the children. The court's letter further stated the therapeutic mediator's
recommendation that plaintiff "should have at least one full weekend with the
children without interference by the mother." On April 2, 2009, the court
appointed the therapeutic mediator as a parenting coordinator.
The parties met with the parenting coordinator in May 2009, agreed to
adjust plaintiff's parenting time to once-monthly uninterrupted weekends with
the children where they would not participate in their sports or social events.
However, on Labor Day weekend 2009, defendant failed to deliver the children
for their scheduled weekend with plaintiff. The parenting coordinator wrote to
the court stating defendant "continues to thwart parenting time between the
children and their father."
The children continued to email plaintiff directly regarding parenting
time, and virtually all their communications sought to limit or cancel parenting
time. When plaintiff invited the children to his stepson's bar mitzvah, the
children ultimately agreed to attend the reception only, after the parenting
coordinator intervened. When plaintiff emailed the parties' daughter asking her
to wear a "fun dress" to the event, defendant later emailed him to suggest his
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wife dictated their daughter's attire, that his wife was the "boss" and plaintiff a
"mouse," and that defendant and the children consider it "a source of
entertainment at dinner!"
In September 2010, following a dispute with defendant, the parenting
coordinator resigned. The parties' post-judgment litigation continued in 2011.
The court entered orders dated April 25, 2011, which in pertinent part appointed
a new parenting coordinator and found defendant in violation of litigant's rights
for refusing to cooperate with the prior parenting coordinator. Plaintiff's
parenting time continued to be sporadic and limited to no more than once per
month.
In October 2013, defendant filed a motion for New Jersey to relinquish
jurisdiction in favor of Pennsylvania and to fix the parties' respective obligations
for the children's college expenses. Plaintiff cross-moved to vacate any
"obligation to contribute toward [the] children's college education expenses
unless the [d]efendant strictly complies with a number of conditions precedent"
involving parenting time. After extensive litigation on the issue of jurisdiction,
including before us,1 the parties consented to maintaining jurisdiction in New
Jersey. The college contribution issue was not resolved.
1
Weinman v. Weinman, No. A-2096-13 (App. Div. Jan. 29, 2015).
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From January 2014 through June 2015, plaintiff contacted the children
regarding parenting time, but they refused to see him. In February 2015,
defendant filed a motion, including a request to review child support and allocate
college expenses. Plaintiff cross-moved for reunification therapy with the
children. On April 24, 2015, the court entered an order directing both parties to
complete a best interest evaluation, psychological evaluations, and reunification
therapy. The second parenting coordinator resigned a few days before entry of
the order.
In June 2015, the parties entered into a consent order appointing a
reunification therapist. The reunification therapist testified the understanding
was she would report to the court regarding her work with the family and their
meetings would not be confidential.
During this time, the parties' son was searching for colleges. Plaintiff
emailed defendant asking to be included in the college decision process and she
replied that he had "been given many opportunities to be involved in the college
selection process" but chose not to participate, and if there were any schools he
wanted their son to consider, he should advise her and she would arrange for
visits. Plaintiff also communicated with the parties' daughter about parenting
time, but she did not respond.
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The parties and the children completed a best interests assessment with a
court appointed evaluator who issued a report in August 2015. Defendant and
the parties' daughter told the evaluator plaintiff was to blame for th e difficulties
in their relationship and both children stated they did not want a relationship
with him. The evaluator concluded both children "need time to reconnect with
their father without feeling they are rejecting or abandoning their mother ." She
recommended the reunification therapy continue.
In August 2015, the children's paternal grandfather died, and plaintiff
asked them to attend the funeral, but they declined. Plaintiff expressed
disappointment at the state of their relationship and texted the parties' daughter
the following: "this truly saddens me but I will always keep the door open and I
want to talk about it with [reunification therapist] at [our] next meeting."
The next month the reunification therapist terminated therapy due to the
lack of progress. She wrote to the court and explained that after meeting with
the children for eight sessions and attempting to "work toward unified
visitation," the children "remained intractable in their willingness to even
discuss" reunification. She stated neither child wanted to visit in plaintiff's
home and desired only a superficial relationship with him.
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9
In September 2015, defendant participated in a psychological evaluation,
which concluded she was "guarded and defensive" and overreacted to minor or
normal stress with extreme concern and complaints. The evaluation concluded
the "[p]rior attempts at reconciling the children with their father were thwarted
by [defendant]" and she "demonstrated developmentally inappropriate
empowerment of children to choose and decide to be with their father." The
evaluator diagnosed defendant with histrionic personality disorder.
