M.W.M. v. T.M.

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1581-24

M.W.M.,

Plaintiff-Respondent,

v.

T.M.,

Defendant-Appellant. ________________________

Argued March 18, 2026 – Decided July 17, 2026

Before Judges Smith, Berdote Byrne and Jablonski.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM- 02-0257-21.

Robert S. Cohen (Cohen Clair Lans Greifer & Simpson, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant (Einhorn Barbarito Frost Botwinick Nunn & Musmanno PC, Robert S. Cohen and Latoya D. Herring (Cohen Clair Lans Greifer & Simpson, LLP) of the New York bar, admitted pro hac vice, attorneys; Stephen P. Haller, Jennie L. Osborne, Matheu D. Nunn, Robert S. Cohen and Latoya D. Herring, on the briefs). Allison P. Berecz argued the cause for respondent (Skoloff & Wolfe, PC, attorneys; Allison P. Berecz, of counsel and on the brief).

PER CURIAM

Defendant T.M. appeals from the motion court's order denying his motion

to: replace his daughter M.M.'s psychologist; modify portions of the parties'

settlement agreements; and award attorneys' fees.1 Defendant also seeks

reassignment of this matter on remand to a different judge.

For reasons which follow, we vacate the order and remand to the same

judge for proceedings consistent with this opinion.

I.

Defendant T.M. and plaintiff M.W.M. were married in 2015, and had one

child, M.M. The parties divorced on March 6, 2023, with their final judgment

of divorce (FJOD) incorporating a marital settlement agreement (MSA) and a

separate custody agreement.

The detailed thirty-six-page custody agreement established the parties'

joint legal custody of M.M. in paragraph one. Paragraphs two and three outlined

the roles of the professionals working with the family and ensured that no

1 We refer to the parties using their initials to protect the minor's privacy. R. 1:38-3(d)(3). Further, the records below have been sealed pursuant to Rule 1:38- 11. A-1581-24 2 professional could be terminated by the parties without a court order. One of

the four professionals identified in the agreement was Dr. Kimberly S. Williams,

a New York2 licensed psychologist who served as the daughter's therapist and

the parties' parenting coach. Paragraphs twenty and twenty-one established a

comprehensive parenting time plan which accounted for the daughter's weekly

school, vacation, holiday and birthday schedules, as well as specific drop -off

and pick-up times.

The custody agreement governed various aspects of the parties' co-

parenting arrangement. It required mutual agreement by the parties to change

any important life activities related to M.M.'s well-being. Termination of a

professional listed in the agreement is defined as a change in M.M.'s life

requiring mutual agreement or a court order.

In May 2023 defendant filed an order to show cause (OTSC), alleging

plaintiff violated the parties' custody agreement. He sought to modify the

agreed-upon supervised parenting time for plaintiff. The court denied

defendant's OTSC without prejudice and denied plaintiff's request for attorneys'

fees. Five months later, in October 2023, defendant filed a second OTSC, again

alleging that plaintiff had violated the custody agreement and further seeking to

2 The record shows that Dr. Williams is now licensed to practice in New Jersey. A-1581-24 3 change the parenting schedule of M.M. However, he later withdrew the OTSC

with regard to the parenting schedule, and the parties agreed to a temporary

change in the schedule at a settlement conference in December 2023.

In July 2024, defendant moved to terminate Dr. Williams as M.M.'s

therapist, asking the court to replace her with "a new, culturally competent

therapist." Defendant further sought: depositions of plaintiff, Dr. Williams, and

the guardian ad litem (GAL); production of all communications from and to the

GAL; and attorneys' fees. Plaintiff cross-moved for an order: modifying the

agreements to change defendant's response time for certain requests; limiting

the frequency of defendant’s contacts with the professionals regarding non-

major issues; ordering defendant to communicate with plaintiff solely via a

parenting time application; ordering defendant to reimburse plaintiff for

professional fees; and requiring defendant to establish a litigation fund to

compensate plaintiff's attorneys for future litigation.

After argument, the court entered an order consolidating defendant's

October 2023 OTSC, the July 2024 motion, and plaintiff's cross-motion. The

order directed: M.M. could participate in activities she was engaged in if

defendant failed to respond to such requests within forty-eight hours; defendant

had to respond within forty-eight hours of plaintiff's request to schedule

A-1581-24 4 appointments for M.M.; and defendant had to pay his financial obligations

within one week of billing by a provider or plaintiff, as set forth in the MSA.

