NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4546-18T3
TUHIN PANDYA,
Plaintiff-Appellant,
v.
ROOPAL SHAH,
Defendant-Respondent. _________________________
Submitted February 25, 2020 – Decided April 3, 2020
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1499-12.
Paul Alexander Clark, attorney for appellant.
Shane & White, LLC, attorneys for respondent (Lauren Ann Miceli, of counsel and on the brief; Kenneth A. White, on the brief).
PER CURIAM Plaintiff ex-husband Tuhin Pandya appeals from March 25 and June 3,
2019 Family Part orders, amending his parenting time and child support
obligations with respect to the parties' seven-year-old son, A.P. We affirm.
I.
We addressed the parties' marital settlement agreement (MSA) and
subsequent divorce in plaintiff's previous appeal, Pandya v. Shah, No. A-3900-
14 (App. Div. Dec. 8, 2016) (slip op. at 7). We derive the following facts from
the record.
The parties married in September 2010. Defendant gave birth to A.P.,
their only child, in January 2012. Less than two weeks later, plaintiff filed for
divorce, claiming defendant had an affair with her employer. After a year of
litigation, the parties agreed to the terms of their MSA, which the court
incorporated into their final judgment of divorce (FJD), entered on January 14,
2013. Among other things, the MSA addressed custody, parenting time, and
child support, and set forth the equitable distribution of marital property; in
addition, each party waived "any right to past, present or future alimony from
the other party."
Regarding A.P., the parties "agree[d] to retain joint legal custody over said
minor child, with [defendant] maintaining the primary residential custody over
A-4546-18T3 2 said child." The effect of the MSA was to designate defendant as the parent of
primary residence (PPR) and plaintiff as the parent of alternate residence (PAR).
The MSA initially provided plaintiff with limited parenting time: alternate
weekend parenting time, beginning Saturdays at 12:00 p.m. and concluding
Sundays at 6:00 p.m., in addition to two hours of parenting time every Tuesday
and Thursday. Effective October 2013, the MSA expanded plaintiff's parenting
time to include Friday overnights. This parenting time plan remained in place
until the entry of the March 2019 order under review. The MSA further set
plaintiff's child support obligation at $180 per week.
Shortly after the parties finalized their divorce, plaintiff began filing
motions, challenging the parties' MSA and FJD. Primarily, plaintiff argued, as
he continues on this appeal, that defendant had hidden assets and unreported
income, which the court should impute to defendant in determining the parties'
parenting time and child support obligations. This litigation resulted in March
25 and April 17, 2015 trial court orders, entitling defendant to retain all the
proceeds she received as the result of a settlement she reached with her former
employer, and increasing plaintiff's child support obligation to $343 per week.
In October 2016, we decided plaintiff's initial appeal in Shah, slip op. at
7. There, we affirmed the finding of the trial court that "defendant was not aware
A-4546-18T3 3 of and did not pursue her claims" against her employer until after the divorce.
Id. at 9. Moreover, we noted that "if the claims arose prior to the date of the
MSA, plaintiff . . . released defendant from asserting the right to equitable
distribution" of the claims. Ibid. Similarly, this court found plaintiff's claim,
that defendant allegedly transferred money to India during their marriage , also
lacked merit, since the parties acknowledged their satisfaction with each other's
asset disclosure in the MSA. Id. at 12-13. Therefore, we held the parties were
otherwise bound by the terms of the MSA.
Before his initial appeal concluded, on October 13, 2016, plaintiff filed a
motion seeking a recalculation of child support and adjustment of parenting
time. On December 14, 2016, the trial court entered an order reserving decision
on plaintiffs' motion pending a plenary hearing.
In preparation for the hearing, defendant retained Dr. Mathias Hagovsky,
Ph.D., a forensic psychologist, as a child custody expert. Plaintiff refused to
hire a joint expert and otherwise failed to retain his own expert. Over the course
of eight months, Dr. Hagovsky conducted extensive interviews with both
parties; in addition, he observed each parent separately with A.P. On March
31, 2017, Dr. Hagovsky issued a twelve-page report setting forth his findings
and recommendations.
A-4546-18T3 4 The plenary hearing took place over a two-year span, with the trial court
hearing testimony on eleven different dates. Throughout the hearing, plaintiff
continued seeking additional parenting time and a modification of his child
support obligations.