Plaintiff's psychological evaluation concluded he was "outgoing and
friendly[,]" capable of handling day-to-day stressors, displayed appropriate
expectations of the growth and development of children, as well as an
understanding of appropriate family roles. The evaluation concluded plaintiff
exhibited a psychologically healthy outlook on life.
By December 2015, the parties' son applied and was admitted to several
colleges, all without any input from plaintiff. Defendant provided plaintiff with
copies of the acceptance letters, asked him to complete a financial aid
application for colleges, and he complied. In February 2016, the court ordered
a second best-interests evaluation. The court reserved its decision, pending the
plenary hearing, on defendant's application to have plaintiff contribute to the
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10
children's college expenses and for a recalculation of child support in light of
plaintiff's allegation that "he has been alienated from the children" by defendant.
In April 2016, plaintiff emailed the parties' son to express his support
during the college decision process and hope they could have a relationship. He
recommended the son attend Penn State for its "world-renowned engineering
department as well as the world's largest alumni network" and offered to
contribute $12,000 per year toward tuition. He wrote "I truly want to guide you
and be [a part] of the decision." The parties' son, who ultimately did not attend
Penn State, replied by rejecting plaintiff's suggestion and stating plaintiff's email
demonstrated "why I don't have a relationship with you right now."
The next communication plaintiff received were emails in May 2016 from
defendant and later the parties' son informing plaintiff of the school the son
selected. Given the son's enrollment, the court granted defendant's motion for
contribution to college and ordered plaintiff to pay one-half of the son's expenses
pending the plenary hearing.
Plaintiff texted the parties' daughter during the summer of 2016 but
received no response. In August 2016, defendant contacted plaintiff only to
advise him of his portion of the costs for the daughter's SAT tutor. Plaintiff
complied with his court ordered obligation to pay one half of the son's fall 2016
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and spring 2017 tuition and expenses. He also paid his half of the daughter's
college application and SAT fees.
The second best interests evaluation was completed in September 2016.
Each child told the evaluator they did not want to interact with plaintiff's wife.
The parties' daughter stated she was too busy to spend full weekends with
plaintiff. At the conclusion of plaintiff's session with the children, he hugged
them and told them he loved them. In defendant's session with the evaluator,
she expressed frustration at plaintiff's attempt to become involved in the college
process. The evaluator concluded "[u]nfortunately, [the children] were not
provided with the opportunity to spend time with their father, to heal hurt
feelings, [and] to persevere during difficult times." She strongly recommended
individual therapy, and defendant "remove herself from the situation" allowing
the children and their father "to navigate their future." She also encouraged the
children to "work on resolving their feelings" and devote "the time and
opportunity to grow" a relationship with plaintiff.
The college selection process for the parties' daughter mirrored the son's.
In July 2017, plaintiff emailed the daughter to express support during the college
process, offered to contribute financial assistance to match what he was paying
for the son's education and suggested she apply to public and private schools to
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increase her chances at receiving aid. The daughter replied that she would apply
to the schools that would give her "the best opportunity to succeed" and also
wrote "[y]ou made it very clear that in order for us to have a relationship, I
would have to have a relationship with your wife. I will tell you the same thing
now that I told you then – that's not going to happen." Plaintiff's reply denied
that she needed to have a relationship with his wife to have a relationship with
him and offered to return to reunification therapy. However, the parties'
daughter declined. Instead, in October 2017, plaintiff received an email from
defendant informing him of the colleges their daughter planned to apply to,
requesting plaintiff complete financial aid forms and offer the daughter advice
on how to handle college admission interviews.
At the plenary hearing, plaintiff, his wife, the reunification therapist, best
interests evaluator, psychological evaluator, and plaintiff's forensic accountant 2
testified. Defendant, the children, and defendant's forensic accountant also
testified. In addition to the testimony, Judge Walsh considered volumes of
written materials, including the parenting coordinator's notes, emails, text
messages and other communications between the parties and the children.
2
Prior to the plenary hearing, the parties engaged separate forensic accounting
experts to prepare a cash flow analysis of plaintiff's dental practice to determine
his ability to contribute to college expenses.
