NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1816-19
ENGY ABDELKADER,
Plaintiff-Appellant,
v.
AHMED ISLAME HOSNY,
Defendant-Respondent. _________________________
Submitted May 3, 2021 – Decided June 2, 2021
Before Judges Messano and Hoffman.
On appeal from the New Jersey Superior Court, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0390-11.
Engy Abdelkader, appellant pro se.
Laufer, Dalena, Jensen, Bradley & Doran, LLC, attorneys for respondent (Michelle A. Benedek-Barone, of counsel and on the brief).
PER CURIAM This post-judgment dispute is before us a second time. In our prior
opinion, we set out the salient facts regarding the parties' marriage, separation,
divorce, plaintiff's unilateral relocation to Virginia with the parties' son, A.H.
(Alec), Alec's return to New Jersey in his father's custody, and plaintiff's
ultimate return to New Jersey.1 Abdelkader v. Hosny, No. A-1666-16 (App.
Div. July 26, 2018). The parties are intimately familiar with those details, and
we need not repeat them again except as necessary to resolve the issues now
presented. Ultimately, we dismissed plaintiff's appeal as moot but concluded
"there [were] sufficient changes in the circumstances of [Alec]'s life to warrant
a plenary hearing at which the judge shall determine what custodial arrangement
now serves [the child's] best interests." Id. at 9 (citing N.J.S.A. 9:2-4).
The plenary hearing took place before Judge Michael A. Guadagno, now
retired on recall, during eight court sessions commencing on August 5, 2019. 2
On December 12, 2019, he entered an order that: continued defendant as the
parent of primary residence (PPR); left unchanged a prior order fixing plaintiff's
1 We use initials and a pseudonym for the child pursuant to Rule 1:38-3(d)(3). 2 Prior to his retirement, Judge Guadagno was the trial judge who entered the parties' 2011 final judgment of divorce (JOD), which incorporated their property settlement agreement (PSA). He was not involved in the post-judgment orders that were the subjects of plaintiff's first appeal. A-1816-19 2 child support obligation; appointed a parenting coordinator with significant
authority and with costs borne equally by the parties; and required the parties to
enroll Alec, then almost ten-years old, "in therapy consistent with the findings"
in the judge's extensive written decision.
Plaintiff now appeals asserting errors regarding certain procedural aspects
of the plenary hearing, Judge Guadagno's consideration of the evidence adduced
at the hearing, and his ultimate decision to designate defendant as PPR. Plaintiff
urges us to reverse the order and remand again for another hearing before a
different judge. We address each of plaintiff's contentions below. We find them
unpersuasive and affirm.
I.
Both parties are attorneys, and plaintiff has represented herself throughout
the proceedings following our remand.3 At the first case management
conference in August 2018, Judge Sheedy established a discovery schedule
including dates for the retention of experts. Defendant declined any request to
hire a joint expert and hired Dr. Sharon Ryan Montgomery to conduct a best-
interests evaluation. Dr. Elise Landry had prepared a custody neutral assessment
3 The pre-plenary hearing proceedings were conducted by the presiding judge of the Family Part, Kathleen A. Sheedy. A-1816-19 3 (CNA) during the earlier litigation when plaintiff relocated to Virginia with
Alec. After a second case management conference, Judge Sheedy entered an
order requiring plaintiff to retain Landry "to prepare an update of her 2016
report."
Disputes regarding parenting time erupted, along with other issues, and a
flurry of motion practice commenced. In November, Judge Sheedy ordered
plaintiff to "pay the full amount for an updated assessment with Dr. Landry."
A new round of motions led to the judge's December 14, 2018 order (the
December 2018 order) and a forty-nine page written opinion in which she again
denied plaintiff's request for modification of her child support without prejudice,
but also reserved the issue for the plenary hearing, at which "[t]he [c]ourt will
hear arguments as to the child support and income imputation issues . . . and will
calculate child support . . . after that time." The order continued plaintiff's then-
current child support of $130 per week to be paid through probation.
