December 11, 2008
HEIDI JUDD CARD, PLAINTIFF-RESPONDENT,
DAVID MICHAEL CARD, DEFENDANT-APPELLANT,
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, Docket No. FM-13-531-05A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2008
Before Judges Cuff, Fisher and Baxter.
Defendant David Michael Card appeals from three post-judgment orders, entered on March 23, May 18 and July 13, 2007. We affirm all three.
The parties were married on May 21, 1994, and had one child, a son born in February 1998. In relevant part, the October 31, 2005 judgment of divorce and accompanying settlement agreement (JOD) established the parties' joint legal custody of their son and designated plaintiff, Heidi Judd Card, the parent of primary residence. The JOD provided that the parties' son would attend sleep-away camp beginning in the summer of 2007, obligated the parties to equally split the cost and required the parties to arrange their two weeks of vacation with their son so the vacations would not conflict with the child's time at camp. On October 31, 2006, plaintiff wrote to defendant, proposing to send their son to Camp Killooleet (Killooleet) in Vermont for the summer of 2007 and offering to pay the entire cost of $6,600 if defendant agreed to the selection of Killooleet. Defendant objected to Killooleet's cost and location and offered other proposals. He also objected to the proposed seven-week length of the camp session because it would interfere with his vacation plans with the parties' son.
On March 23, 2007, Judge Flynn heard plaintiff's motion to approve Killoolett and require defendant to pay half the cost. After some negotiations during the motion hearing, plaintiff agreed to reduce the child's attendance at Killooleet to four weeks, thereby accommodating defendant's two weeks of vacation. Under the impression that the cost of four weeks at Killooleet would be roughly $1,500 for both parties, defendant agreed to allow their son to attend Killooleet, so long as there was no "finding that it [was] the camp of choice for the rest of the child's camp career." The parties also agreed on the selection of a parenting-time mediator to help resolve future disputes. In his order of March 23, 2007, Judge Flynn determined that the parties' son would attend Killooleet for four weeks and ordered each party to pay one-half of the Killooleet expense. The order specifically limited the camp decision to the summer of 2007. The order also named the parties' parenting-time mediator*fn1 and obligated the parties to share the cost equally.
After the March 23, 2007 order was entered, defendant sought to set up a payment plan because he claimed he lacked the ability to immediately pay his share. Plaintiff refused. The parties also discovered that the total amount for the four-week session at Killooleet was $5,454, rather than the $3,000 that the parties and Judge Flynn had assumed.*fn2
In mid-April 2007, defendant moved for reconsideration, asking the judge to select a different camp, establish a payment plan, and "cap" his camp expenses at $1,100. Defendant also certified that his income of $2,600 per month was insufficient to immediately pay plaintiff.
Some two weeks later, plaintiff paid the $1,500 retainer fee for the court-appointed parenting-time coordinator. Defendant, in contrast, refused to pay his half, explaining that he could not afford to do so.
In early May, plaintiff cross-moved to enforce the March 23, 2007 order. Specifically, she sought an order: declaring defendant in violation of litigants' rights because he failed to pay his portion of the parenting coordinator's retainer fee; requiring defendant to pay both the $1,500 retainer fee and $2,722.50, which was half the amount of the four-week Killooleet fee; enjoining defendant from sending defamatory and harassing letters to their son's school, camp and healthcare providers;*fn3 and ordering defendant to pay her counsel fees. She further sought sole legal custody until defendant had paid his share of the retainer.
The record includes copies of the letters plaintiff referred to in her certification as "harassing and slanderous." In his April 25, 2007 letter to the camp director at Killooleet, defendant wrote:
[P]lease be advised in my view any . . . meeting [between you, me and my son] might be wasteful of your time and also inappropriate. . . . I feel I need to advise you that the Sleep away camp issue is in litigation. . . . [The meeting] could also be seen as a pressure tactic on [plaintiff's] part, or as needlessly placing an unfair burden upon me. . .
As to your 'first' meeting with our son . . . [,] that was arranged totally without my knowledge. In view of the costly ramifications it was a very serious violation of our Settlement Agreement. . . . . . . .
. . . I request . . . . That you NOT have a "second" meeting with our son. . . . That you return to [plaintiff] whatever payments she has made to you.