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The judge concluded as follows:
Simply stated, this may be the worst case of
parent alienation this court has ever seen. The efforts
of [d]efendant . . . to ensure that [p]laintiff could not
have a full and meaningful relationship with his
children started on day one of the marital discord and
continue to this day. This was evidenced by
[d]efendant ensuring that her infant children were
present, to watch [p]laintiff move out, telling them that
their father was leaving them. It continued when she
immediately began to dictate the exact terms and
circumstances when [p]laintiff would see his children,
at one point insisting he could only have visitation in
the former marital residence. The court was asked,
early and often, to allow him to have visitation and then
to enforce visitation. She would ignore every [c]ourt
[o]rder, repeatedly forcing the matter back to court.
Plaintiff would beseech the court for help. He would
repeatedly involve the police departments to enforce his
rights to see his children. . . .
....
A number of altercations occurred . . . [including]
violent arguments that this court finds were largely
instigated by [d]efendant and over time involving
[plaintiff's wife] much more than [p]laintiff. Having
had the opportunity to observe the testimony and
review the evidence, it is easy for this court to see why
[p]laintiff's countenance is much more reserved than
his current wife. He is not a man given to show a great
deal of outward emotion. Despite incredible claims
from the [d]efendant, there is not a single piece of
evidence over the course of these nearly twenty years
where [p]laintiff would be gratuitously nasty, which the
correspondence show is her stock in trade. He is a quiet
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and reserved type who would strain to avoid conflict.
The same does not seem true of his wife.
....
The truth is there was a paucity of actual things
that [p]laintiff did that would warrant any estrangement
from the children. Given this, the court concludes,
[d]efendant made up allegations. Defendant
complained they were sleeping in an illegal basement,
an assertion rejected by both the family court and
[municipal] officials. She claimed that [p]laintiff was
cutting up the children's clothing. She told [the parties'
son] that his father had obviously drowned his phone.
When they moved to [Union County], she again made
an identical complaint about the sleeping conditions.
The children were so caught up with the craziness that
when their father wrote to them, they claimed it was
actually [his wife] 'ghost writing' the messages.
Defendant admitted that they would sit around and
ridicule [plaintiff] and [his wife]. Her denial at trial, as
against the absolute mountain of evidence to the
contrary, is simply not credible.
The children's perspective of their father is
completely warped because of the alienation. [The
parties' son] did not remember that his father was his
first soccer coach, crediting his stepfather with being
the only one who helped him with soccer. The children
complained that their father would not come to their
events, or take them to them, during his parenting time.
They had no way to know, of course, that the parenting
coordinator attempted to have [d]efendant stay away
from the events when [p]laintiff had parenting time,
since there had been so much hostile interaction, a
suggestion she refused. The truth is [p]laintiff would
make the drive to Pennsylvania, and they would only
be allowed to say a quick hello, not spend any time with
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him. [The parties' daughter] did not even remember
him going at all.
The facts show that the alienation was a long ago
success. It started when they were infants and grew
worse. When they were barely in grade school,
[d]efendant empowered them to communicate directly
with their father that they did not want to attend
visitation. When he relocated his home and medical
practice to be closer to them, they were almost
immediately spirited away to Pennsylvania.
Neither of the children so much as invited their
father to their [b]ar/[b]at [m]itzvah, with [the parties'
son] admitting he was not invited by claiming it was a
["]public event["]. This shows that by the time they
were thirteen years old, they had essentially written him
out of their lives. When their [paternal] grandfather . . .
passed away, they would not even attend the funeral
unless it was on their terms. [The parties' daughter]
admits she has never even contacted her father on his
birthday. When the court ordered that they participate
in a best interest evaluation, they reacted in anger, with
[the son] saying he was nearly eighteen and should be
done with this. When the reunification therapist
suggested they focus on the future, they were outraged
that they did not get to air their list of grievances. At
all times, they adamantly refused contact with
[plaintiff's wife].
Finally, the mindset of [the parties' son] as he
prepared for college is completely encapsulated in his
essay in support of a scholarship. Line one read:
"During my high school career, I have had to endure my
parent's acrimonious divorce." Of course, it goes
without saying that the "acrimonious divorce" took
place when [he] was a toddler. The only thing
happening during [his] high school years was his
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father's efforts to have a relationship with him. The
second line read: "My father chose not to be a
prominent figure in my life, but he did choose to be one
in my mother's life, making things extremely difficult
both financially and emotionally for her, and by
extension, my sister and me." Again, none of this is
true whatsoever. Assuming [the parties' son] believes
what he wrote, which this court accepts; his mother had
to have [misled] him.
