F.S. VS. R.A.L. (FM-04-1177-14, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 30, 2018
• Docket: A-5315-15T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5315-15T1

F.S.,

Plaintiff-Appellant,

v.

R.A.L.,

Defendant-Respondent. ____________________________

Submitted May 14, 2018 – Decided July 30, 2018

Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1177-14.

F.S., appellant pro se.

David M. Lipshutz, attorney for respondent.

PER CURIAM

Plaintiff-husband, F.S.1, appeals from a June 29, 2016 entry

of Final Judgment of Divorce after a lengthy trial. The Honorable

1 Because there are allegations of abuse and neglect as well mental health issues, we use initials to protect the privacy of the parties. Mary Beth Kramer, J.S.C., rendered her thorough, well-supported

decision from the bench on June 22, 2016, and we affirm.

Plaintiff and defendant-wife, R.A.L., met in Brazil in 2002

and married on June 27, 2007. They have one child together, B.S.

Plaintiff filed a complaint for divorce on April 12, 2014. A

trial was conducted over twenty days throughout 2015 and 2016.

The parties had previously litigated other Family Part issues,

including restraining orders under the FD docket, matters with the

Division of Child Protection and Permanency (the Division) under

the FN docket, and numerous other motions before Judge Kramer. At

the heart of this trial were plaintiff's concerns regarding

defendant's mental health and ability to co-parent their child.

During the trial, the judge heard from numerous witnesses

including extensive testimony from plaintiff and defendant. Of

significance, the judge heard testimony from a joint custody

expert, Dr. Gregory Joseph, who also supplied a report. He

performed psychological testing, interviewed the parties and the

child, visited their respective residences, and observed them

interact with B.S. Both parties stipulated to Dr. Joseph's report.

Dr. Joseph opined defendant suffered from a delusional

disorder but not from schizophrenia. He found apart from the

delusions, her "functioning was not markedly impaired and the

behavior was not obviously bizarre or odd." Dr. Joseph determined

2 A-5315-15T1 defendant experienced numerous delusions centered on the unfounded

suspicion that plaintiff sexually abused their child. In addition,

defendant had other unfounded delusions, including: plaintiff was

sexually abusing his daughter from a prior marriage; that daughter

was sexually abusing B.S.; plaintiff was trying to poison defendant

and B.S.; plaintiff murdered his ex-wife; plaintiff was going to

harm her and/or B.S.; plaintiff was taking children to the attic

to molest them; and plaintiff had been gaslighting her.

The judge considered Dr. Joseph's opinion and agreed with him

because the record demonstrated after three years of extensive

investigations by the Division and multiple evaluations, there was

no evidence that these allegations were true or any reasonable

basis to believe or suspect them. The court noted while defendant

eventually recognized some of her delusions were false, she

steadfastly continued to believe the others. The court expressed

concern that defendant remained defiant in her delusions and lacked

understanding about how these allegations impacted others.

However, notwithstanding these concerns, the judge found defendant

was not negatively impacting B.S.'s perception of plaintiff and

was not the cause of B.S.'s behavioral problems.

At the conclusion of the trial, Judge Kramer addressed all

relevant issues and ordered plaintiff to pay limited duration

alimony of $250 per week for nine months from August 1, 2016,

3 A-5315-15T1 until May 1, 2017, and required plaintiff to maintain a $25,000

life insurance policy to secure the alimony. The judge also

required each party to be responsible for their own medical

insurance coverage. Addressing equitable distribution, the judge

awarded defendant $38,277 from plaintiff's retirement account,

pursuant to a Qualified Domestic Relations Order, and fifty percent

of the coverture of plaintiff's company stock acquired during the

marriage. Both parties retained their own bank accounts and

vehicles and were responsible for their individual debts.

Plaintiff retained the marital residence.