Instead of focusing on the issues properly before the hearing judge, on
multiple occasions, and despite the judge warning plaintiff's counsel to avoid
raising issues already decided, plaintiff continually urged the court to reverse
prior decisions relating to the disclosure of defendant's assets. In response to
one such request, the trial judge stated, "Portions of the Appellate Division
decision were read into the record on multiple occasions. And the [c]ourt was
satisfied that those issues had been resolved by the Appellate Division and that
[plaintiff] would not get a second bite at the apple . . . ." The judge made it clear
that the issues before the court involved plaintiff's parenting time and his child
support obligation. Regarding these issues, plaintiff argued the judge should
split parenting time evenly and should designate him as the PPR. Defendant
accepted the recommendations of Dr. Hagovsky and maintained the parties
should continue to share joint legal custody, with her continuing as PPR.
Over two days, on March 21 and 25, 2019, the hearing judge rendered his
oral decision. The judge found the testimony of Dr. Hagovsky credible and
A-4546-18T3 5 adopted his parenting plan recommendation. Notably, the recommended
parenting plan substantially increased plaintiff's parenting time. Under the plan,
defendant continued as the PPR, "exercising parenting time nine out of fourteen
days with the plaintiff being [PAR] with parenting time five out of the fourteen
days[.]" The plan also provided plaintiff with "two and a half times more
overnights." The judge found "the parenting plan as outlined by Dr. Hagovsky
is in the child's best interest, with the express understanding that the parties may
exercise any discretion to expand upon it and adjust holidays to meet the needs
of the child and parties hopefully to achieve a level of cooperation."
Dr. Hagovsky's report also recommended the appointment of a parenting
time coordinator. The judge agreed, finding "this case cries out for a parent [ing
time] coordinator[,] at least until such time as the parties are able to
communicate and cooperate with each other." The judge appointed an attorney,
Eileen Foley, as the parenting time coordinator; based upon past experience, he
believed "she will be the voice of reason between the two parties."
Next, the hearing judge made his credibility assessments, finding
"plaintiff not . . . credible and defendant . . . credible." In support of this
determination, the judge recounted extensive observations he made throughout
the numerous hearing dates. He noted numerous inconsistences and "bizarre"
A-4546-18T3 6 positions taken by plaintiff throughout the litigation, concluding plaintiff was
the sole cause of the contentious relationship between the parties.
In deciding the custody issue, the trial judge reviewed the fourteen factors
set forth in N.J.S.A. 9:2-4 to determine what was in the best interest of A.P. The
judge provided a factual basis as to each factor in determining the new parenting
time plan. In addition to plaintiff's increased time overall, both parties were
allotted two consecutive weeks of summer parenting time, and should either
party wish to travel internationally, four uninterrupted weeks, provided the other
party is afforded the same time.
The hearing judge next addressed the issue of the parties' child support
obligations and requests for counsel fees. He attributed income to plaintiff of
$168,968 and to defendant of $32,350. He ordered plaintiff to pay child support
in the amount of $310.00 per week, payable by wage garnishment. The judge
also addressed a daycare issue raised by plaintiff: "The parties agree that there
was a period of time that the plaintiff paid for day care or child care when the
defendant had not incurred that expense[;]" however, due to lack of sufficient
proof at that time, the judge allowed each party to submit a certification
outlining the amounts overpaid within 41 days.
A-4546-18T3 7 Next, the hearing judge turned to the issue of counsel fees. The judge
denied plaintiff's request for counsel fees explaining, "It is he who has protracted
this litigation . . . and his ill[-]advised position that has extended the litigation.
He has ignored [c]ourt orders, Appellate Division decisions and at time [s],
logic."
Turning to defendant's request for counsel fees, the judge first cons idered
the factors in Rule 4:42-9. Before reviewing those factors, the judge noted
[t]he [c]ourt is satisfied that [plaintiff] has taken an unreasonable approach to this litigation. Whether fueled by animosity or bad advice, he has taken unreasonable, ill fated or just plain wrong positions. This matter should have been resolved months ago to the benefit of the parties' child, yet plaintiff continues.
Regarding the "parties' ability to pay," he determined plaintiff "is in a
much better financial position than the mother to satisfy his own fees as well as
contribute to the fees incurred by [defendant]." As to "the reasonableness and
good faith of the positions advanced by the parties," he found plaintiff's
cumulative actions "exemplify his bad faith in the broadest sense of the word."
