February 8, 2010
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Cumberland County, Docket No. FM-06-12-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Lisa, Baxter and Alvarez.
Defendant C.W.B. appeals from an October 24, 2008 order that: 1) denied his request for a plenary hearing on custody of the parties' son; 2) found defendant in violation of litigant's rights and ordered him to pay plaintiff the sum of $5,000 due as reimbursement alimony; 3) restrained him from discussing court proceedings with his son; and 4) directed him to pay $1,750 to plaintiff as an attorney's fee. He also maintains that if this matter is remanded, it should be assigned to a different judge. Finally, although he did not present this claim before the trial judge, he now maintains that his child support obligation should be recalculated to consider his student loan debt and his upcoming marriage. We reject each of these contentions and affirm.
After a nine-day trial in July and August 2004, most of which was devoted to the issue of child custody, Judge Diane B. Cohen awarded residential custody of the parties' then five-year-old son, A.B., to plaintiff, and gave the parties joint legal custody.*fn1 In a comprehensive oral opinion covering eighty-nine transcript pages, the judge provided an exhaustive review of the record and made comprehensive findings concerning each of the sixteen statutory factors governing child custody decisions. See N.J.S.A. 9:2-4(c).
In an unpublished opinion in 2006, we affirmed that child custody determination. In October 2008, four years after Judge Cohen rendered her decision, defendant filed a motion seeking: a plenary hearing concerning the issue of custody; appointment of a joint expert to conduct a psychological evaluation of A.B.; a change in child custody to designate him as the parent of primary residence, or in the alternative, an increase in his parenting time; a prohibition on any contact by plaintiff's fiancé's step-son with A.B.; and an award of fees and costs.
We turn first to a review of Judge Cohen's findings of fact and conclusions of law because defendant's present claim of a change of circumstances must be evaluated against the evidence adduced in 2004. During the divorce trial, Judge Cohen placed great emphasis on A.B.'s significant emotional and behavioral problems. She concluded that the mother had demonstrated a capacity and willingness to set limits and discipline the child, thereby helping A.B. control his hyperactive, aggressive and defiant behavior. In contrast, the judge found that the father was either unwilling or unable to address A.B.'s oppositional behavior, and did little or nothing to assist his son in developing self-control and more suitable behavior. In reaching her decision, the judge credited the testimony of Dr. David A. Davenport, a psychologist who had interviewed both parents.
Davenport spent one and one-half hours at each parent's home observing parenting style, interaction with the child and the methods used by each parent to set proper limits on the child's behavior. Judge Cohen accepted Dr. Davenport's observation that the child "can be hard to handle sometimes," but the mother was able to establish "firm limits" on A.B.'s behavior and was able to "follow through" to assure that the child's behavior remained within the limits R.K.B. had set. The judge also observed that because the mother and child lived with the maternal grandmother, who was a retired school teacher, the mother had the benefit of her mother's extra help in addressing A.B.'s difficult behavior.
In contrast, again based on Dr. Davenport's observations and testimony, the judge concluded that C.W.B. set no limits on his son's behavior, and let his son do whatever he pleased. The judge commented that the father apparently recognized that it was his son who was in control of his own behavior because he referred to A.B. as "the general." Ultimately, Judge Cohen accepted Dr. Davenport's unrefuted testimony*fn2 that the lack of structure provided by the father "could only add to [the child's] aggressiveness and defiant behavior."
The judge also placed great weight on the mother's willingness to involve the father in important decisions in the child's life, in contrast to the father's opposite behavior. The judge criticized the father's "unilateral decision" to take the child to the Children's Seashore Home to be evaluated for attention deficit hyperactivity disorder (ADHD) without the mother's knowledge. In fact, the father did not provide the mother with a copy of the report until weeks after the ADHD diagnosis had been made and the report rendered.
As we have noted, we affirmed the award of primary residential custody to the mother, finding that the judge's conclusions were supported by substantial and credible evidence in the record. Id. at 21-22.
In his August 19, 2008 motion, the father asserted that in the four years that had elapsed since Judge Cohen awarded primary residential custody to the mother, there had been a substantial change in circumstances that necessitated a psychological evaluation of A.B. and a plenary hearing to determine whether the current custody arrangement was still in the child's best interests. The mother filed a cross-motion, in which she urged the court to deny the father's request for a plenary hearing, maintain the existing custodial arrangement, increase the child support, and require the father to satisfy the arrearages in alimony.