The judge gave sole legal custody of B.S. to plaintiff and

designated him parent of primary residence. The judge ordered a

schedule for defendant to enjoy parenting time with B.S. and

addressed holiday and vacation schedules. The judge also ordered

the child to participate in individual counseling, defendant to

engage in individual therapy, the parties to attend co-parenting

counseling, and defendant to pay child support of $184 per week.

Plaintiff appealed. On appeal, his arguments largely center

on defendant's mental illness. He maintains the court erred by

permitting the trial to proceed because defendant was severely

mentally impaired and the court should have appointed a guardian

ad litem (GAL). He asserts the court erred in accepting

defendant's testimony and should not have authorized defendant's

4 A-5315-15T1 unsupervised parenting with B.S. Plaintiff contends the court

erred by dismissing his tort claim against defendant and in its

conclusions regarding alimony, equitable distribution, and counsel

fees. We disagree.

"Because of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord

deference to family court fact-finding." Cesare v. Cesare, 154

N.J. 394, 413 (1998). We defer to a trial court's findings "unless

it is determined that they went so wide of the mark that the judge

was clearly mistaken." N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 605 (2007) (citation omitted).

At the outset, it is unclear what relief plaintiff seeks

regarding a GAL. Plaintiff argues because the judge was on notice

that defendant was suffering from a mental illness, she should

have sua sponte appointed a GAL to represent defendant's interests.

Plaintiff did not raise the issue below and now argues "[f]rom a

practical view it might [be] more appropriate to let the divorce

stand and just insist that all further legal proceeding[s] with

[defendant] require a [GAL]." Because we do not give advisory

opinions, we reject this suggestion. Furthermore, plaintiff has

not explained what difference the appointment of a GAL would have

made.

Pursuant to Rule 4:86-4(d):

5 A-5315-15T1 At any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged incapacitated person and to present that evaluation to the court.

[(Emphasis added).]

Here, there was no motion, each party was represented by a

lawyer, and the court had the benefit of Dr. Joseph's evaluation

and testimony. Plaintiff has not explained what circumstances

would have required the sua sponte exercise of the court's

discretion.

Plaintiff next contends the court erred in accepting

defendant's testimony. We reject this argument. The judge

determined defendant was competent and understood her actions,

except for certain delusions she maintained. The judge did not

credit defendant's delusions. To the contrary, the judge

repeatedly rejected defendant's delusions and considered them

thoroughly in the context of her ability to continue parenting

B.S.

When the judge ordered defendant to have unsupervised

parenting time over plaintiff's objection, the judge articulated

reasons for the custody determination and addressed the N.J.S.A.

6 A-5315-15T1 9:2-4(c)2 factors. Conclusions of the Family Part regarding child

custody are "entitled to great weight and will not be lightly

disturbed on appeal." Sheehan v. Sheehan, 51 N.J. Super. 276, 295

(App. Div. 1958) (citing Zehrer v. Zehrer, 5 N.J. 53 (1950)). "The

touchstone for all custody determinations has always been 'the

best interest of the child.'" Faucett v. Vasquez, 411 N.J. Super.

2 In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

[N.J.S.A. 9:2-4(c).]

7 A-5315-15T1 108, 118 (App. Div. 2009) (quoting Kinsella v. Kinsella, 150 N.J.

276, 317 (1997)).

The judge awarded plaintiff sole legal custody and granted

defendant unsupervised visitation on alternative weekends and

Wednesday evenings. Plaintiff contends defendant is mentally ill

and will harm B.S. by planting her delusions in his head.

Judge Kramer addressed these contentions and concluded they

were unproven. The judge relied largely on the testimony of Dr.

Joseph, who opined defendant did suffer from delusional disorder,

but her "functioning was not markedly impaired and the behavior

was not obviously bizarre or odd."