The December 2018 order also denied several requests made by defendant
regarding plaintiff's alleged support arrearages, payment for Alec's
extracurricular activities and other financial issues, reserving them for the
plenary hearing. Judge Sheedy denied defendant's request that she recuse
herself. Finally, the December 2018 order required both parties and Alec to
A-1816-19 4 meet with Landry in January for preparation of an updated CNA. We denied
defendant's request to seek emergent relief from the December 2018 order.
Landry issued an updated CNA in January 2019. We discuss the report
and her testimony below, but, for the moment, it suffices to note that Landry
forwarded the report directly to the court, requested a protective order issue, and
suggested that neither party receive a copy nor share its contents with Alec.
However, Landry suggested that defendant's expert receive a copy to "fully
address[] the concerns" noted.4 Judge Sheedy entered a protective order barring
report's dissemination to anyone other than the parties and their attorneys.
There was apparent confusion because plaintiff was initially told she
could only come to chambers to review Landry's report even though it had been
sent to defense counsel. In any event, plaintiff received the report at a March
29, 2019 case management conference and well in advance of the hearing.
Prior to that conference, on March 5, 2019, Landry wrote to Judge Sheedy,
noting plaintiff's representation that the judge referred to Landry "on the record"
as plaintiff's expert. 5 Landry stated she was ethically prohibited from serving as
4 Ultimately, Montgomery never reviewed the updated CNA. 5 We have only been provided with the transcripts from the plenary hearing before Judge Guadagno. A-1816-19 5 both a party's expert and CNA analyst. She had explained this when first
contacted by plaintiff and provided plaintiff with names of other psychologists
in the area. Landry said that plaintiff "never once expressed that she considered
me her expert and . . . explained that she had not retained an independent expert
because of financial concerns." On April 3, 2019, plaintiff sent a letter to Judge
Sheedy, noting Landry's ethical reservations and her concerns over Alec's well-
being. Plaintiff urged the court "to take appropriate measures to protect the
parties' child beyond the mere issuance of a protective order."
At the initial hearing before Judge Guadagno, plaintiff objected to the
judge's stated intention to interview Alec in chambers. The judge initially
reserved decision but ultimately did conduct the interview, as we explain below.
Judge Guadagno also addressed defense counsel's objection to plaintiff referring
to Landry as a "[c]ourt-appointed expert." He noted that CNAs are done "in
order [for the court] to have an expedited input" but they "fall[] short of a full-
blown custody evaluation." The judge noted he would consider any report
admitted into evidence and "give them the appropriate weight," but "putting
names on them as the [c]ourt expert or defendant['s] expert or plaintiff's expert
. . . doesn't really move the ball forward."
A-1816-19 6 Plaintiff testified, as did her mother and Landry. Defendant testified, as
did Montgomery, defendant's brother, two of defendant's neighbors, and one of
Alec's babysitters. We discuss as necessary the testimony and Judge Guadagno's
specific findings and conclusions based on the evidence adduced at the hearing
in the context of plaintiff's specific points on appeal.
II.
It is well-established that "[w]e grant substantial deference to a trial
court's findings of fact and conclusions of law, which will only be disturbed if
they are manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence." N.H. v. H.H., 418 N.J. Super. 262, 279 (App.
Div. 2011) (quoting Crespo v. Crespo, 395 N.J. Super. 190, 193–94 (App. Div.
2007)). This is particularly so where the evidence is largely testimonial and
rests on the judge's credibility determinations. Gnall v. Gnall, 222 N.J. 414, 428
(2015). In addition, we particularly "recogniz[e] the court's 'special jurisdiction
and expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282–
83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a]
more exacting standard governs our review of the trial court's legal
conclusions[,] . . . [which] we review . . . de novo." Id. at 283 (citing D.W. v.
R.W., 212 N.J. 232, 245–46 (2012)).
A-1816-19 7 A.
