On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-1478-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Lisa, Reisner and Alvarez.
Defendant, Gail Mautner, appeals from an order awarding her and her husband, plaintiff Robert Goldman, joint legal and physical custody of their two children. The trial court decision came after a twenty-nine day trial. Although the trial was part of the divorce action, it was limited solely to the issues of custody and parenting time, with the financial issues arising out of the marriage deferred for future determination. Judge Camp presided over the portion of the trial that gives rise to this appeal. At the conclusion of that portion, Judge Camp retired. Because of his impending retirement, which would necessitate resumption of the trial to a final conclusion by a different judge, Judge Camp did not make any order regarding attorney's fees. However, in his written decision, he set forth findings and a recommendation as to certain aspects of an ultimate counsel fee determination based upon the portion of the case over which he presided.
On appeal, defendant argues:
POINT I THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING THE DEFENDANT TO PRESENT HER LAY WITNESSES AND BY PREJUDGING THE ISSUES PRIOR TO HEARING THE DEFENDANT'S EVIDENCE.
POINT II THE TRIAL COURT ABUSED IT DISCRETION BY NOT REQUIRING THE EXPERTS TO PROVIDE UP-DATED REPORTS.
POINT III THE TRIAL COURT ABUSED ITS DISCRETION BY NOT INTERVIEWING THE CHILDREN WHO WERE NINE AND TWELVE AT THE TIME OF TRIAL.
POINT IV THE TRIAL COURT ABUSED ITS DISCRETION BY RENDERING A RECOMMENDATION AS TO COUNSEL FEES WITHOUT PROVIDING THE REQUISITE STATUTORY FINDINGS AND WITHOUT HAVING HEARD TESTIMONY AS TO THE FINANCIAL ASPECTS OF THIS LITIGATION.
We decline to adjudicate Point IV. We reject defendant's remaining arguments and affirm.
The parties married in 1993. Their son was born on February 27, 1996, and is now twelve years old. Their daughter was born on June 29, 1998, and is now ten years old. Plaintiff filed a complaint for divorce on January 6, 2003. He also sought sole custody of the children. Defendant promptly filed an answer and counterclaim, in which she also sought a divorce and sole custody.
Both parties are physicians. Plaintiff is an orthopedic surgeon, and defendant specializes in dermatology. Although the divorce action was initiated in January 2003, the parties continued living together. They separated in the aftermath of a domestic violence complaint brought by defendant on March 7, 2003. Defendant alleged that plaintiff grabbed her by the arm and punched and shoved her. Police came to the home. A temporary restraining order was issued and plaintiff was removed from the home.
The parties came before Judge Camp on March 13, 2003 for a final hearing in the domestic violence proceeding. Both parties were represented by counsel, who had been representing them in the divorce proceedings. After a long day of negotiations, the parties entered into a custody and parenting time agreement, which was spread upon the record and reduced to a written order. Both parties acknowledged to the court that they entered into the agreement freely and voluntarily. Upon his removal from the marital home, plaintiff rented a house in the same neighborhood. As a result, the sharing of parenting time was facilitated. The detailed schedule embodied in the agreement provided for approximately equal time for both parties to have the children. None of the parenting time was required to be supervised. The domestic violence complaint was dismissed.
In October 2004, the parties' son alleged that plaintiff abused him and his sister. The Division of Youth and Family Services (DYFS) conducted an investigation. Dr. Barry Katz, a clinical psychologist and contract provider for DYFS was retained by DYFS to assist in the investigation. Custody evaluations had previously been prepared by experts hired by each of the parties, namely Dr. Judith Brown Grife (for plaintiff) and Dr. Sharon Ryan Montgomery (for defendant). Katz reviewed the evaluations prepared by Ryan and Grife, as well as school records and other materials. He interviewed both parties and the children. He issued a comprehensive report on January 15, 2005.
Katz's report found "no objective evidence to support" the allegations that plaintiff physically abused his children, noting that "[i]n fact, there has been a noticeable absence of such data." At trial, Katz testified consistently with his report, stating there was "no documentation of physical abuse" and "the findings of abuse were unsubstantiated." And, he did not characterize plaintiff's "interactions with the children one-to-one as being psychological abuse."
Katz described his interview with the then eight-year-old son, in which the son stated that he was "trying" to live with his mother so that his father "doesn't hit and kick [him] any more." The son said his father hit and kicked him three times a day, called him and his mother names, and threatened to send him to jail if he did not tell the truth. Katz testified that as he interviewed the son, the son added information "not prompted," seemed to be "generating a story that was very amusing to him," and, as the statements escalated, became "very much gratified by the statements . . . wanting my attention to hear more and more of them because he's really proud of himself [and] of what he's doing."
