April 15, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FD-10-110-07 and Middlesex County, Docket No. FV-10-282-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 17, 2010
Before Judges Payne and Waugh.
Defendant J.R., appeals the November 14, 2008, order of the Family Part denying his application for joint custody of the parties' minor child, a change in parenting time, a reduction in child support, and related relief, as well as the January 16, 2009, order denying his motion for reconsideration. We affirm the orders, but remand for further proceedings consistent with this opinion.
We discern the following factual and procedural background from the record. J.R. and plaintiff J.M. have a daughter who was born in January 2007. They had a dating relationship but never married.
On January 31, 2007, J.M. filed a non-dissolution complaint (FD-10-110-07) seeking custody, the establishment of a parenting-time schedule, and support. An order for support was entered on the recommendation of a child support hearing officer on March 9, 2007. The custody and parenting-time issues were referred to mediation, which was unsuccessful.
On April 20, 2007, the first Family Part judge assigned to the matter entered an order establishing a parenting-time schedule for J.R. The judge's reasons are not reflected in the record. Initially, J.R. was to have parenting time on alternate weekends, but without overnights. His parenting time was to be expanded to include three weekdays a week, as of May 18, 2007. The order does not contain a provision with respect to custody, although it is implicit in the order that the child will reside with J.M.
On May 18, 2007, J.M. filed a complaint (FV-10-282-07) seeking a restraining order pursuant to the Prevention of Domestic Violence Act (act), N.J.S.A. 2C:25-17 to -35. A different Family Part judge issued a temporary restraining order (TRO) on the same day. Among other relief, the TRO granted J.M. temporary custody of the parties' daughter and suspended J.R.'s parenting time. The same judge entered an amended TRO on May 24, 2007, giving J.R. supervised parenting time on three dates prior to the adjourned date for the final hearing.
The first Family Part judge entered a second amended TRO on June 1, 2007, providing for additional supervised parenting time pending completion of the domestic violence trial. He entered a final restraining order (FRO) on June 19, 2007, having found that J.R. had engaged in domestic violence. The FRO continued temporary custody with J.M. and established a parenting-time hearing for July 2007. On July 10, 2007, the judge entered an order awarding counsel fees to J.M.
It appears that the parenting-time hearing scheduled for July 2007 did not take place. On August 24, 2007, a third Family Part judge heard J.M.'s application for an increase in child support to include childcare costs and the payment of arrears. J.R. was ordered to pay sixty-five percent of childcare costs, and an arrears-payment schedule was established.
On October 18, 2007, a fourth Family Part judge held a case management conference in the domestic violence action. She entered an amended FRO that continued temporary custody with J.M. and set forth a parenting-time schedule similar to the one that existed prior to the commencement of the domestic violence action, except for the inclusion of an overnight on J.R.'s parenting-time weekend.
On October 26, 2007, an enforcement hearing was held by the third Family Part judge, who ordered that the childcare costs be paid through probation and revised the arrears-payment schedule. He also entered a judgment against J.R. for the counsel fee award.
At another case management conference in the domestic violence action on November 15, 2007, the fourth Family Part judge entered a second amended FRO to permit the parties to communicate by email or text message and to provide for holiday parenting time.
In January 2008, J.R. filed a motion in the non-dissolution action, seeking joint legal custody, an increase in parenting time, a decrease in his support obligation, and related relief. J.M. filed a cross-motion, seeking a change in the pick-up and drop-off times and locations. The motion was decided by the third Family Part judge, who granted J.R. (1) access to his daughter's medical and education records, (2) a copy of her social security card, and (3) an expanded holiday parenting-time schedule, but denied his requests for joint legal custody, an increase in his regular parenting time, and a related decrease in support. J.M.'s cross-motion was granted. The implementing order, captioned in both the domestic violence and non-dissolution actions, was entered on March 7, 2008.
