February 5, 2008
DAVID MAURIELLO, PLAINTIFF-RESPONDENT,
DIANE MAURIELLO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-135-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 17, 2007
Before Judges Sapp-Peterson and Messano.
Defendant Diane Mauriello appeals from the August 9, 2006 order transferring primary residential custody of her daughter to her former spouse, plaintiff David Mauriello. We affirm.
Plaintiff and defendant were married on August 28, 1994. They have one child from the union, S.M., born September 21, 1997. Subsequently, the parties divorced, and the Dual Judgment of Divorce (JOD) granted to them on February 14, 2002, contained a Property Settlement Agreement (PSA) that addressed custody, child support, and visitation issues.
The PSA called for joint legal custody of S.M., with primary residential custody awarded to defendant. Additionally, the agreement called for an alternate weekend parenting schedule and also provided for a holiday and vacation schedule. Of significance to the present matter are Paragraphs 8 and 13 of the PSA under the heading "CUSTODY AND PARENTING TIME." Paragraph 8 provides:
[P]ick up and drop off shall be at [defendant]'s residence, provided that said residence is within a thirty mile radius of [plaintiff]'s residence. Should [defendant]'s residence be more than thirty miles from that of [plaintiff], then in that event [plaintiff] shall pick up and drop off [S.M.] at [defendant]'s residence during the week, and [defendant] shall pick up and drop off [S.M.] at [plaintiff]'s residence for [plaintiff]'s weekend parenting time.
Under Paragraph 13, the parties agreed that if a dispute arose regarding parenting time, they would resolve the matter between themselves, and in the event they were unable to do so, "then they shall attend mediation prior to litigating the matter in court."
Defendant and S.M. relocated to Budd Lake in June 2002. Subsequently, in June 2004, plaintiff, who had remarried, relocated to Warwick, New York with his new wife Kimberly. Warwick is located more than thirty miles from Budd Lake. Plaintiff informed defendant that under the PSA, defendant was to drive S.M. to plaintiff's residence on the weekends that plaintiff had S.M. Defendant refused to do so and took the position that "since [plaintiff] moved more than 30 miles away[,] that he should do the driving." The parties ultimately compromised, and during the 2004 Christmas holiday season, met halfway between their residences to transport S.M. for her visitation with plaintiff. After the holidays were over, plaintiff retained counsel, who wrote defendant a letter listing plaintiff's complaints concerning the transportation dispute. Defendant did not respond to the letter. As a result, in April 2005, plaintiff filed a post-judgment motion to compel defendant to comply with the parenting time and transportation provision of the PSA. Defendant did not respond to the motion.
On June 2, 2005, the trial court entered an order that directed both parties to attend mediation with a court-appointed mediator, Tobie G. Meisel (Meisel). In the interim, the order required defendant to pick up and drop off S.M. at plaintiff's residence in accordance with the PSA. Paragraph 10 of the order stated, "[i]n the event that the terms of this Order are not complied with, and an application to the Court is made, the Court may consider in lieu of monetary sanctions, a transfer of custody[.]" Defendant did not contact or meet with Meisel, nor did she file an appeal from the court's order.
On July 28, 2005, plaintiff filed a second motion to enforce litigant's rights, claiming that defendant refused to transport S.M. to his residence for weekends, in accordance with the court's June 2, 2005 order and the PSA, and that defendant did not attend mediation. Again, defendant did not respond to the motion. On the return date of the motion, August 19, 2005, the court found defendant in "violation of litigant's rights in failing to provide weekend transportation for plaintiff's visitation and [to] cooperate with [the] court-appointed mediator." The court denied plaintiff's request for an immediate transfer of custody, but ordered Meisel to submit a report on the effect a transfer of custody would have upon S.M. Prior to submitting his report to the court, Meisel interviewed plaintiff, defendant, and the minor child. He did not perform a full comprehensive custody evaluation but simply focused on the effect that a transfer of custody would have on S.M., who was eight years old at the time.
In his report, Meisel recommended that the court grant primary residential custody to plaintiff and that defendant seek treatment for depression. Meisel indicated that he considered many factors in reaching this decision, including S.M.'s comments that her mother did not like to do chores but preferred spending time in her pajamas; that S.M. spent most of her weekends with defendant indoors and was rarely permitted to go outdoors; that when S.M. is with plaintiff, she worries about defendant being alone and not doing anything; S.M.'s self-portrait showing her crying because she was worried about defendant; and S.M.'s wish to spend more time with plaintiff.
