RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1392-14T1 A-5553-14T1 A-3474-15T1
KATHLEEN LANE,
Plaintiff-Respondent,
v.
ANDREW F. LANE, JR.,
Defendant-Appellant. _______________________________
Argued October 16, 2017 – Decided December 4, 2017
Before Judges Messano and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2135-04.
Steven M. Resnick argued the cause for appellant in Docket Nos. A-5553-14 and A-3474-15 (Ziegler & Zemsky, LLC, attorneys; Mr. Resnick, on the briefs).
Brian P. McCann argued the cause for respondent in Docket Nos. A-5553-14 and A-3474-15 (Callagy Law, PC, attorneys; Mr. McCann, on the briefs).
Andrew F. Lane, Jr., appellant pro se in Docket No. A-1392-14. PER CURIAM
These three appeals, which were calendared back-to-back and
which we consolidate in this opinion, represent the parties'
seventh, eighth and ninth appeals since they settled their
divorce with the filing of a comprehensive marital settlement
agreement in 2004.1 The appeals addressed in this opinion relate
to custody and parenting time issues regarding the couple's two
eldest children, now both young women, ages twenty-two and
twenty.2
In A-1392-14, defendant Andrew F. Lane, Jr. challenges an
August 4, 2014 order denying his request to enforce his
parenting time with the parties' younger daughter and a
temporary transfer of custody of the two youngest children to
him; an August 15, 2014 order for attorneys' fees to plaintiff
Kathleen Lane; and an October 31, 2014 order denying
reconsideration of those two orders.
1 Lane v. Lane (Lane I), Nos. A-5645-09 and A-3401-10 (App. Div. Apr. 16), certif. denied, 212 N.J. 199 (2012); Lane v. Lane (Lane II), No. A-1582-11 (App. Div. Apr. 8, 2013); Lane v. Lane (Lane III), Nos. A-2952-12 and A-1623-13 (App. Div. Nov. 10, 2014), certif. denied, 221 N.J. 220 (2015); In re Adoption of an Adult by A.S.C. (Lane IV), No. A-5447-14 (App. Div. Mar. 30), certif. denied, 227 N.J. 246 (2016). 2 The couple also has a seventeen-year-old son, who is not the focus of these appeals.
2 A-1392-14T1 In A-5553-14, defendant challenges a June 30, 2015 order
denying his request for a temporary custody change, his request
that plaintiff's parenting time be supervised, and the
enforcement of prior orders pertaining to custody and parenting
time; access to the children's financial records and attorneys'
fees.
In A-3474-15, defendant challenges aspects of a March 18,
2016 order cancelling a pending plenary hearing, directing
plaintiff to pay $1500 in monetary sanctions, awarding him $8064
in attorneys' fees, and rejecting his contention that the trial
court's position that it could not decide custody and parenting
time issues involving the couple's two adult children prevented
it from granting the relief he requested concerning custody and
parenting time.
Having considered the parties' arguments, we affirm all
three orders.
The parties divorced in 2004 when their three children were
ages nine, seven and four. Although their 50/50 shared custody
arrangement apparently worked well for the first two years,
their relationship deteriorated after defendant succeeded in
terminating his $80,000 per year alimony obligation to plaintiff
when she began cohabiting with the man to whom she is now
married, and plaintiff lost her motion to increase defendant's
3 A-1392-14T1 $30,000 annual child support obligation. As we noted in Lane
III,
[s]ince then, whether attributable to plaintiff's and her husband's reactions to the 2007 litigation, as defendant argues, or attributable to defendant's parenting style and insistence upon strict enforcement of the parties' custody arrangement, as plaintiff argues, to varying degrees and at different times, one or more of the parties' daughters has resisted spending parenting time with defendant.
[Lane III, supra, slip op. at 3.]
We have no need, and thus do not attempt, to chronicle the
almost ten years of litigation over the parties' shared-physical
custody arrangement that followed. We summarized a great deal
of it in Lane III. See id. at 3-8, 14-38, 48-50. We concluded
in that opinion that
repeated post-judgment applications to enforce shared-physical custody make it clear that if they ever existed, the essential circumstances for shared parenting no longer exist. These parties have demonstrated their inability to set their conflicts aside in the best interests of their children. To put it mildly, the children clearly have not been spared their parents' resentments and rancor. Indeed, they have become the focal point of the rancor.
Perhaps out of concern about being the one to lose, neither party has urged a best interests' hearing based on changed circumstances apart from the narrow question of the second child's new schedule.
