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Rath v. Mishra

June 27, 2007

BHARATI RATH, PLAINTIFF-RESPONDENT,
v.
RAJIB MISHRA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1787-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2007

Before Judges Lefelt, Parrillo, and Sapp-Peterson.

Defendant Rajib Mishra appeals from the provisions of a dual Final Judgment of Divorce (FJD) entered on February 7, 2006, that: (1) awarded plaintiff Bharati Rath primary residential custody and the tax exemption for the minor child born of the marriage; (2) permitted plaintiff to travel internationally with the child; (3) authorized the local police, where defendant resides, to enforce the parenting provisions of the divorce decree; (4) directed defendant to pay $239 per week in child support; (5) ordered defendant to reimburse plaintiff for medical insurance premiums; and (6) awarded plaintiff $6,000 in counsel fees towards her total bill. The trial judge expressed his reasons for his decision both orally and in an extensive letter opinion dated January 27, 2006. We affirm.

The contested issues were tried over two consecutive days in November 2005. Because the parties stipulated that they mutually waived issues of equitable distribution and alimony, the trial focused primarily upon custody and parenting issues.

The marriage was a short-term arranged union that took place in India on February 17, 1997. The parties emigrated to the United States and eventually settled in Matawan, Monmouth County. Plaintiff holds an engineering degree in electronics, a master's degree in management, and is employed by Lucent Technologies. Defendant has a master's degree in computer science and has worked in various jobs in the area of consulting software engineering and development. The parties' marriage was apparently never a happy one, a circumstance that did not change upon the birth of their son on December 9, 2001.

The parties presented conflicting versions as to who was the primary caregiver in the child's first year. Defendant asserted that he dropped off and picked up his son from daycare, supervised the child's apnea monitor, fed him and took care of him every evening until plaintiff returned from work. On the other hand, plaintiff claimed that she cared for the child while on maternity leave for two months, was responsible for selecting child care, checked on the child at daycare during lunchtime, that defendant denied the child's paternity, and generally left the parenting to her.

A domestic violence incident on December 23, 2002, ultimately resulted in the issuance of a final restraining order that, among other relief, permanently restrained defendant from returning to the marital residence, awarded custody of the minor child to plaintiff, granted supervised visitation to defendant, required defendant to undergo a risk assessment, ordered defendant to pay child support of $205 per week, and also required defendant to pay one-half of the daycare costs.

Plaintiff filed a complaint for divorce on May 15, 2003. Shortly thereafter, in June 2003, plaintiff moved from the marital residence in Matawan to Pine Brook, Morris County. Plaintiff's relocation geographically separated the parties by approximately fifty miles.*fn1 Over the next two years while the matrimonial action was pending, there were a number of pendente lite proceedings between the parties involving issues of visitation and child support. In addition, an order was also entered directing defendant to reimburse plaintiff for the medical insurance premiums she incurred for defendant's coverage on her plan.

The court appointed Dr. Amy Altenhaus, a licensed psychologist, to perform a custody evaluation. Her report was admitted into evidence as a court exhibit. Dr. Altenhaus concluded that defendant's interpersonal difficulties prevented him from being a positive custodian and that plaintiff was better suited to the task.

At the conclusion of the trial, the trial judge requested that each party submit written summations addressing child support, custody, and the use of a parenting coordinator. The court also permitted oral summations. The judge awarded joint legal custody of the minor child to both parties with primary residential custody awarded to plaintiff. Defendant's appeal followed.

On appeal, defendant raises the following points for our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING JOINT PHYSICAL CUSTODY.

A. The Trial Judge's General Predisposition Regarding Joint Physical Custody.

B. The Trial Judge Considered Inappropriate Factors In Determining Custody.

II. THE FINAL JUDGMENT OF DIVORCE IS ERRONEOUS IN THE AMOUNT SET FOR CHILD SUPPORT.

A. The Amount of Child Support Set In The Final Judgment of Divorce Is Contrary To The Evidence And Testimony During The Trial.

B. The Trial Court Improperly Imputed Income To The Defendant In Determining Child Support.

III. THE COURT DID NOT CONSIDER THE INEQUITIES OF ALLOWING POLICE INTERVENTION FOR FAILURE OF DEFENDANT TO RETURN CHILD FROM PARENTING TIME.

IV. THE COURT DISREGARDED THE EVIDENCE BY ALLOWING THE PLAINTIFF TO TRAVEL INTERNATIONALLY WITH THE CHILD.

V. IT WAS INEQUITABLE FOR THE COURT TO GRANT PLAINTIFF THE TAX EXEMPTION FOR THE CHILD IN 2005.

VI. THE COURT[']S ORDER FOR DEFENDANT TO REIMBURSE PLAINTIFF FOR MEDICAL INSURANCE WAS AGAINST THE WEIGHT OF THE EVIDENCE.

VII. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT STATUTORY CONSIDERATIONS TO SUPPORT AN AWARD OF ATTORNEY FEES.

We have considered the contentions in light of the record and applicable law and, with the exception of Points I, II, III and VII, find them without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

I.

A.

Defendant contends that in awarding primary physical custody to plaintiff, the court demonstrated its predisposed bias towards him, ignored his role in his son's development, did not consider his relocation closer to the minor child, improperly relied upon a contested and incomplete expert report, and disregarded the utter lack of credibility in plaintiff's testimony.

In granting primary physical custody to plaintiff, the court stated:

At the trial, the Court heard the passionate testimony of both parties. The trial afforded the Court the opportunity to assess credibility. As a result, the Court is in complete agreement with the findings and parenting recommendations advanced by the Court-appointed expert, Dr. Amy Altenhaus, in her report dated October 12, 2004. The Court agrees with Dr. Altenhaus that the plaintiff would be the more suitable primary, residential custodial parent . . ., a role which she has in fact exercised since the separation of the parties on 12/23/02, and throughout the pendency of this divorce action.

As stated, by Dr. Altenhaus on page 26, paragraph 2 of her report, "I am concerned about Mr. Mishra's difficult interpersonal style, his suspiciousness and accusations of others, most importantly, Ms. Rath. This style makes it difficult for him to be in a cooperative relationship and detracts from his being a joint custodian. Ms. Rath has a history of making good decisions for [their child]. She is capable of being a good, sole custodian."

The Court finds the defendant and plaintiff have difficulty communicating due to defendant's conduct as set forth in the Altenhaus report. Also, there is a Domestic ...


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