October 15, 2008
TIMOTHY CHEN, PLAINTIFF-RESPONDENT,
MEI-IN CHEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1476-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Parrillo, Lihotz and Messano.
In this post-divorce judgment action, defendant Mei-in Chen appeals from a November 16, 2007 order of the Family Part awarding primary residential custody of the parties' then nine-year-old daughter K. to her former husband, plaintiff Timothy Chen, and fixing her monthly child support obligation at $91. We affirm.
By way of background, both parties were born in Taiwan and emigrated separately to the United States, where they were introduced to each other by their parents. They married on July 21, 1990 in New York, and K., their only child, was born on May 9, 1998. Shortly thereafter, in 2000, the parties separated after plaintiff, a radiation oncologist, began an intimate relationship and fathered a child (born on March 9, 2002) with a nurse practitioner, whom he later married on May 27, 2005.
The parties divorced by final judgment entered in New York State Supreme Court on May 19, 2005, which incorporated a property settlement agreement (PSA) providing for joint legal custody and designating defendant the parent of primary residence. Plaintiff was afforded liberal visitation, detailed in "Schedule A" of the PSA.
The final judgment of divorce (FJD) also permitted defendant to relocate to New Jersey where her parents resided. In fact, the PSA obligated the parties to immediately notify the other of any change in mailing address or actual place of residence; and upon defendant only, to sell the New York marital residence by July 1, 2005 and relocate to within 30 miles of Whippany, New Jersey. In anticipation of defendant's move, plaintiff moved to New Jersey in October 2003, having obtained employment with a medical practice that maintained a contractual relationship with Morristown Memorial Hospital, and subsequently successfully moved to domesticate the foreign FJD. Defendant eventually relocated to New Jersey over Labor Day weekend, 2005, without, however, first advising plaintiff of the move.
Since their separation, the parties have had a difficult and tumultuous relationship. There was an incident at the former marital residence on January 15, 2003, which resulted in a January 23, 2003 order of protection against plaintiff in New York, restraining him from the home other than for court-authorized visitation with his daughter at curbside. Apparently, following a dispute over a car seat during an exchange of their daughter, plaintiff drove his car across the lawn in the direction of defendant as she was walking to her front door.
As further evidence of marital discord, throughout the time defendant enjoyed primary residential custody of K., she rigidly adhered to the parenting schedule annexed to the parties' PSA, allowing him no additional parenting time, and demonstrating no flexibility in the arrangement. In fact, on one occasion, plaintiff arrived a few minutes early; however, defendant refused to permit the visitation to commence until the exact minute specified in the parenting schedule.
As noted, plaintiff was not made aware of defendant's move to New Jersey over Labor Day weekend, 2005. Plaintiff, who was parenting K. that weekend, actually returned his daughter to defendant's New York residence even though she had temporarily moved to her parents' home in Whippany the Sunday before Labor Day. Defendant did not inform plaintiff of her presence in Whippany until October 2005, before permanently moving to Denville in November 2005 into a house she had purchased on September 18, 2005. In the meantime, however, plaintiff had learned of defendant's move to New Jersey. When speaking to K. the day after Labor Day, K. spelled the name of her new school, apparently believing this would not disobey her mother's directive not to tell her father she had moved.
During a subsequent exchange of their daughter on April 20, 2006, there was another incident of domestic violence, this time perpetrated by defendant. According to plaintiff, while returning K. home, he commented that he would see her the next day, whereupon defendant became angry and began yelling. When plaintiff reached into defendant's car, which was running, to give K. a hug goodbye, defendant put the car in drive, and proceeded to move forward, running over plaintiff's foot and dragging him approximately four to five feet while plaintiff was banging on the window for defendant to stop. K., who witnessed the entire incident, was crying. Upon plaintiff's May 8, 2006 complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, a temporary restraining order was issued wherein custody of K. was temporarily transferred to plaintiff.