4 A-1392-14T1 Plaintiff has apparently been well-served by simply allowing her children to dictate their schedule without regard to the court's orders. Defendant has opted to respond by taking a different approach, seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for Plaintiff's well-established disregard of her obligation to support the children's relationship with their father.
[Id. at 49-50.]
Confronted with a record of an obvious breakdown in the
parties' shared custody arrangement regarding their daughters,
yet another enforcement motion pending unheard in the trial
court and without the facts necessary to assess whether a change
in custody would serve the children's best interests, we
remanded for a plenary hearing. We noted that
[j]ust as a judge may order shared custody where the parties do not request it, a judge may and should order a hearing to determine what custodial arrangement would be in the children's best interests when the post- judgment motion practice of their parents makes it clear that the arrangement in place is not serving their children's best interests.
[Id. at 50.]
Notwithstanding our order, no plenary hearing has occurred.
Both parties have continued to employ the same tactics in their
ever-escalating warfare – plaintiff "apparently well-served by
simply allowing her children to dictate their schedule without
5 A-1392-14T1 regard to the court's orders," and defendant "opt[ing] to
respond by . . . seeking to obtain sole custody not on a showing
of the children's best interests but as a sanction for
plaintiff's well-established disregard of her obligation to
support the children's relationship with their father."
While Lane III was pending and since our opinion in that
matter, the trial court denied the eldest child's application to
intervene in her parents' divorce; defendant refused to provide
consent to the parties' younger daughter to attend a community
service trip abroad, causing a further rift in their
relationship; plaintiff's husband adopted the parties' eldest
daughter with the consent of plaintiff and without notice to
defendant; the trial court denied defendant's request to permit
him to intervene and vacate the adoption and to recuse the trial
judge; another panel of this court rejected defendant's appeal
of those proceedings, Lane IV, supra, slip op. at 14; the trial
court scheduled a plenary hearing to address violations of
defendant's parenting time, whether he should receive make up
time, whether custody should be transferred temporarily to him
and counsel fees among other issues; that hearing was never held
and plaintiff subsequently moved to dismiss the one we ordered
on remand with defendant's acquiescence, if not agreement; the
6 A-1392-14T1 parties' younger daughter turned eighteen; and the court entered
the orders in the present appeals. We address them as follows.
A-1392-14
The court's August 4, 2014 order arose out of the eldest
child's motion to intervene in her parents' divorce, filed after
she attained her majority. Following a consented adjournment,
defendant opposed the motion and filed what he termed a "cross-
motion" seeking relief against plaintiff for alleged violations
of the parenting time schedule and a transfer of custody of the
two younger children to him. Defendant's counsel refused
requests for an adjournment to permit plaintiff time to respond
to his cross-motion.
The court heard argument on the return date on the child's
motion, which it denied, but adjourned the "cross-motion" to
permit plaintiff an opportunity to respond. At argument on the
child's motion, defendant's counsel complained the parties'
younger daughter had not spent time with defendant in months,
necessitating his cross-motion be heard immediately. The court
advised that plaintiff would be permitted a week to respond and
the motion would be heard fourteen days later.
Defendant thereafter filed an order to show cause seeking
the same relief he sought in his cross-motion. Plaintiff filed
7 A-1392-14T1 opposition detailing the younger daughter's reasons for not
attending parenting time with defendant, including his failure
to consent to the child's community service trip. She
subsequently opposed his cross-motion and cross-moved for fees
for having to respond to both the cross-motion and the order to
show cause regarding the same matters.
The court denied defendant's request for entry of an order
to show cause, reserved on his motion temporarily transferring
custody of the two younger children to him pending a plenary
hearing, denied without prejudice any relief requested by either
party "that is or may be affected by the matters presently
before the Appellate Division," and awarded plaintiff her fees
on the motion.
In a statement of reasons accompanying the August 4, 2014
order, the court found the facts as to why the younger daughter
was not attending parenting time with her father to be in
dispute. The court noted defendant's "supposition, perhaps
well-reasoned in light of past statements by the plaintiff" is
that his younger daughter would not see him "'due to the
plaintiff's refusal to abide by [the parties'] court-ordered
50/50 parenting time agreement, and [plaintiff and her
husband's] relentless violations of multiple court orders and
restraints.'" The court noted plaintiff countered with a
8 A-1392-14T1 certification averring that despite her encouragement, the child
"refuses to see [her father] and that her resistance started
when [he] prevented [the child] from going on the community
service trip."