At the very least I suggest you should prepare for the possibility [he] may not be attending Killooleet.
The record also contains the letter defendant wrote to his son's dentist in which he advised the dentist he had joint legal custody and requested a copy of his son's records.
During the course of the May 18, 2007 motion hearing, Judge Flynn repeatedly stated that the most important issue was retaining the parenting coordinator, because that would promote parenting decisions in the best interests of the parties' son. Addressing plaintiff's cross-motion concerning communications with third parties, the judge granted plaintiff's cross-motion to suspend defendant's joint legal custody. The judge stated:
Well, he's not going to be able to do that now, because he doesn't have joint legal custody. He's not going to have joint legal custody until he acts like he deserves joint legal custody. . . .
. . . [addressing defendant] I have read your letters . . . and quite frankly you've done what you could in those letters to sabotage your son's opportunity to go to camp.
The judge ordered the suspension of defendant's right to joint legal custody until defendant could communicate with plaintiff in a cooperative manner on issues affecting their son. The judge also suspended defendant's parenting time until he "engage[d] in the use of the parenting coordinator to arrive at a proper and acceptable visitation schedule." Finally, the judge capped defendant's Killooleet obligation at $1,800 and ordered defendant to make immediate payment.
The order that Judge Flynn entered on May 18, 2007 also: required defendant to pay the coordinator's $1,500 retainer fee; suspended defendant's visitation until he made such payment; ordered defendant to immediately pay plaintiff the $1,800 camp expense he owed her; restrained and enjoined defendant from sending letters to third parties; and denied both parties' requests for counsel fees. The order specified that after defendant retained the services of the parenting-time coordinator, defendant could move to reinstate joint legal custody, because the suspension of defendant's joint legal custody was "without prejudice."
By June 8, 2007, defendant had paid $1,500 to satisfy his portion of the coordinator's outstanding retainer and defendant resumed his parenting time with his son on June 7, 2007. Oddly, on June 14, 2007, the parenting coordinator wrote to both parties, observing that the parties had still not engaged him. The record shows no contact between the parties and the coordinator in response to his June 14, 2007 letter.
In June 2007, plaintiff filed another motion to compel defendant to reimburse her for his portion of the camp fee. Defendant cross-moved to allow him to make monthly payments to plaintiff. He also sought to restore his joint legal custody in light of his payment of the coordinator's retainer.
At the ensuing July 13, 2007 motion hearing, Judge Flynn allowed defendant to make payments of $200 a month to plaintiff to satisfy his $1,800 obligation. Next, the judge heard arguments regarding the role of the parenting coordinator in light of the June 14 letter, and found that the parties had "the parenting coordinator[, but] nobody seems to want to use it or need to use it."
The judge also denied defendant's request to restore his joint legal custody, "pending a more extensive experience with the parenting time coordinator," after observing that there was "no indication the coordinator's services have been sought." Judge Flynn then entered a July 13, 2007 order memorializing those rulings.
In September 2007, while defendant's appeal was pending, plaintiff applied for an order to show cause, in which she alleged that defendant was either using drugs, having psychiatric problems, or both. She sought to suspend defendant's visitation until further order of the court, obtain sole custody of the child until further order, and restrain defendant "from entering the premises of plaintiff's home, business or school of the child until further order of the Court."
On October 26, 2007, Judge Ronald Reisner granted the relief plaintiff sought, but because of the pending appeal, ruled that his October 29, 2007 order would "not yet" be in effect. In his statement of reasons, Judge Reisner explained why he ordered defendant's parenting time to be supervised:
[Defendant] was supposed to have parenting time on Friday evening September 14, 2007 until Monday morning September 17, 2007. This was the result of mediation on September 4, 2007 . . . When [defendant] did not appear, [plaintiff] began to worry as [he] had never before missed parenting time. [Plaintiff] attempted to call [him], but [he] did not answer. [Plaintiff] went to [defendant's] apartment, but he did not answer the door even though his vehicle was in the parking lot. Due to [plaintiff's] increasing concern, she called 911. When Old Bridge Township police entered [defendant's] apartment he was found to be disheveled and disoriented with his apartment in a similar state. [Defendant] was not cognizant of the time of day, insisted [plaintiff] did not call him, and stated that he thought his parenting time was the following week. [Defendant] looked like he was on drugs . . . . The police advised [plaintiff] not to leave [the parties' son] with [defendant] unsupervised and without a proper evaluation of [defendant]. . . . [Plaintiff] fears for her son's safety if he is left alone with [defendant] . . . . [Plaintiff] does not want to keep [defendant] from [his son], but wants him to get help before he is alone with [the child]. [Plaintiff] is requesting that [defendant] undergo a psychological evaluation and psychiatric evaluation if necessary . . . . [T]hat a schedule be implemented whereby she initiates phone calls for [defendant] to speak with [the child] on [set dates, at set times.] [Plaintiff] is requesting that the Court order that . . . [she also have] sole physical custody.
