NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2590-15T1
K.V.,
Plaintiff-Appellant,
v.
C.Y.,
Defendant-Respondent. __________________________________
Argued May 23, 2017 – Decided August 4, 2017
Before Judges Yannotti, Gilson and Sapp-Peterson.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1122-12.
Stelio G. Papadopoulo argued the cause for appellant (Karen Kirchoff Saminski, LLC, attorneys; Lyan Hummell, of counsel and on the briefs; Stephanie O'Neill, on the briefs).
Geri Landau Squire argued the case for respondent (Cohn Lifland Pearlman Herrmann & Knopf, LLP, attorneys; Ms. Squire, of counsel and on the brief).
PER CURIAM
This is an appeal of the January 12, 2016 Family Part order:
(1) granting joint legal custody of B.A.V. (Brian) to plaintiff K.V. and defendant C.Y.1 and designating defendant as the parent
of primary residential custody; (2) imputing income to plaintiff
of $77,000 and recalculating his weekly child support obligation
to $470.77, which included payment against $43,288 in arrearages
owed to defendant; and (3) awarding $20,000 in counsel fees to
defendant. We affirm.
The evidence the trial court considered in reaching its
decision was presented during a trial at which six witnesses
testified: plaintiff and defendant; their respective mothers;
plaintiff's uncle; and Mathias R. Hagovsky, Ph.D., defendant's
expert, who performed a best-interest-of-the-child evaluation.
Plaintiff did not produce an expert witness.
The evidence revealed the parties entered into a dating
relationship in 2008. Defendant discovered she was pregnant in
August of that year and Brian was born on April 23, 2009. Shortly
after Brian's birth, the parties commenced to cohabitate, but in
early 2010, defendant moved to an apartment located a few blocks
away because the relationship had become contentious.
For the first couple of years following Brian's birth the
parties co-parented without incident. In the fall of 2011,
1 To protect privacy interests, the parties are identified by their initials and for ease of reference the minor child is referred to as "Brian," a fictitious name.
2 A-2590-15T1 however, defendant enrolled Brian in daycare, ostensibly to
facilitate plaintiff securing full-time employment and to enable
Brian to develop socially. After two weeks in daycare on a part-
time basis, Brian began to attend daycare on a full-time basis.
Plaintiff objected and, in November 2011, filed a complaint seeking
joint legal and physical custody. In January 2012, he secured an
order reducing Brian's full-time daycare attendance to part-time.
On May 23, 2012, the court entered an order authorizing
defendant to retain Dr. Hagovsky to conduct a best-interest
evaluation. The order also permitted plaintiff to retain his own
expert, which he declined to do. In July 2012, the court entered
its first child support order, directing plaintiff to pay $100 per
week through the probation department. That amount was increased
to $130 per week in September 2013.
In August 2013, plaintiff terminated his relationship with
his attorney and became self-represented. He continued to
represent himself until July 2014. During this time period
plaintiff failed to comply with discovery requests, prompting a
motion to dismiss his complaint. By order dated February 27,
2014, the court dismissed plaintiff's complaint without prejudice
for non-compliance with discovery demands. The court reinstated
the complaint in March 2014, but outstanding discovery demands
3 A-2590-15T1 remained. The court entered another discovery order on April 15,
2014, related to document requests.
Although trial had commenced on March 26, 2014, and the
testimony of one witness was completed on that same date, the
court, over defense counsel's objection, entered a July 2, 2014
order permitting an attorney substitution on behalf of plaintiff.
After new counsel entered the case, additional discovery between
the parties occurred, including the depositions of plaintiff in
August 2014, and defendant in October 2014.
The trial consumed fifteen non-consecutive days. On December
14, 2015, the court delivered its decision in a seventy-five page
oral opinion. The court initially found that defendant's expressed
belief that Brian needed to be prepared for the time he would be
away from his parents through daycare, and plaintiff's silence on
the issue until defendant enrolled Brian in daycare, were the
"beginning[s] of the parties' road to litigation." The court
characterized plaintiff as having "an unhurried concept of
decisions which need to be made for [Brian]." In contrast, the
court characterized defendant as "scheduled and disciplined,
recognizing that if decisions weren't made in accordance with
deadlines, opportunities for [Brian] would be lost." The court
surmised that this dynamic permeated all of the parties'
interactions related to Brian's well-being.
4 A-2590-15T1 The court found defendant's testimony as
reflective of her personality and her parenting style. She is meticulous. Precise with her dates and finances, detailed with her information for the child. She tries very hard not be judgmental of [plaintiff's] statements, motives, and parenting styles. And, even if she fails, and occasionally she does, she has tried to give [plaintiff] the benefit of the doubt as to what his motives are in doing certain things.
