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Herega v. Figueroa


February 10, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, No. FM-12-1451-05E.

Per curiam.


Submitted: November 5, 2009

Before Judges C.L. Miniman and Waugh.

Defendant Neyda L. Figueroa appeals from a November 13, 2008, order denying her application seeking physical custody of the parties' children, appointment of a psychologist to perform a best-interest evaluation, and counsel fees. We reverse.


Defendant and plaintiff Mark A. Herega, Sr., were married on December 5, 1996, and had two children, M.H. born in 1997 and E.H. born in 2000. They were divorced on May 12, 2005. The judgment of divorce (JOD) incorporated the previously negotiated property settlement agreement (PSA) dated November 1, 2004. The parties agreed in the PSA to share joint custody of the children, with the children residing with plaintiff at the marital residence. The parties further agreed to equal parenting time and a live-in nanny to assist in caring for the children.

On March 26, 2007, defendant filed a post-judgment motion seeking physical custody of both children. Plaintiff cross-moved on May 4, 2007, to retain primary residential custody of the children and other relief. The Family Part judge denied both motions on May 29, 2007. On June 18, 2007, defendant sought reconsideration of this order and plaintiff cross-moved to enforce the PSA and the May 29, 2007, order. The judge denied both motions on August 17, 2007. On October 1, 2007, defendant filed an appeal challenging the denial of her reconsideration motion. We remanded for a plenary hearing on the continuing need for a nanny at plaintiff's residence and plain-tiff's relationship with the nanny. Herega v. Figueroa, No. A-0538-07T1 (App. Div. Nov. 7, 2008) (slip op. at 20).

During the pendency of that appeal, two motions were filed. First, on December 7, 2007, plaintiff sought sole custody of the children, but the Family Part judge denied his motion. Second, on August 28, 2008, defendant filed a new motion seeking physical custody of the children and appointment of a psychologist to perform a best-interests evaluation. On September 25, 2008, plaintiff cross-moved to hold defendant in contempt of court for failing to pay certain expenses and for a plenary hearing to establish a parenting-time schedule.

In support of her application, defendant certified that plaintiff advised her that he would have the children for his vacation time from July 5 through July 11, 2008, but he unilaterally decided to keep them until Sunday, July 13, 2008. She claimed that plaintiff likes to keep her in the dark on issues surrounding their children, but the emails she attached to prove this claim do not support it, although they do demonstrate a high level of acrimony on defendant's part.

Defendant also certified the children were hostile to each other and E.H. had unexplained bruises on his legs. They told her that they are always watching television and their father spent minimal time with them, and then only watching television. She related that plaintiff told her he had been taking the children to the shore frequently because they enjoyed it, but she accused him of using the children as additional workers for repairs on the homes he owns at the shore, although she had no evidential support for this claim.

She expressed concern about M.H.'s schooling, claiming he had gone to school from plaintiff's home thirteen times without his homework, but attached a copy of only one note from the school dated March 4, 2008, and an email she sent plaintiff about the missed homework. She claimed plaintiff thereafter removed notices from their folders, attaching an email she sent on July 3, 2008, about missing report cards and the failure to provide her with the summer camp schedule. She claimed, without any evidential support, that plaintiff told the children's school he had custody of the children and the school then stopped forwarding notices to her directly.

Defendant related a conversation she had with M.H.'s teacher and attached several assignments on which M.H. received low or failing grades. She asserted plaintiff never discussed M.H.'s poor grades with her, although he must have been aware of them since he received M.H.'s folder two-thirds of the time. She claimed that the teacher told her M.H. was late four times and absent seven times, but she did not attach his attendance record, which would have permitted the judge to ascertain when this occurred.

Defendant next certified that the school sent home a notice that E.H. did not have all required immunizations and satisfactory evidence of same was required by December 21, 2007, or E.H. would not be permitted to attend school commencing January 2, 2008. Defendant learned of this in January and confronted plaintiff about it. E.H. in fact did not receive the missing immunizations until January 15, 2008, based on a slip from a doctor.

Defendant certified that plaintiff had been verbally and physically abusive toward their sons, alleging various acts without establishing that she was a witness to them or learned of them from the children. She certified that plaintiff told her he would not select a pediatrician, preferring to take the children to a clinic with which he was comfortable. In this connection, she certified that M.H. is not that tall; plaintiff tells him he has a problem with his height; and plaintiff took him to an endocrinologist for evaluation, but the doctor was not able to determine whether there was an abnormality in M.H.'s growth pattern because plaintiff never took him to a pediatrician who would have charted his growth.