At trial, plaintiff presented Dr. Colleen Sherman, the

child's therapist, to attest to plaintiff's belief that defendant

was harming B.S. The court, in its oral opinion, noted Dr. Sherman

expressed a belief that defendant was negatively influencing

B.S.'s perception of plaintiff, but her conclusions lacked

evidentiary support because she drew those conclusions almost

entirely from information received from plaintiff. As such, there

is sufficient credible evidence to support the judge's custody

findings, and we discern no reason to disturb them.

8 A-5315-15T1 The judge also declined to award plaintiff damages for his

Tevis3 claim for intentional inflection of emotional distress. The

judge reasoned plaintiff could not maintain such a claim because

defendant's false allegations of sexual assault resulted from her

mental health issues, and accordingly, the allegations were not

intentional or reckless.

In order to prove intentional infliction of emotional

distress, plaintiff was required to show:

(1) defendant acted intentionally; (2) defendant's conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community; (3) defendant's actions proximately caused him emotional distress; and (4) the emotional distress was so severe that no reasonable person could be expected to endure it.

[Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div. 2010) (quoting Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)).]

As the judge concluded, plaintiff cannot recover when

defendant did not act intentionally. Dr. Joseph opined defendant

suffered from delusional disorder regarding her belief that

plaintiff sexually assaulted B.S. Plaintiff's claim fails on the

intent element because defendant suffers from a delusional

disorder. See American Psychiatric Association, The Diagnostic

3 Tevis v. Tevis, 79 N.J. 422 (1979).

9 A-5315-15T1 and Statistical Manual of Mental Disorders § 297.1 (5th ed. 2013)

(defining delusion as "[a] false belief based on incorrect

inference about external reality that is firmly held despite what

almost everyone else believes and despite what constitutes

incontrovertible and obvious proof or evidence to the contrary.").

Accordingly, defendant cannot act intentionally to inflect

emotional distress if she truly believes this underlying reality

to be true.

Plaintiff further argues the judge incorrectly awarded

defendant alimony, a proportionate share of his 401k, and counsel

fees. Regarding alimony, plaintiff maintains the court did not

consider the parties only lived together for thirty-two months

because defendant was studying abroad. As to the division of

marital assets, he argues it was error to reduce the allocation

of his 401k by fifteen percent, when he spent over $54,000 on

defendant's education. Lastly, plaintiff contends the Family Part

erred in requiring him to pay his own counsel fees. Because the

judge's decision is amply supported by credible evidence in the

record, we affirm.

Regarding alimony, despite plaintiff's contention, the judge

determined the length of the marriage was six years and ten months

based on the date of marriage and when defendant filed a complaint

for a temporary restraining order. The court considered it

10 A-5315-15T1 immaterial that the parties did not live together until 2010

because the testimony indicated that defendant remained in Brazil

to complete her education pursuant to an agreement between the

parties wherein she received support and encouragement from

plaintiff. As such, the court properly awarded defendant limited

duration alimony of $250 per week for nine months.

Regarding equitable distribution, the judge utilized the

factors set forth in N.J.S.A. 2A:34.23-1 and Rothman v. Rothman,

65 N.J. 219 (1974), to distribute plaintiff's 401k. The judge

made requisite findings regarding each factor. On appeal,

plaintiff contends the judge did not consider the amount he paid

towards defendant's education expenses. However, the record

clearly reflects the judge noted, in her findings, that plaintiff

made significant contributions to defendant's education and

earning power and gave those contributions requisite weight.

Lastly, plaintiff asserts he should not be responsible to pay

his counsel fees because defendant's mental illness and false

allegations caused the divorce proceeding to continue for such a

long period of time. In her oral decision, the judge discussed

each element required under Rule 5:3-5(c) and concluded each party

is responsible for their own counsel fees and costs. She noted

the parties became so invested in their positions that they lost

sight of any middle ground or any potential avenues to bring this

11 A-5315-15T1 matter to an amicable resolution. The court found both parties'

actions elongated the proceedings.

All additional arguments introduced by plaintiff are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

12 A-5315-15T1