The court found:
Standing alone, the defendant's obstruction of [the child's] trip might not seem to be sufficient to cause a 16 year old girl to refuse to see her father. Against the backdrop in this case, it appears more than plausible and therein lies the factual dispute. Resolving this factual dispute will also resolve whether the plaintiff is acting to alienate the defendant, whether the defendant caused [the child] to resist seeing him, or whether they each are the cause of [the child's] refusal to see the defendant.
It accordingly ordered counsel to appear for a case management
conference to identify witnesses, establish a discovery schedule
and set a date for a plenary hearing.
The court also awarded plaintiff her counsel fees, finding
defendant's filing of his "cross-motion" and subsequent order to
show cause seeking the same relief
establish that the defendant seeks to set his own schedule and had no regard for the court's direction, nor the dilemma created by his filing an improperly designated cross-motion, leaving the plaintiff no chance to timely oppose same, and then objecting to an adjournment to allow [her] to have the time to respond.
9 A-1392-14T1 After reviewing plaintiff's counsel's affidavit of services, the
court awarded plaintiff fees of $3150 in an August 15, 2014
order and denied reconsideration of both orders on October 31,
2014.
Defendant contends the court erred when it failed to take
any enforcement action on hundreds of "irrefutable proofs" that
plaintiff and her husband violated the parties' shared parenting
plan. He argues his parent-child relationship with his younger
daughter was at risk and that she was at risk of harm by the
court's refusal to transfer her custody to him. He further
claims the court should have rejected plaintiff's claim for fees
and should have awarded him his fees on the motion. We reject
those arguments as without merit.
Leaving aside our deferential view of a Family Part order
on an enforcement motion, Milne v. Goldenberg, 428 N.J. Super.
184, 197-99 (App. Div. 2012), the law is clear that removing a
child from a parent in violation of a custody order or agreement
is a "remedy of last resort," which may only be imposed based on
a finding it is in the child's best interests. Beck v. Beck, 86
N.J. 480, 499 (1981) ("Despite the obvious unfairness of
allowing an uncooperative parent to flout a court decree, we are
unwilling to sanction punishment of a recalcitrant parent if the
welfare of the child will also suffer.")
10 A-1392-14T1 Although there was apparently no dispute that the parties'
younger daughter was refusing to spend time with her father when
the parties filed their motions, cross-motions and orders to
show cause, there was certainly no agreement as to why. The
court was not hostile to defendant's position that plaintiff and
her husband were at fault, characterizing his supposition as
"perhaps well-reasoned in light of past statements made by the
plaintiff." Expressing its willingness to resolve the parties'
factual dispute over why the child was refusing to see her
father, the court ordered a plenary hearing. Nothing more was
appropriate at that juncture, certainly not a change of custody.
See Entress v. Entress, 376 N.J. Super. 125, 132-33 (App. Div.
2005) (finding a change of custody to compel compliance with
court orders without an evidentiary hearing and no imminent
threat to the child "clearly and unequivocally reversible
error").
The court's denial of defendant's request for counsel fees
given his lack of success on the motion, and the $3150 fee award
to plaintiff to compensate her for having to respond to
defendant's voluminous and nearly identical filings was
reasonable and obviously well-within the court's considerable
discretion. See Yueh v. Yueh, 329 N.J. Super. 447, 466 (App.
Div. 2000).
11 A-1392-14T1 A-5553-14
The court's June 30, 2015 order arose out of a motion
defendant filed before a different judge to sanction plaintiff
for her part in her husband's adult adoption of the parties'
eldest child. Defendant sought an order: 1) referring
plaintiff to the Bergen County Prosecutor's Office for colluding
and consenting in the adoption; 2) holding plaintiff in contempt
of court and in violation of litigant's rights for her part in
the adoption; 3) holding plaintiff's husband in contempt of
court and referring him to the Bergen County Prosecutor's Office
for adopting the parties' eldest child; 4) compelling plaintiff
to produce records of all money, property or other assets given,
loaned or provided in trust to the parties' three children; 5)
compelling plaintiff to produce financial and billing records
for legal services provided to her husband and eldest child in
connection with the adoption; 6) restraining plaintiff's husband
from any contact with the parties' three children; 7) granting
defendant temporary sole legal and residential custody of the
parties' two youngest children; 8) or, alternatively supervising
plaintiff's parenting time and restraining her from electronic
contact of any kind with the two youngest children; 9)
authorizing defendant to provide confidential therapy on an as
12 A-1392-14T1 needed basis to all three children by a therapist selected by
defendant; and 10) awarding defendant his counsel fees.