Plaintiff contends in Points One, Three and Four that Judge Guadagno
erred because he: "consistently refused to enforce the [PSA]"; misapplied the
best-interests of the child standard and "cherry[-]picked evidence" to support
the result; and abused his discretion by interviewing Alec and relying on the
child's answers as "dispositive," despite conclusions in Landry's report about
Alec's deteriorating emotional state and her recommendation that the court
appoint a guardian ad litem (GAL) for the child.6
(i)
The PSA focused almost entirely on custody and parenting time. It
provided for the parties to share legal custody and designated plaintiff as PPR.
The parties were permitted to make "ordinary day-to-day decisions" about Alec's
"daily routines" when he was in their custody, but they were required to consult
6 Plaintiff does not specifically challenge that portion of Judge Guadagno's order maintaining her child support obligation at the same level. She mentions only in passing that Judge Guadagno did not address the issue, even though Judge Sheedy had reserved resolution of plaintiff's earlier motion for modification until completion of the plenary hearing. An issue not briefed on appeal is deemed waived. Pullen v. Galloway, 461 N.J. Super. 587, 595 (App. Div. 2019) (citing N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2, (App. Div. 2015)); see also Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (noting cursory discussion of an issue in a brief is improper).
A-1816-19 8 each other and could not act unilaterally on any "matters of importance"
concerning Alec's health, education, religion, and general welfare. In addition
to detailed parenting time provisions, the PSA provided for a right of first refusal
in the event either parent was unavailable to care for Alec during their parenting
time, whereby the other parent could give notice of their intent to care for Alec,
rather than using a "third-party caregiver." The parties would share equally the
transportation responsibilities associated with parenting time, but if defe ndant
exercised additional parenting time, he would be responsible for "transportation
both ways." Significantly, the PSA provided that neither parent could relocate
with Alec outside of New Jersey without the consent of the other parent or an
order of the court.
Most significantly, plaintiff contends Judge Guadagno ignored the PSA's
designation of her as PPR. Plaintiff correctly notes that our courts have
recognized the contractual nature of PSAs, and that they "should be enforced
according to the original intent of the parties." J.B. v. W.B., 215 N.J. 305, 326
(2013) (citing Pacifico v. Pacifico, 190 N.J. 258, 265–66 (2007)). Essentially,
she contends that although she moved to Virginia with her son in violation of
the PSA, and that ultimately resulted in defendant having custody of Alec in
New Jersey since December 2016, see Abdelkader, slip op. at 4, Judge
A-1816-19 9 Guadagno should have enforced the terms of the PSA and re-designated her as
PPR.
"The touchstone for all custody determinations has always been 'the best
interest[s] of the child.'" Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App.
Div. 2009) (alteration in original) (quoting Kinsella v. Kinsella, 150 N.J. 276,
317 (1997)). "Parties cannot by agreement relieve the court of its obligation to
safeguard the best interests of the child." P.T. v. M.S., 325 N.J. Super. 193, 215
(App. Div. 1999) (citing In re Baby M., 109 N.J. 396, 418 (1988)). "A custody
arrangement adopted by the trial court, whether based on the parties' agreement
or imposed by the court, is subject to modification based on a showing of
changed circumstances, with the court determining custody in accordance with
the best interests standard of N.J.S.A. 9:2-4." Bisbing v. Bisbing, 230 N.J. 309,
322 (2017). Changed circumstances that affect the child's welfare are sufficient
to order a plenary hearing and possibly modify any prior agreement or order
regarding these issues. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.
2007) (citations omitted).
Our prior opinion determined that plaintiff's initial relocation to Virginia
and the multiple relocations of Alec resulted in a "whirlwind of changed
circumstances" in his young life that made a plenary hearing necessary.
A-1816-19 10 Abdelkader, slip op. at 8–9. Judge Guadagno was free to consider the evidence
at that hearing and enter an order designating which parent would serve as PPR,
guided solely by what was in Alec's best interests and without regard to the terms
of the PSA. Plaintiff's contention requires no further discussion. R. 2:11-
3(e)(1)(E).
