July 6, 2007
ALISSA DANIELS, PLAINTIFF-RESPONDENT,
FRITZ G. FRAGE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-200-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 2, 2007
Before Judges Wefing, Yannotti and Messano.
Defendant Fritz G. Frage appeals from those portions of the trial judge's November 30, 2005 order that: 1) denied his request to be designated the primary residential custodian of the parties' minor child; 2) denied his request to modify the parenting time provisions of a prior consent order; 3) directed defendant and plaintiff Alissa Daniels, the child's mother, not to expose the child to R-rated movies; and, 4) directed both plaintiff and defendant to refrain from making negative comments about the other in front of the child. In this appeal, defendant raises the following arguments for our consideration:
THE RECORD BELOW IS NOT COMPLETE BECAUSE OF THE COURT'S CONTINUOUS HURRYING AND CRITICIZING OF THE [DEFENDANT'S] CASE.
THE COURT'S ARBITRARY ASSISTANCE OF THE [PLAINTIFF'S] ATTORNEY FORECLOSED THE COURT FROM BEING ABLE TO MAKE AN IMPARTIAL DETERMINATION OF THE ISSUES.
[PLAINTIFF'S] EXPERT REPORT IS A "NET OPINION" AND SHOULD NOT HAVE BEEN CONSIDERED BY THE TRIAL COURT.
IN DETERMINING TO CONTINUE THE STATUS QUO WITH RESPECT TO CUSTODY AND PARENTING TIME THE COURT IGNORED THE WEIGHT OF THE EVIDENCE, HER OWN INSIGHTS AND THE BEST INTERESTS OF THE CHILD.
THERE IS NO BASIS FOR THE COURT TO ORDER [DEFENDANT] TO NOT EXPOSE THE CHILD TO R[-] RATED MOVIES OR TO REFRAIN FROM MAKING NEGATIVE COMMENTS ABOUT THE OTHER PARTY WITHIN THE HEARING OF THEIR SON.
We begin by noting that the order under review was entered after a plenary evidential hearing, and, therefore, the scope of our review is quite limited. The findings and conclusions of the motion judge should not be disturbed if they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). And, in particular, we must "accord deference to family court factfinding," given the "family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, Judge Kathryn A. Brock heard testimony over twelve days and issued a comprehensive and thoughtful letter opinion that accompanied her order. We have carefully considered defendant's arguments in light of the record and applicable legal standards. With one minor exception that requires a limited remand for modification of the order, Judge Brock's findings and conclusions were adequately supported by the evidence and we affirm substantially for the reasons expressed in her written opinion. R. 2:11-3(e)(1)(A). We add only these comments.
In Points I and II, defendant contends that the judge conducted the hearing in a rushed manner because of her pending re-assignment from the Family Part to another division. He also contends that the judge assisted plaintiff's counsel by interrogating the witnesses presented by both sides.
It is axiomatic that "[a] judge must conduct a trial in a fair and impartial manner." Mercer v. Weyerhaeuser, 324 N.J. Super. 290, 297-98 (App. Div. 1999). However, we have long recognized that a judge has broad discretion regarding the level of his or her participation in the hearing so as to "ensure a fair trial 'conducted in [an] orderly and expeditious manner.'" Hitchman v. Nagy, 382 N.J. Super. 433, 451 (App. Div.) (quoting State v. Medina, 349 N.J. Super. 130-31 (App. Div.), certif. denied, 174 N.J. 193 (2002)), certif. denied, 186 N.J. 600 (2006). The actions of the trial judge warrant reversal only if they, as a whole, "deprived [the defendant] of a fair trial." Mercer, supra, 324 N.J. Super. at 299.
While the judge noted her impending transfer to another division, and her need to complete the trial beforehand, we have no doubt that she gave each side a fair and complete opportunity to present its proofs. Additionally, we view any questioning of the witnesses by the judge not as assistance to plaintiff's counsel, but, rather, as an even-handed attempt to expeditiously develop the evidence and focus on the important issues in the case, both laudable goals.
In Point III, defendant challenges the admissibility of the testimony of Dr. Mathias Hagovsky, plaintiff's expert witness, who opined that the minor child was well-adjusted to the existing parenting time schedule between the parties and that any change in custody or schedule would be detrimental to the child. He contends these were net opinions, unsupported by factual data and essentially bare conclusions. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). We disagree.
Defendant's actual complaint is with the judge's reliance on Hagovsky's opinions in rendering her judgment, and not the factual support upon which the opinions rest. Hagovsky interviewed plaintiff and defendant using professional guidelines, interviewed the child with both parties present, reviewed documents and spoke to plaintiff's anger management counselor. His opinions were based upon those "facts and data" and were not inadmissible net opinions. N.J.R.E. 703.
In Point IV, defendant contends Judge Brock's decision was against the weight of the evidence, a standard not employed in our review of non-jury trials. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). Judged against the proper standard of review, we conclude the judge's decision was supported by substantial, credible evidence. Rova Farms, supra, 65 N.J. at 484-84.
Lastly, defendant argues that those portions of the order requiring him to desist from 1) making disparaging comments about plaintiff, and 2) exposing the child to R-rated movies should be vacated because there was no evidence adduced that demonstrated he engaged in either activity. We disagree with defendant's characterization of the evidence as to the former but agree with him as to the latter.
Plaintiff testified as to certain comments defendant made about her; Judge Brock, relying upon that and the child's testimony, concluded that "negative comments are still being made in the presence of the child in both houses, although more frequently at the home . . . of [plaintiff]." We find no basis to disturb that portion of the order.
However, we agree with defendant that there was no evidence that supported a conclusion that the child was exposed to R-rated movies while in the company of his father. The testimony in this regard was limited to defendant's claim that plaintiff exposed the child to such movies and the child's testimony that confirmed he viewed "scary" movies with his mother. While the judge most likely included this provision in the order to provide equal guidance to both parties about their future behavior, we agree with defendant that the record does not support the conclusion that he ever exposed the child to R-rated movies. That portion of the order, as it applies to defendant, therefore, must be vacated.
In sum, we affirm but remand to the judge for modification of the order limiting paragraph five's prohibition against exposing the child to R-rated movies to plaintiff only. We do not retain jurisdiction.
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