On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1080-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...