In his written opinion, Judge Reisner observed that defendant attributed his behavior to a kidney stone, infection and fever. Defendant also denied that he was on drugs and contended that police and plaintiff had exaggerated.
The judge explained that because of the pending appeal he had jurisdiction only to enforce existing orders. On January 10, 2008, this court remanded the matter to Judge Reisner to conduct a plenary hearing regarding the suspension of defendant's parenting time.
On May 20, 2008, Judge Reisner completed the remand hearing and entered an order on May 20, 2008, which provides, "Telephone contact to continue as agreed between the parties. Visitation to be supervised by the Healing Hearts program. The cost will be equally divided between the parties. Visitation to commence for sixty (60) days."
Defendant appeals from three orders. On July 2, 2007, defendant appealed the orders of March 23 and May 18, 2007. He filed his appeal from the July 13, 2007 order on October 9, 2007. His appeal of the March 23, 2007 order is untimely and violates Rule 2:4-1(a), which requires appeals from final judgments to be taken within forty-five days of their entry. We recognize that defendant moved for reconsideration of that order on April 12, which the court denied by order of May 18, 2007. The filing of such motion on April 12 tolled the running of the applicable forty-five day appeal period, but the "remaining time" began to run again on May 18 when the motion was denied.
R. 2:4-3(b). Thus, defendant was obligated to file his appeal from the March 23, 2007 order no later than June 12, 2007. He did not file his notice of appeal until July 2, which was twenty days too late.
His appeal of the July 13, 2007 order on October 9, 2007 suffers from the same violation of Rule 2:4-1(a). Rather than dismissing defendant's appeal, we have exercised our discretion to consider his appeal of those two orders even though the rule violation would ordinarily cause him to forfeit the right to such review. Defendant should not, however, assume that we will overlook similar rule violations in the future.
On appeal, defendant argues that: the judge erred in selecting Killooleet; a plenary hearing was required prior to terminating his joint legal custody without prejudice; and the judge abused his discretion in failing to adjourn the May 18, 2007 motion hearing and in failing to order plaintiff to pay his counsel fees.
"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). Furthermore, "[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. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). It is against these standards that we address defendant's arguments.
We turn first to the March 23, 2007 order that granted plaintiff's motion to send the parties' son to Killooleet and ordered defendant to pay half the cost. Defendant agreed in the parties' divorce settlement that the child would attend a sleep-away camp beginning in the summer of 2007 and that he would pay half the cost. Such agreements should be enforced. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). Defendant has presented no meritorious basis upon which either we or Judge Flynn should decline to enforce that portion of the decree.
Moreover, defendant, at the motion hearing on March 23, 2007, withdrew his objection to Killooleet once plaintiff agreed to reduce the child's attendance to four weeks to accommodate defendant's two weeks of vacation with the child. In light of defendant's agreement that his son should attend Killooleet, we are unwilling to consider his present challenge to that provision of the order. See Weishaus v. Weishaus, 180 N.J. 131, 143-44 (2004).
We likewise reject defendant's challenge to the portion of Judge Flynn's March 23, 2007 order that required defendant to pay one-half of the camp expense. Defendant has presented no evidence demonstrating that the cost of Killooleet was out of line with the cost of other sleep-away camps. Furthermore, the JOD obligated him to pay half of the camp expense. When the parties realized that the true cost of four weeks at Killooleet was actually $5,400--not the $3,000 that they had mistakenly assumed--the judge rightfully placed most of the obligation for that differential on plaintiff. Of the $2,400 difference between $3,000 and the true cost of $5,400, the judge required defendant to shoulder a mere $300. The remaining $2,100 differential became plaintiff's responsibility. Therefore, defendant's attack on that portion of the May 18, 2007 order is meritless.