At the motion hearing, Judge Testa did not conduct a plenary hearing, but instead administered the oath to the parties and asked each of them a series of questions to determine whether the father's allegations of a change of custody warranted a hearing. The father's principal claim was that his son was having "a lot of problems" adjusting to "living with his mother," all of which the father claimed had been "documented" in a May 2, 2006 report from the Nemours Hospital for Children.*fn3 When the judge commented that the ADHD diagnosis discussed in the Nemours report was before Judge Cohen in 2004, and therefore did not constitute a change of circumstances, the father pointed to two additional diagnoses in the Nemours report, an anxiety disorder and encopresis (a bowel disorder), which were not present at the time of the custody trial in 2004. Judge Testa rejected the Nemours report as a change of circumstances, finding that the father had had the report for more than two years, and had done nothing with it, thereby belieing the father's claim that the mother was responsible for the problems documented in that report.
Next, the father insisted that his son has no friends, is socially isolated, and the mother had done nothing to address those problems. In response, the judge asked the parties about A.B.'s report card grades. The father acknowledged that the child is doing well in school, receiving A's and B's. The father also acknowledged that he had met with his son's teachers or guidance counselors only two or three times in the last two years. The judge rejected the father's description of his son as socially isolated, commenting that if the father "were participating more actively" with his son's school, he would be able to learn from the teachers, principal or guidance counselor whether the child was having serious problems, rather than relying unquestioningly on A.B.'s statements that he was an outcast and hated school.
That exchange prompted the father to inform the judge that A.B. had made comments to both him and to R.K.B. that he wanted to "take over the school." According to the father, his son told him he wanted to "blow up his school" and showed him a small "bomb" that consisted of a cardboard tissue box with some tissues in it. Although the father did not inform the mother of that statement, the son had made a similar comment to his mother that he wanted "to take over the school." Unlike the father, she interpreted the remark as simply an observation by her son that he would be a fifth grader the next year and therefore one of the school's oldest students.
The judge concluded that defendant's failure to inform plaintiff of the above comment indicated his ongoing failure to communicate with the child's mother concerning their son. The judge informed the father that, by failing to communicate with the mother, where both parents have joint custody, "put[s] the
[c]court in a position that the [c]court can today and/or in the future terminate joint custody" and award sole legal custody to the mother. The judge commented that he found it "quite disturbing that a young man makes comments like this and one of you interprets it meaning he wants to blow up the school. And the other one [thinks it] means that he's just an achiever and wants to be in the fifth grade and own the school. . . . It could be something anywhere in between." The court resolved the issue by including in the order a provision, from which the father does not appeal, directing that a copy of the court's order be given to the school principal and family pediatrician and that the child be referred to the school psychologist.
Judge Testa then rejected each of the following factors the father pointed to as a change of circumstances warranting a plenary hearing: the child has poor hygiene; the child does not get along with his mother's fiancé; the child says he prefers to live with his father; the maternal grandmother has died and is no longer available to assist the mother in raising A.B; and the mother's fiancé's son, who has Asperger's Syndrome, had pulled down A.B.'s pants in a possible effort to molest him.
Although Judge Testa did not, as we have noted, conduct a plenary hearing, he reviewed each of these claims and provided persuasive reasons for rejecting them. He concluded the claim of poor hygiene was exaggerated, the alleged problems with plaintiff's fiancé were not unusual after a divorce and were not of sufficient magnitude to warrant a hearing; the preference of a nine-year old child to live with his father was not surprising in light of the lack of discipline in the father's home that essentially gave the son free reign; the problems presented by the child with Asperger's Syndrome did not warrant a plenary hearing and could be addressed by an order barring contact between the two children; and the death of the maternal grandmother was not a change of circumstances because she was never the primary caregiver and the child's best interests were served by living with his mother, regardless of whether or not the maternal grandmother was available to render assistance.
For those reasons, Judge Testa concluded that the father had not made a sufficient showing of changed circumstances to warrant a plenary hearing. The judge did, however, grant the father's request to restrain the mother from allowing A.B. to have contact with her fiancé's son.
