MEDWIN SOTO VS. ICO POLYMERS NORTH AMERICA(L-0467-10, HUNTERDON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 11, 2017
• Docket: A-3858-14T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3885-14T1

J.E.,

Plaintiff-Respondent,

v.

Defendant-Appellant. _______________________________

Argued November 15, 2016 – Decided May 4, 2017

Before Judges Espinosa and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-869-07.

John R. Nachlinger argued the cause for appellant (Previte & Nachlinger, P.C., attorneys; Mr. Nachlinger, on the briefs).

Benjamin P. De Sena argued the cause for respondent (De Sena & Petro, attorneys; Mr. De Sena, on the brief).

PER CURIAM Defendant J.E. (Jesse)1 appeals a February 25, 2015 order of

the Family Division that denied his request to transfer his child

to the Upper Saddle River (USR) school system, and an April 6,

2015 order that required him to pay part of the attorney's fees

incurred by plaintiff J.E. (Joy) in opposing the requested

transfer. We affirm the order denying the transfer, but reverse

the order for attorney's fees and remand that issue to the Family

Part.

Jesse and Joy were married in 1998, and had one child, Randy,

who was born in 2002. They divorced on May 29, 2007, after

executing a comprehensive property settlement agreement (PSA).

Under the PSA, the parties agreed to joint legal and physical

custody of Randy with parenting time that was equally divided.

Neither parent was designated the parent of primary residence.

Regarding Randy's education, Article VI, paragraph 7, of the

PSA provided that:

The parties shall confer and agree upon the school system into which the child shall be enrolled, either Bogota or Ridgefield Park, based upon the choices afforded by the parties' respective residences. The agreement shall be based upon the better school system for the child, and the child's best interests. Should either party choose to move from either of those towns, the child's "residence" for purposes of determining the child's school

1We have used initials and fictitious names to protect the privacy of the child who is involved in this matter.

2 A-3885-14T1 system shall be reevaluated and subject to further conference and agreement between the parties. Should the parties fail to agree, the matter shall be referred to mediation. If mediation is unsuccessful, the matter shall be referred to the court upon the application of either party.

After the parties divorced, Randy attended elementary school

in the Ridgefield Park school system. In the early grades, Randy

did well, but by sixth grade there was a noticeable decline in his

grades, particularly in the areas of science and civics. In the

past, Randy had achieved higher grades in math and science than

in the language arts, but in sixth grade, even his grade in science

had dropped.

Jesse remarried and in December 2013 moved to USR because of

the school system, which he believed to be superior to the schools

in Ridgefield Park. When the parties could not agree on whether

Randy should attend Cavallini Middle School (Cavallini) in USR or

continue attending school in Ridgefield Park, and after mediation

failed to resolve the dispute, Jesse filed a post-judgment motion

in July 2014 seeking an order requiring Randy's transfer to the

USR school system.2 At that time, Randy was in seventh grade at

the Ridgefield Park Jr./Sr. High School (Ridgefield Park).

2The motion also requested reimbursement of certain expenses, but because those issues are not part of the appeal, we have omitted them from our opinion.

3 A-3885-14T1 A plenary hearing was conducted. Dr. Eileen Kohutis, a

psychologist retained by Jesse, testified that moving Randy to

Cavallini would "increase his motivation," as "[t]he school work

would challenge him more." Dr. Kohutis testified about a number

of stresses in Randy's life, and that he had an "emotional

attachment" to Ridgefield Park. She observed that Randy was shy,

but opined he would be able to maintain the friends he had

developed at Ridgefield Park, despite the distance between the two

towns.

Jesse testified that Randy was not being challenged at

Ridgefield Park, and that Randy needed to "work up to his

potential," as he was not making enough of an effort. He denied

Randy had trouble making friends or difficulty with change. Jesse

wanted to move Randy to another school to motivate him.

Joy testified that Randy was being challenged at Ridgefield

Park, where he was "extremely happy." She saw no compelling reason

to transfer Randy to another school.

Dr. Jonathan Mack, a psychologist retained by Joy, testified

that Randy's best interest was to continue school attendance at

Ridgefield Park. He performed a number of psychological tests on

the child and his parents. His conclusion was that Randy was "a

sensitive child, easily pressured." Randy "[did] not respond well

to pressure, [did] not respond well to a lot of push to be

4 A-3885-14T1 competitive." He did not "handle[] conflict well" and

"internalizes it." Dr. Mack testified that if "you put this kid

under too much competitive pressure, you're going to have a

meltdown." Dr. Mack reported the child had somatic complaints

such as "nightmares, dizziness, tired, aches, headaches, eye

problems, skin problems and stomach problems." If transferred to

"a more difficult, demanding, competitive school district," Randy

may show "worsening performance under pressure, increased

psychosomatic reactivity, increased sleep disruption, and

increased tendency to be overweight due to eating over stress."

