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Fisler v. Fisler


April 15, 2008


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

Per curiam.


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, 2007, when he denied plaintiff's application for a stay.

"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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). When a trial court judge acts as a fact-finder, its findings regarding witnesses' credibility "are entitled to deferential respect by the reviewing court." N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 484). "Because 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. Also, "the opinion of the trial judge in child custody matters is given great weight on appeal." Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994) (citing Palermo v. Palermo, 164 N.J. Super. 492, 498 (App. Div. 1978)). However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). It is with these standards in mind we review plaintiff's contentions.

Because there was no indication of misconduct by either parent, Judge Reisner had to afford both parents an equal right to custody of their daughter. Matflerd v. Matflerd, 10 N.J. Super. 132, 136 (App. Div. 1950), certif. denied, 6 N.J. 398 (1951); Turner v. Nooney, 5 N.J. Super. 392, 397 (App. Div. 1949). However, the judge's primary focus could not be on who was the better parent. It had to be on what was in the daughter's best interests. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (citing Fantony v. Fantony, 21 N.J. 525, 536 (1956)). In determining her best interests, the judge had to evaluate the child's "safety, happiness, physical, mental and moral welfare[,]" Fantony, supra, 21 N.J. at 536; Vannucchi v. Vannucchi, 113 N.J. Super. 40, 47 (App. Div.) (citing DiBiano v. DiBiano, 105 N.J. Super. 415, 418 (App. Div. 1969)), certif. denied, 58 N.J. 163 (1971), and the statutory factors set forth in N.J.S.A. 9:2-4c, which include, but are not limited to, the following:

1. the parents' ability to agree, communicate and cooperate in matters relating to the child;

2. the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

3. the interaction and relationship of the child with his/her parents and siblings;

4. the history of domestic violence, if any;

5. the safety of the child and the safety of either parent from physical abuse by the other parent;

6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

7. the needs of the child;

8. the stability of the home environment offered;

9. the quality and continuity of the child's education;

10. the fitness of the parents;

11. the geographical proximity of the parents' homes;

12. the extent and quality of the time spent with the child prior to or subsequent to the separation;

13. the parents' employment responsibilities; and

14. the age and number of the children.

Based upon our careful review of the record, we conclude that plaintiff's challenges to Judge Reisner's findings are unavailing as we discern that "adequate, substantial and credible evidence" supports the judge's determinations. Cesare, supra, 154 N.J. at 412. We are satisfied that the judge appropriately considered the factors set forth in N.J.S.A. 9:2-4c, did not improperly rely on the 1996 FRO, conducted an impartial interview of the children, and made impartial factual and credibility findings that are well supported by the substantial and credible evidence in the record. Further, the judge correctly applied the law, concluding that it was in the child's best interests to return custody of the daughter to defendant.

Finally, we find plaintiff's contention that he is a victim of gender bias to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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