The July 18, 2007 order, which established a payment plan, and required defendant to pay plaintiff at the rate of $200 per month, was eminently fair to defendant, his claims to the contrary notwithstanding. We likewise affirm that portion of the July 18, 2007 order.
We next turn to defendant's challenge to the portions of the May 18, 2007 order that, without conducting a plenary hearing, temporarily suspended his parenting time and terminated without prejudice his joint legal custody.
In issues pertaining to custody, the court's primary consideration is the best interests of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). In addition, "[c]ustody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Ibid. "Although a joint legal custodial relationship among parents is the preferred arrangement since it is 'likely to foster the best interests of the child in the proper case,' the decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court." Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (internal citation omitted). Therefore, if, due to changed circumstances, the joint legal custody arrangement is no longer in the best interests of the child, it is within the court's discretion to alter that arrangement. Ibid.
However, before ordering a change, a court "should . . . hear all relevant evidence, give the parties the opportunity to argue the matter, and ma[k]e findings as to the appropriateness of such an arrangement." P.T. v. M.S., 325 N.J. Super. 193, 217 (App. Div. 1999). Then, "[a] plenary hearing is required [if] the [parties'] submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand, supra, 391 N.J. Super. at 105.
We have carefully considered the entire record. We are satisfied that the suspension without prejudice of defendant's joint legal custody without a hearing was appropriate for two reasons. First, a plenary hearing is only required when the facts are in dispute. Ibid. Here, the facts were not in dispute. Judge Flynn had before him ample--and undisputed--evidence of defendant's inability to communicate with plaintiff in the cooperative spirit that joint legal custody requires. See Nufrio, supra, 341 N.J. Super. at 555.
In particular, the record includes evidence of defendant's repeated efforts to repudiate the summer camp agreement he himself had made in the divorce settlement only a few years earlier. Even when plaintiff agreed to scale back the parties' son's camp attendance to four weeks, and after defendant had agreed to the selection of Killooleet, he again sought in his April 2007 motion to renege on that agreement. There is no dispute about these facts.
Nor was there any factual dispute about the letters defendant sent to the camp and to his son's dentist.*fn4 Those letters--like his approach to the summer camp selection--reflect a distinctly uncooperative, self-centered and obstreperous approach to parental decision-making. Such stance is incompatible with joint legal custody, which requires the willingness to communicate effectively and an ability to compromise. The record supports Judge Flynn's conclusion that defendant lacks both. Consequently, there were no material facts in dispute on the question of whether defendant's joint legal custody should be suspended.
Second, Judge Flynn did not permanently deprive defendant of joint legal custody. Instead, he merely suspended it until defendant could demonstrate willingness, and the ability, to use the parenting coordinator's services to resolve disputes in the child's best interest. Such an approach does not require a hearing, especially where, as here, the facts are not in dispute. Hand, supra, 391 N.J. Super. at 105. Consequently, we affirm the portions of the May 18 and July 13, 2007 orders that suspended defendant's joint legal custody without a plenary hearing.
We turn next to defendant's challenge to the portion of the May 18, 2007 order that enjoined defendant from "forwarding defamatory letters and harassing letters and/or other correspondence to the parties' child's school, camp, day care providers, healthcare providers, etc." As our comments above make clear, we are satisfied that Judge Flynn correctly determined that such letters were inflammatory and created a substantial risk that the child's treatment providers would refuse to treat him for fear of becoming embroiled in a parental squabble. The parent of primary residence--here plaintiff--is entitled to make "day-to-day" decisions affecting the child with "autonomy" and without fear that the other parent will constantly interfere. Pascale v. Pascale, 140 N.J. 583, 599-600 (1995). The letters in question not only interfered with that autonomy but created a risk that the continuity of the child's medical and dental care would be interrupted. Judge Flynn's order barring defendant from sending such letters was well within the discretion afforded him by Pascale and we reject defendant's arguments on this issue as meritless.
Defendant's remaining arguments, that the judge erred by denying his request for counsel fees and by not granting an adjournment, lack sufficient merit to warrant discussion in a written opinion. R. 2:ll-3(e)(1)(E).