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Miller v. Miller


October 15, 2007


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1080-02.

Per curiam.


Submitted October 1, 2007

Before Judges Graves, Sabatino and Alvarez.

This is a post-judgment matrimonial matter. The parties were divorced on October 22, 2002. They have two sons: one is now sixteen years old, and the other is twelve. The parties' divorce judgment incorporates a property settlement agreement (PSA), in which the parties agreed to "share joint legal custody," but plaintiff retained "residential custody of the minor children." Defendant William Miller appeals from an order entered on June 20, 2006, denying his request to become the primary residential parent. That order was entered following a four-day plenary hearing. Defendant also appeals from a subsequent order entered on October 30, 2006, awarding counsel fees to plaintiff Denise Miller in the amount of $30,040. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

During the plenary hearing, which took place on January 17, 19, 30, and 31, 2006, the court heard testimony from the parties and their expert witnesses. Dr. Ronald Silikovitz, a psychologist, testified as defendant's expert, and Dr. Arthur Wiener, also a psychologist, testified for plaintiff. In addition, the boys were interviewed by the court pursuant to R. 5:8-6. The trial court's credibility assessments were therefore critical to its findings and conclusions.

On June 1, 2006, the trial court issued a comprehensive, well-reasoned, thirty-five page written decision. Because defendant was seeking to change the custodial arrangement that the parties had agreed upon, the court noted that he was required to establish a change in circumstances which affects the welfare of the children. Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). However, after carefully evaluating all of the evidence, the court found that defendant fell "well short of carrying his burden."

The only changed circumstances the court perceives in this case is the deterioration in the relationship between [plaintiff] and her sons due to [defendant's] connivance, his manipulation[,] and his fantasy of wrong at the hands of his ex-wife. Thus, [plaintiff] has proved changed circumstances and the question the court faces is whether they have affected the welfare of the boys and, if so, what is the proper remedy.

The easiest conclusion to reach is that [plaintiff] will retain primary residential custody. She provides good emotional and physical care for the boys under extraordinarily difficult circumstances. The father of her children is committed to making her look bad in their eyes and destroying their relationship with their mother based on his own fantasies and delusions. That [the children] do as well as they do is testimony not only to [plaintiff's] love for these boys but also to her steely will. The court cannot emphasize enough how difficult her situation is.

The court also analyzed the conflicting testimony provided by Dr. Silikovitz and Dr. Wiener, and its detailed findings of fact included the following:

Dr. Silikovitz acknowledged at one point that the children "know too much" about the litigation but he then backed off of that statement. In doing so, he rejected what Dr. Leynor and Beth Benson told him about [defendant's] proclivity to say too much about the litigation and about [plaintiff]. Dr. Silikovitz's unwillingness to accept that [defendant] tells his sons too much about the litigation and his relationship with their mother adversely affected the expert's credibility.

Dr. Silikovitz brought almost no psychological analysis to bear on this matter. He was retained by [defendant] and simply supported his position. Rather than analyze what [the children] told him, Dr. Silikovitz accepted it as true and then used their account to reach a conclusion adverse to [plaintiff]. He simply parroted what the boys said and then reached conclusions on the strength of these statements. He offered no psychological insights, discerning no patterns that might provide clues to this very difficult situation. Because Dr. Silikovitz simply took up [defendant's] cause and used the testimony of [defendant's] allies, the boys, to support it without question, the court does not credit his recommendations.

Dr. Wiener termed [defendant's] universe as one focused on his "narcissistic entitlement," a self-centered sense of how things should be. Instilling the boys with his worrisome sense of not getting what he wants, he has sensitized them to [plaintiff] in such a way that they perceive everything she does as wrong. [Defendant's] weapon of choice in this war is the cell phone. Arming the boys with cell phones at the respective ages of 13 and 9, he "checks in" with them constantly. In so doing, he transmits anxiety to the boys and then relieves it. Only he can solve the problems he serves up to them, binding them to him in a way that Dr. Wiener described as "not healthy."

. . . In his testimony, Dr. Wiener described this penchant for "checking" as characteristic of an obsessive disorder inflicted on the boys by [defendant]. Overall, it is a "piece of the puzzle," useful in determining why so much conflict exists in this case.

On at least two occasions, [defendant] called the police to go to [plaintiff's] house to "check on the welfare" of [the children]. He claims that the calls were prompted by [plaintiff's] refusal to let him speak with the boys when he called at what [plaintiff] described as inconvenient or inappropriate times. The impact on the children of such misguided "concern" on [defendant's] part is severe. Citing this behavior, Dr. Wiener wrote in his first report at pages 12 and 13, "[t]here is more than a little to worry about how this mind-set of distrust, suspicion, and possible paranoia might shape developing minds. [The calls to the police induce] further anxiety and disruption." During testimony, the expert described the ramifications of [defendant's] conduct as "scary," "traumatic[,]" and "dangerous" because it "provokes concern and anxiety" in the boys. Of course it does. What are two children to believe of their mother when their father calls the police to "check on their welfare" when they are in her custody?

There is more in Dr. Wiener's two reports and his testimony, all of which the court has carefully considered. Dr. Wiener brought to this task a professional curiosity that prompted him to look more deeply into the situation than did Dr. Silikovitz. Dr. Wiener probed, considered the evidence[,] and set forth an entirely reasonable and credible hypothesis. His analysis explains why these two children are having such problems with their mother, a woman who, based on the court's assessment of her after she testified for nearly two full mornings (January 30 and 31, 2006), is not the [ogre] they believe her to be. Dr. Silikovitz simply accepted what [defendant] and the boys told him. Whatever analysis he did was superficial and unhelpful. Dr. Wiener explored this very complex situation and arrived at a theory and explanation that makes sense of it and is consistent with the facts. For these reasons, the court finds Dr. Wiener to be credible and puts considerable weight on his testimony. Dr. Silikovitz's testimony is not credible or helpful.

On appeal, defendant contends that: (1) the trial court's decision is not supported by adequate, substantial, credible evidence in the record; (2) the trial court erred in dismissing Dr. Silikovitz's testimony and reports "in their entirety"; (3) the trial court exhibited bias in favor of plaintiff; (4) the trial court abused its discretion in assessing counsel fees against him; and (5) the award of counsel fees "should have been included in the June 20, 2006 Order and not in the subsequent Order entered in October."

Based on our review of the record, we conclude there is absolutely no objective evidence to support defendant's claim of bias or partiality on the part of the trial court. We are also satisfied that defendant's remaining contentions lack merit, and they do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Brennan in his written decision and the order entered on October 30, 2006, with only these brief comments.

The scope of our review 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). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

Deference is particularly appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997); see also State v. Locurto, 157 N.J. 463, 472 (1999) ("'[T]he best and most accurate record [of oral testimony] is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried.'") (alteration in original) (quoting Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952)). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

In the present matter, we find no abuse of discretion or error of law in the trial court's rulings. Judge Brennan determined that defendant failed to prove it was in the best interests of the children to change custody. That determination is fully supported by substantial credible evidence in the record and is consistent with controlling legal principles. We reach the same conclusion with respect to Judge Brennan's discretionary decision to award counsel fees to plaintiff under R. 5:3-5(c).

The orders appealed from are affirmed.


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