The judge further noted defendant provided a certification of fees incurred but
plaintiff did not.
The judge addressed "the extent of the fees incurred by both parties,"
noting defendant incurred $76,319 in attorney's fees and expert costs of $6,775.
A-4546-18T3 8 He also noted defendant incurred $10,989 in fees while defending plaintiff's
initial appeal. Plaintiff's counsel did not provide a certification of services.
Regarding "the results obtained," the judge found defendant successfully
advanced her position through her expert, Dr. Hagovsky. As to "any other factor
bearing on the fairness of an award," he found defendant was "stoic" while
plaintiff "advanced false claims, misrepresented facts, ignored [c]ourt [orders]
and an Appellate Division decision[.] He has put his son in the middle and has
repeatedly advanced sometimes bizarre positions in an effort to get what he
wants. There's no sign of compromise regardless of whatever damage it may
cause."
The hearing judge also reviewed the Rules of Professional Conduct 1.5
(RPC 1.5), to guide his determination as to the reasonableness of a fee award,
addressing the eight factors set forth in the rule. He ultimately awarded
defendant counsel fees in the amount of $62,237.05. In his March 25, 2019
order, the judge confirmed the parties' continued joint legal custody of A.P.,
with defendant remaining the PPR and plaintiff continuing as the PAR. The
order also required plaintiff to reimburse defendant for the child's
extracurricular activities in the amount of $3,127.12, pursuant to the terms of
the MSA.
A-4546-18T3 9 On June 3, 2019, the judge ordered that plaintiff receive a credit of $3,328
for the monies he paid for A.P.'s daycare since his unenrollment. Applying this
credit, the judge reduced the amount plaintiff owed defendant for attorney's fees
to $58,909.05.
This appeal followed. The only issues plaintiff properly raises on appeal
concern the orders relating to the parties' parenting time and custody, the
amended child support obligation, and the award of counsel fees. Plaintiff's
remaining contentions concern his repeated and untimely attempts to challenge
rulings that the trial court and this court previously addressed.
II.
Plaintiff first contends the hearing judge erred in not granting him shared
residential custody of A.P., on an equal "50/50" basis. He asserts the parent of
a minor child has a fundamental right to 50/50 parenting time "as a default
position," absent a showing of unfitness. He also argues the trial judge relied
on a "stale" expert report in determining the issue of parenting time.
"The scope of appellate review of a trial court's fact-finding function is
limited. The general rule is that findings by the trial court are binding on appeal
when supported by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.
A-4546-18T3 10 Co. of Am., 65 N.J. 474, 484 (1974)). Deference is particularly appropriate with
respect to credibility determinations based on witness testimony, since the court
had the ability to see and hear the witnesses, and with respect to family c ourt
factfinding, due to "the family courts' special jurisdiction and expertise in family
matters." Id. at 412-13.
Consequently, "we 'should not disturb the factual findings and legal
conclusions of the trial judge unless . . . convinced that they are s o manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice' or . . . determine the court
has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47
(App. Div. 2010) (quoting Cesare, 154 N.J. at 412).
"The touchstone for all custody determinations has always been 'the best
interest[s] of the child.'" Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App.
Div. 2009) (quoting Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). "Custody
issues are resolved using a best interests analysis that gives weight to the factors
set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App.
Div. 2007). The statute requires that
[i]n making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to
A-4546-18T3 11 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.
[N.J.S.A. 9:2-4(c).]
When "the parents cannot agree to a custody arrangement, the court may
require each parent to submit a custody plan which the court shall consider in
awarding custody." N.J.S.A. 9:2-4(e). Lastly, when making "any custody
arrangement not agreed to by both parents," the "court shall specifically place
on the record the factors which justify" its order. N.J.S.A. 9:2-4(f).
"[T]he decision concerning the type of custody arrangement [is left] to the
sound discretion of the trial court[.]" Nufrio v. Nufrio, 341 N.J. Super. 548, 555
(App. Div. 2001) (second and third alteration in original) (quoting Pascale v.
