NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-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
A-3181-19 2 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
A-3181-19 3 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
A-3181-19 4 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
A-3181-19 5 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
A-3181-19 6 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.
A-3181-19 7 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."
A-3181-19 8 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
A-3181-19 9 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.
A-3181-19 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
A-3181-19 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
A-3181-19 12 $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
A-3181-19 13 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.
A-3181-19 14 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.
A-3181-19 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. A-3181-19 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.
A-3181-19 17 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.
A-3181-19 18 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.
A-3181-19 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
A-3181-19 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.
A-3181-19 21