In contrast, the court found plaintiff to be "broad and absolute
in his statements and beliefs. [Defendant's] testimony is -- and
often the proofs have shown that [plaintiff's] recollections
regarding holidays, makeup time, doctors, and school notices and
times, are often incorrect."
In addressing these personality differences in the context
of the custody dispute before it, the court gave considerable
weight to the testimony and opinions expressed by Dr. Hagovsky,
whose evaluation the court found to be quite "even-handed," despite
being retained by defendant. Drawing from the testimony of Dr.
Hagovsky and the opinions expressed in his report, the court stated
that Dr. Hagovsky
put the finger right on this issue. Dr. Hagovsky noted that [plaintiff] is the big- picture guy. He's the concept person. [Defendant] is the detailed, meticulous person. As a result, she is frustrated by [plaintiff's] lack of focus and punctuality. [Plaintiff] takes wronged [affronts] at [defendant's] actions, perceiving them to be
5 A-2590-15T1 an undermining of his role as a parent. And, therein lies the problem for this family and the sole versus joint custody of their child.
The court noted its obligation to consider the statutory
factors outlined in N.J.S.A. 9:2-4(c) in resolving the disputed
issues. It first considered the parties' ability to agree,
communicate, and cooperate with regard to matters related to Brian.
It found that "this couple's entire dynamic has been a struggle
to agree, communicate, and cooperate." Nonetheless, the court
concluded that defendant, to her benefit, "is the more
communicative, the more conciliatory, and the more cooperative of
the two." The court explained further:
And I'm not saying that to point a finger at either one of you; but, she has tried, as I find, more often, to open things to [plaintiff]. It's his sense of urgency that doesn't make him understand the cooperative effort.
She has offered parenting time on holidays, despite his statement that she has not. She has offered make[-]up time, despite his statement that she has not. She has offered parenting time that she thought was reasonable.
The court concluded its discussion on this factor by finding that
defendant "gets the higher marks . . . in [] communication,
cooperation, and ability to agree."
The court then focused its analysis upon: (1) the parties'
willingness to accept custody; (2) any unwillingness to allow
6 A-2590-15T1 visitation, unrelated to substantiated abuse; (3) any history of
domestic violence; (4) Brian's safety; and (5) his interaction and
relationship with each parent. The court was satisfied that both
parents would willingly accept custody, would permit visitation,
and enjoyed a positive relationship with Brian. The court
additionally found no evidence of domestic violence and
specifically expressed that Brian "is not unsafe in either
household." Further, the court concluded both plaintiff and
defendant "are safe from physical abuse," observing that
"[a]nything that may have been contentious between them, was
exacerbated by their living together, and has long since gone."
Moving to Brian's preference and his needs, the court found
that given Brian's age, this factor did not apply in its analysis.
With regard to Brian's needs, the court found that the child's
needs were being met "admirably by both parents," but defendant
had been "ahead of the curve" in understanding Brian's needs. The
court referenced Dr. Hagovsky's report where he disclosed his
discussions with Brian's teacher. The teacher reported that Brian
had benefitted from school full-time, but then regressed after the
court ordered part-time daycare. Nonetheless, the court was
satisfied that at the time of the trial, based upon Brian's report
cards and his parents' testimony, he had become a leader, had
7 A-2590-15T1 friends, was taking Taekwondo, and otherwise "experiencing things
at his time and level."
The court attributed defendant's foresight in understanding
what the next step should be for Brian to the fact that plaintiff
had not had the time with Brian as had defendant. The court
concluded this led to plaintiff focusing upon Brian's time with
him rather than Brian's time to be a child.
The court also addressed the question of the fitness of the
parents. The court determined that both parents were fit and
noted they lived within blocks of each other. The court concluded
they were "certainly in a geographically good position for any
form of a shared parenting schedule."
The next factor addressed by the court was the extent and
quality of the time each parent spent with Brian. While
acknowledging earlier in its finding that in order to save money
on housing and daycare, the parties decided that plaintiff would
move in and take care of Brian while defendant worked, the court
noted that this arrangement "quickly proved unmanageable." The
court found that once plaintiff moved out of defendant's apartment
in January 2010, plaintiff "has had one overnight every other
week, and four after school times." The court found that it was
"obvious that [defendant] has been the parent of primary residence
from the child's early years. . . . She has been the person who
8 A-2590-15T1 has been most charged and is most attuned with [Brian's]
upbringing."