Jesse's application to transfer Randy's school enrollment to

Cavallini was denied. In its written opinion, the Family Part

judge found Jesse's expert witness, Dr. Kohutis, "did not supply

much useful information based on her area of expertise." The

court noted Dr. Kohutis's conclusion that a transfer to Cavallini

was in Randy's best interest failed to address whether there would

be "a psychological impact" on Randy if he were transferred to

Cavallini and then did not do well academically. Dr. Kohutis also

failed to consider the impact on Randy's self-esteem if he changed

schools and performed poorly.

The court found that both schools would "provide

extracurricular and educational activities which will meet the

needs of the child." Both would be "welcoming" and both would

5 A-3885-14T1 "afford [Randy] an opportunity to unfold his talents both

academically and musically," although Ridgefield Park offered more

"cultural diversity." The court found that the "continuity of

school, teachers, friends and acquaintances" provided

"compensation for the fractionalization of [the child's] time[,]"

referencing the parents "50/50" shared parenting time arrangement.

The court found that "[p]eer relationships are very important,"

as well as "the continuity of friends and the emotional attachment

to school and the community," in "stimulating the overall growth

of the child." The court concluded that it was in Randy's "best

interest to remain as a student in Ridgefield Park."

Both parties requested payment of their attorney and expert

fees. The court clarified at trial that it would address their

fee requests at a later date. In her written summation, Joy's

counsel "await[ed] advice from the court" about her request for

fees because the court had indicated during the hearing that

"evidence pertaining to such would not be admitted into evidence

at this time." Jesse's written summation asked for fees because

he contended Joy acted in bad faith by not settling the case. He

objected to any payment of her attorney's fees because Joy's mother

had paid them, not Joy. He noted, as he had at trial, that his

counsel and expert fees were paid for largely by credit cards.

6 A-3885-14T1 By letter on March 30, 2015, Joy's counsel submitted a

certification from Joy addressing attorney fees. In the

submission, she explained the disparity of the parties' income,

that Jesse had proceeded in bad faith, and submitted copies of

fee certifications from her counsel, which were not in evidence

at the trial. She attached a copy of Jesse's deed and mortgage

for his new home in USR, which also were not in evidence.

On April 6, 2015, in an oral decision, the trial court ordered

Jesse to pay $34,512 in attorney's fees to Joy, which was a portion

of the amount she claimed in her March 30, 2015 submission. The

court reviewed Rule 5:3-5(c), finding that Joy had less ability

than Jesse to pay fees because of her income, that she had borrowed

money from her mother to pay for them, and that she was the

prevailing party. Jesse did not show good faith because he had

tried to dissuade Joy's mother from continuing to fund the

litigation. The court stated it had no information from Jesse

about his expert or attorney's fees.

Two days later, Jesse's counsel advised the court by letter

that he had been preparing a response to the March 30, 2015 letter,

which would have apprised the court of the new information that

Jesse "lost his job in January, exhausted his savings, maxed out

his credit cards, and had no ability to pay counsel fees.

Moreover, his wife recently gave birth to twins and is not

7 A-3885-14T1 working." He requested the opportunity to respond. Counsel for

Joy opposed this request, but the issue was not further addressed

by the court.

Jesse appeals, claiming the Family Part judge erred in

determining Randy should continue attendance at Ridgefield Park.

He asserts the court should have assessed the quality of the two

school systems and selected whichever one was better. He contends

the court erred by raising the concept of fractionalization at

trial and then relying on that concept in its decision. Further,

Jesse challenged the award of attorney's fees, claiming the court

violated due process and misapplied its discretion because he did

not have the opportunity to oppose Joy's request for fees. If

there is a remand, he requests assignment to a different judge

because of alleged bias by this judge.

I.

"[W]e accord great deference to discretionary decisions of

Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197

(App. Div. 2012), in recognition "of the family courts' special

jurisdiction and expertise in family matters." N.J. Div. of Youth

& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting

Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a] trial

court's interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special

8 A-3885-14T1 deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014)

(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

In cases where the child's joint custodians cannot agree on

the choice of school, the issue is resolved by ascertaining the

best interest of the child. In Levine v. Levine, 322 N.J. Super.

558, 565 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000), the

parents shared physical and legal custody of their child but could

not agree where the child would attend school. After a plenary

hearing, the court ordered a transfer. There, "[w]e question[ed]

the wisdom of a Family Part judge engaging in a comparative

evaluation of public school districts based on" empirical data.