At the close of evidence, the trial judge found defendant's actions of releasing the brake, placing the car in gear and dragging plaintiff several feet constituted an act of domestic violence and consequently entered a final restraining order, continuing primary residential custody with plaintiff pending a full custody evaluation and hearing. In the course of so ruling, the judge found defendant had a history of hostility toward plaintiff, including leaving harassing voice mail messages on plaintiff's phone, throwing a piggy bank at him, and issuing a vague threat concerning his wife, which together with the incident at hand, gave plaintiff appropriate concern "for his life, health or well[-]being."
In preparation of the custody hearing, the parties executed a consent order appointing Dr. Amie Wolf-Mehlman, a psychologist, as a joint expert.*fn1 Subsequently, plaintiff, with defendant's consent and by leave of court, retained Dr. Edwin Rosenberg for a second custody evaluation.
Dr. Wolf-Mehlman's October 30, 2006 report recommended primary residential custody be returned to defendant because neither party was negligent in parenting, and therefore, no reason existed for changing the original arrangement. In so concluding, Dr. Wolf-Mehlman "minimized" the recent domestic violence event, seemingly adopting defendant's explanation of an "unfortunate accident[,]" and finding "much of [defendant's] anger would be considered normative under the circumstances."
In contrast, Dr. Rosenberg's March 31, 2007 report recommended that primary custody remain with plaintiff, with whom exclusive decision-making authority concerning K.'s medical care and extra-curricular activities should be entrusted. He based his conclusion in part on visits to each party's home, after which he found plaintiff would better promote K.'s growth and development because plaintiff "encourage[s] K. to take responsibility for herself, to clean up after herself, [and] to contribute to the family by doing chores," while defendant "believes that it is her role to make decisions for K."
At the custody hearing, plaintiff testified to, among other things, poor medical decisions he perceived defendant had made on behalf of their daughter, including taking K. to a neonatologist, a pediatric doctor specializing in newborn infants, when the child was nine years old; authorizing steroid treatment for K., which plaintiff believes was unsafe and unwarranted; and taking three-year-old K. to a doctor who gave her three shots in the same arm, causing pain and swelling. Plaintiff also testified that defendant disciplines K. by hitting her with a wooden cooking spoon.
In an earlier certification of July 20, 2006, plaintiff related information about K.'s alleged regressive behavior that he had learned at a parent-teacher conference in March 2006, one month prior to the most recent domestic violence incident. Apparently, the teachers reported that K. had been attending school in an "extremely exhausted" state and on several occasions wetting her pants. Plaintiff attributed this behavior, which K. had not exhibited in years, to nervousness caused by pressure exerted by defendant.
At the conclusion of the evidence, the Family Part judge issued a sixteen-page written decision, designating plaintiff primary residential custodian; granting defendant parenting time in accordance with Dr. Rosenberg's recommendations and increasing her overnight visitation to over 28% of total overnights annually; giving plaintiff final decision-making authority in matters of K.'s medical care and extra-curricular activities when the parties are otherwise at an impasse; and directing defendant to continue paying $91 weekly in child support as previously ordered in August 2006. As a threshold matter, the judge found that defendant's act of domestic violence on April 20, 2006 and her failure to timely disclose her relocation to New Jersey both constitute significant "changed circumstances" to warrant reevaluation of the original custodial arrangement embodied in the parties' PSA executed over two-and-one-half years ago, on October 19, 2004.
In rendering its final determination of residential custody, and resolving the issue of K.'s best interests, the judge relied on N.J.S.A. 9:2-4 and the factors enumerated therein, particularly: (1) (the parents' ability to agree, communicate and cooperate in matters relating to the child); (3) (the history of unwillingness to allow visitation); (5) (the history of domestic violence); and (9) (the needs of the child and the stability of the home environment). As to the first factor, the judge found both parties have evidenced no reasonable ability to communicate and cooperate in matters relating to K. Concerning the third factor, the judge found defendant's rigidity and strict adherence to the parenting schedule was unreasonable, whereas plaintiff would not be as "inflexible" if he were awarded primary residential custody. Regarding the fifth factor, the judge concluded there was "good cause for the plaintiff to be concerned for his life, health or well-being" and further, that defendant's domestic violence occurred in the presence of the child.