Defendant next certified that plaintiff would not allow the children to participate in any activities, such as baseball, theater, tennis, scouting and karate, and makes no play dates for them. She attached an October 7, 2007, email in which she reminded plaintiff of baseball registration and scouting. She also claimed, without any evidential support, that plaintiff makes reports to the Division of Youth and Family Services that defendant's other son from a previous relationship hits M.H. and E.H. when they are in defendant's care. She also claimed, without any specification, that their children miss special events like fairs and carnivals at school because plaintiff does not give her the notices of same, claiming her children cry to her often about missing all these events.

Defendant also sought an order memorializing the parenting schedule the parties had been following, which differed from the schedule established in the JOD, although she still felt a change of custody was necessary. Next, defendant complained that E.H. needed additional speech therapy, which the school had recommended in July 2007. Because plaintiff did not make any arrangements for same, defendant took E.H. to the John F. Kennedy Pediatric Rehabilitation Center (Center) on July 24, 2007. She did not attach a full copy of the evaluation to her certifications and the recommendations were not duplicated. Defendant sent plaintiff an email advising him that the Center had an opening at 2:00 p.m. on Tuesdays, which she told the Center was not good but she would check, and asked plaintiff for his input. On May 2, 2008, plaintiff asked her to forward information about the Center and any contact information. This request triggered an email diatribe from defendant.

Defendant also contended that there were no rules at plain-tiff's house, and that he does not purchase sneakers for M.H., attaching photographs of the sneakers on his feet to prove it and acrimonious emails from defendant to plaintiff respecting same. Defendant also asserted that she was always forced to provide necessities for both children. She further contended that the children have very poor hygiene while in their father's care, are not required to brush their teeth, and have "plague [sic] and swollen and gums," also attaching photographs of their teeth to prove this claim. Defendant also attached M.H.'s dental records, which showed dental visits in February and August 2007 and February 2008, and multiple acrimonious emails from defendant to plaintiff about the children's teeth. Defendant further asserted that the children were given Pop-tarts for dinner.

Defendant last contended that E.H. "can barely read. He is in special ed at this point." She related that she took him to Huntington Learning Center (Huntington) for an evaluation on August 18, 2008. Huntington found that E.H. was "severely behind in all academic areas for his age and grade level." She complained that plaintiff did not think it was important enough to consider enrolling him in Huntington. She also asserted that M.H. hurt his hand and she alerted plaintiff to take him to a doctor.

In conclusion, defendant explained that she wanted to be the residential custodian and to have a psychologist appointed to perform a best-interests evaluation. She proposed dividing the expense in proportion to their respective incomes.

In plaintiff's cross-motion, he sought eight forms of relief in addition to denial of defendant's motion. Because he has not filed a cross-appeal, it is not necessary to review the contents of his certification in detail. Suffice it to say that he refuted defendant's certification virtually point for point. Defendant reiterated and expanded upon her claims in her reply certification, much of which is argument respecting the parties' opposing claims.


On November 13, 2008, during oral argument, the judge expressed that events prior to the May 29, 2007, order were not probative of a change in circumstances thereafter because he had already denied relief based on those events and no appeal was taken from that order. The judge had apparently issued a tentative decision*fn1 and it was clear from comments made by counsel for plaintiff that the judge intended to allow a period of time for discovery respecting the issues on remand. The judge suggested a sixty-day period for discovery on the remand issues and then stated on the record:

I don't have my calendar for January. You know, they give us a calendar every three months telling us what we have to do. So I would like to try to get this resolved as quickly as possible. So the 60 days I believe ends January 12. We'll try to schedule something mid to late January if that works for everybody. If . . . it doesn't work with your calendar, we'll always move the date around to accommodate you. But hopefully we can just have this resolved in the month of January, okay?

Thus, the judge did not modify his tentative decision except possibly with respect to the period of time for discovery.

The judge entered an order denying defendant's request for custody of the children, because the [d]efendant has failed to establish a prima facie case that the children are suffering from a genuine and substantial harm from remaining in the [p]laintiff's custody, see generally Hand v. Hand, 391 N.J. Super. 102 (App. Div. 2007). Additionally, the [d]efendant fails to provide sufficient proof that there has been a change in circumstances since the parties' divorce that would warrant a change in custody, in accordance with Borys v. Borys, 76 N.J. 103, 115- 16 (1978) and Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). The parties shall continue to share joint legal and residential custody.

The order further compelled the parties to select a parenting coordinator to determine a parenting-time schedule; required plaintiff to provide defendant with all health-related information; required both parties to accommodate the children's desires to participate in extracurricular activities; required the parties to schedule a meeting with E.H.'s child study team to determine whether future speech therapy or tutoring was needed; provided sixty days for discovery prior to the plenary hearing on the remand issues; and otherwise denied all other relief sought. On December 26, 2008, defendant filed a Notice of Appeal, challenging the order entered on November 13, 2008.


Defendant contends on appeal that the judge erred in failing to modify custody and in failing to order a best-interests evaluation. She also contends that the judge erred in denying discovery and failing to hold a plenary hearing on the issue of neglect by plaintiff. Finally, defendant asserts that the judge demonstrated bias against her and her counsel.

