June 10, 2008
DOLORES ENTRESS, PLAINTIFF-APPELLANT,
KEVIN ENTRESS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-898-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2008
Before Judges Cuff, Lisa and Lihotz.
We again are asked to review post-judgment Family Part orders in this longstanding matrimonial dispute. Although plaintiff Dolores Entress Triboletti states in her notice that she appeals from the court's orders dated March 2005, April 2005, October 29, 2005, March 10, 2006, September 6, 2006, and February 2, 2007, our order dated April 19, 2007, allowed plaintiff's motion to serve as a notice of appeal only of the February 2, 2007 order. Thus, our review is limited. However, to the extent prior orders provide context to the subject matter of the February 2, 2007 order, they may be discussed.*fn1
Generally, on appeal, plaintiff seeks reversal of the February 7, 2007 order imposing restrictions on her contact with the parties' two minor children, who are in the custody of defendant Kevin Entress. Also, she challenges the court's discretion to order her to pay sanctions and attorney's fees as a result of her lapse in maintaining child support. After our consideration of plaintiff's arguments and the submissions of both parties in light of the record and applicable law, we discern no error in the motion judge's findings of fact and conclusions drawn therefrom. Nor do we determine the judge misapplied his discretion. Therefore, we affirm.
We recite those facts necessary for disposition of this matter. After an eleven year marriage, the parties were divorced on June 16, 2003. Their two sons are now ages fourteen and ten. The terms of the parties' property settlement agreement (PSA), incorporated into the Final Judgment of Divorce, designated plaintiff as the parent of primary residence of the children and delineated defendant's parenting time schedule.
"An escalating dispute between the parties regarding custody and visitation culminat[ed] in the April 8, 2004 order summarily changing custody from plaintiff to defendant." Entress v. Entress, 376 N.J. Super. 125 (App. Div. 2005). We reversed that order and the four others that preceded it and required a different Family Part judge to conduct a plenary hearing to determine custody. Id. at 128.
On remand, in April 2005, a different judge denied plaintiff's motion for resumption of residential custody. On our leave granted, we reviewed the interlocutory appeal and summarily reversed the two custody orders entered. We again instructed the family judge to schedule a plenary hearing.
The plenary hearing commenced on September 28, 2005, with the testimony of Ronald Gruen, Ed.D., the court appointed forensic custody expert. At the close of Dr. Gruen's testimony, the parties ceased presentation of trial testimony and, aided by their respective counsel, prepared a comprehensive settlement agreement resolving custody and visitation. The agreement was bottomed on Dr. Gruen's findings and recommendations and its terms are recited in the consent order dated September 29, 2005.
The parties' agreement retained defendant as the parent of primary residence and allowed plaintiff supervised visitation, which upon satisfaction of designated conditions would transition to unsupervised visitation. Plaintiff could attend the children's school and sporting events, send email communications, and have daily telephone contact. Further, the order provided for the appointment of a family therapist/parenting coordinator and a therapist for plaintiff to address her personality disorder. These two professionals would communicate in an effort to aid plaintiff's understanding of the harm caused to the children by her actions and to assist the parties in reducing their mutual hostilities and to learn to work together.
On that same date, the court entered a temporary child support order requiring plaintiff to pay $500 per week. The order was entered without prejudice as plaintiff had not filed a case information statement or submitted proof of her income and debts. The order allocated payment of the family therapist fees between the parties and provided plaintiff would satisfy the cost of her individual psychotherapy.
On December 27, 2005, a plenary hearing commenced to determine plaintiff's ability to pay child support. At the close of evidence, the court imputed annual income to plaintiff of $75,000, based on her past earnings and her lifestyle evidenced by her annual spending and various exhibits. The court fixed plaintiff's child support obligation at $272 per week. The court also calculated defendant's alimony obligation was $906 per week.*fn2
Thereafter, plaintiff attended a psychological evaluation, which recommended she commence unsupervised visitation. Dr. McInerney, the court appointed family therapist who had supervised four visits between plaintiff and the children, was more cautious but supported commencement of unsupervised parenting time between plaintiff and the children.
The parties appeared in court on March 10, 2006, to address plaintiff's request for joint custody and expanded visitation rights, and to fix the amount of accumulated child support arrears. The order identified plaintiff's payment of $10,000 from the sale of realty used to reduce the arrearages. Additionally, the order required plaintiff to pay $150 per week to satisfy the accumulated arrearages. Plaintiff's motion for joint custody was denied, and she was afforded a bi-weekly block of four hours of unsupervised parenting time "on the condition that" the children attend sessions with Dr. McInerney and plaintiff continue personal therapy.
The anticipated hope of progress and harmony was dashed as the parties heightened animosity extended to complaints filed in municipal court, criminal charges for interference with custody, and reports alleging abuse and neglect submitted to the Division of Youth and Family Services.
The parties returned to the Family Part on April 28, 2006, presenting competing motions. As a result, the court permitted defendant to offset the weekly alimony obligation he paid plaintiff until her child support arrearages were satisfied. Plaintiff and her family were permitted to attend the younger child's First Holy Communion. The court also ordered plaintiff to disclose her scheduled sessions with the court appointed therapist.