In June 2008, J.R. filed another motion in the non-dissolution action, seeking essentially the same relief. The motion was denied by the third Family Part judge on July 11, 2008. On September 5, 2008, a child support hearing officer recommended an order adjusting J.R.'s support obligation downward, due to a change in the childcare costs.
On September 29, 2008, J.R. filed another motion seeking joint legal custody and adjustments in parenting time and support. That motion was denied by the first Family Part judge on November 14, 2008. Shortly thereafter, J.R. filed a motion for reconsideration. The same judge denied the motion for reconsideration on January 16, 2009. The order of denial, which was captioned in both the domestic violence and non-dissolution actions, included a provision that appropriate sanctions would be awarded against J.R. in the event he "refiled such a similar motion."
In his written decision on the motion for reconsideration, the first Family Part judge explained that each of the denials was based upon J.R.'s failure to establish changed circumstances. He observed that the mere passage of a few months between motions does not signify a change in circumstances. This appeal followed.
Our scope of review of a Family Part judge's factual findings in the context of an evidentiary hearing is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
Because of the special expertise of Family Part judges, "we do not second-guess . . . the exercise of their sound discretion," and we recognize that "'[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). However, a trial judge's legal decisions are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194; Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
Decisions concerning custody and visitation rights are addressed to the sound discretion of the Family Part judge and will be reversed only for an abuse of discretion. Levine v. Bacon, 152 N.J. 436, 442 (1998). In such cases, we are obliged to affirm the judge's decision unless the judge's findings are "so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412. Unless the discretion exercised by the judge is clearly arbitrary and unreasonable under the particular circumstances, it is not the function of an appellate court to substitute its judgment for that of the motion judge. Smith v. Smith, 17 N.J. Super. 128, 133-34 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952). An appellate court should not interfere in the discretion exercised by the judge absent a clear showing by the appellant that the "action of the trial court is plainly erroneous and manifestly a misuse of its discretion." Id. at 133.
We have long recognized that "[t]he pivotal factor and paramount consideration in matters involving custody of minor children is the happiness and welfare of such children." Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958). Once custody has been decided, a court must still consider the happiness and welfare of the children. Cf. Beck v. Beck, 86 N.J. 480, 497 (1981) ("It would be incongruous and counterproductive to restrict application of [the best interests of the child] standard to the relief requested by the parties to a custody dispute.").
This concern must infuse the consideration of parenting time. "The children's best interest in this situation is closely related to the non-custodial parent's right to visitation. 'From that perspective, the "cause" requirement of N.J.S.A. 9:2-2 implicates the best interests of the child as manifested through visitation with the non-custodial parent.'" Winer v. Winer, 241 N.J. Super. 510, 518 (App. Div. 1990) (quoting Holder v. Polanski, 111 N.J. 344, 352 (1988)) (internal citation omitted). Thus, the court must consider each parent's constitutional right to enjoy a relationship with their children. In re P.S., 315 N.J. Super. 91, 107 (App. Div. 1998).
The goal is to arrive at a reasonable parenting-time schedule consistent with the best interests of the children and the rights of the parents. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984) ("It is well[-]settled that the law favors visitation. . . . [C]courts should endeavor that children of separated parents should be imbued with love and respect for both parents . . . by conferring reasonable rights of visitation on the [non-custodial] parent." (citations omitted)), certif. denied, 99 N.J. 243 (1985); In re Jackson, 13 N.J. Super. 144, 147 (App. Div. 1951) ("Consistent with the paramount concern for the welfare of the child . . . [a] court always determines that, whenever custody is awarded to a parent, the other parent shall not only be privileged to see the children at all times, but shall be encouraged by the parent custodian in seeing them as freely, as fully, as often, and as long as possible, and in a manner best suited to the encouragement of mutual affection." (internal citation and quotations omitted)); Barron v. Barron, 184 N.J. Super. 297, 301 (Ch. Div. 1982) ("Parental rights will be preserved unless enforcing them will adversely affect the 'safety, happiness, physical, mental and moral welfare of the child.'" (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956))); cf. V.C. v. M.J.B., 163 N.J. 200, 215-28 (holding that visitation is presumptive subject to N.J.S.A. 9:2-4 considerations), cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000).