Seen through this prism, plaintiff's claims that Judge Guadagno refused to
enforce other terms of the PSA, including her "right of first refusal" to parenting
time, the PSA's prohibition against unilateral decision making and the equal
sharing of transportation costs, fall by the wayside.
Other than ordering that defendant would remain Alec's PPR, the judge
left it to the parenting coordinator "to aid the parties in monitoring their existing
parenting plan." Judge Guadagno only discussed plaintiff's right of first refusal
and defendant's unilateral decision making in the context of making findings and
weighing the statutory best interest factors, see N.J.S.A. 9:2-4(c). In doing so,
he signaled his agreement with Judge Sheedy's December 2018 order regarding
the right of first refusal.
The December 2018 order granted plaintiff's request for modification of
the existing parenting time schedule and provided her with additional time with
Alec. Judge Sheedy, however, rejected plaintiff's request that defendant provide
A-1816-19 11 her with forty-eight hours advanced notice whenever he intended to have a
"third-party caregiver" stay with Alec. At the same time, Judge Sheedy rejected
defendant's request to set "reasonable parameters" for each party to exercise
their respective rights of first refusal in the PSA. She concluded that the PSA
"specifically contemplate[d] the right of first refusal when the parties are unable
to care for [Alec] and/or will not be able to sleep in the same home with [Alec]."
This was certainly a reasonable interpretation of the PSA's provisions; plaintiff's
argument that defendant must permit her to parent Alec for short periods of time
instead of using a babysitter was not, and it was contradicted by other provisions
of the PSA where it was anticipated that others, like part-time nannies, might be
necessary to assist with childcare.
While the record reveals that defendant acted unilaterally on occasion, it
also demonstrates plaintiff's unilateral actions prior to 2016, when she was
Alec's PPR. When the parties executed the PSA, the agreement logically placed
the costs of parenting time transportation on defendant, because he was not the
PPR. Things had obviously changed by the time Judge Sheedy entered the
December 2018 order that modified parenting time pending the plenary hearing.
But, by then, plaintiff was no longer the PPR, and Alec had resided primarily
with defendant for some time.
A-1816-19 12 (ii)
In Point IV, plaintiff argues that the court abused its discretion by
conducting an in-camera interview of Alec and subsequently giving his
responses dispositive weight in the best-interests analysis. She suggests that
Judge Guadagno failed to consider Alec's emotional state, lack of capacity, and
the totality of the circumstances. We find no mistaken exercise of the court's
discretion.
After initially reserving on the issue when plaintiff objected, the judge
determined he would conduct the interview, finding that Rule 5:8-6 "favors" an
in-camera interview of the child. Based on other testimony, the judge concluded
that Alec was a "very bright child" and that, at the age of nine, he was of
"adequate age to at least present [his] wishes, and that's all we are doing here ."
Judge Guadagno allowed the parties to submit questions for Alec, and plaintiff
did so. After conducting the interview, the judge made the transcript available
to the parties. 7 In his written decision, Judge Guadagno rejected plaintiff's
argument that Alec did not have the capacity to express his wishes. The judge
concluded that Alec "possesses the maturity and judgment to express his
custodial preference."
7 The transcript does not appear in the record. A-1816-19 13 Rule 5:8-6 provides, in pertinent part:
As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost.
"[T]he preference of the child when of sufficient age and capacity to reason so
as to form an intelligent decision" is a relevant part of the court's calculus when
making a custody award. N.J.S.A. 9:2-4(c). "[T]he decision whether to
interview a child in a contested custody case is left to the sound discretion of
the trial judge, which, as in all matters affecting children, must be guided by the
best interest of the child." D.A. v. R.C., 438 N.J. Super. 431, 455–56 (App. Div.
2014).
Plaintiff contends that Alec's emotional state was such that the judge
should not have conducted the interview. She cites Landry's report, which
recommended appointment of a guardian ad litem for the child. However, Judge
A-1816-19 14 Guadagno was in the best position to assess Alec's ability to participate in the
interview without doing any further harm to the child.
