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Venuta v. Venuta


October 23, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0853-01.

Per curiam.


Submitted October 9, 2007

Before Judges Sabatino and Alvarez.

Defendant, Arthur La Venuta ("the father") appeals a September 14, 2006 order of the Family Part denying his motion to transfer primary residential custody of the parties' two minor children to him from his ex-wife, plaintiff Maria La Venuta ("the mother"). We affirm.

The parties were divorced in 2002 following a multi-day trial in the Family Part addressing a host of contested issues. The issues included custody and parenting time concerning the parties' two daughters, one who was born in 1990 and the other who was born in 1993.

Prior to the divorce trial, an evaluation by the Probation Department recommended that the mother have primary residential custody of the daughters. When the father disagreed with that recommendation, his then-attorney retained a psychologist, Susan Arbeiter, Psy.D., to perform a custodial evaluation. Dr. Arbeiter interviewed all four family members, conducted certain psychological testing, and reviewed the report of the Probation Department, pertinent court filings and other documents. Dr. Arbeiter then prepared a thirty-one page report in April 2002, which both parties stipulated into evidence. Although Dr. Arbeiter found both parties to be fit parents, she recommended that the mother serve as the girls' primary residential custodian.

The trial judge evidently considered testimony from both parties on the issues of custody and parenting time. At the parties' request, the judge also considered statements of the children quoted in Dr. Arbeiter's report, in lieu of conducting optional in camera child interviews pursuant to R. 5:8-6. Based upon the proofs as a whole, the trial judge awarded primary residential custody of the two daughters to the mother, allotting substantial parenting time to the father on alternate weekends and on one evening per week for dinner.

The trial judge's written decision, rendered on August 7, 2002, applied the pertinent legal criteria for custody set forth in N.J.S.A. 9:2-4c and in case law, including the key question of the best interests of the children. See Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); Fantony v Fantony, 21 N.J. 525, 536 (1956). Among other things, the trial judge determined that the children had bonded more with their mother than with their father, and that the mother appeared to be more "in tune" than he was with the children's needs.

Four years later, in June 2006, Dr. Arbeiter entered into a consent decree with the State Board of Psychological Examiners ("the Board") that barred her from conducting child sexual abuse evaluations until she has completed an approved re-specialization in clinical psychology. The Board's action stemmed from findings that Dr. Arbeiter had caused unnecessary emotional harm on child victims of sexual abuse by the manner in which she conducted their assessments, including subjecting the victims to multiple interviews about such upsetting topics. The Board also determined that Dr. Arbeiter lacked specific training or supervisory experience in the area of child sexual abuse evaluations. The Board further noted that the psychologist had not been properly using computer-generated test reports, such as the so-called MMPI and MCPI assessments, in her narrative evaluations.

Although the Board's review of Dr. Arbeiter's work included contentions by the father that she had mishandled the custodial evaluation in this case, the consent decree reached no conclusion about the evaluation's overall adherence to professional standards. The Board imposed no prospective limitations on Dr. Arbeiter's ability to practice, beyond matters involving child sexual abuse.

Following the Board's regulatory action concerning Dr. Arbeiter, the father filed a motion in the Family Part seeking various forms of relief, including a transfer of primary residential custody of the children to him, an equal division of shared parenting time between both parents, and reimbursement of the attorneys fees and court costs that the father had expended since 2003. The father's post-judgment motion principally rested on his contention that Dr. Arbeiter's custodial evaluation of the children in 2002 was flawed. The father noted that Dr. Arbeiter's report had included the results of psychological testing, including the MMPI and the MCMI instruments mentioned in the Board's consent decree. By the father's perception, Dr. Arbeiter "fudged" her 2002 report, and "omitted all negative information about the mother." Consequently, the father sought to alter the custodial terms of the final judgment of divorce entered after the parties' trial.*fn1

The mother opposed the father's motion, and cross-moved for numerous items of relief, including a moratorium on all future custody applications by the father without leave of court, an order requiring the father to pay one-half of the older daughter's college preparation course fees, proof of life insurance coverage by the father, and counsel fees. The mother also requested the motion judge to conduct in camera interviews of both children.

