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Puglisi v. Puglisi


April 16, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0954-06.

Per curiam.


Submitted March 11, 2009

Before Judges Axelrad and Lihotz.

Following a four-day bench trial in the Family Part, Judge Kapalko rendered a comprehensive written opinion determining all issues raised in the complaint for divorce filed by plaintiff, Carmelo F. Puglisi and the counterclaim for divorce filed by defendant, Soraya A. Puglisi. A Dual Final Judgment of Divorce was entered incorporating the court's determinations on the issues of alimony, child support, equitable distribution of marital assets and debts, and the award of counsel fees and costs. Defendant only appeals from the determination, which awarded joint legal custody of the parties' two children, now ages eight and six, and designating plaintiff as the parent of primary residence with defendant as the parent of alternate residence.*fn1 A specific schedule was set for defendant's parenting time with the two children.

On appeal, defendant argues the trial judge abused his discretion by (1) failing to give proper weight to plaintiff's long work days, which required the children to spend time with a babysitter rather than with her; (2) allowing the admission of hearsay testimony of the children's statements regarding defendant; and (3) improperly drawing a negative inference against defendant fulfilling her responsibilities as the children's principal caretaker because English is not her primary language.

Following our review of the trial record, the arguments raised on appeal by the parties, and the applicable law, we affirm the judgment determining the children's custody. Judge Kapalko's meticulous factual findings include determinations of credibility not only of the parties but also of the other fact and expert witnesses, to which we accord deference in light of the judge's "'feel of the case' based upon his . . . opportunity to see and hear the witnesses." Division of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13, (1998)), certif. denied, 190 N.J. 257 (2007).

Our review discloses the court properly considered and weighed all evidence presented, including the demands of plaintiff's employment. Judge Kapalko weighed the factual findings as they related to each of the applicable statutory factors designated in N.J.S.A. 9:4-2c. Additionally, defendant was afforded, but neglected to avail herself of, the opportunity to submit additional legal arguments and to address the asserted improper admission of hearsay statements. The statements defendant now cites as improperly admitted hearsay were not pivotal or even relied upon by the court in reaching its conclusions. Finally, the court's considerations for awarding residential custody to plaintiff centered heavily on "the defendant's emotional immaturity and the difficulty she has demonstrated in handling adverse situations and, in particular maintaining a proper parent-child relationship[,]" and were not based on the challenges faced by her flawed English. We reject any suggestion of bias in the factual analysis and legal conclusions made by the court. Thus, defendant's suggestion of a misapplication of discretion is neither supported by the evidence presented nor sustainable as a matter of law.

Accordingly, we affirm substantially for the reasons expressed in Judge Kapalko's well-reasoned, comprehensive opinion filed on January 4, 2008. R. 2:11-3(e)(1)(A).


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