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Fisler v. Fisler

April 15, 2008

WALTER P. FISLER, PLAINTIFF-APPELLANT,
v.
SUZANNE FISLER, N/K/A/ SUZANNE MARIE CAPUANO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1040-97-A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 14, 2008

Before Judges Cuff, Lisa and Simonelli.

Plaintiff Walter P. Fisler appeals from the order of April 26, 2007, transferring physical custody of his daughter to her mother, defendant Suzanne Fisler, and granting him visitation every other weekend. In this appeal, plaintiff contends the trial judge failed to make impartial findings of fact based on the evidence presented at trial; improperly relied on a 1996 restraining order; did not conduct impartial interviews of the children; he was the victim of gender-bias; and that defendant failed to show that a transfer of custody was in the child's best interest. We reject these contentions and affirm.

Plaintiff and defendant were married April 5, 1992. They have three children, two sons and a daughter.

In August 1995, defendant obtained a final restraining order (FRO) against plaintiff. Defendant dismissed the FRO in February 1996. On November 4, 1996, defendant obtained another FRO against plaintiff, stemming from an incident where plaintiff struck defendant so hard she sustained a concussion-like injury.

On November 15, 1996, plaintiff filed a complaint for divorce. On February 11, 1997, the parties executed a Property Settlement Agreement (PSA), granting physical custody of the children to defendant and liberal visitation to plaintiff. An Amended Final Judgment of Divorce was entered on May 14, 1997, incorporating the PSA.

On February 11, 2001, the parties executed a consent order transferring physical custody of the sons to plaintiff. On May 16, 2002, an order was entered requiring all three children to spend weekends and holidays together, except if one was involved in an extracurricular activity during such times.

Sometime in 2002, defendant joined the New Jersey Air National Guard. Because her enlistment required her to travel, defendant executed a consent order on August 28, 2002, transferring physical custody of their daughter to plaintiff and granting defendant liberal visitation. According to defendant, the parties agreed that the transfer of custody would be temporary and that custody would be returned to defendant after she completed her basic training and received a steady military assignment. Plaintiff denied this agreement.

On December 10, 2002, plaintiff filed a motion for child support and to compel defendant to provide health coverage for their sons. The court entered an order on January 15, 2003, denying child support, but compelling defendant to provide health coverage. The order also provided that the court "shall reassess the custodial status of [the daughter] . . . at the conclusion of [d]efendant's basic training in the military." Defendant finished basic training in May 2003 and received military orders for two years.

Their daughter spent the summer of 2005 with defendant. Sometime during that summer, defendant received notice she would be deployed to Iraq. Shortly before defendant's deployment, plaintiff filed a motion for child support and other relief. Defendant filed a cross-motion to reassess custody of their daughter and other relief. The court compelled defendant to pay child support, and denied without prejudice her request to reassess custody of the daughter.

Defendant was deployed to Iraq from February to April 2006. After defendant returned to New Jersey, plaintiff refused to transfer custody of their daughter to her. As a result, on October 13, 2006, defendant filed a motion to regain custody of the daughter and for other relief. Plaintiff filed a cross-motion for various relief. Judge Ronald Lee Reisner held a custody hearing and interviewed all three children as a group and individually.*fn1 During the interviews, the children corroborated defendant's testimony that the parties agreed that custody of their daughter would be returned to defendant. Also, the daughter made it clear that she wanted to live with defendant, but she was afraid of what plaintiff would say and afraid "[her] dad might not even like [her] anymore[]" if she asked to return to defendant.

In an oral opinion placed on the record on April 26, 2007, Judge Reisner concluded it was in the daughter's best interest to live with defendant. Judge Reisner placed additional reasons on the record on May 4, ...


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