The judge expounded at length on the ninth factor, namely the needs of the child and the stability of the home environment. He found the environment created by plaintiff, his wife and their young son, J., to be "warm, loving and family-oriented[,]" and that plaintiff and his wife are "active parents" who "provide appropriate discipline and guidance." In particular, "K. is encouraged to be mature and responsible being assigned certain duties and being expected to undertake some level of her own care such as preparing her own breakfast." The judge concluded that plaintiff and his wife "appear to be creating a home environment in which K. can grow into a self-sufficient and responsible adult in twenty-first century United States."
In contrast, defendant's home environment "is good in its own way but significantly different" in that "K. tends to revert both to baby talk as well as immature behavior in defendant's presence." The judge noted that K. "appears to have no chores or responsibilities in defendant's home[,]" and concluded that "[a]lthough both homes are stable, plaintiff's home more closely meets the needs of the child in terms of preparing her for adulthood in the United States in the Twenty-First Century."
On appeal, defendant raises the following issues for our consideration:
I. BUT FOR A FINDING OF ONE INCIDENT OF DOMESTIC VIOLENCE AND PLAINTIFF BEING MORE WESTERNIZED THAN DEFENDANT, THE RECORD DOES NOT SUPPORT ANY CHANGE OF CIRCUMSTANCES AFFECTING K.'S BEST INTERESTS. IT WAS ERROR THAT CUSTODY WAS TRANSFERRED TO PLAINTIFF.
A. ONE ACT OF DOMESTIC VIOLENCE, NOT RELATED TO THE CHILD, DOES NOT AMOUNT TO A SUFFICIENT CHANGE IN CIRCUMSTANCES WARRANTING A TRANSFER OF CUSTODY WHERE A CHILD IS WELL ADJUSTED AND SUCCEEDING ACADEMICALLY AND SOCIALLY PRIOR TO THE TRANSFER.
B. THE RELATIVE WESTERNIZATION OF ONE PARENT OVER THE OTHER WHEN BOTH PARENTS ARE TAIWANESE IS NOT AN APPROPRIATE FACTOR TO CONSIDER IN DETERMINING A CHANGE IN CUSTODY.
II. THE TRIAL COURT'S DECISION MIRRORED DR. ROSENBERG'S RECOMMENDATIONS WHICH IS EVIDENCE IN ITS DISCRIMINATORY WRITTEN DECISION AND IS CONSISTENT WITH DR. ROSENBERG'S DISCRIMINATORY AND IMPEACHED TESTIMONY.
III. "THAT SEEMS LIKE THE RIGHT NUMBER FROM WHAT I CAN SEE" IS NOT A SUFFICIENT BASIS FOR THE ENTRY OF A CHILD SUPPORT AWARD.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E). Accordingly, we affirm substantially for the reasons stated by Judge Hansbury in his written opinion of November 16, 2007. We add, however, only the following comments.
"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)). Once the court determines that a post-judgment event is a "changed circumstance" warranting reevaluation of a custody arrangement, the "best interests" of the child controls the subsequent custody award. Beck v. Beck, 86 N.J. 480, 497 (1981) ("The paramount consideration in child custody cases is to foster the best interests of the child."). On this score, N.J.S.A. 9:2-4 details the fourteen factors a court must consider in the "best interests" determination: the 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. [N.J.S.A. 9:2-4(c).]
The statute further mandates that a court awarding joint custody of a minor child must afford "(1) provisions for residential arrangements . . . and (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare." N.J.S.A. 9:2-4(a). We are satisfied Judge Hansbury properly followed these requirements.