Addressing each parent's employment responsibilities, the
court found that defendant worked full-time, had a responsible
job, and assured herself that Brian's well-being was being met
through his enrollment in daycare and being with plaintiff. As
for plaintiff, the court expressed uncertainty about what
plaintiff actually did for a living and how much he earned. The
court, however, was convinced that plaintiff, having more
education than most, for the sake of his child, was not working
enough.
After considering the above factors, the court found that
"these parties can jointly parent their child with joint legal
custody. [The court does] find that [defendant] is the parent of
primary residence," and endorsed Dr. Hagovsky's findings. Dr.
Hagovsky testified that he believed that defendant was
"responsible for the child's schedule, responsible for his evening
routines pretty much every day, shopping, purchasing of clothes,
doctor's appointments, activities . . . that he had to do or where
he had to be . . . ."
The court granted plaintiff and defendant joint legal custody
and designated defendant as the parent of primary residential
custody. It modified plaintiff's parenting time by increasing the
9 A-2590-15T1 number of days Brian spends with him. As for child support, the
court recalculated plaintiff's child support obligation, after
concluding that plaintiff, based upon his advanced degrees and
employment background, was underemployed. The court imputed an
income of $77,000 to him, which was $17,000 more than what
plaintiff conceded was his earning capacity. The court based this
figure upon plaintiff's potential to be employed as a training and
development specialist given his background. It reached this
amount by referencing figures published by the Department of Labor
for this type of occupation. The court found that as of the time
of trial defendant's annual salary was $125,000.
Based on these numbers, utilizing the guidelines under our
court rules, the court concluded that plaintiff's child support
obligation should be $258 per week. After deducting the amount
plaintiff had paid for Brian's daycare, the court determined that
plaintiff owed $43,288 in child support payments to defendant.
Further, after crediting plaintiff with "110 overnight visits, $46
is what he gets back on variable expense per week[,]" the court
ordered that plaintiff's "support obligation is $234 a week from
this point forward." The court then added to the weekly obligation
an additional $100 to "liquidate" plaintiff's arrearages.
Finally, the court addressed defendant's request for counsel
fees, totaling $173,423. The court expressed that "neither party
10 A-2590-15T1 was reasonable in their positions." Nonetheless the court found
that part of the reason why the matter was not settled years
earlier was "because [plaintiff] couldn't figure out his time
schedules when he was representing himself." The court expressed
further: "[Plaintiff] needs to start looking at things in a timely
fashion. He did not look at what he needed to do for this
litigation in a timely fashion." The court also noted plaintiff's
complaint had been dismissed and reinstated, followed by a
"painstaking explanation from [the court] to [plaintiff] as to how
and when he should be doing things."
Based upon its consideration of these factors, the court
concluded that plaintiff should pay a portion of defendant's
outstanding counsel fees. It ordered plaintiff to pay $20,000
towards the $173,423 in counsel fees defendant had incurred. The
court memorialized its decision by order dated January 12, 2016.
The present appeal followed.
On appeal, plaintiff asserts the court erred when it failed
to award joint physical custody to both parents and that the
decision to designate defendant as the parent of primary
residential custody does not correlate with the court's findings
regarding the custody factors. In addition, plaintiff urges that
in imputing $77,000 in income to him, the court failed to analyze
whether there was just cause for his underemployment. Finally,
11 A-2590-15T1 plaintiff contends the court incorrectly applied N.J.S.A. 5:3-5(c)
in awarding counsel fees to defendant.
We reject all of the contentions advanced by plaintiff. In
our review of the record, we are satisfied the trial judge's oral
decision reflects a thoughtful and thorough analysis of each of
the issues before the court. The court's factual findings are
supported by the record and the court applied the correct legal
standards in reaching its decision on custody, child support, and
counsel fees. We affirm substantially for the reasons expressed
by Judge Sogluizzo in her cogent and thorough oral decision of
December 14, 2015. We add the following comments.
Our "review of a trial court's fact-finding function is
limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The
general rule is that findings by the trial court are binding on
appeal when supported by adequate, substantial, credible
evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Inv'rs
Ins. Co. of Am., 65 N.J. 474, 484 (1974)). This is particularly
true in matters emanating from the Family Part, because of its
special expertise. Ibid. Consequently, we will not set aside the
factual findings and legal conclusions reached by the Family Part
trial judge unless we are "'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'
12 A-2590-15T1 or . . . 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). However, we owe
no special deference to the trial court's conclusions of law.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
"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)), certif.
denied, 203 N.J. 435 (2010). "Custody issues are resolved using
a best interests analysis that gives weight to the factors set
forth in N.J.S.A. 9:2-4(c)." Ibid. (quoting Hand v. Hand, 391
N.J. Super. 102, 105 (App. Div. 2007)). When making "any custody
arrangement not agreed to by both parents," the "court shall
specifically place on the record the factors which justify" its
order. N.J.S.A. 9:2-4(f). The enumerated factors include:
[T]he 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
13 A-2590-15T1 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 subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.