After considering the parties' submissions and arguments, the motion judge entered an order denying all of the affirmative claims sought by the parties, except for requiring the father to supply proof of the life insurance coverage within thirty days.*fn2

The judge also reciprocally denied counsel fees to both sides. In her oral ruling, the motion judge observed that there was "nothing set forward that would indicate that the plaintiff [the mother] is not [still] the proper residential parent," and that she was unpersuaded that "it would be in the best interest of the children to change custody."

On appeal, the father asserts that the motion judge erred in not shifting primary residential custody to him. He repeats his theme that Dr. Arbeiter's report, even though it had been jointly admitted into evidence at the divorce trial, must have been flawed, and thus the trial judge's custodial decision must have been wrong. He also denies being motivated by monetary concerns in litigating these issues.

The mother did not file a cross-appeal on the issues she lost before the motion judge. In opposing the father's appeal, she asserts that a change of primary custody at this juncture would be traumatic for the daughters, one of whom is now seventeen and the other who is fourteen. She also reiterates her desire for the children to be interviewed to confirm their ongoing residential preferences.

Our scope of review of custody determinations in the Family Part is limited. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).

Moreover, where a prior court order exists specifying the terms of residential custody and parenting time, as is the case here, a parent seeking to alter those terms has the burden of demonstrating a material change in circumstances that would justify such alteration. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Borys v. Borys, 76 N.J. 103, 115-16 (1978). Absent such a demonstration, a plenary hearing is not required. Hand, supra, 391 N.J. Super. at 105-06; see also R. 5:8-6 (requiring plenary hearings in custody matters only where the contested issues are "genuine and substantial"); cf. Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.) (no plenary hearing was required to authorize mother's relocation of her children out of state, over the father's objection, where no material factual disputes were demonstrated), certif. denied, 187 N.J. 81 (2006).

In the present case, the father's arguments, which emphasize the perceived significance of Dr. Arbeiter's licensure restriction, overlook or minimize several important considerations. The Board's discipline was confined to Dr. Arbeiter's professional work in sexual abuse cases, which is not germane here since neither party is contending that sexual misconduct is involved. Although the Board did criticize Dr. Arbeiter's general method of integrating computer-generated testing into her clinical findings, her report to the trial judge in 2002 was not based solely on such test scores; it included observations of the children interacting with both parents, the results of a series of interviews, a review of pertinent court documents, and other information.

Moreover, the evidence before the trial judge included more than Dr. Arbeiter's report. The trial judge had the separate recommendation of the Probation Department, which likewise recommended that the mother serve as primary custodian. The judge further had the opportunity to hear the testimony of the parties and observe their demeanor and credibility. In reviewing the factual findings and conclusions of a trial court, we are obliged to give due regard to the trial judge's credibility determinations and the judge's feel of the case based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that flow logically from those findings of fact. Cesare, supra, 154 N.J. at 413.

Apart from his strident attack on Dr. Arbeiter's custodial evaluation from 2002, the father presents no compelling proof of a material change in the children's circumstances occurring since that time warranting a change in custody, or, for that matter, a plenary hearing. Nonetheless, the motion judge properly exercised her discretion by denying the mother's cross-motion for a moratorium on further custodial filings by the father. Although we do not encourage these parties to engage in more litigation, particularly as their daughters both approach adulthood, we also do not foreclose it if they fail to resolve such future disputes amicably.

In sum, we are satisfied that the motion judge did not err in her denial of the father's post-judgment application. The order of September 14, 2006 is affirmed, without prejudice to the parties' mutual right to pursue future custodial motions, so long as they are founded upon a material change of circumstances concerning the daughters' ongoing welfare.


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