NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3783-17T2
L.P.,
Plaintiff-Appellant,
v.
M.P.,
Defendant-Respondent. _____________________________
Argued February 28, 2019 – Decided April 3, 2019
Before Judges Simonelli and Firko.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0445-07.
Christine C. Cockerill argued the cause for appellant (Puff & Cockerill, LLC, attorneys; Christine C. Cockerill, of counsel and on the brief; Paul R. Melletz, on the brief).
David R. Nussey argued the cause for respondent (Klineburger & Nussey, attorneys; David R. Nussey, of counsel; M.P., on the pro se brief).
PER CURIAM Plaintiff L.P.,1 mother, appeals from Family Part orders sanctioning her
for not complying with an order compelling her to have the parties' son,
Matthew, meet his father, M.P., for weekly lunches, and for not having the child
treated by an approved provider. L.P. also challenges the trial court's award of
child support which the court entered without considering financial information
or the child support guidelines and without conducting a hearing. Because the
orders do not sufficiently detail the Family Part's findings and legal support
thereof, we reverse and remand for further proceedings.
I.
We set forth the procedural history and facts relevant to this appeal. The
parties were divorced and entered into a Marital Settlement Agreement (MSA)
on May 5, 2008, which was incorporated into their final judgment of divorce.2
Two children were born of the marriage, Grace, now emancipated, and Matthew,
born in December 1997. Matthew is the subject of this appeal. The MSA
provided for a "true shared physical custody agreement on behalf of both
children." A custody and parenting time order entered in October 2007
1 We use initials or pseudonyms to protect the privacy of the parties. R. 1:38- 3(d)(3) and (13). 2 Neither party provided the MSA nor the judgment of divorce in their appendices. A-3783-17T2 2 provided: "Neither party shall be deemed to have any superior right on any issue
over the other, and each shall stand completely equal as to the children."
Matthew is a special needs child diagnosed with autism, bipolar disorder,
Oppositional Defiant Disorder (ODD), 3 conduct disorder, and depression.
Twenty-two orders have been filed relative to Matthew's custody, parenting time
and needs since the divorce. 4 Between February 2013 and sometime in 2015,
Matthew chose to live with his father following a violent confrontation with his
mother. Matthew refused to visit his mother in 2014 after an incident where she
handcuffed him and had him removed from her home by the police.
In response to that incident, L.P. retained Dr. Annie Steinberg, a pediatric
developmental expert at Children's Hospital of Philadelphia (CHOP). The
expert issued a report on December 18, 2014, recommending that M.P. continue
3 Symptoms of ODD can seriously interfere with a person's day-to-day functioning. Symptoms may include: frequent temper tantrums; excessive arguing with adults; often questioning rules; active defiance and refusal to comply with adult requests and rules; deliberate attempts to annoy or upset people; blaming others for his or her mistakes or behavior; often being touchy or easily annoyed by others; frequent anger and resentment; mean and hateful talking when upset; spiteful attitude and revenge seeking. Oppositional Defiant Disorder, Am. Acad. of Child & Adolescent Psychiatry, (last visited Mar. 12, 2019), https://www.aacap.org/aacap/families_and_youth/facts_for_families/fff- guide/Children-With-Oppositional-Defiant-Disorder-072.aspx. 4 Our record only includes orders from September 24, 2015 to the present. A-3783-17T2 3 primary care of Matthew; continue educational and treatment plans for Matthew;
and "cautiously and gradually reintroduce the child to his mother so as to restore
a parent-child relationship." Matthew was undergoing weekly family and
individual counseling with a behavioral therapist through Perform Care. Dr.
Steinberg opined in her fifty-seven page report that "Matthew achieved all of
the objectives that were established with no recurrence of physical aggression
and essentially compliant behavior with all the rules of the house." An
Individualized Education Plan (IEP) was implemented at Bankbridge School for
Matthew.
Dr. Steinberg confirmed Matthew's diagnoses, adding complex partial
epilepsy and a developmental disability with an IQ of 52. After conducting
clinical interviews, the expert concluded that Matthew wanted to "stay with
someone that . . . [he] feels comfortable with. And that person is [his] dad."
Concern was expressed by Dr. Steinberg about L.P.'s "negativity towards
Matthew's then current treatment providers, her lack of understanding of
Matthew's anxieties and fears and her lack of ability to de-escalate Matthew
when he is agitated." L.P. would "likely . . . attempt to alienate her son from his
father[,]" according to Dr. Steinberg. Dr. Steinberg recommended continuing
Matthew in the primary care of his father, who she felt should be responsible for
A-3783-17T2 4 Matthew's educational and treatment plans. Since Matthew had been in his
father's sole custody since 2013, Dr. Steinberg recommended a gradual
reintroduction to his mother to "restore a parent-child relationship." Her report
and recommendations were adopted by the court.
