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R.K.B. v. C.W.B.

February 8, 2010

R.K.B., PLAINTIFF-RESPONDENT,
v.
C.W.B., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Cumberland County, Docket No. FM-06-12-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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In an unpublished opinion in 2006, we affirmed that child custody determination.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, ...


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