Turning to R.K.B.'s cross-motion to enforce litigant's rights, the judge questioned C.W.B. about R.K.B.'s allegation that he had failed to pay the $5,000 of reimbursement alimony required by the JOD. When C.W.B. asserted that the Probation Department had likely confused the payment of limited duration alimony and reimbursement alimony, and had therefore improperly determined that the $5,000 in reimbursement alimony had not been paid, the judge suggested that C.W.B. arrange a meeting with Probation to review their records and resolve any discrepancies. The judge ordered C.W.B. to pay $5,000 to R.K.B. at the end of ninety days unless C.W.B. was able to demonstrate that the Probation Department's records were in error. Upon hearing that order, C.W.B. responded, "that's fair. That's fair. And I'll find the checks and I'll prove it."
The judge also granted R.K.B's request to recalculate child support, and increased the support to $194 per week. The judge also ordered the parties to refrain from discussing custody or other legal matters with their son, and, as we have noted, ordered that the school principal and A.B.'s pediatrician be given copies of the order to make them aware of the statements A.B. had made about wanting to "take over the school." Finally, Judge Testa awarded $1,750 in counsel fees to R.K.B.
On appeal, the father claims: 1) the denial of his request for a plenary hearing to determine custody of the parties' minor child was error because the significant factual disputes should not have been resolved without sworn testimony, and the judge failed to make sufficient findings of fact and conclusions of law; 2) the court's finding that he had not paid the $5,000 reimbursement alimony was not supported by sufficient credible evidence in the record; 3) the restraint imposed on the father's communication with his son must be reversed as the restraint is an abuse of discretion, conflicts with controlling legal principles and is wholly unsupported by competent evidence; and 4) the award of attorney's fees to the mother was an abuse of discretion as the judge did not address the factors set forth in Rule 5:3-5(c). He also contends that on remand the matter should be heard by a different judge "due to the legitimate concern that the court will be committed to its initial findings." Last, he raises a claim, not presented to the trial judge, that his child support obligation should be recalculated in light of his remaining student loan debt and upcoming marriage.
A party seeking to modify custody must demonstrate changed circumstances that affect the best interests of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). A plenary hearing is required, under Rule 5:8-6, only when the affidavits and certifications of the parties show the existence of a genuine and substantial factual dispute regarding the welfare of the child, and the trial court determines that a plenary hearing is necessary to its resolution. Ibid. (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)); see Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary," and noting that "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application").
In our review of a trial judge's denial of a motion for a plenary hearing, the factual findings made by the trial court are binding upon us "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Consequently, we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine that the court has palpably abused its discretion. Id. at 412 (internal citations omitted).
The father asserts the record contains numerous factual disputes, which, each separate and apart from the others, justify a plenary hearing to determine whether they constitute changed circumstances affecting the child's best interests. First, he cites the child's apparent preference to live with him rather than with his mother. Although we have recognized a child's preferences as one consideration in the overall custody determination, they are not dispositive. Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). The father's reliance upon Mackowski v. Mackowski, 317 N.J. Super. 8 (App. Div. 1998) is misplaced. There, we found grounds for reversal in the trial judge's failure to interview the sixteen-year-old daughter to determine her preference. Id. at 11-12. However, there is a considerable difference between a sixteen-year-old and a nine-year-old, especially where the child in question may not be sufficiently mature to make a reasonable decision about custody. That is especially so here in light of the emotional and behavioral problems from which A.B. presently suffers.
Furthermore, in Mackowski, unlike the present matter, the judge refused to conduct oral argument and denied the father's motion for a custody change without making any findings of fact or conclusions of law. Id. at 10. In contrast, Judge Testa afforded the father ample opportunity to be heard at oral argument. Thus, Mackowski is distinguishable.
We likewise reject the father's contention that Judge Testa improperly disregarded the four-year passage of time as a change of circumstances. He points out that his son was only five at the time of the divorce trial and had matured to the age of nine by the time the present motion was filed. This argument warrants little discussion. Suffice it to say, no reported decision has ever concluded that the mere passage of time, standing alone, warrants a plenary hearing. Were that the case, courts would be required to spend time fruitlessly taking testimony merely to conclude that the only thing that had changed was the child's age. We thus reject the father's claim that the difference in his child's age warrants a hearing.
Also without merit is the father's claim that the alleged animosity between A.B. and his mother's fiancé was a change of circumstances that required a hearing. At the motion hearing, the mother denied any such animosity existed between her son and her fiancé, and questioned how the father could make such a claim without having any way to know if it was true. Addressing the father, Judge Testa remarked that "in reality, you really don't know what happens on that side of the aisle." Knowing that the father's argument on that issue was based entirely upon what he was told by his son, the judge observed that the child "could be playing one parent against the other."