On December 1, 2005, the parties appeared for a conference with the court. Defendant was represented by counsel, whom she had retained after the court entered its August 19, 2005 order. During the conference, the court appointed Dr. Judith Brown Greif (Dr. Greif) to conduct a residential custody evaluation. The court also permitted the parties to retain their own experts.
As part of Dr. Greif's evaluation, she interviewed S.M.; defendant; plaintiff; plaintiff's spouse, Kimberly; the court-appointed mediator, Meisel; and S.M.'s third grade teacher. Dr. Greif reported that S.M. "appears to have a close and comfortable attachment to both parents" but that she expressed concern about how her mother would cope if she spent less time with her. S.M. told Dr. Greif that both parties wanted her to live with them, but that her mother would be "very, very, very sad[,]" would "cry a million days[,]" and would "be alone" if she went to live with her father.
In her report, Dr. Greif observed that S.M. "apparently is still struggling with a sense of responsibility for her mother's well[-]being." Dr. Greif reported that defendant acknowledged she told S.M. not to talk about her step-mother and that defendant also admitted she questioned the child's comments to Meisel criticizing defendant's ability to function. Dr. Greif opined that whatever defendant's intent was in questioning S.M., defendant "put her own feelings ahead of the best interest of [S.M.] and did not seem to understand the burden that created for her child."
Also in her report, Dr. Greif commented on defendant's refusal to allow S.M. to continue to play soccer. She indicated that defendant "seems not to have taken into account the experience from the perspective of her child, and appeared to rely more on her own discomfort at having to push her to attend practice as well as her apparent disappointment that [S.M.]'s skills were not improving." She observed that "[t]here is a passivity that seems to characterize aspects of [defendant]'s behavior[.]" Dr. Greif concluded "[i]t is not clear whether that is depression, which she denies, or a limited understanding of the consequences of her failure to act." Dr. Greif recommended that:
1. [Plaintiff] should be named the parent of primary residence. [Defendant] should have parenting time two and a half weekends out of four in the following four week cycle. On weekends one and three [S.M.] would be with [defendant] from Friday afternoon until Sunday evening an hour before bedtime. On weekend two she would be with [defendant] from Friday afternoon until Saturday at 5 p.m. The rest of that weekend and for all of weekend four she would be with [plaintiff]. [Defendant] should also have parenting time with [S.M.] one day during the week not overnight. While [plaintiff] continues to spend a weekend a month in the Reserves, the schedule should be such that [S.M.] is with [defendant] on that weekend, and the parenting schedule should be shifted accordingly. If [S.M.] participates in weekend activities, such as sports, both parents should be instructed to bring her to games and practices on their weekends.
2. The summer should be divided; so, for example, [S.M.] could be based primarily with one parent during July and the other parent during August, along with visitation to the other parent. Both parents should be encouraged to enroll [S.M.] in some type of organized summer program with other children.
3. If problems persist with respect to the parties' ability to resolve issues about parenting time or to share information about their plans with [S.M.], then the appointment of a parent coordinator might be advisable.
4. It would also be helpful for [S.M.] to see a therapist, at least initially, to address whatever concerns she may have as a result of a change in residential custody.
5. [Defendant] should be encouraged to see a therapist for counseling and parent education to better separate out her own needs from those of her child to whom she is so attached.
Defendant retained David S. Gomberg, Ph.D. (Dr. Gomberg), who performed a custody-parenting time evaluation. In a report dated May 18, 2006, Dr. Gomberg recommended that primary residential custody of S.M. remain with defendant and that legal custody be shared between the parties. As a result of an April 5, 2006 status conference, a consent order was entered into dated April 11, 2006. In Paragraph 2 of that order, the court appointed Linda A. Schofel (Schofel) as the Parenting Coordinator to attempt to develop a time sharing schedule acceptable to both parties. The court also authorized each party to hire his/her own expert.
The court held hearings over four days in May 2006, during which the parties reached a court-approved consent agreement on a number of issues, one of which was that they agreed to continue to use the services of Schofel as Parenting Coordinator, agreed to equal time sharing for the summers, and agreed to continue the existing alternate weekend parenting schedule.