Finally, even with the issue of college
contribution pending before the court, both [children]
chose to exclude [p]laintiff from the process, allegedly
depending on their mother to send emails updating the
process. He was, for all intents and purposes,
completely excluded. In addition, they made clear,
both at the best interests evaluation and in therapeutic
reunification that they would not even consider a
relationship with their father unless it was exactly on
their terms.
Judge Walsh's order emancipated the children as of their eighteenth
birthdays, finding their conduct placed them beyond plaintiff's sphere of
influence. As a result, the judge concluded plaintiff should not have any
obligation to pay for their college educations. Notwithstanding the children's
emancipation, the judge analyzed the Newburgh v. Arrigo 3 factors and found
they did not favor compelling plaintiff to fund college. He ordered the funds
plaintiff paid for college without prejudice be returned to him. The judge
3
88 N.J. 529 (1982).
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calculated a child support figure retroactive to the date the parties' son turned
eighteen and then calculated a reduced figure for the daughter's support, until
her graduation from high school.
The judge addressed each party's request for counsel fees pursuant to the
relevant factors under the court rules. He noted plaintiff attempted to settle the
dispute by offering to pay the equivalent of Penn State tuition for each child's
education. Plaintiff spent $286,427 and defendant $163,259.49 to try the case.
The judge concluded plaintiff was in better financial condition and defendant's
financial condition was unknown. The judge found plaintiff made good faith
attempts to engage in discovery and defendant violated discovery orders, which
caused the court to bar evidence she did not produce until the trial. However,
the judge concluded the financial circumstances did not warrant awarding
plaintiff fees.
I.
"When reviewing a trial judge's order, we defer
to factual findings 'supported by adequate, substantial,
credible evidence.'" However, reversal is warranted
when the expressed factual findings are "so manifestly
unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend
the interests of justice."
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Discretionary determinations, supported by the
record, are examined to discern whether an abuse of
reasoned discretion has occurred.
While an "abuse of discretion . . .
defies precise definition," we will not
reverse the decision absent a finding the
judge's decision "rested on an
impermissible basis," considered
"irrelevant or inappropriate factors,"
"failed to consider controlling legal
principles or made findings inconsistent
with or unsupported by competent
evidence."
This court does not accord the same deference to
a trial judge's legal determinations. Rather, all legal
issues are reviewed de novo.
[Ricci v. Ricci, 448 N.J. Super. 546, 564-65 (App. Div.
2017) (internal citations omitted) (alteration in
original).]
A.
Defendant argues the decision to declare the children emancipated and
terminate plaintiff's obligation to contribute to college expenses was an abuse
of discretion. She asserts the judge overemphasized the children's lack of
relationship with plaintiff. She argues the children were not emancipated
because they remained financially dependent and the judge "improperly
intertwined" emancipation with the college contribution dispute. She asserts the
college contribution issue was settled when the parties divorced and the court
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should have enforced their agreement pursuant to Avelino-Catabran v. Catabran,
445 N.J. Super. 574 (App. Div. 2016), rather than undertake a new analysis
pursuant to Newburgh.
"A child's decision to seriously pursue a college education alone does not
create the required dependency allowing him or her to be unemancipated. . . .
[F]acts matter, and the judge must fully analyze all circumstances that separated
[the child] from [his or] her parents and their homes." Ricci, 448 N.J. Super. at
577-78. Judge Walsh's finding that the children were estranged from plaintiff,
wanted no relationship with him, let alone allowed him to meaningfully
participate in the college selection process as the parties had agreed during the
divorce, is amply supported by the substantial, credible evidence in the record.
In situations where a child seeks neither a relationship, nor guidance from
a parent, and instead looks to a parent only as a source of funds, that parent is
relieved of the obligation to fund the child's college education. See Moss v.
Nedas, 289 N.J. Super. 352, 356 (App. Div. 1996) (noting a parent cannot be
viewed as a "wallet" and deprived of involvement in the college decision making
process).
We disagree that the parties' prior agreement to share the college
obligation irrevocably bound the judge.
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Although the court will enforce an agreement to
the extent it is just and equitable, when it appears no
longer fair to do so, the court is not bound by the
agreement or its prior orders. . . . Thus, "if
circumstances have changed in such a way that
requiring [a party] to pay for college would no longer
be equitable and fair, the court also remains free to alter
the prior arrangement."
