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Scheer v. Scheer

December 24, 2007

TONI-ANN SCHEER, PLAINTIFF-APPELLANT,
v.
DOUGLAS SCHEER, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-55-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 30, 2007

Before Judges Coburn, Fuentes and Grall.

Plaintiff Toni-Ann Scheer appeals from post-judgment orders in a divorce case. The orders require plaintiff to transfer residential custody of one of the parties' two children to defendant Douglas Scheer; pay one-half of the fee for an expert appointed by the court at defendant's request; pay a portion of defendant's counsel fees, including fees incurred by defendant on motions; and suspend her right to child support payable to her for the second child, until her debt for the expert's fee and excess child support are paid. We affirm the custody order for the reasons stated by the trial court in a comprehensive and well-reasoned oral decision rendered on June 20, 2006. We reverse the orders fixing fees.

The parties were married in 1988. Their daughter was born in 1992, and their son was born in 1994. The parties separated in 1995 and were divorced in 1996. The final judgment incorporates their agreement to share joint legal custody of the children and to designate plaintiff as the "residential custodial parent."

Subsequent to their divorce both plaintiff and defendant established new relationships. Plaintiff gave birth to two more children, and she and all four of her children reside with the father of her two youngest children. Defendant has remarried. He and his wife reside with her college-age son.

By motion dated June 22, 2005, defendant sought residential custody of the parties' daughter, who was then twelve years of age. According to defendant, he made the request in accordance with the wishes of the child and in her best interest. In his motion, defendant requested an order requiring "a full custody evaluation." Plaintiff opposed the motion and sought no relief other than an award of fees and costs.

On August 5, 2005, the trial court entered an order compelling a custody evaluation, designating two experts, and requiring plaintiff to advance the expert fee, without prejudice. The record does not reflect a referral to mediation or whether the parties attended mediation prior to the court's determination of the motion.*fn1 See R. 5:8-1.

The expert selected, Dr. Wolf, conducted the custody evaluation and prepared a report which was completed on January 1, 2006. Dr. Wolf recommended transfer of custody to defendant. Subsequently, plaintiff retained a second expert, whose report was completed on March 20, 2006. Plaintiff's expert concluded that it was in the best interest of the child to remain in her mother's home.

On April 17, 2006, plaintiff moved to preclude introduction of Dr. Wolf's report and testimony. Plaintiff asserted that Dr. Wolf failed to identify the "methodology" upon which she relied and did not consider a transcript of a municipal court trial that plaintiff deemed relevant. The municipal court proceeding was on a complaint alleging that a friend of defendant's wife placed harassing phone calls to plaintiff in 2003. Although the municipal court judge commented on her "gut-feeling" that defendant's wife had some involvement in the phone calls, the judge concluded that the evidence was inadequate to establish harassment and dismissed the complaint.

The trial court denied plaintiff's motion to exclude Dr. Wolf's report on the grounds that her opinion was not a net opinion and her failure to consider the transcript went to the weight, not the admissibility. Concluding that plaintiff's motion to exclude lacked merit, the court awarded defendant counsel fees in the amount of $900 for the motion. Plaintiff subsequently renewed her request to exclude Dr. Wolf's testimony at the hearing.

The custody hearing commenced on May 15, 2006. By that time, the parties' daughter was thirteen years of age. In accordance with Rule 5:8-6, the court allowed both parties to submit questions and interviewed the child on the record. In response to the court's carefully crafted questions, the child expressed and articulated her reasons for requesting the court's leave to live in her father's home.

The trial court issued its comprehensive custody decision in open court on June 20, 2006. The court addressed the testimony presented at the hearing, the statements made by the child during the interview and the experts' conflicting opinions. In each instance, the court explained how it assessed the credibility of the witnesses and evidence and resolved the factual disputes. The court considered the statutory factors relevant to a determination of custody and gave reasons for its conclusion that a change in residential custody was in the child's best interests. See N.J.S.A. 9:2-4c.

At the conclusion of the court's decision on custody, the court and counsel identified remaining issues: modification of child support in light of the change of residential custody of one of the parties' two children; allocation of responsibility for Dr. Wolf's fee; and counsel fees.

The court immediately, and without explanation, allocated fifty percent of Dr. Wolf's fee to plaintiff. In response to an objection based on plaintiff's inability to pay Dr. Wolf's fee, the court stated: "[The expert's fee is] to be shared 50/50. How we work it out between the parties because of the counsel fee issue, that I'll decide ultimately." Two days later, the court entered an ...


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