Defendant filed a second enforcement application regarding plaintiff's contact and visitation with the children, which was heard on October 6, 2006. As a result of plaintiff's actions and omissions, the court suspended the unsupervised visits and provided that "supervised visitation shall continue until [p]laintiff abides by past [o]rders of this [c]court specifically requiring [p]laintiff to engage in personal psychotherapy, after which the [c]court shall determine future parenting time arrangements." Other provisions in the order provided more specific parameters for plaintiff's contact with the children by telephone and during activities. For example, plaintiff was not permitted to act as the children's coach, but could attend sporting events as a spectator, limiting her contact to greetings; she was to telephone the children three nights per week; plaintiff could separately schedule parent teacher conferences; and she was allowed to attend all school activities, which were not confined to the classroom. Additionally, the order authorized Dr. McInerney to supervise a four-hour Saturday visit each week. Generally, the court denied plaintiff's requested relief for modification of custody. Finally, the court ordered plaintiff to pay defendant $2,247.50 toward his attorney's fees and costs, within 120 days.
Defendant filed a third motion for enforcement resulting in the order now under review. Plaintiff does not dispute that she failed to make an appointment with Dr. McInerney and had not seen the children. Also, she did not continue her psychotherapy. The court further limited contact between plaintiff and the children to sessions in Dr. McInerney's office and provided that the resumption of additional supervised parenting time could occur when plaintiff resumed her therapy. Because plaintiff had not paid child support as ordered, the court continued to offset the obligation against her alimony, and again awarded attorney's fees to defendant due to her noncompliance.
In her appeal, plaintiff asserts the children want to see her, and the court's denial of unsupervised time was an abuse of discretion. She maintains the current Family Part judge is biased, evinced by remarks that are "derogatory in tone and insulting in context." She requests any further review of this matter be by a different Family Part judge. Finally, she objects to the orders fixing support, requiring payment of therapy costs, and awarding defendant counsel fees and costs.
The scope of our review 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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Particular deference is afforded to decisions on issues of credibility. Id. at 412. "Trial court findings are ordinarily not disturbed unless 'they are so wholly un-supportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992).
When confronted with the claim that the trial court erred in its determination of the facts, we consider "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). See DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (applying this standard in custody cases). We defer to the trial court's assessment of witness testimony, and the credibility determinations therefrom. Cesare, supra, 154 N.J. at 412; Pascale v. Pascale, 113 N.J. 20, 33 (1988). When a reviewing court satisfies itself of the evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck, supra, 86 N.J. at 496 (quoting Johnson, supra, 42 N.J. at 162).
We do not agree with plaintiff's characterizations of the scope or requirements of the February 2, 2007 order. The parties relied on Dr. Gruen's testimony when fashioning their September 29, 2005 consent order. Dr. Gruen expressed plaintiff exhibited a "pattern of vindictive and alienating behavior of significant proportions"; "[h]er insincerity, jealousy and narcissism . . . caused her to demonstrate raw aggression and vengeance" toward defendant; and she had "manipulated the children and made them feel guilty about not being with her" in the presence of the psychologist, while ignoring the children's attempts to express their positive feelings about residing with their father. After a painstaking examination of each parent to discern his and her voluntary waiver of the continuation of the trial, the family judge, well aware of Dr. Gruen's expert opinion, approved the parties' settlement as it reflected the best interest of the minor children. This backdrop supported the parties' settlement.
The settlement framework incorporated the use of therapeutic intervention to re-establish plaintiff's parental role in the lives of the children. Unfortunately, she has chosen not to pursue the course mapped out and instead rails against the restraints she agreed to accept.
We conclude the February 2, 2007 order reflects the Family Part's appropriate effectuation of the State's parens patriae interest in protecting the welfare of children. The agreed commencement of individual counseling to ameliorate the adverse behaviors wrought by plaintiff's personality disorder supported this effort. Plaintiff's failure to comply with this requirement justifies the limitation of her contact with the children.
We do not doubt plaintiff's professed love for her children. However, she must become cognizant of the damaging impact of her "manipulative," "vindictive and alienating behavior" visited upon the children due to her "raw aggression and vengeance" toward defendant. Plaintiff's participation in psychological counseling is the key to reunification and the resumption of additional contact. Her refusal to do so undermines her objective to be with her children. Plaintiff holds the ability to her progress; she must discard her anger and desire to prioritize participation in the therapeutic intervention with Dr. McInerney and individual psychotherapy. Paraphrasing the words of the late Israeli Prime Minister Golda Meir, the parties' fighting may stop when she "learns to love her children more than she hates [defendant]."
We similarly determine plaintiff mischaracterizes the order to fulfill her legal obligation to support the children. Protesting that the court's order was a "punitive sanction" against her and an "award of funds" to defendant, she continues to resist payment. Child support is a benefit to the children, and the right of support belongs to the children, not the custodial parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003); Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994). "'The custodial parent brings the action [for enforcement] on behalf of the child and not his or her own right.'" J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006) (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)), certif. denied, 192 N.J. 295 (2007).
We determine no error in the court's imputation of income to plaintiff, based on the facts obtained following a plenary hearing. "Our case law has consistently held that when a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that parent to provide for the child's needs." Caplan v. Caplan, 182 N.J. 250, 268-69 (2005); see also Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (court's use of potential earning capacity of an individual, rather than actual income should be considered when fixing the ability to pay child support). Moreover, in addition to a party's income, any assets may be considered when determining a fair and just child support award. N.J.S.A. 2A:34-23(a)(3). The Family Part judge, in a proper exercise of discretion, enforced plaintiff's obligation to provide for the financial support of the children. R. 1:10-3; Pasqua v. Council, 186 N.J. 127, 140 (2006).
In the event plaintiff asserts she has experienced a substantial change in financial circumstances, she is free to file a request for modification of the amount of ordered support. Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). We have no basis to exercise original jurisdiction in this regard. R. 2:10-5.
In awarding defendant counsel fees and costs, the judge was guided by the provisions of Rule 5:3-5(c). Based on plaintiff's failure to pay child support, as ordered, and to engage in the requisite counseling services, we conclude the exercise of discretion should not be disturbed.