D.D v. T.L.

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3181-19

D.D.,

          Plaintiff-Appellant,

v.

T.L. (f/k/a T.D.),

          Defendant-Respondent.1


                   Argued October 13, 2021 – Decided November 23, 2021

                   Before Judges Currier and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Cape May County,
                   Docket No. FM-05-0243-13.

                   Ronald G. Lieberman argued the cause for appellant
                   (Adinolfi, Lieberman, Burick, Falkenstein, Roberto and
                   Molotsky, PA, attorneys; Ronald G. Lieberman, of
                   counsel and on the briefs).

                   Jane Molt argued the cause for respondent (Coalition
                   Against Rape & Abuse Law Project, attorneys; Jane
                   Molt, on the brief).

1
     We use initials and pseudonyms to protect the parties' and minors' privacy.
PER CURIAM

      In this post-judgment matrimonial appeal, plaintiff challenges the trial

court's decision denying his request to modify defendant's parenting time and

transfer residential custody of the minor child, Logan, to him. He contends the

trial court abused its discretion in: (1) denying his request to modify parenting

time; (2) holding him responsible for paying $10,000 towards defendant's

counsel fees and holding him solely responsible for paying the guardian ad litem

(GAL) fees; and (3) granting defendant's crossclaim to modify parenting time.

Defendant also requests this court set standards for trial judges to follow when

conducting child interviews. We affirm.

                                         I.

      The parties divorced in 2013 after seven years of marriage. At the time,

Logan was five years old. Under their Marital Settlement Agreement (MSA),

the parties shared legal and residential custody of their son.        Plaintiff had

parenting time on Thursdays after school until 10:00 a.m. on Sundays.

Defendant had parenting time from 10:00 a.m. Sunday until Thursday morning.

The parents also alternated parenting time on Wednesday nights.

      In 2018, plaintiff filed a motion seeking to: (1) transfer residential custody

of Logan to himself; (2) modify defendant's parenting time to no longer allow

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overnights; (3) require that defendant's parenting time occur outside the

presence of defendant's husband and her husband's son; (4) register Logan in

plaintiff's school district; (5) direct the parties to share transportation of Logan;

and (6) terminate plaintiff's child support obligation. Defendant filed a cross

motion seeking, among other things, a modification of parenting time, a request

that the child's activities take place in her neighborhood, and for a recalculation

of child support.

      Although a different Family Part judge initially presided over the matter,

the ultimate hearing was conducted by Judge Benjamin Podolnick over five days

between September and December 2019. Plaintiff presented himself, his current

wife, a counselor from a program which focused on witnesses or victims of

domestic violence, an elementary school counselor, and defendant's current

husband as his witnesses. Defendant testified on her own behalf. The judge

also interviewed Logan in camera.

      Plaintiff described his residence as a four bedroom, two-and-a-half-bath

home situated on 3/4 acres of land. He discussed family vacations and his

second home located in Cape May County. Initially, plaintiff lived in the Cape

May home which was only fifteen to twenty minutes from defendant's residence.

However, he has since moved to his current residence, located approximately an


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hour away from defendant. He has a nineteen-year-old son from a prior marriage

and a child with his current wife. He is employed as a sergeant with the New

Jersey State Park Police.

      Plaintiff testified that he sought a change of custody because of certain

incidents regarding defendant and her husband, as well as events that took place

in defendant's home while her stepson was living there. Plaintiff admitted he

unilaterally signed Logan up for a soccer league that played games in his town

on Sundays. He conceded he was aware the soccer games interfered with

defendant's parenting time.

      Defendant's husband, Mark, testified that he and defendant have two

children together and they experience financial issues from time to time. He also

has a son, Larry, who is the same age as Logan. Mark advised that Larry suffers

from several mental health issues, specifically attention deficit hyperactivity

disorder, oppositional defiant disorder, disruptive mood dysregulation disorder,

and bipolar disorder, for which he takes medication. Mark has had full custody

of Larry since he was four years old and he described the treatment the child has

undergone,    including     counseling,   in-home   therapy,   and   periods    of

hospitalization.

      According to Mark, Logan was aware of Larry's mental health issues, but


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he stated the boys played together, and there were no issues between them. He

stated that Logan was not afraid of Larry.

         A catalyst to plaintiff's motion was an event that occurred at defendant's

home in November 2017. Mark explained that Larry was having an emotional

episode and was trying to jump out of the second story window of his bedroom .