Katz opined that the children "were exposed to a high degree of conflict by the parents" and that neither parent was taking responsibility for their part in the conflict that itself was harming the children. He recommended individual therapy for the parents and children, and that unsupervised visitation with plaintiff "should not occur until there's enough time for a therapeutic change to occur with treatment." Katz was concerned "that there would in fact be false allegations presented if there was unsupervised contact." He believed that supervised visitation was in the best interests of the children because the son was "empowered by this control that he had over his father" and "was integrating a glee and even a[n] intensified feeling of control from this situation." As Judge Camp later summarized, what was perceived as "false allegations" was "empowering the children."
In his report, Katz recommended weekly therapy sessions for both parties individually, for both children individually, and for each child separately with each parent. Katz's recommendation against unsupervised visitation was "not due to an imminent threat of physical abuse by Dr. Goldman toward his children, but more due to the potential that there will be false allegations presented by the children about their father."
Thus, at that point, plaintiff's parenting time with the children was supervised and on a limited basis. It is important to note that this was not because of any suggestion by defendant or any professionals that the children were at risk of harm while in plaintiff's custody. On the contrary, it was to protect plaintiff from false allegations by the children.
This arrangement continued through the commencement of trial in May 2007. The supervisors provided reports and trial testimony. They, of course, were neutral and in the best position to observe the conduct of plaintiff and the children and the interaction between them. The information they provided convinced the court that plaintiff always acted appropriately, was not abusive either physically or emotionally, and provided no risk of harm to the children. Further, as the years went by, the relationship between the children and their father was improving significantly. A typical pattern that was exhibited was that the children seemed more distant and hostile when they first came into plaintiff's care. Then, things improved, until one of the children would call their mother on the telephone, after which they again became hostile and accusatory towards their father and anxious to get back to their mother. As a result, the court had ordered that the children could not call their mother while they were with their father.
A significant incident occurred in this regard on June 10, 2006. As described by the testimony of Amy Castellano, one of the parenting time supervisors who was present during the episode, plaintiff and the children were in a restaurant. When the parties' daughter was told she was not permitted to telephone her mother, the daughter left the table and cried to a waitress that she wanted to call her mother, to which the waitress responded she was not allowed to let the girl use the phone. When plaintiff and the children arrived back at plaintiff's house, the daughter grabbed the phone and dialed 9-1-1, but plaintiff "took the phone from her and hung it up." The daughter "was crying and yelled at [Castellano] stating, 'you saw that, you fucking bitch.'" Plaintiff "scolded" his daughter about her language. The 9-1-1 operator called back. Both plaintiff and his daughter reached for the phone. According to Castellano's report, "Dr. Goldman touched [his daughter's] shoulder to get by her, and she yelled that he hit her." Castellano demonstrated plaintiff's action in touching his daughter's shoulder, which the court described as "there possibly could've been some body contact in a brushing manner as he was in the process of going to the phone." Castellano did not see any bruises on the daughter's shoulder. While the police were on their way to the house, plaintiff told his daughter that "her behavior was terrible and that she would not be going to camp this summer." When the officer arrived, the daughter was crying and told the officer that plaintiff hit her, and she showed the officer her shoulder. The children told the officer that their parents were separated and that plaintiff would not let them call their mother. Plaintiff showed the officer the court order prohibiting the calls, and his son asked if the order was "fake."
The trial testimony included descriptions of many incidents like this one illustrating the significant strife among these family members and how the parties dealt with it. Throughout this lengthy process, there was never a suggestion by defendant or any of the parenting supervisors, parenting coordinators, experts, custody evaluators, DYFS, or anyone that the children would be at risk of harm if plaintiff had unsupervised parenting time with them. As a result, and in light of the information received from the parenting supervisors that the relationship between plaintiff and his children had significantly improved with the passage of time, the judge took under consideration on September 11, 2007 the prospect of allowing unsupervised parenting time for plaintiff. This was mid-trial. The judge believed that he had the inherent authority to grant pendente lite relief as appropriate throughout the course of the proceedings. He ordered unsupervised parenting time with plaintiff. Defendant sought a stay of that order, which was denied by the trial court, by this court, and by the Supreme Court. From that point forward, plaintiff had unsupervised parenting time, and there were never any reports of abuse or improprieties.
At the trial, both parties testified at length, describing many incidents throughout the course of their marriage, and even prior to their marriage. The judge later lamented that he probably allowed much too broad a scope of testimony, because most of the information bore little or no relevance to the issue before him, which was limited solely to custody and parenting time.
In addition to the parties, the judge heard, as a fact witness, the testimony of Dr. David M. Brodzinsky, who was appointed by the court on March 18, 2005. When asked, Brodzinsky affirmed that his position was to clinically assess and treat "[plaintiff] and the children with regard to the issues of reunification" and that he also performed ...