For a period of time, Matthew refused to visit with his mother, but
following reunification therapy initiated by M.P., Matthew returned to live at
her home in July 2015 because his father was an alcoholic and verbally abused
him. Matthew refused to visit his father, ceased treatment, and declined to enroll
in any post-high school educational programs. Matthew's therapy records state
he told his father that L.P. claimed she was raped by him.
Dr. Prabhaker S. Patel, who was retained by L.P., conducted a psychiatric
evaluation of Matthew on August 24, 2015, and reported that Matthew claimed
his father attempted to strangle him more than once, and he felt "calm" at his
mother's house.
In her September 24, 2015 order, the prior family judge recounted:
The [c]ourt took brief testimony on Thursday, August 27, 2015, regarding the issues outlined above related to [the] occurrence between August 7 and the hearing date.
A brief summary of the court's findings follows: The [c]ourt heard [M.P.'s] update as to the events of [a] previously planned Wildwood family vacation for
A-3783-17T2 5 himself with the parties' two children. During the first day of that holiday, after an uneventful but happy day on the beach, Matthew became increasingly agitated with his father, accused him of being a bad person, and repeatedly indicated he hated him and that he wanted to return to his mother. His father returned him to his mother's home the first evening of the trip. The court makes a preliminary finding, based on [M.P.'s] testimony that the child's agitation and accusations were caused by persistent negative communication initiated by [L.P.] with Matthew, regarding [father]. These communications most likely continue, are frequent and did and are causing emotional harm to the minor child. Nevertheless, the clinical risk to the child, should the court now order that the child be forcibly removed from [L.P.'s] custody without proper therapeutic support for the child and [M.P.], is both great and unpredictable.
The court further found and placed on the record on August 27, 2015, that the developments regarding [L.P.'s] visits beginning in early July were contrary to the comprehensive, interrelated and well considered and evidentially supported recommendations of Dr. Annie Steinberg's evaluation of December [18], 2014. Dr. Steinberg was [L.P.'s] retained expert. Dr. Steinberg's plan was adopted in full by the [c]ourt's [order] of [January 15, 2015] [and] [March 16, 2015]. The March [o]rder also vacated the prior order ([December 13, 2013]) scheduling plenary hearing of [L.P.'s] cross-motion to restore her parenting time, originally filed by her on September 17, 2013.
Without considering L.P.'s testimony or any other proofs, the prior judge
also ordered as follows:
A-3783-17T2 6 [L.P.] is authorized, pending further court order to temporarily provide day-to[-]day care for Matthew and to act as his legal custodial parent.
[L.P.] is also authorized to change Matthew's designated school district for the purpose of ensuring the child is eligible for bus transportation to Bankbridge School from her home.
[L.P.] is not authorized to replace any of the authorized members of Matthew's current health care treatment plan, to include Dr. Borgmann-Winter and counselor Charles Marder, absent written agreement of the parties or court order.
[L.P.] will continue to schedule Matthew for and bring him to all scheduled appointments with the professionals who constitute the child's health care team as listed above. It is the court's intention that [M.P.] will participate in sessions and consultations with Matthew, so as to continue to work on restoration of his relationship with Matthew. [L.P.] may also participate in sessions with the minor child at the therapist or psychologist's recommendation. Should additional counseling sessions be needed in order to impl[e]ment these provisions, both parties will cooperate to ensure that the child is present for all necessary sessions.
Mr. Marder, Dr. Steinberg and Dr. Borgman[n]-Winter are to be provided with a copy of Dr. Patel's report (date[d] [August 24, 2015]) as well as this and [the] [August 7, 2015] court order. Dr. Patel's evaluation was obtained by [L.P.], after she failed to return Matthew to his father's home, in violation of the prior court [o]rders and Dr. Steinberg's plan. She did not provide [Dr. Patel] with any of the prior evaluations or
A-3783-17T2 7 this [c]ourt's [o]rders. Other than Matthew, she was the sole reporter.
Under no circumstances is either party to show any of the court orders to the child Matthew.
Matthew's legal and physical custody otherwise remains with [M.P.]. [L.P.] must contact [M.P.] immediately should Matthew require any medical appointment or emergency treatment to include psychiatric or crisis care.
Jaclyn E. Kusmaul, Esq. was appointed as guardian ad litem (GAL)
pursuant to Rule 5:8B(a)5 and charged with conducting a best interests report,
including implementation of Dr. Steinberg's recommendations and to otherwise
"restore the relationship between Matthew and his father."
5 In pertinent part, Rule 5:8B(a) provides:
In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment. The services rendered by a guardian ad litem shall be to the court on behalf of the child. A guardian ad litem may be appointed by the court on its own motion or on application of either or both of the parents. The guardian ad litem shall file a written report with the court setting forth findings and recommendations and the basis thereof, and shall be available to testify and shall be subject to cross- examination thereon.