Mark pulled Larry out of the window multiple times, locked, and blocked the

window, and "smacked" him on his butt. He stated Logan was downstairs in the

living room when this incident occurred and heard what was happening. Mark

reported the incident to Larry's therapist, who in turn reported it to the Division

of Child Protection and Permanency (DCPP). He stated DCPP implemented a

safety plan under which he was not allowed to be alone with the children, but

neither he nor the children were removed from the home. Mark also completed

parenting classes where he learned different methods to handle Larry.

         Larry voluntarily left Mark's home in November 2018 to live with his

mother. Mark stated that Larry does return to Mark's home to visit and stay

overnight, but there had been no further incidents and the children "got along

fine."

         After plaintiff learned of the incident involving Larry, either from

defendant or DCPP, he thought Logan was behaving differently and he enrolled


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Logan in a program for domestic violence victims and witnesses. He did not

inform defendant he was doing this nor did he seek her consent. Logan attended

the program from April to August 2018. The counselor from the program stated

the intake risk assessment revealed Logan was a witness to domestic violence

but he did not meet the criteria required for a diagnosis of post-traumatic stress

disorder. As part of the program, Logan created a safety plan to use as a coping

mechanism if he were to witness Larry and Mark arguing.

      The counselor stated that after Logan completed the program, she did not

think he needed any further support. However, plaintiff and his wife wanted

Logan to continue with counseling and so the counselor recommended a second

program.

      Defendant also testified, stating she worked several jobs and lives in a

rented home with Mark, Logan, and a younger child. She advised the court there

were times she was behind in paying rent and on her bills. In discussing the

issues with Larry, defendant acknowledged the challenges the family faced

regarding his disabilities, however, she said he and Logan had a good

relationship.

      In addressing the November 2017 incident, defendant said Logan was

"impacted" by the events but she did not observe any changes in his behavior


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afterwards. When asked about Logan attending counseling, defendant admitted

she was "mad" because plaintiff did not inform her about it. She only learned

Logan was attending counseling from her attorney. She did not want Logan

attending the program and she asked her attorney to request the counselling stop

because DCPP informed her it was not necessary, and she was upset that she did

not have any input despite the parties' joint legal custody arrangement.

      In discussing soccer, defendant testified she encouraged Logan to play but

admitted that she "resented" the fact that the games occurred during her Sunday

parenting time because it was not close to her home. The soccer schedule for

the team plaintiff chose limited the activities defendant wanted to do with

Logan, such as throwing parties for him or having him attend activities with his

friends in her neighborhood. She explained she told plaintiff to stop scheduling

Logan for activities during her parenting time and there was a travel soccer team

Logan could play on in her neighborhood. Her main contention was that she did

not have a full weekend day with Logan under the existing parenting time

schedule and that plaintiff had further limited that time with the soccer league

he had unilaterally chosen.




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      The court also conducted an in camera interview with Logan. At the time,

Logan was eleven years old and in the sixth grade. He said he liked school and

enjoyed playing soccer.

      Logan said that when he was at plaintiff's house, he had a lot of friends in

the neighborhood, including his best friend, and was comfortable staying there.

He got along with plaintiff's wife and plaintiff's eighteen-year-old son.

      Logan said when he was at defendant's house, he also had a lot of friends

and was comfortable staying there. He stated that when Larry lived at the house

there was more yelling and it was calmer since Larry had moved to his mother's

house. He also said he got along well with Mark and described a recent outing.

      When asked about his living arrangements, Logan said he liked the current

plan and was happy. He did not want to change his school to the one in plaintiff's

area, stating he had "a ton of friends" at his current school.

      In describing the interview, Judge Podolnick noted that Logan "presented

as a well-adjusted preteen," was "pleasant and cooperative," although he seemed

"bored" with the whole interview. The judge also found "it was apparent that

[Logan] was not being coached although he was certainly aware that he was the

subject of a custody dispute between his parents."




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                                         II.

      On March 4, 2020, Judge Podolnick issued a comprehensive, well-

reasoned written decision and accompanying order denying plaintiff's

application for a change of custody and granting defendant's request for a

revised parenting schedule – to allow defendant parenting time including at least

one full weekend per month. The judge also awarded defendant $10,000 in

attorney's fees and ordered plaintiff to pay the guardian ad litem's (GAL) fees

of $3725.

      In assessing the parties' credibility, Judge Podolnick found plaintiff

attempted to "mislead" the court which affected his credibility. When presented

with information, the judge found plaintiff "cherry picked data" and only

testified to the information that benefitted him, ignoring the contradictory

information. The court concluded "that [p]laintiff attempted [to] purposely

ignore relevant evidence and hope[d] that such information would not be

brought out on cross examination. In the court's view, this had a detrimental

effect on [p]laintiff's credibility as a witness."