Id. at 567.

In the context of the best interests of a child, any evaluation of a school district is inherently subjective. Just as a student cannot be summed up by IQ, verbal skills or mathematical aptitude, a school is more than its teacher-student ratio or State ranking. The age of its buildings, the number of computers or books in its library and the size of its gymnasium are not determinative of the best interest of an individual child during his or her school years. Equally, if not more important, are peer relationships, the continuity of friends and an emotional attachment to school and community that will hopefully stimulate intelligence and growth to expand opportunity.

[Ibid.]

9 A-3885-14T1 We are satisfied the conclusion of the Family Part judge

here, that transfer was not in the child's best interest, was

consistent with our guidance in Levine and supported by "adequate,

substantial and credible evidence" in the record. See Rova Farms

Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

The parties' PSA did not require the Family Part judge to

determine which school system offered a better education. Although

marital settlement agreements "which are fair and just" are

enforceable in equity, see Petersen v. Petersen, 85 N.J. 638, 642

(1981), the parties' PSA expressly required consideration of

Randy's best interest. The court followed our guidance in Levine

that cases such as this are about more than the schools themselves,

and that the best interest of the child is the paramount concern.

The Family Part judge had ample evidence to support the

finding that Randy's best interest was not served by a transfer.

Dr. Mack testified that Randy had self-esteem issues, did not make

friends easily, was weak in listening skills and did not respond

well to pressure, competition or conflict. Dr. Mack testified

that Randy could "meltdown" if subjected to too much competitive

pressure, and that his transfer to USR would be "counterproductive"

and will "set him backwards." The child told Dr. Mack that he was

suffering from somatic complaints such as dizziness, lack of sleep

10 A-3885-14T1 and headaches. Dr. Mack testified increased competition would

exacerbate these symptoms.

The trial court did not err in discounting the testimony of

Jesse's expert because Dr. Kohutis had not addressed many of these

concerns. She had not conducted psychological testing. She had

not considered what might happen to Randy's self-esteem, nor any

other consequences for Randy should there be an academic decline

at Cavallini. Indeed, her opinion that transfer was warranted was

based on her conclusion from Randy's grades that Ridgefield Park

was not motivating Randy.

Jesse claims error because during the trial, the court asked

Dr. Mack about "fractionalization," which was its reference to the

parties' equal parenting time. The trial judge is permitted to,

"on his own initiative and within his sound discretion, interrogate

witnesses for the purpose of eliciting facts material to the

trial." State v. Riley, 28 N.J. 188, 200 (1958), cert. denied and

appeal dismissed, 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832

(1959); see also State v. Guido, 40 N.J. 191, 207-08 (1963). We

see no error by the trial judge in making this inquiry,

particularly given the testimony by both experts about Randy's

level of stress.

We disagree with Jesse's contention the Family Part judge was

biased. The record of the trial showed no bias whatsoever. Bias

11 A-3885-14T1 is not manifested merely because the court decides against the

position of one of the parties. See Strahan v. Strahan, 402 N.J.

Super. 298, 318 (App. Div. 2008) ("Bias cannot be inferred from

adverse rulings against a party.")

II.

Jesse appeals the trial court's April 6, 2015 order that

required him to pay $34,512 toward Joy's attorney's fees. The

assessment of attorney's fees is an issue left to the sound

discretion of the trial court. Tannen v. Tannen, 416 N.J. Super.

248, 285 (App. Div. 2010), aff'd, 208 N.J. 409 (2011). It is

reviewed under an abuse of discretion standard. Strahan, supra,

402 N.J. at 317 (citing Rendine v. Pantzer, 141 N.J. 292, 317

(1995)).

Although the court appropriately considered the factors under

Rule 5:3-5(c), it appears that Jesse did not have the opportunity

to respond to the March 30, 2015 submission by Joy before the

court's decision was made. He advised the court he had new

information about his ability to pay and wanted the opportunity

to respond to new documents that were not part of the evidence at

trial.3 Because of that, we are constrained to reverse the

3 The March 30, 2015 submission by Joy included the deed and mortgage of Jesse's home in USR, as well as certifications of services from her counsel.

12 A-3885-14T1 attorney fee award. On remand, Jesse should be afforded an

opportunity to respond to the March 30, 2015 submission. The

court also may permit the parties to update their case information

statements. If there is an award, the court should explain how

it reached that amount.

We affirm the February 25, 2015 order that denied Jesse's

request to transfer the child's school to USR. We reverse the

April 6, 2015 order that awarded attorney's fees and remand that

issue to the Family Part for further proceedings consistent with

this opinion. We do not retain jurisdiction.

13 A-3885-14T1