A-3783-17T2 8 Because M.P. was no longer the parent of primary residence, the prior
judge adjusted the $400 weekly child support obligation L.P. was paying to him
to $200 per week, payable through probation, and the other $200 was applied
towards GAL fees. This modification was made without the benefit of case
information statements, a hearing, or any explanation as to why the judge did
not apply the Child Support Guidelines as set forth in Appendix IX-A to Rule
5:6A, which was warranted on the basis that L.P.'s income exceeded $300,000
at that time.6 The order also directed M.P.
to maintain a real-time accounting of how he is utilizing the support he receives on Matthew's behalf through probation (i.e. $200 per week) as he is no longer caring for the child directly in his home. It is the [c]ourt's intent that he steward support payments so as to have adequate resources to address Matthew's needs once the child resumes parenting time with him, towards future individual and family counseling and similar expenses.
A month before Matthew's eighteenth birthday, the prior judge adopted
the GAL's recommendation 7 that Matthew have weekly, two-hour lunches with
his father with the goal to "increase, in frequency and length, as quickly as
possible . . . ." L.P. was warned that she was "on notice that her good faith
6 All of this information was confirmed by counsel at oral argument. 7 The GAL's report is not part of our record and the recommendations were not included in any order. A-3783-17T2 9 compliance with the [c]ourt's directives regarding the child's relationship with
his father is fundamental to the child's best interest." L.P. improperly provided
Matthew "unmonitored access to her email and text communications in which
she negatively described the court's orders" in respect of the revised child
support obligation. The judge held:
This communication was in violation of the Children's Bill of Rights. It was also fundamentally misleading to the then minor child as the evidence makes clear that Matthew believes that his father is illicitly taking $400 each week as child support and tells professionals that his father is stealing this money, only cares about the child's custody issues because of this money. Matthew's belief about child support ha[s] caused grave harm to the father[-]child relationship. That relationship had, until recent events, been a good one; which helped Matthew to thrive at home and in school . . . . [L.P.] made no effort to password protect or otherwise limit Matthew's use of the phone and access to this highly sensitive and damaging information. The court found her actions at best, reckless and at worse, intentional.
M.P. was directed to provide the names of three psychiatrists and
therapists who specialized in Matthew's form of autism and who were in-
network to L.P. In December 2015, Matthew turned eighteen. A debate ensued
when the parties could not agree on healthcare providers for Matthew, and L.P.
selected Dr. Perry Zand, a psychiatrist, ostensibly without confirming same with
M.P. Dr. Zand submitted two letters to the prior judge, the first dated June 20,
A-3783-17T2 10 2016, opining that Matthew should have a voice in his education, and the second
dated November 6, 2016, stating that it would be "harmful" to Matthew's health
to compel him to visit his father.
Two in camera interviews of Matthew were conducted by the prior judge,
one while he was residing with his father, and the other in March 2016 when he
was residing with his mother. During the second interview, Matthew stated,
"I'm addicted now to being with my mother." He refused to believe that his
mother wanted him to regain a relationship with his father even though the judge
"show[ed] him" instances confirming this. This led the prior judge "to question,
despite what [the] mother is saying in various documents . . . whether she [was]
doing anything truly to urge this child to see his father or go to the doctors who
specialize in his type of care." A plenary hearing was deemed unwarranted
because the prior judge did "not believe that this child is being encouraged by
his mother to see his father or to go to the team of doctors . . . that specialize in
his care because his mother [did not] want those things to happen." 8
In an order dated March 18, 2016, the prior judge determined that
sanctions would be imposed against L.P. at a rate of $50 per violation if Matthew
8 L.P. filed a motion for leave to appeal, for stay pending appeal, and for expedited relief that we denied on May 31, 2016. Her motion for leave to appeal and for a stay filed with our Supreme Court was denied on September 12, 2016. A-3783-17T2 11 did not attend future weekly lunches with his father. The order also terminated
L.P.'s child support obligation because she became the parent of primary
residence, and M.P. was directed to deposit any overpaid child support he
received in a trust for Matthew's benefit.
Dr. Lawrence P. Clinton, a psychiatrist, was contacted by L.P.'s attorney
in April 2016, to conduct a psychiatric evaluation of Matthew. Dr. Clinton
reported that Matthew is "handicapped due to [a] brain injury that he sustained
as an infant . . . ." Matthew told Dr. Clinton that he fought with his father during
a 2015 summer vacation in Wildwood because Matthew refused to eat and do
the dishes. An altercation ensued, and Matthew claimed "his father took a knife
and his fist and threatened him . . . ." Matthew also reported that while he was
singing in the bathtub, his father told him to "shut the hell up." Dr. Clinton
concluded that Matthew "has sufficient anxiety concerning his father" and his
"father's drinking[,]" and Matthew cannot "manage his own funds at this time."
