BRANDY KISSOONDATH VS. SASHA KISSOONDATH (FM-06-96-12, CUMBERLAND COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 10, 2017
• Docket: A-4837-14T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4837-14T1

BRANDY KISSOONDATH, n/k/a BRANDY DIGGS,

Plaintiff-Respondent,

v.

SASHA KISSOONDATH,

Defendant-Appellant.

Submitted April 26, 2017 – Decided May 10, 2017

Before Judge Carroll, Gooden Brown and Farrington.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-96-12.

Law Office of Robert J. O'Donnell, P.C., attorneys for appellant (Robert J. O'Donnell, on the brief).

Adinolfi & Packman, P.A., attorneys for respondent (Julie Burick, of counsel and on the brief; Kevin Murphy, on the brief).

PER CURIAM

The parties' 2001 marriage produced three children and ended

with the entry of a November 28, 2012 judgment of divorce (JOD). The JOD incorporated a handwritten stipulation of settlement that

the parties agreed to as their divorce trial was commencing. On

January 2, 2013, an amended JOD was entered that incorporated the

final, typed version of the parties' settlement agreement.

Among its other provisions, the JOD awarded the parties joint

legal custody of the children. Plaintiff Brandy Kissoondath was

designated parent of primary residence, and defendant Sasha

Kissoondath was designated parent of alternate residence. The

JOD, as amended, also provided:

[] Based upon the distance between the parties' residences of approximately one hour's drive time, [] defendant, Sasha Kissoondath, shall have parenting time on a two-week rotating schedule as follows:

Week #1: Friday at 6:00 p.m. to Monday (drop off at school).

Week #2: Friday at 6:00 p.m. to Saturday at 2:00 p.m.

. . . .

[] The parties shall equally share summer school recess on an alternating one-week on/one-week off basis provided each party may take a two (2) week vacation on [sixty] days' advance written notice to the other via email.

Despite their settlement, the parties have engaged in further

disputes regarding the judgment's implementation. The present

appeal represents the latest chapter in what the motion judge

characterized as the parties' "significant", "protracted",

2 A-4837-14T1 "substantial", and "acrimonious" litigation, a description with

which the parties readily concur.

In this appeal, defendant seeks our review of certain

provisions of an April 17, 2015 post-judgment order entered by

Judge Harold U. Johnson, Jr. Judge Johnson was well familiar with

the parties, having presided over their divorce proceedings and

several post-judgment applications. The order in question

consists of nineteen pages and memorializes the judge's findings

of fact and conclusions of law with respect to each of the combined

twenty-six reliefs sought by the parties.

Pertinent to this appeal, the trial court denied defendant's

request to obtain the children's passports to take them on a Disney

cruise that would travel to different parts of the Caribbean

islands. The court's decision was partly based on the acrimonious

dynamic between the parties and the concern that defendant would

use the trip as a pretext to abscond with the children to Trinidad,

where he was born and had family, or another foreign country. A

year earlier, the court denied defendant's request to take the

children to Trinidad, predicated on plaintiff's concerns about

available medical care in Trinidad as well as the flight risk.

The judge indicated that, while he "rarely denies children an

opportunity to enjoy a 'Disney experience,'" he was "regrettably"

3 A-4837-14T1 compelled to deny defendant's application because of "the facts,

circumstances[,] and history that exists here."

The court also denied defendant's request to modify the

parenting time schedule for lack of a substantial change in

circumstances affecting the welfare of the children.

Specifically, the court denied defendant's request to add to his

parenting time by picking up the children each Wednesday after

school and then returning them to school on Thursday morning. The

court determined that it would be unduly disruptive and burdensome

for the children to commute to accommodate a weekday overnight.

However, the court permitted defendant to pick up the children

from school at 3:00 p.m. on Fridays with plaintiff's consent, and

also permitted defendant to keep the children until 6:00 p.m. on

those Saturdays when plaintiff is scheduled for parenting time but

works until 6:00 p.m.

The court also denied defendant's request that he be allowed

to keep the children with him when plaintiff is away overnight.

Plaintiff acknowledged that she left the children with her

boyfriend with whom she resides while she went away for a week on

a business trip. Reiterating a prior ruling, the court determined

that plaintiff had the discretion to choose who to leave the

children with when required to travel for work during her parenting

time. However, the court ordered that defendant be given the

4 A-4837-14T1 option to take the children when plaintiff is required to travel

for work for a period longer than five days. Defendant now appeals

these three rulings.

We provide substantial deference to the Family Part's

findings of fact because of its special expertise in family

matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus,

"[a] reviewing court should uphold the factual findings

undergirding the trial court's decision if they are supported by

adequate, substantial and credible evidence on the record."

MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279

(2007))(alteration in original). While no special deference is

accorded to the judge's legal conclusions, Manalapan Realty v.

Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we "'should not

disturb the factual findings and legal conclusions of the trial

judge unless . . . convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice'

or when we determine the court has palpably abused its discretion."

Parish v. Parish, 412 N.J. Super., 39, 47 (App. Div. 2010) (quoting

Cesare, supra, 154 N.J. at 412). "We reverse only to 'ensure that

there is not a denial of justice' because the family court's

'conclusions are [] "clearly mistaken" or "wide of the mark."'"

5 A-4837-14T1 Id. at 48 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196

N.J. 88, 104 (2008)) (alteration in original).

Generally, when courts are confronted with disputes

concerning custody or parenting time, the court's primary concern

is the best interests of the child. See Sacharow v. Sacharow, 177

N.J. 62, 80 (2003); Wilke v. Culp, 196 N.J. Super. 487, 497 (App.

Div. 1984), certif. denied, 99 N.J. 243 (1985). The court must

consider "what will 'protect the safety, happiness, physical,

mental and moral welfare of the child.'" Mastropole v. Mastropole,

181 N.J. Super. 130, 136 (App. Div. 1981) (quoting Beck v. Beck,

86 N.J. 480, 497 (1981)) (internal quotation marks omitted). "A

judgment, whether reached by consent or adjudication, embodies a

best interests determination." Todd v. Sheridan, 268 N.J. Super.

387, 398 (App. Div. 1993). When a parent seeks to modify a

parenting time schedule that parent "must bear the threshold burden

of showing changed circumstances which would affect the welfare

of the [child]." Ibid.

Before us, defendant argues that the trial court failed to

adequately consider the best interests of the children in denying

his requests to take the children outside the country on a Disney

cruise, for increased parenting time, and to take the children

when plaintiff is away overnight for work. Defendant further

6 A-4837-14T1 asserts that the motion judge was mistaken in his analysis of the

underlying facts and law, thus resulting in an abuse of discretion.

We have considered defendant's arguments in light of the

record and the applicable legal principles and conclude they lack

sufficient merit to warrant further discussion in a written

opinion. R. 2:11-3(e)(1)(E). When defendant filed this motion

in March 2015, Judge Johnson was abundantly familiar with the

parties, the arguments they had previously raised, and those they

continued to advance. We affirm substantially for the reasons

embodied in the judge's April 17, 2015 order, which are consistent

with the law and adequately supported by the record.

Affirmed.

7 A-4837-14T1