In a comprehensive written opinion addressing each one of
defendant's claims, the court denied defendant relief. The
court noted it had already determined the adoption to be both
voluntary and valid (a decision we affirmed in Lane IV), and
found defendant had not offered any evidence that the adoption
of the eldest child was "anything but [the child's] own
desires." Because the court deemed the adoption valid, it found
no basis to hold plaintiff or her husband in contempt of orders
prohibiting them from interfering with defendant's parenting
time by consenting to and effecting the adoption. The court
likewise rejected defendant's request for billing records and
money or other things of value to the eldest child as an
inappropriate attempt to re-litigate the adoption. It rejected
production of documents referencing gifts to the youngest
children as irrelevant and unnecessary.
Based on defendant's admission "that regular parenting time
with [the two youngest children] has continued even after the
adoption of [the eldest child]," although his parenting time
with his then seventeen-year-old youngest daughter was
"sometimes sporadic," the court found no basis to restrain
plaintiff's husband from any contact with the youngest children
13 A-1392-14T1 and continued the restraints prohibiting him from interfering
with defendant's parenting time. Based on the same reasoning,
the court denied defendant's request for an immediate transfer
of custody of the two youngest children to him. The court found
defendant had not offered any basis on which to supervise
plaintiff's parenting time. The court refused to order the
eldest child, now an adult, into therapy and found no basis for
ordering therapy for the youngest children in light of "their
regular to near-regular" parenting time with defendant. The
court denied fees to both parties.
Defendant appeals, contending the court erred in failing to
hold plaintiff and her husband in contempt for their failure to
abide by the court's orders, to issue remedies and sanctions for
their conduct, to order a temporary change in custody or
supervising plaintiff's parenting time, in failing to restrain
plaintiff's husband from contact with the children, in refusing
to compel the production of the children's financial documents
and in denying counsel fees. Our review of the record convinces
us that none of these arguments is of sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We held in Lane IV that the parties' eldest child "had a
fundamental right under the adult adoption statute to seek to be
adopted without [her father's] interference, and was free to
14 A-1392-14T1 make her own decisions without regard to [his] wishes, views, or
pre-adulthood parental rights." Lane IV, supra, slip op. at 12.
Given that holding, we find no error in the trial court's
refusal to sanction plaintiff or her husband for their part in
that adoption or modify the custody arrangement of the two
younger children.
A-3474-15
The court's March 18, 2016 order arose out of our November
10, 2014 decision in Lane III, in which we remanded defendant's
motion for "a temporary transfer of custody, enforcement of
prior orders, relief in the form of monetary sanctions and
additional make-up parenting time, all as relief for
alleged violations of the parenting orders in place," which the
trial court declined to hear in its order of October 25, 2013
because of defendant's pending appeals on other issues. Lane
III, supra, slip op. at 47-48. The court did not convene a
conference on the issues remanded until September 18, 2015, ten
months after we issued our decision. Although the trial court
correctly attributed some of the delay to the litigation over
the eldest child's adoption by plaintiff's husband, culminating
in Lane IV, we cannot help but observe that a prompt plenary
hearing on remand may have avoided the opening of that new front
in the parties' ever escalating war over their children.
15 A-1392-14T1 When the court finally convened that remand conference in
September 2015 to address violations of defendant's parenting
time from two years before, the parties' youngest daughter was
two weeks shy of her eighteenth birthday. The remand did not
implicate the parties' son, their youngest child. Plaintiff
took the position that there was no point to a plenary hearing
because the issues on remand were moot. She argued the court
lacked jurisdiction to order make-up parenting time for
defendant with a child no longer a minor and any economic
sanctions would be punitive because they were no longer
necessary to coerce her compliance with parenting time orders
for the two eldest children. Defendant asserted the documented
days of missed parenting time constituted per se violations of
prior court orders by plaintiff that the court could resolve
without testimony, and that he was not seeking a best interests
hearing. The court set a discovery schedule and a date for the
plenary hearing, but permitted plaintiff the opportunity to file
a motion arguing the hearing was not necessary.