L.P. certified that M.P. was abusive towards her during the marriage, resulting
in the issuance of temporary restraining orders, and that M.P. suffers from
bipolar disorder, depression, and extreme anxiety.
A limited guardianship petition was filed and on June 29, 2016, a probate
judge declared Matthew incapacitated and unable to manage his financial
A-3783-17T2 12 affairs. The probate judge's order provided that Matthew had the following
rights:
a. He shall retain the right to establish friendships and have visitation with his friends;
b. He shall retain the right to determine his level of participation in religious activities;
c. He shall retain the right to correspond with others and to use mail or e-mail;
d. He shall retain the right to plan/select a schedule of leisure activities;
e. He shall retain the right to pursue "YouTube" activities and goals;
f. He shall retain the right to legal counsel; and
g. Provided he is otherwise legally qualified, he shall retain the right to vote.
L.P. was appointed as limited guardian of the person of Matthew,
providing her, by consent of M.P., with decision-making authority for the
following matters:
a. The authority to make medical decisions, including decisions regarding his care and treatment;
b. The authority to make decisions regarding his healthcare including the need for medical/surgical procedures and diagnostic testing;
A-3783-17T2 13 c. The authority to select his healthcare providers and dental providers;
d. The authority to oversee and manage his use of medication, including prescription medication;
e. The authority to schedule appointments with healthcare providers and dental providers . . . ;
f. The authority to sign/execute any forms necessary to provide informed consent for his medical care and treatment; and
g. Should the circumstances arise, authority to continue to withdraw life-sustaining medical care for him.
[(Emphasis added).]
This authority was to be exercised in consultation with Matthew. M.P. was
appointed, by consent of L.P., as limited guardian of Matthew's property and
estate, thereby providing M.P. with the authority to manage Matthew's financial
affairs and to expend his assets for Matthew's support, maintenance, education,
and benefit, within reasonable discretion. The parties were jointly named Health
Insurance Portability and Accountability Act (HIPAA) representatives for
The probate judge ordered L.P. to "file with the [s]urrogate a report of the
well-being of Matthew . . . within thirty days of the date of this [j]udgment and
then at intervals of ninety days thereafter." As to M.P., the probate judge
A-3783-17T2 14 ordered him to provide Matthew $50 weekly for his discretionary spending, to
be withdrawn from the Eleanor Murphy Trust, which was created by Matthew's
deceased maternal grandmother as a "special needs" trust and not for his "basic
support." The probate order required the parties to work together with the
Kingsway Child Study Team in order to formulate a suitable post-high school
educational plan for Matthew. Any dispute relative to Matthew had to be
submitted to Colleen T. Collins, Esq. for mediation prior to any applications
being filed with the probate court. A November 16, 2016 probate order clarified
that M.P. retained the right to, "investigate, advocate, [and] implement an
education program for Matthew." Notably, the June 29 and November 16
probate orders were never appealed from and therefore, are final orders.
The matter was heard again in the Family Part 9 and on December 20, 2016,
the prior judge noted "extreme concern for Matthew, including his well-being
and mental health." M.P. certified that L.P. was not taking Matthew to
counseling or therapy, other than a monthly visit to Dr. Zand for medication
monitoring, and that Matthew was home all day, unemployed, and making
YouTube videos. L.P. asserted that she overpaid $2,554.19 in child support to
9 The record is devoid of any explanation by the Family Part judge or counsel as to why the parties' disputes regarding Matthew were not mediated first with Collins, as ordered by the probate judge. A-3783-17T2 15 M.P., and the prior family judge ordered this sum to be withdrawn from
Matthew's trust fund and refunded to L.P., pending a review of child support
payment records. M.P. certified that Matthew's trust fund had a balance of
$4,864.96, inclusive of the alleged overpayments. In denying L.P.'s request to
transfer the $4,864.96 to her, the prior family judge stated that L.P. was "more
than capable of meeting her monthly budget, and [did] not need this money for
Matthew's care each month[,]" noting that the money should be saved for future
use. Again, no hearing was conducted, notwithstanding Matthew reaching the
age of majority and insufficient financial information being provided to the
court.
Saliently, the prior family judge enforced the weekly $50 sanction against
L.P. because of her "blatant and will[ful] violation of the previous [c]ourt
[o]rder, by not having Matthew meet [his father] for weekly lunches, and not
having Matthew be treated by an approved provider . . . ." The sanctions totaled
$1350 and covered the period of March 2016 through November 2016. The
$1350 sanction was to be deducted by M.P. from potentially overpaid child
support. M.P. argued that Matthew could have continued services at Bankbridge
School until age twenty-one, but L.P. refused to enroll him. Because the June
A-3783-17T2 16 29, 2016 probate order gave L.P. authority over Matthew's educational
objectives, M.P. withdrew his request.