The scope of our review is often limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings and legal conclusions of the trial court unless we are 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.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981) (citations omitted). We accord deference to a Family Part judge's fact-findings based on the judge's "special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413. Indeed, we give "great weight" to trial court observations in custody proceedings. Palermo v. Palermo, 164 N.J. Super. 492, 498-499 (App. Div. 1978) (citing Sheehan, supra, 51 N.J. Super. at 295).

However, our review here is plenary because the judge concluded that defendant had not made out a prima facie claim of changed circumstances. That is a question of law, Polhemus v. Prudential Realty Corp., 74 N.J.L. 570, 580 (E. & A. 1907); State v. Barts, 132 N.J.L. 74, 79 (Sup. Ct. 1944), aff'd, 132 N.J.L. 420 (E. & A. 1945); Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003) ("The existence of a prima facie case . . . is a question of law that must be decided by the Court."); and "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Before addressing defendant's claims on appeal, we note that defendant has failed to limit the contents of her brief to the record on appeal. It is well settled that we "will not ordinarily consider evidentiary material which is not in the record below by way of adduced proof, judicially noticeable facts, stipulation, admission or a recorded proffer of excluded evidence." Pressler, Current N.J. Court Rules, comment 1 on R. 2:5-4 (2010) (citations omitted). Clearly, "adduced proof" includes certifications of the parties filed with the trial court below, and the record on appeal includes such certifications. See State v. Giordano, 283 N.J. Super. 323, 330 (App. Div. 1995) (citing R. 2:5-4) (stating that we generally do not consider certifications and exhibits not presented to the trial court). As a consequence, we will not consider the material in the footnote following this paragraph.*fn2


Turning to the merits, defendant argues that the judge erred in failing to modify custody of the minor children because there is "no substantial credible evidence to support the decision of the lower court." Defendant states that the trial judge failed to make any findings regarding defendant's allegation that plaintiff neglects and hurts the children such that he negatively affects their welfare. In her reply brief, defendant points to certain evidence to support her argument, contending that plaintiff does not adequately attend to their hygiene, school work, social and physical development, and mental and emotional well-being.

Plaintiff argues that the trial court did not err because defendant has failed to make a prima facie showing that a modification of the current custody arrangement is proper. Plaintiff contends that defendant's various allegations, as contained within her certifications, are unsupported by any evidence. On the contrary, plaintiff argues that it is he who has provided sufficient evidence to establish the increased well-being of the children since he became the residential parent. In conclusion, plaintiff reverts back to his claim that defendant is unable to meet her burden of proof, and as such, the trial court did not err in rejecting the request for a change in custody.

A judgment involving custody of minor children may be modified at any time upon the ground of changed circumstances, and the party seeking modification bears the burden of proof. Sheehan, supra, 51 N.J. Super. at 287 (citations omitted). "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of children." Hand, supra, 391 N.J. Super. at 105 (citations omitted). The primary consideration is the happiness and welfare of the child, which means the "'safety, happiness, physical, mental and moral welfare of the child.'" Sheehan, supra, 51 N.J. Super. at 291 (citations omitted). Custody issues between parents are to be determined based on the best interests of the children, with weight given to the thirteen enumerated factors in N.J.S.A. 9:2-4. V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000).

"A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand, supra, 391 N.J. Super. at 105 (citations omitted). See also R. 5:8-6 (requiring the court to hold a hearing if it "finds that the custody of children is a genuine and substantial issue"). Where the need for a plenary hearing is not obvious, the movant must make a prima facie showing that a plenary hearing is necessary. Hand, supra, 391 N.J. Super. at 106. The failure of the movant to establish a prima facie case that circumstances subsequent to a divorce judgment have adversely affected the welfare of the children precludes requiring a plenary hearing. Id. at 111-12. See also Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999) (emphasizing that a plenary hearing is only necessary where "a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children").

Defendant has presented evidence that raises genuine issues of material fact. Although the records show that M.H. has periodically visited the dentist, the records also show that M.H.'s dental hygiene deteriorated between visits to the point where plaque levels increased and bleeding occurred. This is indicative of inadequate dental hygiene. There are also indications that E.H. has visited the dentist; however, the dentist recommended more frequent cleanings due to plaque accumulation, another indication of poor dental hygiene. Plaintiff also does not take the children to a pediatrician, instead taking them to a clinic or family practice. This has apparently interfered with timely identification of a possible growth problem with M.H. and caused delays in obtaining immunizations for E.H.

In this respect, the judge made reference to the allegations not being new, but did not establish this by making findings of fact, comparing prior allegations to those made in support of this application. The record on appeal is bereft of such evidence. A judge has a duty to make findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right." R. 1:7-4(a). "Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quotations omitted). Because this was not done, we must treat all of the allegations made by defendant as new. Indeed, the dates of each event are all after defendant's earlier motion for a change of custody.