Contrary to defendant's contention, Judge Hansbury correctly determined that the April 20, 2006 domestic violence incident constituted a sufficient "changed circumstance" to warrant re-examination of the custodial arrangement. It seems obvious to us that domestic violence committed in the presence of a minor inherently implicates the child's health, safety and welfare. Indeed, N.J.S.A. 2C:25-29(b)(11) provides that when determining temporary custody following an act of domestic violence "[t]he court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent." It is also clear from N.J.S.A. 9:2-4 itself that if an act of domestic violence is a critical factor in determining an award of custody, then such conduct, ipso facto, also suffices to meet the preliminary "changed circumstance" threshold so as to trigger the "best interest" determination.*fn2
Of course, "[s]uperimposed upon an analysis of the statutory scheme is the additional requirement that the court consider and articulate why its custody decision is deemed to be in the child's best interest." Terry, supra, 270 N.J. Super. at 119. Here, after properly finding "changed circumstances," the judge went on to conclude, after a plenary hearing, that K.'s best interests would be served by placement in the primary residential care and custody of plaintiff. The court arrived at this finding after careful consideration of the relevant statutory factors and their application to the facts of record. On appeal from this determination, we defer to the factual findings and legal conclusions of the Family Part judge in light of his expertise in such matters, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), and where supported by sufficient credible evidence in the record. Beck, supra, 86 N.J. at 496 (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)).
We are satisfied sufficient credible proof supports the court's custody decision. There was evidence of defendant's domestic violence; questionable medical decisions; use of a wooden spoon to administer punishment; rigid, inflexible adherence to the parenting schedule; and failure to timely inform plaintiff of her relocation to New Jersey. There was also proof of K.'s recurring behavioral problems, experienced as a result of her transitions between parents, that appeared to have resolved under her present residential arrangement and absent the pressure exerted by defendant to live with her. Although evaluations by both Drs. Rosenberg and Wolf-Mehlman found that K. enjoys a close and loving relationship with both parents, only Dr. Rosenberg visited the two homes, leading him to conclude that primary residential custody with plaintiff would further K.'s growth and development based on the values plaintiff instills, and the life K. has enjoyed since moving to her father's home in May 2006.
We reject as wholly unfounded the accusation that this last observation betrays a certain cultural bias. Suffice it to say, the judge's "best interests" determination reflects an objective and studied application of the relevant statutory factors untainted by any improper consideration. We also reject the challenge to the court's so-called "wholesale" adoption of Dr. Rosenberg's findings. It is well-settled that matters of credibility are within the unique province of the trial judge, who is free to accept all, some, or none of an expert's opinion. Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993) (citing County of Middlesex v. Clearwater Village, Inc., 163 N.J. Super. 166, 174 (App. Div. 1978)).
Lastly, we find no fault with the court's child support award based on its previous finding. Clearly, child support orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. However, only upon a motion to modify child support and a prima facie showing of changed circumstances, does the court have the right to order full discovery of financial records. Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002) (citing Lepis v. Lepis, 83 N.J. 139, 157 (1980); Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998)). Here, defendant did not move to modify child support fixed by the August 2006 order. Consequently, the matter was not reviewed below. To be sure, the fact that defendant's overnight visitation was expanded to more than 28% of total overnights would seem to justify revisiting the issue upon filing of an appropriate motion. Although the Child Support Guidelines require using the Shared Parenting Worksheet, not the Sole Parenting Worksheet, Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A(14)(c)(2) to R. 5:6A at 2328 (2009), we also note that the Guidelines "are not strictly applicable where family income exceeds . . . $2,900 combined net weekly," as in the instant case, and "[i]n such cases . . . the court should . . . use the maximum guideline figure adjusted by the statutory factors" in N.J.S.A. 2A:34-23. Pressler, Current N.J. Court Rules, comment 1.2 on R. 5:6A (2009). As noted, however, the issue of modification is not properly before us and the trial court did not err in continuing defendant's child support obligation at the level previously set.