Pascale, 140 N.J. 583, 611 (1995)). Therefore, on appeal "the opinion of the
A-4546-18T3 12 trial judge in child custody matters is given great weight . . . ." Terry v. Terry,
270 N.J. Super. 105, 118 (App. Div. 1994) (citations omitted).
We first note that plaintiff waived his initial right to an equal, shared
parenting time arrangement by virtue of the clear terms of the MSA. Therefore,
plaintiff was required to show a substantial change of circumstances in order to
modify the custody and parenting time provisions of the MSA. See Hand, 391
N.J. Super at 102. After making extensive credibility determinations, the
hearing judge considered each factor set forth in N.J.S.A. 9:2-4(c). The judge
referenced the extensive record which provided the basis for his decision that
plaintiff failed to satisfy his burden of showing a substantial change of
circumstances.
The hearing judge also properly considered the report of Dr. Hagovsky ,
despite plaintiff's contention that the report was "stale." Defendant offered Dr.
Hagovsky as a qualified expert and plaintiff made no objections. Defendant
then moved Dr. Hagovsky's report into evidence for consideration, without any
objection from plaintiff. Plaintiff also never retained his own expert nor did he
request the judge to appoint one.
Furthermore, Dr. Hagovsky's recommendations provided plaintiff a
substantial increase in parenting time. The trial court did not err in considering
A-4546-18T3 13 Dr. Hagovsky's recommendation in determining the custody and parenting time
of the parties. The judge's decision comported with the evidence and unrefuted
expert testimony of Dr. Hagovsky. We also find no evidence to support
plaintiff's claim that Dr. Hagovsky's report was stale. Therefore, we discern no
abuse of discretion as to the judge's rulings addressing custody and parenting
time.
III.
Plaintiff also argues the judge erred in reassessing his child support
obligation and unreasonably awarded defendant attorney's fees. Specifically, he
contends the judge mistakenly failed to impute income to defendant and reduce
his obligation because A.P. no longer required daycare.
A judge's decision to grant or deny an application to modify child support
is reviewed for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21
(App. Div. 2006). "Of course, the exercise of this discretion is not limitless"
and remains guided by the law and principles of equity. Steneken v. Steneken,
367 N.J. Super. 427, 434 (App. Div. 2004). A judge abuses his or her discretion
where the award is "manifestly unreasonable, arbitrary, or clearly contrary to
reason or to other evidence, or the result of whim or caprice." Jacoby v. Jacoby,
A-4546-18T3 14 427 N.J. Super. 109, 116-17 (App. Div. 2012) (internal quotation marks and
citation omitted).
At the outset, the parties' MSA and our decision in Pandya, slip op. at 7,
effectively precludes plaintiff's continued arguments regarding the imputation
of defendant's past income. We previously determined that plaintiff did not
prove defendant hid substantial assets and concluded defendant's settlement was
not subject to equitable distribution. Additionally, the MSA stated that the
parties voluntarily waived the right to seek further discovery regarding any
issues that arose between them.
We conclude the judge properly determined plaintiff's ongoing child
support obligation. He provided his calculations on the record, which reflected
a reasonable exercise of his discretion. We discern no basis to conclude the
judge's rulings were manifestly unreasonable or improperly calculated.
Similarly, plaintiff argues the hearing judge did not adequately consider
the required factors in awarding defendant attorney's fees in the amount of
$62,237.05, before the daycare credit. He further contends, to the extent the
judge considered the requisite factors, the record did not support his
conclusions.
A-4546-18T3 15 We review an award of counsel fees for an abuse of discretion. Where the
judge follows the law and "makes appropriate findings of fact, a fee award is
accorded substantial deference and will be disturbed only in the clearest case of
abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000);
see also Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). An abuse of
discretion "arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested 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)); Barr, 418 N.J. Super. at 46. This court will disturb a counsel
fee determination "only on the rarest of occasions . . . ." Litton Indus., Inc. v.
IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co.,
Inc. v. Collier, 167 N.J. 427, 444 (2001)).
Plaintiffs contention on appeal are misguided. In making his
determination to award defendant counsel fees, the hearing judge addressed each
factor in both Rule 4:42-9 and RPC 1.5; therefore, he relied on well-established
principles of law. With these principles in mind, the judge supported his
determination with numerous references to the lengthy hearing record.
Moreover, we note that defendant initially sought an award of $94,083. In
A-4546-18T3 16 considering the amount requested, the judge properly removed sums defendant
expended in prior proceedings, before plaintiff filed the motion under review,
and also declined to include defendant's expert's fees.
We therefore see no reason to disturb the judge's well-reasoned
determination reassessing plaintiff's child support obligation and awarding
defendant attorney's fees.
Affirmed.
A-4546-18T3 17