After the prior family judge retired, a subsequent Family Part judge issued
an order on January 22, 2018 denying L.P.'s request to compel M.P. to adhere
to her authority to "pick and choose all of Matthew's medical doctors, dentists,
and therapists, and schedules when she deems appropriate . . . ." L.P.'s motion
was denied because the judge determined that the limited guardianship order
was not intended to eliminate the . . . other parent's rights and responsibilities to have a relationship with the child and for that parent to advocate for the completion of the educational services available to him until he is [twenty-three] years of age. These are essential rights of this child[,] which were developed and pursued by his father in family court.
This order also required M.P. to begin paying $75 per week in child
support to L.P., which was to be deposited into either a special needs trust, or
an Achieving a Better Life Experience (ABLE) account, 10 in order to not
jeopardize Matthew's right to receive government benefits. This fund was to
10 An ABLE account is a "tax-advantaged savings account for individuals with disabilities and their families . . . . The beneficiary of the account is the account owner, and income earned by the accounts will not be taxed. Contributions to the account . . . must be made using post-taxed dollars . . . ." [What are ABLE Accounts?], ABLE: Nat'l Res. Ctr. (last visited Mar. 12, 2019), www.ablenrc.org/about/what-are-able-accounts.
A-3783-17T2 17 serve as a source for Matthew's return to school and for counseling to restore his
trust in others, including this father. The judge also ordered any future sanctions
assessed against L.P. to be paid into this account. L.P. was also held in contempt
of court for violating the December 2016 order "for various infractions[,]
including but not limited to refusing to provide the names of [three] counselors
to [M.P.] in order for Matthew to initiate weekly counseling . . . ." L.P. filed a
motion for reconsideration in April 2018, which was denied by a third Family
Part judge, and not the judge who entered the January 22, 2018 order.
On appeal, L.P. argues: the order sanctioning her retroactively and
prospectively should be rescinded; the $1350 in sanctions should be vacated and
the funds returned to her; the orders restricting her authority to choose healthcare
providers for Matthew should be rescinded; the child support amount should be
reconsidered; overpayments in child support should be refunded to her; the order
directing M.P. to set up a special needs trust and ABLE account should be
vacated; and the order prohibiting her from filing further applications unless she
can demonstrate substantial compliance should be vacated. In response, M.P.
argues: the appeal should be denied; sanctions should continue to be enforced
against L.P.; L.P. is incapable of managing Matthew's finances; and parental
alienation is still being effectuated by L.P.
A-3783-17T2 18 II.
A trial court's fact-finding should be generally undisturbed "when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 412 (1998). The appellate court gives particular deference to a trial
judge's fact finding in a family matter because of the trial court's expertise and
its "opportunity to make first-hand credibility judgments about the witnesses
who appear on the stand; it has a 'feel of the case' that can never be realized by
review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.
88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 293 (2007)).
A trial judge's fact-finding should only be reversed if it is "so wholly
unsupportable as to result in the denial of justice." In re Guardianship of J.N.H.,
172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super.
172, 188 (App. Div. 1993)). This court should not reverse the family court's
decision "when there is substantial credible evidence in the record to support the
court's findings." E.P., 196 N.J. at 104.
L.P. argues that Matthew is over eighteen years old and cannot be forced
to visit his father or undergo treatment against his wishes. Despite Matthew's
incapacitation, the limited guardianship order requires her to confer with him as
A-3783-17T2 19 to his treatment and, therefore, the $50 per week sanction order was an abuse of
discretion. A plenary hearing was required to be conducted here pursuant to
Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007), prior to the entry of
the limited guardianship order of June 29, 2016, because the trial judge must
articulate reasons for custody and parenting time determinations and refer
specifically to the pertinent statutory criteria. See N.J.S.A. 9:2-4(c); Kinsella v.
Kinsella, 150 N.J. 276, 317 (1997). These factors are:
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) (emphasis added).]
A-3783-17T2 20 These considerations apply equally to parenting time disputes. "[V]isitation
rights are almost 'invariably' granted to the non-custodial parent." V.C. v.
M.J.B., 163 N.J. 200, 228 (quoting Beck v. Beck, 86 N.J. 480, 495 (1981)).
"A plenary hearing is required when the submissions show there is a
genuine and substantial factual dispute regarding the welfare of the child[]. . . ."
Hand, 391 N.J. Super. at 105. We have stated that a decision made "without an
evidential basis, without examination and cross-examination of lay and expert
witnesses, and without a statement of reasons is untenable in the extreme."
Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982). The age of a child
has a great deal to do with the weight attached to his or her preference.
In making a custody or visitation determination, a judge should "conduct
a private examination of [the] child in order to discover [his] wishes as to
custody . . . [and] to ascertain the predilection of the child . . . ." Lavene v.
Lavene, 148 N.J. Super. 267, 273 (App. Div. 1977) (quoting Callen v. Gill, 7
N.J. 312, 319 (1951)).