The parties have also presented conflicting accounts and evidence about whether the children are involved in extracurricular activities, and if so, to what extent. Finally, it appears from the record that E.H. has educational deficits that have stunted his progression in school and that he has been diagnosed with a speech disorder. Plaintiff certifies, without evidential support, that E.H. is receiving extra speech help at school. The parties have presented conflicting certifications and evidence regarding the status of the children's physical and mental welfare since entry of the previous order denying a change in custody. A genuine issue of material fact exists and a plenary hearing is warranted. Hand, supra, 391 N.J. Super. at 105.


Defendant next argues that the judge erred in failing to appoint an expert to evaluate the best interests of the children regarding custody. Defendant contends that the evidence the parties presented in this case was sufficiently divergent to warrant the appointment of a psychologist as a best-interests evaluator.

Plaintiff responds that the trial court acted within its discretion in denying defendant's request to appoint an expert to conduct a best-interests evaluation. Plaintiff contends that the evidence defendant presented was insufficient to warrant appointment of an expert to conduct such an evaluation.

A court in its discretion may appoint a psychologist to conduct an evaluation of a child's best interests in a custody dispute whenever the court concludes that disposition of an issue will be assisted by an expert's opinion. R. 5:3-3(a), (b). Before an expert can be appointed to render an opinion on an issue, there must be "some demonstration of good cause therefor." Pressler, Current N.J. Court Rules, comment 1 on R. 5:3-3 (2010) (citing Ames v. Ames, 89 N.J. Super. 267, 274-75 (Juv. & Dom. Rel. Ct. 1965)). Of course, parents in custody disputes are not precluded from hiring their own experts, regardless of whether the court appoints one. R. 5:3-3(h); Kinsella v. Kinsella, 150 N.J. 276, 320 (1997). Rule 5:3-3(a) clearly indicates that the decision of the trial court on whether to appoint an expert is within the court's discretion; as such, the decision of the trial court is reviewed for an abuse of that discretion. Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974) (stating the proposition of law that reversal of discretionary decisions only follows in cases of a clear abuse of that discretion). An abuse of discretion occurs where "'the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).

The judge denied defendant's request for a best-interests evaluation by way of a general denial and without any articulation as to the reasons for the denial. A trial court's findings of fact and conclusions of law are of critical importance to ensure informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986) (citations omitted). Without the benefit of such findings and conclusions, we are left to speculate about the reasons for a trial court's decision. Id. at 304. The judge here denied defendant's request for appointment of a psychologist without any explanation. The judge, thus, abused his discretion in denying the request for a best-interests evaluation. Scurry, supra, 193 N.J. at 504. We therefore remand this matter for the judge to reconsider appointment of a best-interests evaluator. In doing so we point out that the level of acrimony evident in defendant's emails itself may adversely affect the best interests of the children and should be considered with all of the other evidence respecting the best interests of the children.


In her last point on appeal, defendant argues that the judge demonstrated bias against her and her counsel. Defendant contends that the trial judge "repeatedly cut off the defendant's counsel without hesitation or regard to the facts that were being presented." Defendant juxtaposes this against her assertion that the trial court allowed plaintiff's counsel to speak without interruption. Defendant also attacks the manner in which the trial court scheduled and conducted oral argument. Defendant contends that the trial court was "unwilling" to schedule the argument at an opportune time for all parties. Defendant also asserts that she was not allowed to participate in or listen to the hearing after her initial telephone connection was inadvertently severed. Defendant contends that as a result of these events, "the question of violated civil right (sic) and prejudice arises with magnified concern."

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that this issue is without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E). We add only that judges are vested with wide discretion to oversee hearings in order to control and regulate the discussions and timeliness of trial counsel. State v. Tilghman, 385 N.J. Super. 45, 53-54 (App. Div.), certif. granted in part and remanded, 188 N.J. 269 (2006). "The need to control the conduct of the proceedings must be carefully balanced against 'the necessity of judicial self-restraint and the maintenance of an atmosphere of impartiality.'" Id. at 54 (citations omitted). Additionally, "the court must exercise a right to control the discussions of counsel and keep them within a legitimate comment upon the facts of the case, and prevent indecorous and irrelevant discursions. . . . [T]he right to regulate the time which counsel shall occupy must be the subject of judicial discretion." Sullivan v. State, 46 N.J.L. 446, 447-448 (Sup. Ct. 1884), aff'd, 47 N.J.L. 151 (E. & A. 1885). Our review of the November 13, 2008, transcript reveals no evidence of bias on the part of the judge but only the ordinary conduct of proceedings before the court.

Reversed and remanded for further proceedings consistent with this opinion.

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