On August 9, 2006, the court issued a written opinion transferring residential custody of S.M. to plaintiff during the school year. In reaching its decision, the court specifically addressed factors set forth under N.J.S.A. 9:2-4(c) that it found relevant to the resolution of the issues before it: (1) the parents' ability to agree, communicate and cooperate in matters relating to the child, factor one; (2) the interaction and relationship of the child with parents and siblings, factor three; (3) the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision, factor six; and (4) the needs of the child, factor seven.
The court noted the fact that defendant initially failed to respond to plaintiff's counsel's letters and subsequently failed to respond to two notices of motion. The court also addressed Dr. Gomberg's recommendation that defendant remain the parent with primary residential custody during the school year and indicated that "[i]t is not [Dr. Gomberg]'s recommendation that concerns the Court but his methodology in arriving there." Specifically, the court was concerned about Dr. Gomberg's testimony that he never reviews other expert reports, never asks a child with whom the child wishes to live, and his conclusion that plaintiff was not motivated by S.M.'s best interest but rather by transportation issues and Kimberly's will. The court found these conclusions "totally unsupported by the evidence and approaches being considered a net opinion."
In evaluating defendant's testimony, the court noted that defendant denied receiving an itinerary for plaintiff's summer 2005 vacation plans as mandated by the PSA, "yet[,] the certified envelope in which the itinerary was sent seemed to have initially been signed for by [d]efendant, crossed out and refused on May 26, 2005." The court noted that both Meisel and Dr. Greif "reinforc[ed] the Court's initial concern about [d]efendant being extremely passive in her relationship with [S.M.], resulting in a role reversal of the child being overly concerned about the well[-]being of the parent rather than the opposite." The court concluded that transferring primary residential custody to plaintiff was in S.M.'s best interest and entered judgment in favor of plaintiff.
Defendant filed an order to show cause seeking a stay of the court's decision, which the court denied. The present appeal followed.
Defendant raises the following points on appeal for our consideration:
POINT I THE COURT ABUSED ITS DISCRETION BECAUSE THERE WAS NO EVIDENCE OF CHANGED CIRCUMSTANCES OR HARM TO THE CHILD TO ORDER EVALUATIONS FOR A CHANGE OF RESIDENTIAL CUSTODY FROM THE PRIMARY CAREGIVER TO THE FATHER WHO MOVED TO NEW YORK STATE.
POINT II THE COURT ERRED BECAUSE WITHOUT EXPERT EVIDENCE AS TO THE METHODOLOGY ACCEPTED IN THE FIELD FOR DOING A CUSTODY EVALUATION, THE COURT FOUND THAT THE DEFENDANT'S EXPERT, A PSYCHOLOGIST USED DEFICIENT METHODOLOGY IN THAT HE DID NOT READ THE REPORTS OF SOCIAL WORKER, MEISEL OR GREIF, UNTIL AFTER HE PREPARED HIS OWN REPORT.
POINT III THE COURT FAILED TO CONSIDER MOST OF THE FACTORS IN N.J.S.A. 9:2-4 REQUIRED BEFORE CUSTODY IS CHANGED. THE STATUTE STATES THAT THE COURT SHALL SPECIFICALLY PLACE ON THE RECORD THE FACTORS WHICH JUSTIFY ANY CUSTODY ARRANGEMENT NOT AGREED TO BY BOTH PARENTS.
"The scope of appellate review of a trial court's fact-finding function 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). Such deference is "especially 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). Moreover, "[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. We will not "disturb the factual findings and legal conclusions of the trial judge unless [we are] 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 (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children. Borys v. Borys, 76 N.J. 103, 115-16 (1978). In considering such an application, the trial court is guided by the well-settled principle that the court's primary focus, in custody determinations, is upon the best interests of the child. M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979) (citing Fantony v. Fantony, 21 N.J. 525, 536 (1956)). N.J.S.A. 9:2-4(c) lists a number of factors a court shall consider in making an award of custody, including:
 [T]he parents' ability to agree, communicate and cooperate in matters relating to the child;  the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;  the interaction and relationship of the child with its parents and siblings;  the history of domestic violence, if any;  the safety of the child and the safety of either parent from physical abuse by the other parent;  the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;  the needs of the child;  the stability of the home environment offered;  the quality and continuity of the child's education;  the fitness of the parents;  the geographical proximity of the parents' homes;  the extent and quality of the time spent with the child prior to or subsequent to the separation;
 the parents' employment responsibilities;  and the age and number of the children.