[Moss, 289 N.J. Super. at 359-60 (quoting Lepis v.
Lepis, 83 N.J. 139, 161 n.12 (1983)).]
The circumstances here differ from Avelino-Catabran. In that case, it was
appropriate to enforce the parties' agreement to split college costs because the
dispute centered on a party's ability to pay, which the trial judge determined did
not undo the agreement, because there were other sources to fund the obligation.
445 N.J. Super 585. More importantly, in Avelino-Catabran we did not declare
agreements to pay for college immutable to a change in circumstances. To the
contrary, we held "if circumstances have changed in such a way that strict
enforcement of the agreement would no longer be equitable, a court remains free
to alter prior arrangements." Id. at 590. Here, the circumstances no longer made
it equitable to enforce plaintiff's obligation to support the children and
contribute to their college education.
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B.
Defendant argues the judge's admission of the therapeutic mediator's notes
into evidence was error. She asserts she did not have an opportunity to call the
therapeutic mediator as a witness because the court initially ruled her notes
would not be evidential. She argues the court's reliance on Rule 5:3-3(a) was
misplaced because the therapeutic mediator was not qualified as an expert, could
not serve in such a capacity pursuant to Rule 1:40-5(a)(3), and her notes
constituted hearsay.
Defendant also argues the judge abused his discretion in permitting the
reunification therapist to testify. She alleges the therapist was a social worker
and could not testify pursuant to the social worker privilege, N.J.R.E. 518, which
the therapist could not waive without the consent of the children and the parties,
N.J.R.E. 534(c).
Our review of the trial court's evidential rulings
"is limited to examining the decision for abuse of
discretion." Parker v. Poole, 440 N.J. Super. 7, 16
(App. Div. 2015) (quoting Hisenaj v. Kuehner, 194 N.J.
6, 12 (2008)). We will only reverse if the error "is of
such a nature as to have been clearly capable of
producing an unjust result." Ibid. (quoting R. 2:10-2).
[Ehrlich v. Sorokin, 451 N.J. Super. 119, 128 (App.
Div. 2017).]
Rule 5:3-3(g) provides:
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22
An expert appointed by the court shall be subject to the
same examination as a privately retained expert and the
court shall not entertain any presumption in favor of the
appointed expert's findings. Any finding or report by
an expert appointed by the court may be entered into
evidence upon the court's own motion or the motion of
any party in a manner consistent with the rules of
evidence, subject to cross-examination by the parties.
Although the admission of the therapeutic mediator's notes without
subjecting her to cross-examination was contrary to Rule 5:3-3(g), it does not
warrant reversal. The contents of the notes were cumulative of other testimony,
and the judge relied on the testimony of the psychologist who evaluated the
parties and fact witnesses to draw his conclusions. Furthermore, the most
probative evidence of estrangement arose well after the therapeutic mediator
became the parent coordinator in 2009 and then resigned in 2010. Therefore,
the admission of the notes was not "clearly capable of producing an unjust
result." R. 2:10-2. Defendant's remaining arguments relating to the therapeutic
mediator are without sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
The decision to permit the reunification therapist to testify did not violate
any privilege. Privileges are not absolute. Kinsella v. Kinsella, 150 N.J. 276,
308 (1997). When there is no expectation of confidentiality or privacy, the
privilege does not apply. Hedden v. Kean Univ., 434 N.J. Super. 1, 14 (App.
A-4617-17T4
23 Div. 2013). There is no evidence either party or the children had an expectation
of privacy vis-à-vis each other or the court regarding the reunification therapy.
The therapist provided progress reports to the court prior to the hearing and the
goal of therapy was to provide the court insight into and a means of measuri ng
the progress in achieving reunification. The admission of the reunification
therapist's testimony was not an abuse of discretion.
C.
Finally, on the cross-appeal, plaintiff argues the court erred when it failed
to award him counsel fees. We discern no abuse of discretion.
Counsel fee determinations rest within the trial judge's sound discretion.
Williams v. Williams, 59 N.J. 229, 233 (1971). We will disturb a trial court's
determination on counsel fees "only on the 'rarest occasion,' and then onl y
because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298,
317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Judge Walsh performed a thorough analysis of the RPC 1.5(a), Rule 4:42-
9, and Rule 5:3-5(c) factors and concluded they did not weigh in favor of an
award of fees to plaintiff. Substantial, credible evidence in the record supported
his decision.
Affirmed.
A-4617-17T4
24
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