The prior family judge noted that Matthew "had such good manners the
last time" the judge interviewed him, but that he "spoke rudely about almost
every doctor he use[d] to have a good relationship with and called doctors rude."
The prior judge reminded Matthew that at one point he did not want to see his
A-3783-17T2 21 mother and he used to have a good relationship with his father. Matthew stated
that his father had become "ruthless over the years[,]" and he did not disclose
this behavior at the prior interview because he wanted to keep it to himself. The
judge noted that Matthew lost eye contact when explaining his reason. She
determined that Matthew is not a person "that can reliably report about himself"
because his attitude was essentially "I told you the truth then. I'm telling you
the truth now. I don't really care that none of it matches up, [j]udge, just leave
me alone."
During the March 18, 2016 motion hearing, the prior judge determined
she did not "need a [p]lenary hearing at [that] point to find that [she did] not
believe that this child [was] being encouraged by his mother to see his father or
to go to the team of doctors that . . . specialize in his care because his mother
[did not] want those things to happen." In the case before us, the prior judge
improvidently served as fact-finder and essentially relied solely on her
"unreliable" interviews with Matthew for her decision.
In Wilke v. Culp, 196 N.J. Super. 487, 504 (App. Div. 1984), we reversed
and remanded a trial court's order denying M.P.'s request for a plenary hearing
to determine whether visitation should have been reinstated, to consider the best
interests of the child, and to determine whether any conditions should be
A-3783-17T2 22 imposed on visitation. There, "[t]he trial judge . . . accepted without question
that there [was] no room in the [child's] life for the natural father." Id. at 502.
The trial judge conducted an in camera interview with the fifteen-year-old child.
Id. at 495. The child earnestly requested not to have visitation with his father
because he had not seen him for approximately ten years. Id. at 497.
The parties had a lengthy custody battle, which included allegations that
the mother purportedly positioned the son against his father. Id. at 491-96. Oral
argument was held based on the papers filed in connection with the father's
motions, but no testimony was elicited from either party, and no psychological
examination was conducted. Id. at 495. Instead, the judge relied only on the
child's interview and the conflicting affidavits of the parties. Id. at 499. We
remanded the matter because of the trial judge's failure to address certain issues;
ordered a guardian ad litem to be appointed; and ordered a plenary hearing to
explore the issue of whether the father's lack of past visitation and the child's
"attitude are attributable to the child's mother . . . ." Id. at 503.
In a similar vein here, the prior family judge wrongly made a
determination regarding visitation based on the parties' conflicting certifications
and Matthew's interviews, finding:
I don't need a [p]lenary hearing to find that [L.P.'s] actions have caused this child to be alienated from his
A-3783-17T2 23 father and I needed the help of the guardian ad litem to get some assistance and recommendations on how to go forward to try to repair that . . . . [and] [L.P.] holds the key to that progress in fact, just as [M.P.] once did. He once did and he cooperated. I don't know that I would have ever been able to restore [Matthew's] relationship with his mother if his father had not cooperated. The child is trusting of his parents, maybe it's only one at a time, but he will do what his mother asks him, I really can't doubt that. I don't think I need a [p]lenary hearing to determine that.
We disagree. Matthew was not under the care of a psychiatrist in March
2016, and the parties were still debating insurance and out-of-network providers
at that time. Alienation could not be found without factual and expert testimony.
Having no professional on board who could weigh in on the issue of Matthew's
best interests vis-à-vis his father at that time, and failing to conduct a plenary
hearing, constituted an abuse of discretion by the prior family judge.
III.
A. Sanctions
A trial court's imposition of sanctions is reviewed under the abuse of
discretion standard. See Innes v. Carrascosa, 391 N.J. Super. 453, 498 (App.
Div. 2007). Economic sanctions must "rationally relate[] to the desideratum of
imposing a 'sting' on the offending party within its reasonable economic means."
Pressler & Verniero, Current N.J. Court Rules, cmt. 4.4.3 on R. 1:10-3 (2019).
A-3783-17T2 24 Rule 1:10-3 provides that "[n]otwithstanding that an act or omission may
also constitute a contempt of court, a litigant in any action may seek relief by
application in the action." Moreover, "[o]n finding that a party has violated an
order respecting custody or parenting time, the court may order, in addition to
remedies provided by R[ule] 1:10:3 . . . economic sanctions . . . and . . . any
other appropriate equitable remedy." R. 5:3-7(a)(2), (10).
In deciding the motion for reconsideration, the third family judge upheld
sanctions against L.P.
because of her failure to properly allow for reunification and the failure of her to do what is in [Matthew's] best interest, which is the plan put forth by the folks at [CHOP] together with the execution of his IEP. Because, otherwise, he's simply going to be a ward of the [S]tate for the rest of his life.
The reconsideration judge also found "that allowing an autistic [nineteen] year -
old with learning disabilities to sit in a room and play video games and make
YouTube videos with the hope of becoming a YouTube sensation so he can get
his ad revenue up is not realistic, it's tantamount to child abuse."