The court then granted defendant's request to produce all of the GAL's

communications, but denied the remainer of his requested relief. The court

granted plaintiff's request to enforce the MSA but denied the balance of her

cross-motion.

Thereafter, plaintiff sought attorneys' fees. On January 29, 2025, the court

awarded plaintiff attorneys' fees in the amount of $100,158.55, making findings.

The court accepted counsel's certification of services and found it was

undisputed that defendant "is in a far better financial situation than" plaintiff,

that both parties had the ability to pay counsel's fees, and that defendant's

attempt to remove Dr. Williams "was beyond misplaced" and made in bad faith.

The court found defendant's desire to remove Dr. Williams "was the catalyst for

. . . this entire application, which has cost both parties thousands and thousands

of dollars." Defendant appealed.

On appeal, defendant contends that the motion court committed error by:

declining to terminate Dr. Williams and appointing a new therapist for M.M.;

improperly modifying the custody agreement and MSA; and awarding plaintiff

A-1581-24 5 attorneys' fees. Defendant also asks that the matter be assigned to a new judge

on remand.

II.

"Our review of Family Part orders is limited." Gormley v. Gormley, 462

N.J. Super. 433, 442 (App. Div. 2019). "We 'afford substantial deference to the

Family Part's findings of fact because of that court's special expertise in family

matters.'" Voynick v. Voynick, 481 N.J. Super. 207, 220-21 (App. Div. 2025)

(quoting W.M. v. D.G., 467 N.J. Super. 216, 229 (App. Div. 2021)). Thus, a

court's findings "are binding on appeal so long as [its] determinations are

'supported by adequate, substantial, credible evidence.'" Gormley, 462 N.J.

Super. at 442 (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). A family

court's legal determinations, however, are afforded no particular deference and

are reviewed de novo. Amzler v. Amzler, 463 N.J. Super. 187, 197 (App. Div.

2020) (citing McGovern v. Rutgers, 211 N.J. 94, 108 (2012)).

III.

At the outset, we note that,

[t]here are obviously few judicial tasks which involve the application of greater sensitivity, delicacy and discretion than the adjudication of child custody disputes, which result in greater impact on the lives of those affected by the adjudication, and which require a higher degree of attention to the properly considered

A-1581-24 6 views of professionals in other disciplines. . . . That is also why the parties must be afforded every reasonable opportunity to introduce expert witnesses whose evaluation of the family situation may assist the judge in determining what is best for the children.

[J.G. v. J.H., 457 N.J. Super. 365, 373 (App. Div. 2019) (quoting Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982)).]

Defendant first argues that the trial court erred by failing to remove Dr.

Williams. Among other claims, defendant contends that Dr. Williams engaged

in disqualifying conduct by: making disparaging comments about M.M.,

describing her as "a little rich girl"; not spending enough time counseling M.M.;

failing to satisfactorily address defendant's concerns about M.M.'s co-sleeping

arrangements at plaintiff's home; and failing to address M.M.'s nutritional and

academic challenges.

Next, defendant argues that the trial court's order modifying the custody

agreement to permit plaintiff to enroll M.M. in extracurricular activities or

schedule medical appointments unless defendant responded to plaintiff's

inquiries within forty-eight hours was not supported by the record and

contradicted the custody agreement’s terms, which called for mutual consent.

Defendant makes a similar claim as to the trial court order modifying the MSA

to compel defendant to pay financial obligations within one week, rather than

A-1581-24 7 the fifteen days specified in the MSA. Defendant again argues that this

modification was unsupported by the record and violated the clear terms of the

agreement. In each instance, defendant contends that the trial court committed

error by failing to conduct a plenary hearing.

We consider defendant's arguments through this procedural lens. "A

thorough plenary hearing is necessary in contested custody matters where the

parents make materially conflicting representations of fact." J.G., 457 N.J.

Super. at 372. Thus, "[a] court, when presented with conflicting factual

averments material to the issues before it, ordinarily may not resolve those issues

without a plenary hearing. While we respect the family court's special expertise,

a court may not make credibility determinations or resolve genuine factual

issues based on conflicting affidavits." Ibid. (quoting K.A.F. v. D.L.M., 437

N.J. Super. 123, 137-38 (App. Div. 2014)).