In Mackowski v. Mackowski, interpreting a prior iteration of the rule that
required the court to conduct an interview of the child upon a party's request,
we rejected the trial judge's refusal because of concerns about the child's
welfare. 317 N.J. Super. 8, 11 (App. Div. 1998). We made clear:
The value of a properly conducted interview enabling the judge to see and hear the child first-hand outweighs the possibility of harm that may befall a child by being subjected to the interview process. On balance, it is not the interview that is ultimately harmful, but the custody dispute between the parties that potentially wrecks havoc with the child.
[Id. at 14.]
Judge Guadagno noted that Alec had a clear preference for maintaining the
status quo with defendant as PPR, and he "provided compelling reasons for
doing so[.]" Contrary to plaintiff's contention, the judge did not give the
interview "dispositive" weight; rather, he made findings and reached
conclusions on all the statutory factors, including the preference of the child.
There was no mistaken exercise of discretion in interviewing Alec.
A-1816-19 15 (iii)
In Point III, plaintiff argues Judge Guadagno "cherry[-]picked" the
evidence supporting the result and misapplied the statutory best-interest factors.
We again disagree.
Determining what custodial arrangement is in the best interest of a child requires the Family Part judge to apply the statutory factors outlined in N.J.S.A. 9:2-4, as complimented by the relevant court rules governing an award or change of custody, and reach a conclusion that is supported by the material factual record.
[D.A., 438 N.J. Super. at 450.]
"[A]s a general proposition, we should accord great deference to discretionary
decisions made by Family Part judges, provided they are supported by adequate,
substantial, and credible evidence in the record." Id. at 451 (citing Cesare, 154
N.J. at 411–13 (1998)).
Here, Judge Guadagno considered all the factors set forth in N.J.S.A. 9:2-
4(c). He did not ignore evidence that was favorable to plaintiff or detrimental
to defendant. For example, in analyzing the ability of the parents "to agree,
communicate and cooperate in matters relating to" Alec, ibid., the judge cited
both Landry's report and Montgomery's report and recognized both parents had
failed to cooperate with each other. However, he cited to substantial evidence
in the record that led him to conclude "plaintiff's failures in this regard have
A-1816-19 16 been more troubling." The judge also cited specific credible evidence in the
record that supported his conclusion that defendant was willing to facilitate
plaintiff's parenting time, but plaintiff showed a tendency to arbitrarily interfere
with defendant's time.
Plaintiff contends that the judge downplayed Landry's conclusion that
Alec's emotional stability had deteriorated since 2016, and she correctly notes
that only Landry, with the benefit of her 2016 CNA evaluation, had the ability
to compare Alec's condition before and after defendant became his PPR.
However, the judge credited Montgomery's opinion that Alec had a positive
relationship with both parents and that the child's emotional problems predated
his 2016 return to New Jersey and defendant's custody. It was well within the
judge's discretion to credit all or none of the expert testimony in the case. Todd
v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993).
In several other instances Judge Guadagno considered evidence that
supported plaintiff's position. He noted, for example, that Alec gen erally
"thrived in the custody of each parent[,]" and that both parents were able to meet
the child's needs. Plaintiff's broad contention that the judge misapplied the
statutory factors and made findings unsupported by the credible evidence in the
record is simply unavailing.
A-1816-19 17 B.
In Point II, plaintiff argues it was error for Judge Sheedy to re-appoint
Landry to produce an updated CNA when custody was in dispute. As best we
can discern, plaintiff contends the court should have appointed its own expert.
She also argues it was reversible error for Judge Sheedy to withhold Landry's
report from plaintiff, and for Judge Guadagno to ignore Landry's
recommendations, specifically, that a GAL be appointed on Alec's behalf and
the family meet with "a joint or court-appointed child custody expert."