L.P. correctly argues that the limited guardianship order gave her the
authority to make educational and medical decisions in consultation with
Matthew. L.P. certified that during his last session at CHOP, Matthew "stormed
A-3783-17T2 25 out" and refused to return, stating he did not need their services anymore. L.P.
also stated that Mr. Marder, a counselor, indicated that Matthew no longer
needed his services. Because M.P. failed to demonstrate that L.P. was alienating
Matthew from him, or any of her acts or omissions were intentional, the
sanctions were punitive and unwarranted.
No explanation was provided by the prior family judge as to how she
arrived at $50 per week as a sanction or why M.P. was permitted to offset his
child support obligation against the sanction imposed, and no consideration was
given to L.P.'s ability to pay the sanctions. A trial court is required "by an
opinion or memorandum decision, either written or oral, [to] find the facts and
state its conclusions of law thereon . . . on every motion decided by a written
order that is appealable as of right . . . ." R. 1:7-4(a). We conclude the prior
judge mistakenly exercised her discretion in awarding sanctions and by
enforcing the sanctions and denying reconsideration. Therefore, we reverse and
vacate the orders as they pertain to retroactive and prospective sanctions and we
vacate the $1350 assessment against L.P.
B. Healthcare Decisions for Matthew
L.P. next argues that the January 22, 2018 order should be vacated insofar
as the subsequent family judge abused his discretion by limiting her authority in
A-3783-17T2 26 respect of Matthew's medical, healthcare, and dental decisions. The judge stated
"[t]here is no basis in fact or law" to give "a narrow and strict interpretation to
the [g]uardianship [order]" to "void the series of motion rulings regarding this
unemancipated and incapacitated adult child of both parties to require
appropriate psychological and developmental care so as to secure a relationship
with the child's father and to complete an adequate education." We disagree.
A probate court may appoint a limited guardian of an individual if it finds
that the "individual is incapacitated and lacks the capacity to do some, but not
all, of the tasks necessary to care for himself . . . ." N.J.S.A. 3B:12-24.1(b).
Rule 4:83-4(b) provides that "an action for the appointment of a guardian for an
alleged mentally incapacitated person" shall be made in the Probate Part of the
county in which the person is domiciled. Further, the probate court may appoint
a guardian ad litem for an incapacitated person, to assist the court in determining
the best interests of that person. R. 4:86-4(d).
The December 2, 2016 Family Part order entered by the prior judge aptly
found that Matthew's health, education, and financial issues would be
determined by the probate court, and not the Family Part, going forward. Only
issues pertaining to child support and parenting time would be adjudicated in
the Family Part thereafter. The record reflects that a case management order
A-3783-17T2 27 was entered by the probate judge addressing Matthew's educational issues. We
therefore conclude that the December 2, 2016 order properly severed the issues
to be handled by the Family and Probate Parts.
Now that Matthew is over the age of twenty-one, the issue of parenting
time is beyond the jurisdiction of the Family Part and should be mediated first
with Collins going forward as part of the limited guardianship matter. The only
issue remaining within the purview of the Family Part's jurisdiction is child
support until Matthew attains the age of twenty-three.11 An application may also
be brought before the Probate Part to consider "a child support obligation for an
. . . incapacitated person who has reached the age of [twenty-three] to another
form of financial maintenance . . . ." R. 4:86-7A.
C. Child Support
In her final argument, L.P. argues that the prior judge abused her
discretion by arbitrarily ordering child support to be paid by M.P. at the rate of
$75 weekly without considering probative, competent evidence of L.P.'s
11 N.J.S.A. 2A:17-56.67, enacted on January 19, 2016, applies to child support orders entered prior or subsequent to February 1, 2017. Age nineteen is the presumptive age for termination of child support, and support may continue until the child's twenty-third birthday. A-3783-17T2 28 subsequent disability and unemployment, or M.P,'s base salary of $145,000 plus
bonuses. We agree.
There is ample precedent for declaring children over the age of eighteen
to be unemancipated when they are still completing their education, are
economically dependent on their parents, and remain within the parental "sphere
of influence and responsibility . . . ." Filippone v. Lee, 304 N.J. Super. 301, 308
(App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div.
1995)); see also N.J.S.A. 2A:34-23(a). In the circumstances of this case,
Matthew is financially dependent on his mother and fits the definition of an
unemancipated child.
When reviewing decisions to grant applications to modify child support,
we examine whether, given the facts, the judge abused his or her discretion .
Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). "The trial court has
substantial discretion in making a child support award. If consistent with the
law, such an award 'will not be disturbed unless it is "manifestly unreasonable,
arbitrary, or clearly contrary to reason or to other evidence, or the result of whim
or caprice."'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)
(citation omitted) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App.