With the governing legal principles in mind, we now address the issues raised on appeal.
In this case, we are concerned with parenting time for a child who was born in January 2007. The initial parenting-time schedule, entered when the child was three-months old in April 2007, was for parenting time on alternate weekends, from 9 a.m. to 6 p.m. on Saturday and Sunday, without overnights. That schedule was to have been expanded in May, but parenting time was suspended temporarily because of the domestic violence action. Some minimal parenting time, with supervision, was permitted in the interim.
The amended FRO entered in October 2007, provided for unsupervised parenting time on Mondays, Tuesdays, and Wednesdays from 8:45 a.m. to 5 p.m., and, as of November 3, 2007, alternate weekends, from 9:30 a.m. on Saturday to 4 p.m. on Sunday.*fn1 This schedule offered J.R. somewhat more parenting time than he would have been allowed under the April order.
The March 2008 order set forth an expanded holiday parenting schedule, including holidays, the child's birthday, the parents' birthdays, and mother's and father's days. It also modified the weekend schedule to provide for drop-off on Saturday at 11 a.m. and pick-up on Sunday at 7 p.m., which did not result in a diminution of J.R.'s parenting time.
J.R.'s subsequent applications for expanded parenting time were denied, based upon determinations by the motion judges that there had been no changed circumstances to warrant an alteration. We note that the denial on July 11, 2008, followed a hearing at which both parties testified. The requests for changes in the amount of support were primarily premised on the proposed changes in parenting time and were, consequently, denied as well.
Based upon our review of the record, we find no abuse of discretion with respect to the parenting time or the related support issues. J.R. is permitted an overnight every other Saturday, and three full days without overnights every week. Especially considering the child's age, we consider that liberal parenting time. We will not substitute our judgment for that of the Family Part judges involved in this case. Smith, supra, 17 N.J. Super. at 133.
We agree with the Family Part judges that the mere passage of months does not amount to changed circumstances, although we are cognizant of the fact that, as children grow older, the parameters of parenting time may change. Because we find no abuse of discretion, we affirm the orders on appeal.
J.R. suggests that one or more of the judges had a bias against him or in favor of J.M. A judge must conduct the court proceedings in a fair and impartial manner. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999) (citing Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971)). Having reviewed the record, we find nothing to support any assertion of judicial bias.
We note that there does not appear to be an order for custody other than the provisions of the various domestic violence restraining orders giving "temporary custody" to J.M. While we understand that custody orders are always subject to change, we have concluded that there should be a hearing to determine the issue of custody on a more permanent basis. At that hearing, the judge will need to fully consider the factors set forth in N.J.S.A. 9:2-4, as well as applicable case law, in determining what custody arrangements should be implemented on a going-forward basis. Any necessary modifications of parenting time or child support can be made at that time.
We understand that the domestic violence action has been transferred to Middlesex County because both parties are employed by law enforcement entities associated with Hunterdon County. We further understand that the pendency of this appeal has delayed the similar transfer of the non-dissolution action. On remand, that action should also be transferred to Middlesex County prior to the remand hearing. All further orders not directly involving domestic violence should be entered under the non-dissolution docket number.
Having reviewed the remaining issues raised on appeal in light of the record before us, we have determined that they do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that we cannot address J.R.'s arguments with respect to the merits of the domestic violence action. The FRO was entered in June 2007, and the time to appeal has long since expired. See R. 2:4-1(a).
In summary, we affirm the orders on appeal. We remand to the Family Part for a custody hearing following the transfer of the non-dissolution action to Middlesex County, at which time any necessary adjustments to parenting time and support may be considered in light of the custody arrangement chosen by the judge assigned to the case.
Affirmed and remanded for further proceedings consistent with this opinion.