      The judge further observed that "[p]laintiff was surprisingly emotionless

while testifying and had a rather flat demeanor," considering the emotionally

charged issues. However, the judge found plaintiff provided straightforward


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responses and did not embellish his answers. The judge also commented that

"[i]n short, [p]laintiff testified that his home is nicer and a better f[i]t for Logan

than [d]efendant's home."

      In addressing the issue whether the parties had discussed the litigation

with Logan in contravention of the court's order, the judge found plaintiff's

testimony contradicted that given by his wife. He stated, "[w]hile this is not a

major nor dispositive point in this litigation, it certainly calls into question

[p]laintiff's candor with the court as it was clear he was afraid that admitting he

had discussed the litigation with Logan would somehow have hurt his claims."

      In considering Mark's testimony, Judge Podolnick found he was a credible

witness.   The court observed that Mark made good eye contact, "did not

embellish his version of events nor did he down-play their serious nature; and

he was straightforward when addressing his family's financial troubles."

      The judge also acknowledged the challenges Mark encountered in raising

Larry, specifically stating "[t]here [was] no question that [Mark], [d]efendant,

and their family, sought help in dealing with a child who has serious mental

health issues." As to the November 2017 incident, the judge stated that

             [w]hile physical abuse will never be condoned by this
             court, the court can certainly understand the witness's
             reaction to an emotionally charged situation. [Mark's]
             son was trying to jump out of a second story window.

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                                        10
            In the heat of that moment, [Mark] acted
            instantaneously to stop [Larry] from jumping. His
            reaction was visceral and done with the intent to protect
            [Larry] from hurting himself. While it is easy to second
            guess [Mark's] actions, there is certainly a reasonable
            explanation for what happened.

      Judge Podolnick also found defendant credible. He stated she was candid

and honest throughout her testimony, and in addressing the incidents plaintiff

presented regarding school and soccer. The court noted defendant's candor

regarding her frustration with plaintiff, particularly with his unilateral decision

to schedule Logan for soccer during her parenting time.

      In his thorough decision, Judge Podolnick considered whether there were

changed circumstances and analyzed each factor as required under  N.J.S.A. 9:2-

4(c). He concluded that:

            (1) [p]laintiff has drastically failed to meet his burden
            under Terry v. Terry,  270 N.J. Super. 105 (App. Div.
            1994), Beck v. Beck,  86 N.J. 480 (1981), Mastropole v.
            Mastropol[e], 181 N.J. Super[.] 130 (1981); (2) it [was
            in] Logan's best interest to remain in his current school
            district; (3) [p]laintiff attempted to mislead this court
            through a portion of his testimony and that such
            testimony was elicited in bad faith; (4) [p]laintiff
            purposely violated the terms and conditions of the
            parties' agreed upon Final Judgment of Divorce and
            Settlement Agreement by scheduling Logan for
            activities during [d]efendant's parenting time; (5)
            initially [p]laintiff filed this litigation in good faith but
            continued the litigation in bad faith when he had no
            evidence that Logan suffered significant trauma, that

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                                        11
            the [DCPP] cases were either dismissed or found to be
            "not established," when the criminal charges against
            [Mark] were outright dismissed by the prosecutor and
            because he continued to go forward with this litigation
            despite [Larry] leaving the home. Plaintiff also failed
            to present any evidence whatsoever that there were any
            detrimental activities occurring in [d]efendant's home
            after [Larry] left the home; (6) [p]laintiff exaggerated
            the alleged effects on Logan resulting from [Larry's]
            episodes and those alleged effects were unsupported by
            any expert testimony, or any quantifiable data or
            testing; (7) the various incidents         identified by
            [p]laintiff for which he claims prove that [d]efendant is
            a bad parent do not collectively support a change in
            custody; and (8) [p]laintiff engaged Logan in
            counseling without consulting [d]efendant despite the
            joint custodial arrangement.

      Therefore, the judge denied plaintiff's application to designate him the

parent of primary residence and to change Logan's school district.              In

considering defendant's request to modify parenting time, the court found she

established a change of circumstances when plaintiff moved to his principal

residence located an hour away from defendant's home. Therefore, the judge

ordered the parties to participate in mediation to establish a new parenting time

schedule that included defendant having Logan at least one full weekend per

month.

      The judge also considered both parties' requests for counsel fees. After

considering the required factors under Rule 5:3-5(c), the court granted defendant


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$10,000 in fees and denied plaintiff's motion. The judge also ordered plaintiff

to pay the GAL fees totaling $3725.

