March 6, 2009
LUZ CACCIRE, PLAINTIFF-RESPONDENT,
HUGO CACCIRE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-883-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges R. B. Coleman and Simonelli.
Defendant Hugo Caccire appeals from the February 7, 2008 order denying his motion for a change of custody. Defendant contends that the trial judge committed reversible error by failing to consider defendant's evidence and by relying on arguments unsupported by the evidence. We affirm.
The following facts are summarized from the record. Defendant and plaintiff Luz Caccire were married on April 3, 1991. One child, B.C.,*fn1 was born of the marriage. A Judgment of Divorce, entered on May 10, 2001, awarded residential and physical custody of the child to plaintiff, and liberal visitation to defendant. Defendant was ordered to pay $150 per week for child support.
On June 20, 2007, defendant filed an order to show cause, seeking a change in custody because plaintiff was allegedly moving to Florida. He asserted no claim of child abuse. After a hearing, Judge Troiano denied a change in custody and prohibited plaintiff from removing B.C. from New Jersey.
On August 21, 2007, defendant filed a second motion for a change in custody, again alleging that plaintiff was moving to Florida. He asserted no claim of child abuse. However, prior to the resolution of that motion, on September 18, 2007, defendant brought B.C. to the police station where the child reported that plaintiff had allegedly hit him and locked him in his room. Except to pursue his motion to change custody, defendant did nothing further as a result of that incident. Plaintiff suffered no consequences.
On September 24, 2007, Judge Claude Coleman denied defendant's request for temporary custody. He scheduled a plenary hearing and ordered a best interest report, an in-camera interview with B.C. and a mental health evaluation of the parties to determine their fitness to parent.
A best interest investigation occurred. The report generated from that investigation indicates that plaintiff's home is "clean and safe for a child" and "[s]afe and suitable for custody and or visitation." Nothing in the report indicates plaintiff's unfitness to parent, jeopardy to B.C.'s safety and happiness, or jeopardy to his physical, mental and moral welfare. There is no recommendation that B.C.'s best interest requires a transfer of custody to defendant.
Robert Raymond, Ph.D. conducted the mental health evaluation. The doctor found both plaintiff and defendant fit to parent B.C. He noted that the parties were "both lovingly concerned about [B.C.'s] development and they each have his well being and best interests in mind as each asserts his (her) interest in being the primary residential parent." Because of the animosity between the parties, the doctor recommended family therapy, regardless of who obtained residential custody of B.C. He made no recommendation about a transfer of custody to defendant.
At the plenary hearing, in an effort to prove that plaintiff was abusing B.C., defendant presented B.C.'s treating psychologist, John Rotondi, Ph.D., as a fact witness, not an expert witness. Unbeknownst to plaintiff, Dr. Rotondi began treating B.C. in November 2004, due to the child's school-related problems, both academic and social. B.C. is classified as multiply disabled and receives special education services. He reported to the doctor that he felt ostracized by other students, that he disliked school and some teachers and that he liked teachers who he felt were more understanding of his condition. B.C. was also having problems adjusting to his parents' separation and divorce.
The doctor testified that during the course of treatment, B.C. also reported unfair discipline at home and of being "unfairly berated, laughed at" and slapped by plaintiff and her boyfriend. B.C. felt that his mother was too strict. He also feared relocation out-of-state; he was "adamant that he wanted to stay here in New Jersey and he wanted to live with his father[.]" Although plaintiff did not relocate to Florida, B.C. still expressed his desire to live with his father because "he's treated better by his father."
Dr. Rotondi admitted that he never spoke to plaintiff about B.C. or the abuse allegations. Neither Dr. Rotondi nor defendant confronted plaintiff about the alleged abuse, reported it to any third-party or took steps to stop it.
After making credibility determinations, Judge Coleman found that defendant had not substantiated his child abuse claim. The judge also found that defendant only raised this claim and sought custody when he discovered that plaintiff was relocating to Florida. The judge emphasized that defendant never confronted plaintiff about the alleged abuse or reported it to anyone. The judge also emphasized that B.C.'s abuse claims probably resulted from either "some coaching or some  imagination on the part of [B.C.]" or B.C.'s desire "to get attention[.]" The judge concluded that defendant did not prove that plaintiff is an unfit parent and that it is in B.C.'s best interest to transfer custody.
"Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998). "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. Moreover, "[t]he trial judge has the opportunity to observe the conduct and demeanor of witnesses and a better opportunity than the reviewing court." Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). Thus, "[i]n our review of an issue of custody, the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (citing Sheehan, supra, 51 N.J. Super. at 295). See also Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994); Palermo v. Palermo, 164 N.J. Super. 492, 498 (App. Div. 1978). With these standards in mind, we review defendant's contentions.
"'[A] judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.'" Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan, supra, 51 N.J. Super. at 287). A party seeking such modification bears the burden of proof. Ibid. (citing Sheehan, supra, 51 N.J. Super. at 287-88).
Resolution of a request to change custody requires the court to consider the custodial parent's fitness. Sheehan, supra, 51 N.J. Super. at 290. To determine fitness, "[t]he court will look to the 'character, condition, habits and other surroundings'" of the parent. Id. at 291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952); Richards v. Collins, 45 N.J. Eq. 283, 287 (E. & A. 1889)).
The court must also consider the child's welfare. Id. at 290. The child's welfare "has been construed as meaning the 'safety, happiness, physical, mental and moral welfare of the child.'" Id. at 291 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). It includes "many elements and concerns more than the physical well-being resulting from the furnishing of adequate food, clothing and shelter. It concerns, inter alia, the spiritual and social welfare of the child." Id. at 292. "The basic issue is a change in the circumstances which would affect the welfare of the child." Sheehan, supra, 51 N.J. Super. at 287.
Based upon our careful review of the record, we are satisfied that Judge Coleman committed no error. We are convinced that the judge properly considered all of the evidence and properly found a lack of credibility in defendant's and Dr. Rotondi's testimony about child abuse. We agree that defendant failed to sustain his burden of proof. He has not shown plaintiff's unfitness or jeopardy to B.C's welfare which would justify or warrant a transfer of custody.