On December 18, 2024, after a hearing which included testimony from

two professionals3, but neither party, the trial court issued its order. Citing its

review of "the mountain of paperwork" submitted by both parties, the court

3 Richard H. Weiner, the parties' mediator, and the court-appointed GAL both testified. A-1581-24 8 found no need for protracted argument. It found "there is [not] anything that

needs to be said that hasn't been set forth" in the parties' filings.

The GAL testified that she could not offer an opinion about the

termination of Dr. Williams, because she needed to conduct further investigation

into defendant's alleged concerns. However, the trial court made findings that

Dr. Williams was appointed after a robust vetting process, had a working

relationship with M.M., and that removing her would be against the best

interests of M.M. The court effectively made credibility findings concerning

defendant without his sworn testimony, labeling defendant's claims as "self-

centered," and not in M.M.'s best interest. The court rejected defendant's

assertions that M.M. had expressed a desire to change therapists. Without

hearing testimony from plaintiff, defendant, M.M., or Dr. Williams, the court

determined that defendant's motion to remove the psychologist was brought in

bad faith. The trial court analyzed modification of the two agreements in the

same abbreviated manner, eschewing testimony from the central figures in this

dispute: the parties, M.M., and Dr. Williams.

We disagree with the approach taken by the trial court in establishing the

record it used to resolve the cross-motions. We conclude that the court's

decision to forego a plenary hearing which incorporated the parties and their

A-1581-24 9 daughter, as well as their daughter's therapist, was a mistaken exercise of

discretion. The record below contains genuine issues of material fact concerning

the question of Dr. Williams' performance as a therapist and parent coach, 4 as

well as on the questions of parental communication regarding M.M.'s activities

and appointments. The significant and vigorously contested issues presented by

the parties to the trial court warrant testimony from those directly involved. The

trial court's determinations on witness credibility and the weight it chooses to

assign to various aspects of their testimony will impact all issues in dispute here:

termination of Dr. Williams, modification of the custody agreement, and

modification of the MSA.

Consequently, we vacate the order of December 18, 2024 in its entirety

and remand for a plenary hearing. We express no opinion regarding the outcome

of this matter upon remand. Because we vacate the December 18, 2024 order,

we also vacate the trial court's January 29, 2025 order awarding attorneys' fees.

Finally, defendant requests the matter be assigned to a different judge on

remand. It has long been recognized we have the authority to assign a matter to

4 Although not raised on appeal, we note with concern a potential conflict in Dr. Williams serving dual roles: one as M.M.'s therapist and unbiased, third - party confidante, another as parenting coach to both parents. On remand, the trial court should consider whether Dr. Williams performing both roles serves M.M.'s best interests. A-1581-24 10 a different judge upon remand. Graziano v. Grant, 326 N.J. Super. 328, 349

(App. Div. 1999). However, we only exercise this "when there is a concern that

the trial judge has a potential commitment to his or her prior findings." Ibid.;

see also N.J. Div. of Child Prot. & Permanency v. D.P.-Z., 483 N.J. Super. 549,

582-83 (App. Div. 2026). We agree with the approach taken by the Graziano

court, and we adopt it here:

Although we have the authority to direct the assignment of the case to a different judge, we believe that authority should be sparingly exercised. This case does not clearly call for the assignment of the matter to another judge. In addition, consideration must be given to the fact that, to some extent, it would be counterproductive to require a new judge to acquaint himself or herself with the litigation. Rather, we believe that an application for disqualification pursuant to Rule 1:12-1 should initially be made to the motion judge [themselves].

[Graziano, 326 N.J. Super. at 350 (citation reformatted).]

Carefully considering the extensive record in this matter, we discern no

actions or words by the judge which indicate "potential commitment to [their]

prior findings." Id. at 349. "Bias cannot be inferred from adverse rulings against

a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008). We

note that, "[i]f the judge believes that [they are] committed to the findings [they

have] previously made, or there is any other reason which might preclude a fair

A-1581-24 11 and unbiased hearing and judgment or which might reasonably lead counsel or

the parties to believe so, R. 1:12-1(f), we have every confidence that the judge

will recuse [themselves]." Id. at 350. Given the well-settled principles

expressed above, we decline defendant's request to assign the matter to another

judge on remand.

Any of the remaining claims not addressed here lack sufficient merit to

warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

The orders of December 18, 2024 and January 29, 2025 are vacated in

their entirety. The matter is remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

A-1581-24 12