In addition to these statutory considerations, custody determinations may also be affected by a judicial determination that one party has violated the other party's rights as to that party's parent-child relationship. To that end, Rule 5:3-7(a) provides in pertinent part:
On finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided by R. 1:10-3 [Contempt of Court and Enforcement of Litigant's Rights Related Thereto, Relief to Litigant], any of the following remedies . . . (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children . . . and (10) any other appropriate equitable remedy.
[R. 5:3-7(a) (Emphasis added).]
The court's June 2, 2005 order directing the parties to attend mediation stipulated that if there was non-compliance with the order, the court would consider a transfer of custody in lieu of monetary sanctions. The court found that defendant failed to comply with its order and therefore violated plaintiff's rights. Notwithstanding this finding and plaintiff's requested remedy of the immediate transfer of residential custody, the court, apparently acting with an abundance of caution, did not immediately order a change of custody. Instead, the court directed Miesel to submit a report addressing the impact a change in custody would have upon S.M.
Thus, contrary to defendant's argument, there was nothing punitive in the approach the court took in arriving at the appropriate remedy for defendant's violation of plaintiff's rights. Moreover, the court solicited further recommendations from the court-appointed expert and also permitted the parties to submit reports from their own independently-retained experts.
Nor do we find the court abused its discretion by considering only those statutory factors under N.J.S.A. 9:2-4 it deemed relevant to the issues before it. Both parties were willing to accept custody, factor two. There was no mention of domestic violence by either party, factor four. S.M.'s physical safety with either party was never an issue, factor five. Neither party contended that the other was unable to provide a stable home for S.M., factor eight. Similarly, neither party argued that the other party would be unable to provide S.M. with a better quality or continuity of education, factor nine. Additionally, the court had earlier found that both parties were suitable parents, factor ten. The parties' PSA specifically addressed how the parties were to deal with the geographical proximity of their homes, factor eleven. Neither party complained to the court that the other party did not spend quality time with S.M. prior to or subsequent to the separation, factor twelve. Further, neither party alleged that the other party's employment obligations would deter the other party from caring for S.M., factor thirteen. Finally, given S.M.'s age at the time, eight years old, and the fact that she is an only child, the court did not, in reaching its decision, take into consideration her expressed wish to live with her father, factor fourteen.
The court focused on the factors that it found most closely affected S.M.'s best interests. The court placed substantial weight on the recommendations of Meisel and Dr. Greif. The court found that defendant "is a sincere and caring parent and no doubt loves her child." However, the court also found that her decision-making "clearly focuses more on her needs than [S.M.]'s."
Finally, defendant argues that the court was incorrect in finding that Dr. Gomberg used deficient methodology without first considering expert evidence of accepted methodology. Defendant contends that even if the trial judge disagreed with Dr. Gomberg's methodology, he should have required expert testimony to discuss defendant's emotional condition, a task which defendant alleges neither Meisel nor Dr. Greif were qualified to perform.
"The credibility of an expert and the weight or value to be accorded his testimony lies within the exclusive domain of the trier of fact." Middlesex County v. Clearwater Vill., Inc., 163 N.J. Super. 166, 173-174 (App. Div. 1978), certif. denied, 79 N.J. 483 (1979). The trial court's rejection of Dr. Gomberg's report and recommendation that defendant retain residential custody of S.M. falls well within the court's discretion. Additionally, we do not agree that the court was required to consider additional expert testimony before rejecting the methodology Dr. Gomberg employed in arriving at his opinion. The court offered a sound reason for not relying upon Dr. Gomberg's recommendation. It reasoned that "it is the better practice after reaching one[']s findings to read these [other] reports if not to test his own conclusions th[e]n to point out to the Court his expert opinions as to where his colleagues went astray." The court, as the fact-finder, was free to reject Dr. Gomberg's recommendation and we discern no basis to interfere with these findings. Cesare, supra, 154 N.J. at 413.
In summary, the record demonstrates that there were changed circumstances initially evidenced by defendant's conduct in failing to comply with the PSA, and also evidenced by the results of the evaluations performed at the court's direction by Meisel and Dr. Greif. The court reached its decision to grant a change in primary residential custody of S.M. only after considering all of the relevant evidence. We are satisfied there was competent, relevant and reasonably credible evidence in the record to support the trial judge's findings of fact and conclusion of law. Rova Farms Resort, supra, 65 N.J. at 484. We do not find that the judge's factual findings and legal conclusions were "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid.
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