Plaintiff filed her motion to dismiss the hearing, arguing
the issues were moot. Defendant cross-moved opposing the motion
but arguing that all proceedings relating to the remand in Lane
III should be stayed until all of defendant's pending appeals
were decided, and that the children should not participate "in
16 A-1392-14T1 any way in the trial proceedings." Alternatively, defendant
asked the court to find that it could not adjudicate the custody
and parenting time issues remanded in Lane III based on 1) its
position that the law deprives it of jurisdiction over the
unemancipated children of litigants in the Family Part once
those children turn eighteen; 2) that it has no parens patriae
duty to prevent harm to such children; and 3) that all custody
and parenting time rights are automatically terminated in New
Jersey once an unemancipated teenager reaches eighteen. After
the motion was ready for oral argument, the parties agreed the
court could decide it on the papers.
In its order of March 18, 2016, the court granted
plaintiff's motion to dismiss the plenary hearing based on the
parties' agreement that no hearing was necessary. The court
imposed a $1500 sanction against plaintiff for her violations of
parenting time orders, noting the modest sum reflected its
inability to determine bad faith or plaintiff's ability to
comply with parenting time orders in light of the parties'
insistence that the children not testify. It also awarded
defendant the $8064 in counsel fees he sought on the motion
remanded in Lane III.
Although acknowledging that none of the parties' children
was emancipated, the court declined defendant's request for
17 A-1392-14T1 make-up parenting time with the parties' youngest daughter,
finding "[a]s an adult, she is not within the purview of this
court's capacity to enter Orders involving her custody
arrangements. Nor does this court believe that requiring an
adult child to attend parenting time is in her best interests."
The court denied all other relief.
Defendant appeals, arguing the court erred in dismissing
the remand, in not making "findings on hundreds of remanded
matters," in "not adjudicating issues where no dispute over
material facts existed such that a hearing was unnecessary," and
misapplied the law, including by finding it could not "enforce
custody orders, act as parens patriae, or adjudicate remands"
once an unemancipated child turns eighteen. We reject these
arguments as lacking sufficient merit to warrant any extended
discussion in a written opinion. R. 2:11-3(e)(1)(E).
We need not immerse ourselves in exploring the contours of
the court's jurisdiction in matters of custody and parenting
time involving the unemancipated young adult children of
litigants in the Family Part or consider whether we agree with
the court's reliance on R. 4:6-2 in deciding plaintiff's motion
to dismiss the scheduled plenary hearing, because neither was
central to the court's decision here.
18 A-1392-14T1 The parties agreed they did not want the court to hold a
plenary hearing. Notwithstanding defendant's insistence that
any missed parenting time constituted a per se violation by
plaintiff of prior court orders the court could resolve without
testimony, that was never the case. Defendant's position on
appeal – that the court failed to make findings and adjudicate
issues – while having opposed a plenary hearing necessary to
make those findings and adjudicate the issues, is simply
untenable. See N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 340 (2010) (explaining that "'[t]he doctrine of
invited error operates to bar a disappointed litigant from
arguing on appeal that an adverse decision below was the product
of error, when that party urged the lower court to adopt the
proposition now alleged to be error'") (quoting Brett v. Great
Am. Recreation, 144 N.J. 479, 503 (1996)).
The disputed issues in this case essentially never changed.
The parties agreed their daughters missed parenting time with
their father, they disagreed over why that was so. As another
judge explained to the parties over three years ago in August
2014, "[r]esolving this factual dispute will also resolve
whether the plaintiff is acting to alienate the defendant,
whether the defendant caused [the child] to resist seeing him,
19 A-1392-14T1 or whether they each are the cause of [the child's] refusal to
see the defendant."
Neither party has attempted to have the court hear
testimony that could resolve that central factual dispute. As
Judge Grall observed in Lane III:
Plaintiff has apparently been well-served by simply allowing her children to dictate their schedule without regard to the court's orders. Defendant has opted to respond by taking a different approach, seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for plaintiff's well-established disregard of her obligation to support the children's relationship with their father.
[Lane III, supra, slip op. at 49-50.]
The parties have persisted so long in these entrenched patterns
that their daughters, not teenagers when the hostilities between
their parents erupted in 2007, have become young adults. While
their daughters have grown up, the parties appear to continue,
as their court-appointed custody evaluator concluded in 2012, to
"fail[] to appreciate the impact that the litigation and their
inability to accept any responsibility for their own
contributions to the problem [have] on their children." Lane
III, supra, slip op. at 25.
Affirmed.
20 A-1392-14T1