[N.J.S.A. 9:2-4(c).]
"[T]he decision concerning the type of custody arrangement
[is left] to the sound discretion of the trial court[.]" Nufrio
v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (second and
third alteration in original) (quoting Pasacle v. Pascale, 140
N.J. 583, 611 (1995)). Therefore, on appeal, "the opinion of the
trial judge in child custody matters is given great weight."
Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994).
In the present matter, the trial judge, utilizing the factors
set forth under N.J.S.A. 9:2-4(c), made detailed factual findings.
In awarding physical custody to defendant, it is clear that the
court found that defendant had been the parent of primary
residential custody once plaintiff moved out of defendant's
apartment in January 2010. From that point going forward the
court noted that plaintiff "has had one overnight every other
week, and four after school times. . . . But, certainly, if we
have to have a parent of primary residence, there is zero doubt
14 A-2590-15T1 in my mind, as there was in Dr. Hagovsky's, that [defendant] is
the parent of primary residence."
In reaching this finding, the judge did not discount
plaintiff's time spent with Brian after his birth and noted that
plaintiff had been Brian's primary caretaker until Brian commenced
daycare in 2011. It is apparent from the record that the judge,
however, considered more than plaintiff's physical presence with
Brian as his caretaker. The judge concluded that it was defendant
who was most attuned to Brian's needs and who addressed those
needs. Substantial credible evidence in the record supports the
trial judge's findings, which are entitled to our deference.
Turning to imputation of an additional $17,000 of income over
the $60,000 plaintiff conceded should be imputed to him, the trial
judge first found that plaintiff was "underemployed for his
capabilities, for his education and for his responsibility to his
son." The record revealed that plaintiff held an advanced degree
in educational technology and earned doctoral credits. He had
been involved in a number of employment experiences, including
conducting research on children and internet learning, hosting
television shows, and at the time of trial, implementing one of
his educational projects into an elementary and secondary school
program. The judge found his testimony regarding the nature of
his employment vague and his testimony regarding his income from
15 A-2590-15T1 employment lacking in credibility. Plaintiff offered no competent
testimony that his underemployment was justified. Hence, the
finding that he was underemployed was supported by the record.
Moreover, in arriving at the $77,000, the record demonstrates
that the judge considered the appropriate factors as detailed in
the Child Support Guidelines under court rules. See Child Support
Guidelines (Guidelines), Pressler & Verniero, Current N.J. Court
Rules, comment 12 on Appendix IX-A to R. 5:6A at www.gannlaw.com
(2017). While the judge found, the Guideline factors include
consideration of the parent's prior work history, occupational
qualifications, educational background, and average earnings
reported by the Department of Labor. Ibid.
Once again, substantial credible evidence in the record
supports the trial judge's determination to impute an annual income
to plaintiff of $77,000. We discern no basis in this record to
disturb those findings.
Finally, we are satisfied that the trial judge did not abuse
her discretion by awarding defendant $20,000 of the $173,000 she
sought. The award of counsel fees and costs in a matter in the
Family Part is committed to the sound discretion of the trial
court. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).
We will not disturb an award of counsel fees unless it is shown
to be an abuse of discretion. Chestone v. Chestone, 285 N.J.
16 A-2590-15T1 Super. 453, 468 (App. Div. 1995) (citing Fid. Union Tr. Co. v.
Berenblum, 91 N.J. Super. 551, 561 (App. Div. 1960), certif.
denied, 48 N.J. 138 (1966)).
Here, the trial judge expressed that in reaching her decision
to award counsel fees, she reviewed the certification submitted
by defendant's attorney and the "legislative factors." She noted
that defendant did not prevail on her claim for sole legal and
physical custody, but prevailed in being designated as the parent
of primary residential custody. While she found that both parties
took unreasonable positions on certain issues, she concluded that
it was plaintiff's unreasonable conduct that caused the litigation
to span almost five years. The judge found that plaintiff
"couldn't figure out his time schedules when he was representing
himself;" plaintiff's finances could not be allocated because
plaintiff "was extremely vague and ambivalent regarding what his
income was[;]" the complaint was dismissed due to plaintiff's
discovery violations; and even after being reinstated, another
judge had to painstakingly direct plaintiff as to "how and when
he should be doing things." We are therefore convinced that there
is sufficient credible evidence in the record to support the award
of counsel fess.
Affirmed.
17 A-2590-15T1