Div. 1999)). We may thus reverse a trial court's decision when it "is 'made
A-3783-17T2 29 without a rational explanation, inexplicably depart[s] from established policies,
or rest[s] on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J.
561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization
Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Moreover, we are not bound by
"[a] trial court's interpretation of the law" and do not defer to legal consequences
drawn from established facts. Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
By statute, parents are required to provide for the financial support of their
unemancipated children. N.J.S.A. 2A:34-23(a). The State has established
presumptive guidelines, and a corresponding worksheet, to calculate child
support (the Guidelines). See Child Support Guidelines, Pressler & Verniero,
Current N.J. Court Rules, Appendix IX-A and IX-B to R. 5:6A,
www.gannlaw.com (2019). The court rules prescribe that the Guidelines "shall
be applied when an application to establish or modify child support is considered
by the court." R. 5:6A. "A court may deviate from the [G]uidelines only when
good cause demonstrates that [their] application . . . would be inappropriate."
Lozner v. Lozner, 388 N.J. Super. 471, 480 (App. Div. 2006).
In establishing "the amount to be paid by a parent for support of the
child[,]" the court must consider, among other factors: the "[s]tandard of living
A-3783-17T2 30 and economic circumstances of each parent;" "[a]ll sources of income and assets
of each parent;" the "[e]arning ability of each parent"; and the "[r]esponsibility
of the parents for the court-ordered support of others . . . ." N.J.S.A. 2A:34-
23(a).
In reviewing the matter at hand, the prior family judge did not address
L.P.'s argument that she was "laid off" from her previous employment, where
her earnings averaged $300,000 annually; she is now permanently disabled; and
she receives $2936 monthly in Social Security Disability Insurance (SSDI)
benefits. L.P. claims that Matthew receives $532.98 in SSDI benefits and M.P.
states the amount is $1,468.12.12 Initially, the prior family judge refrained from
ordering child support to be paid by M.P. to L.P. to avoid potentially
jeopardizing Matthew's ability to collect governmental benefits, such as Social
Security Insurance (SSI) or SSDI. L.P. received a one-time SSI payment in the
amount of $5,166.91 in April 2018 on behalf of Matthew, representing payments
from July 2016 through March 2017 and September 2017. The record does not
provide how, if at all, this sum was applied to either parent's child support
obligation.
12 SSDI information was not provided in the record. In any event, the record does not reflect that Matthew's SSDI benefits were taken into consideration in determining child support. A-3783-17T2 31 The parties did not submit updated case information statements or
required attachments, such as tax returns, W-2 forms, 1099s, or bonus
information for consideration by the court. According to the Guidelines, the
court would need to review all of this information to determine the appropriate
amount of income for inclusion in the recalculation of child support. Instead,
the prior family judge ordered M.P. to arbitrarily pay $75 weekly into an ABLE
account for Matthew's education and therapy needs. This is contrary to the spirit
and intent of the Guidelines, which were designed to provide an appropriate
level of support for a child's ongoing shelter, transportation, and personal
expenses. The prior family judge rejected L.P.'s request for weekly child
support of $500. Again, Rule 1:7-4 was not complied with. "Naked
conclusions" are not enough; there must be some stated correlation between the
facts and the applicable law. Curtis v. Finneran, 83 N.J. 563, 570 (1980).
Ultimately, "[m]eaningful appellate review is inhibited unless the judge sets
forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super.
298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443
(App. Div. 1990)).
We reverse the order fixing child support and remand for additional
proceedings to complete the required calculation under N.J.S.A. 2A:34-23(a).
A-3783-17T2 32 In doing so, the judge must make a determination as to both parties' earned and
unearned incomes, and factor in any SSDI or other governmental benefits
Matthew may be currently receiving. We defer to the trial judge to determine
whether the submission of additional financial documentation and a plenary
hearing is necessary to address these or other materially disputed issues, and to
provide an explanation if the Guidelines are not followed.
In sum, we conclude as follows:
(1) The March 18, 2016 order imposing sanctions
against L.P. is reversed and vacated.
(2) The $1350 sanction order entered against L.P. is
reversed and vacated.
(3) The June 29, 2016 limited guardianship order
entered in the Probate Part shall remain in full force and
effect. The Probate Part shall have exclusive
jurisdiction over all issues concerning Matthew, with
the exception of child support, which shall be subject
to the jurisdiction of the Family Part until Matthew
reaches the age of twenty-three. At that time, the
A-3783-17T2 33 Probate Part shall assume jurisdiction over child
support.
(4) The Family Part orders entered relative to child
support and establishing a special needs trust or ABLE
account are reversed and vacated. The issue of
calculation of child support to be payable to L.P. by
M.P. shall be determined in a proceeding consistent
with our opinion. On remand, the parties may address
the need for a trust or ABLE account for Matthew.
Reversed, vacated, and remanded for further proceedings. We do not
retain jurisdiction.
A-3783-17T2 34