Initially, any delay in providing plaintiff with Landry's report was
inconsequential; as noted, plaintiff had the report well in advance of the actual
hearing. Following our remand, Judge Sheedy allowed both parties to retain
custody experts, but, apparently for financial reasons, plaintiff chose not to do
so. Instead, she announced her intention to produce Landry as a witness and
Judge Sheedy properly ordered that to the extent Landry would be reprising her
2016 report, it should be updated.
Clearly, the court has the authority to appoint its own expert. R. 5:3-3(d).
As already noted, we have not been provided with transcripts of the pre-hearing
case management conferences. We have no idea whether plaintiff specifically
requested that relief. In her April 3, 2019 letter to Judge Sheedy noting Dr.
A-1816-19 18 Landry's ethical dilemma, plaintiff only urged the court "to take appropriate
measures to protect the parties' child beyond the mere issuance of a protective
order." Before us, plaintiff's brief contains no citation to the record
demonstrating she specifically asked the court to appoint an expert because of
her financial difficulties. Plaintiff only notes that Judge Sheedy's written
opinion supporting the December 2018 order makes no reference to a court-
appointed custody expert. Under the circumstances, we cannot conclude it was
a mistaken exercise of discretion for the court not to appoint an independent
expert. Plaintiff's claim that Landry was somehow an "improper" expert is
unavailing.
Plaintiff contends that Judge Guadagno erred by ignoring Landry's
recommendation during her testimony at the hearing that there be a full-blown,
court-appointed best-interests evaluation. However, the judge had the benefit
of Landry's report and testimony, as well as Montgomery's report and testimony.
He also had the benefit of the testimony from several other witnesses and his
interview of Alec.
Moreover, Rule 5:3-3 provides an important framework for the court's
consideration of any custody expert's report, regardless of his or her retention.
First, "[m]ental health experts who perform parenting/custody evaluations shall
A-1816-19 19 conduct strictly non-partisan evaluations to arrive at their view of the child's
best interests, regardless of who engages them." R. 5:3-3(b) (emphasis added).
Second, "[a]n 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." R. 5:3-3(g) (emphasis
added). Judge Guadagno completely understood these principles because at the
very outset of the hearing, he addressed plaintiff's reference to Landry as a
"court-appointed" expert and explained to plaintiff and defense counsel that he
was duty bound to consider the opinions without regard to who retained the
expert. Applying these principles, we are unpersuaded that the court's failure to
appoint a neutral expert made any material difference in the outcome of this
case.
C.
Defendant argues that it was error to admit Montgomery's report into
evidence because it was furnished "on the eve of trial" and without an
opportunity for plaintiff to engage in discovery. The argument lacks sufficient
merit to warrant extensive discussion. R. 2:11-3(e)(1)(E).
The initial date set for the plenary hearing was adjourned because
Montgomery's report was not completed. It was not served until July 15, 2019,
A-1816-19 20 only weeks before the hearing commenced. When plaintiff objected to the
report's admission at the hearing, Judge Guadagno cited an earlier ruling by
Judge Sheedy that refused to bar the report. 8 He also concluded that plaintiff
suffered no prejudice.
In reviewing a Family Part judge's evidentiary ruling, we consider it for
an abuse of discretion. N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J.
Super. 478, 492 (App. Div. 2016). We reverse discretionary determinations, as
with all rulings on the admissibility of evidence, only "when the trial judge's
ruling was 'so wide of the mark that a manifest denial of justice resulted.'" N.J.
Div. of Youth & Fam. Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012)
(quoting State v. Carter, 91 N.J. 86, 106 (1982)).
We find no mistaken exercise of discretion here, and, even if the report
itself should have been excluded, Montgomery testified as to its contents and
her opinions contained in the report. Any error was harmless. R. 2:10-2.
Affirmed.
8 There is nothing in the appellate record that memorializes this ruling other than Judge Sheedy's July 11, 2019 case management order that required Montgomery's report to be provided to plaintiff by July 15. A-1816-19 21