                                       III.

      On appeal, plaintiff asserts the court erred in denying his request for a

change in custody and granting defendant's request for a change of parenting

time. Plaintiff also challenges the award of counsel fees to defendant and the

order requiring him to pay the GAL fees.

                                       A.

      A party seeking a modification of custody must show a change in

circumstances. Bisbing v. Bisbing,  230 N.J. 309, 322 (2017). The changed

circumstances standard applies to all modification requests, including those

seeking an increase or decrease in parenting time. Finamore v. Aronson,  382 N.J. Super. 514, 522 (App. Div. 2006).

      In addition,  N.J.S.A. 9:2-4(c) requires a trial court to consider fourteen

enumerated factors when considering an award or change of custody. Under the

statute, the court must make a record of its reasons for its custody decision and

"must reference the pertinent statutory criteria with some specificity . . . ."

Kinsella v. Kinsella,  150 N.J. 276, 317 (1997) (quoting Terry,  270 N.J. Super.

at 119).   The court must not lose sight of the "primary and overarching


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consideration" of what is in the best interests of the child. Ibid. As the Kinsella

court stated, "[t]he best-interest analysis is an additional requirement

'superimposed upon an analysis of the statutory scheme'" and one which requires

that the court consider all material evidence which has bearing on the custody

decision. Ibid. (quoting Terry,  270 N.J. Super. at 119).

      We will not disturb the factual findings and legal conclusions of a trial

court unless we are convinced "they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice." Cesare v. Cesare,  154 N.J. 394, 412 (1998)

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co.,  65 N.J. 474, 484 (1974)).

This deference is considered especially appropriate in cases where "the evidence

is largely testimonial and involves questions of credibility." Ibid. (quoting In re

Return of Weapons to J.W.D.,  149 N.J. 108, 117 (1997)).

      As stated, the trial court meticulously addressed the statutory best interest

factors and after analyzing the factors, focused on whether plaintiff

demonstrated changed circumstances to warrant a change of custody.

Thereafter, the court concluded that plaintiff had failed to meet his burden to

support any change to the existing custody agreement.




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      The court also found plaintiff was misleading in his testimony and acted

in bad faith in pursuing the litigation. In addition, the court noted it was plaintiff

who violated the terms of the parties' settlement agreement and judgment of

divorce by committing Logan to activities during defendant's parenting time and

enrolling the child into a counselling program without consulting def endant.

      However, the judge did find a change of circumstances pertinent to the

parties' parenting time as a result of plaintiff's move to a residence an hour away

from his prior location and from defendant's home. Therefore, the parties were

ordered to participate in mediation to establish a new parenting schedule to

include defendant having at least one full weekend a month with Logan.

      Our review of the record refutes plaintiff's contention that the judge's

findings regarding the statutory factors were not supported by the evidence. To

the contrary, the court made detailed findings, referring to the evidence

presented during the hearing.         The court also made specific credibility

assessments.    Any further arguments regarding the judge's findings lack

sufficient merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(1)(E).

                                         B.




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                                        15
      As stated, plaintiff also challenges the court's finding that his move to a

residence an hour away from defendant constituted a change of circumstances

requiring a modification of the parenting time schedule. Although plaintiff

acknowledges defendant requested the parenting time modification in her

crossclaim, he states she subsequently abandoned the claim.               We are

unconvinced.

      The entire trial was about parenting time. Defendant discussed her desire

for weekend parenting time during her testimony. In his written decision, the

court found the relocation "significantly alter[ed] the basis upon which the

original parenting time agreement was negotiated." In addressing plaintiff's

appellate contentions, the trial judge stated in his Rule 2:5-1(b) amplification of

reasons that plaintiff's assertion that defendant abandoned the claim was a "total

mischaracterization." The court pointed out that defendant again addressed the

issue in her written closing submissions, requesting "either additional parenting

time or a different parenting time schedule." We discern no error in the court's

ruling finding a change in circumstances and referring the parties to mediation. 2


2
    During oral argument, counsel advised this court that the parties were
unsuccessful at mediation in reaching an agreement regarding a new parenting
time. Therefore, if the parties continue at an impasse, the trial court will
establish a parenting time schedule to include at least one full weekend each
month for defendant.
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                                       16
                                       C.

      We turn to the award of fees. The court ordered plaintiff to pay the

outstanding GAL fees and awarded defendant $10,000 in attorney's fees.

      An award of attorney's fees in matrimonial matters is discretionary.