In Lepis, supra, 83 N.J. at 159, the Court held that "[i]n determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties," but should consider "[o]nly [those] statements to which a party could testify . . . ." Thus, in light of Lepis, Judge Testa did not err in rejecting the father's claim about the claimed animosity between A.B. and his mother's fiancé because it is a conclusory allegation that C.W.B. cannot support with competent, credible evidence.
As to the father's claim that the death of the maternal grandmother was a change of circumstances, we agree with the judge's observation that Judge Cohen found the mother to be the more suitable custodian "with or without" her own mother's assistance. That being so, the father's claims are unpersuasive and Judge Testa properly rejected them.
As to the Nemours report, which formally diagnosed A.B. with ADHD, encopresis and anxiety disorder, we agree with Judge Testa's conclusion that the principal diagnosis contained in the report -- ADHD -- was known at the time of the custody trial. More importantly, the May 2, 2006 Nemours report did not even remotely suggest a causal relationship between the child's problems and the custody arrangement in place, nor did it provide any evidence that those problems had developed or significantly increased in the two years that the mother had been the primary residential parent. Thus, the father's claim that his child's problems were attributable to the mother's parenting deficits is nothing more than an unsupported and conclusory allegation that Judge Testa was entitled to reject.
As to the child's comment that he wanted to "take over the school," we are in agreement with Judge Testa's determination that this comment warranted a report to school officials and the involvement of a school psychologist. However, we are certainly not prepared to lay blame upon the mother, especially in the absence of any expert opinion so stating. While we recognize that this development could, with further proof, warrant a plenary hearing, the showing made to date does not require such a result.
Last, the father maintains that the judge did not make any findings of fact, in violation of Rule 1:7-4. While not precisely phrased as such, it is evident from the judge's remarks that he made specific findings on each assertion made by the father. We perceive no violation of Rule 1:7-4.
We thus conclude that neither singly, nor in the aggregate, did the father present sufficient facts to justify a plenary hearing on the issue of child custody. We thus reject the claim the father advances in Point I.
We turn to Point II, in which the father argues that the judge erred by granting the mother's motion for enforcement of litigant's rights and ordering him to pay the sum of $5,000 in reimbursement alimony within ninety days. The only issue before Judge Testa regarding reimbursement alimony was whether the father should be held in violation of litigant's rights and ordered to pay the entire sum. The judge was entitled to rely upon the calculations and report of the Probation Department, which reached the conclusion that the entire sum remained unpaid. See Rule 5:7-4(b). Rather than order the father to pay the arrearages immediately, the judge offered him the opportunity to meet with the Probation Department and arrange for an audit. The father did not avail himself of that opportunity, nor has he presented on appeal any evidence, much less persuasive evidence, that he fulfilled his reimbursement alimony obligation. We review a judge's determination regarding child support or alimony arrearages for an abuse of discretion. Dunne v. Dunne, 209 N.J. Super. 559, 571 (App. Div. 1986). Nothing the father has presented warrants the conclusion that the judge abused his discretion in ordering the payment of $5,000 in reimbursement alimony within ninety days. We thus reject the claim advanced in Point II.
The father's remaining contentions, that the judge abused his discretion by prohibiting the parties from involving their son in the litigation and by ordering the father to pay $1,750 in attorney's fees, lack sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E). Suffice it to say, no child, and especially this particular child, derives any benefit from hearing the details of his or her parents' ongoing matrimonial conflict. On the issue of counsel fees, we are satisfied from our review of the record that as the mother was the prevailing party, the father's application for a change of custody was unpersuasive, and his income is considerably more than his ex-wife's, a counsel fee award, especially in the relatively modest sum of $1,750, does not represent a mistaken exercise of the judge's discretion.
In light of our disposition, we need not consider the claim the father advances in Point V, namely that this matter should be heard by a different judge upon remand.
As to Point VI, that his child support should be recalculated to consider his remaining student loan debt and impending marriage, despite ample opportunity to present this issue to the Family Part, the father chose not to do so. Thus, there is no record on this issue against which we can evaluate the father's claims. It was for this very reason that we held, nearly forty years ago, that we will decline to consider issues not properly raised in the trial court when an opportunity to present them was available, unless the question on appeal goes to the jurisdiction of the trial court or concerns a matter of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Those exceptions not being present here, we decline to consider defendant's claim that his child support should be recalculated in light of these two factors.