Slutsky v. Slutsky,  451 N.J. Super. 332, 365 (App. Div. 2017) (citing Packard-

Bamberger & Co. v. Collier,  167 N.J. 427, 444 (2001)). Under Rule 4:42-9(b)

and Rule 5:3-5(d), counsel must submit an affidavit of services that addresses

the factors listed in RPC 1.5(a) and itemizes disbursements for which

reimbursement is sought. The Family Part court must also consider the Rule

5:3-5(c) factors. A "fee award is accorded substantial deference and will be

disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh,  329 N.J. Super. 447, 466 (App. Div. 2000).

      Here, Judge Podolnick carefully considered the statutory factors and

stated which he found relevant and why. He concluded the factors weighed in

favor of an award of fees to defendant. The judge also reviewed the submitted

certification of services and found defense counsel's hourly rate to be reasonable

for the geographical location. Although counsel requested $32,680, the court

only awarded $10,000. The court did not award defendant any fees incurred

with work done on the first trial.


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        In his amplification, the judge reiterated the reasons for the award of fees

to defendant: "Plaintiff's bad faith in pursuing the litigation; Plaintiff's

mischaracterization of evidence during the trial, thereby attempting to mislead

the trial court; the parties' ability to pay; and the end result of the litigation ."

We are satisfied the judge did not abuse his discretion in the award of counsel

fees.

        We also review the order requiring plaintiff to pay the GAL fees for an

abuse of discretion. D.H. v. D.K.,  251 N.J. Super. 558, 565-66 (App. Div. 1991).

Rule 5:8B(d) requires the GAL to "submit a certification of services at the

conclusion of the matter, on notice to the parties, who will thereafter be afforded

the right to respond prior to the court fixing the final fee."

        At the start of the first trial, an issue arose whether the therapy program

counselor's testimony regarding Logan's testimony was privileged and whether

the parents, who agreed to allow the testimony, could waive the privilege. The

issue was not resolved, and the trial was not completed. The issue then arose

again before Judge Podolnick on the first day of trial before him. The judge was

perturbed that neither party had informed him prior to the start of trial of the

unresolved issue and he determined that the parties' conflicting positions

required the appointment of a GAL.


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      When the judge appointed the GAL, he initially stated that both parties

would be equally responsible for her fees.         However, when ruling on the

privilege issue, the court found the payment and allocation of the GAL's fees

would be determined after she submitted her certification of services. As stated,

the GAL did submit the required certification and the judge found her fees were

reasonable and necessary.

      In directing plaintiff to pay the guardian's fees, the court noted that,

despite plaintiff knowing the privilege issue was unresolved and that it involved

his first witness, plaintiff failed to notify the court in advance and thus the court

"was compelled to appoint a [GAL] to represent Logan to address the privilege

issue."

      The GAL was only appointed for the limited purpose of addressing the

privilege issue. The counselor was plaintiff's first witness and her testimony

was offered to support his claim for a change in custody. We discern no abuse

of discretion in the court's order directing plaintiff to pay the GAL fees.

                                         D.

      Lastly, plaintiff requests this court to set standards for trial courts to

consider and adhere to when conducting an in camera child interview. We

decline to do so.


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                                        19
      In the first instance, plaintiff did not raise this issue before the trial court.

In addition, there is already a structure in place: Rule 5:8-6 – regarding the

procedure to follow when conducting an in camera interview of a child. Judge

Podolnick complied with that rule. Plaintiff submitted questions to the court

that he desired be asked of his son. The parties were provided with a transcript

of the interview.

      On appeal, plaintiff asserts the court did not ask all of the questions he

wanted. In his amplification, the judge stated he "found many of the questions

posed by [p]laintiff's counsel were irrelevant and redundant." The judge advised

he "was well aware and acquainted with the material issues in dispute and

focused the in camera child interview on those particular issues." The judge

noted he "was able to gain sufficient insight into the minor child's feelings, his

residential situation, his relationship with all relevant parties, as well as his

thoughts and desires through the numerous questions posed by the trial court

during the . . . interview."

      The judge explained that he took "into consideration that a certain degree

of trust and mutual respect between the court and a child is more likely to elicit

a genuine and reliable response from a child during a[n] . . . interview." We are

satisfied Judge Podolnick conducted an appropriate, insightful, and thorough


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                                         20
interview of the child. He elicited the information he needed to reach his

decision on the parties' applications without causing any collateral damage to

the child. As a court rule already governs an in camera child interview, we

decline the invitation to take any further action.

      Affirmed.




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