July 13, 2010
J.L.T., PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1408-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 21, 2010
Before Judges Sapp-Peterson and Espinosa.
Following a six-day plenary hearing regarding issues of custody and parenting time, the trial court entered an order and comprehensive written opinion that disposed of all issues. Plaintiff J.L.T. did not appeal from that order. Just siX months after the order that granted sole custody of their daughter to defendant M.T., J.L.T. filed a motion that re-argued issues addressed in the court's decision. J.L.T. appeals from the denial of her motion. M.T. appeals from the denial of his cross-motion for counsel fees and to restrict J.L.T. from filing further motions without leave of court. We affirm.
The parties had one child together, "Marissa" (a fictitious name), born October 28, 1998. M.T. also adopted J.L.T.'s child from a prior relationship, but no issues involving her are raised in this appeal. When the parties divorced, their September 2005 property settlement agreement (PSA) provided that they would share joint legal custody of the children and that the children's primary residence would be with J.L.T.. The PSA stated that the parties recognized that Marissa "suffers from a respiratory illness and has been... treated by doctors for some time." The parties agreed that they would cooperate with each other regarding her care.
Just months later, there was a change in custody.
Mary Ann Stokes, the parenting coordinator, believed that Marissa was not being properly cared for physically, psychologically or emotionally by J.L.T.. She later testified that she felt the need to end her services so that she could convey her concerns about Marissa's safety to the court. At the time, Marissa was approximately seven and one-half years old. She weighed forty-nine pounds and had lost weight at times while living with her mother. In the first three quarters of the school term, she had missed eighteen and one-half days of school and had been tardy nineteen times. When she attended, she was not prepared and not neatly dressed for school. In the certification Stokes submitted to the court, she expressed her concerns not only about Marissa's condition but about the obstacles posed by J.L.T.'s inability or unwillingness to care for Marissa and interact with other adults responsible for her welfare in a mature and honest manner. She voiced "deep concerns about [J.L.T.'s] versions of the facts[,]" described J.L.T. as "a very manipulative person" who is emotionally invested in Marissa's poor health and in painting M.T. as a poor caregiver. For example, J.L.T. accused M.T. of failing to give Marissa her oxygen therapy when she refused to give him the oxygen tank necessary for the therapy. Addressing J.L.T.'s contention that Marissa is returned home sick after visiting M.T., Stokes stated, "My greatest concern about [J.L.T.] is my gnawing fear, but with no direct evidence to support this fear, that [she] may be doing something to [Marissa] to make her sick after [Marissa] has been with [M.T.]" Stokes recommended that temporary custody of Marissa be transferred to M.T. immediately until a plenary hearing could be held and that J.L.T. "should have supervised parenting time only to insure that she is not poisoning [Marissa's] mind or body."
By order dated March 8, 2006, the court granted M.T.'s request to transfer temporary physical custody of Marissa to him pending a plenary hearing. The court also appointed Helen Glass as guardian ad litem for Marissa, terminated Stokes's services as parenting coordinator, provided for parenting time for J.L.T. and required the parties to comply with Marissa's medical needs.
The court conducted a plenary hearing in the spring of 2008 to determine custody and child support as affected by the custody determination. At the time of the hearing, Marissa was nine years old. In its opinion, the court described the testimony from the parties; Glass; Stokes; Dr. Montalvo-Stanton (Dr. Montalvo), a pulmonologist who had treated Marissa until April 2006; J.L.T.'s psychiatrist; and J.L.T.'s mother, sister, friend, and others.
The psychiatrist testified that J.L.T. suffers from major depression and that her symptoms include anger, suicide attempts, substance abuse and intolerance of being alone. He stated that he prescribed her medication; that she was doing well and that he saw no psychiatric impediment to her having custody of Marissa. There was also testimony about a time when M.T. had serious problems and attempted suicide.
Glass testified that J.L.T. considered her own opinions regarding appropriate treatment for Marissa to be superior to those of treating physicians. Glass stated that J.L.T. exaggerated Marissa's medical condition to the point of inaccuracy to treating physicians in an effort to convince them to agree to her ideas. Glass also testified to her perception that, when a lung transplant for Marissa was being considered, J.L.T. appeared to be looking forward to Marissa being placed on the lung transplant list because of all the attention and medical notoriety it entailed. J.L.T. denied that this was the case. As early as May 2006, Glass suspected that J.L.T. was either doing something to harm Marissa during her visits or exaggerating her symptoms to support her claims that Marissa became ill when visiting M.T. She stated, "Significantly, [J.L.T.] seems to want [Marissa] to be more ill than she really is." For example, although Marissa's stress test was normal, J.L.T. insisted that Marissa was "oxygen hungry" and suggested that she use an oxygen tank during physical activity. Glass cited examples of J.L.T. blaming others for failing to attend to purportedly emergent medical issues for Marissa despite her own inconsistency in doing so. Glass noted "one of the great paradoxes of this case" to be that, despite her greatly reduced lung function, Marissa was involved in dance, soccer and lacrosse, even in May 2006.
Glass prepared several reports for the court that detailed not only her concerns but those of Marissa's pediatrician and her school principal that J.L.T. manipulated Marissa's symptoms or reported symptoms exaggerated for her own interest. The school principal's review of the attendance records of Marissa and her sister led her to suspect that the frequent absences, usually of only one child at a time, were the result of J.L.T.'s desire to keep one child home for company rather than because of actual illness. In her report, Glass discussed the possibility that J.L.T. suffers from a variation of Munchausen by proxy. This possibility was first raised by one of Marissa's pediatricians. Another pediatrician explained that this was not a classic case because Marissa was actually ill. Nonetheless, there was an abiding suspicion that J.L.T. might have exacerbated Marissa's symptoms for personal reasons. Glass recommended that M.T. be vested with sole legal and residential custody of Marissa and that all medical decisions be made by M.T.
Stokes provided testimony consistent with her earlier report. Quoting from different experts in the case whose reports had been supplied to her, Stokes stated that J.L.T. suffers from psychological problems that are resistant to management even with time and professional help. Stokes also testified that J.L.T. interfered with M.T.'s parenting skills.
Both Stokes and Glass recommended that J.L.T. have only supervised visitation with Marissa. Both had noted the irony in J.L.T.'s demands regarding Marissa's respiratory condition while stubbornly refusing to acknowledge that the two cats and two dogs in her home might adversely affect that condition. Glass therefore recommended that there should be no overnight visits until "J.L.T. obtains a satisfactory air quality test on the environment in her home" and emphasized that any visitation should be "without the presence of the dogs or cats."
Dr. Montalvo had not seen Marissa in two years but testified as to her condition as of February 2006, before custody was transferred to M.T. She had diagnosed Marissa with failure to thrive, secondary to her chronic lung condition. In July 2005, she was concerned that Marissa was getting progressively worse and referred her to the Children's Hospital of Philadelphia. Dr. Montalvo stated that Marissa's life depended upon the continued use of the numerous medications and equipment prescribed for her and that a failure to do so would result in a rapid deterioration of her condition. However, Dr. Montalvo had not seen Marissa in two years and was unable to describe her condition at the time of the hearing.
When Marissa lived with J.L.T., she was on fifteen different medications, needed oxygen at night, had to wear a vest to shake up her lungs and required constant use of a nebulizer. M.T. testified that when he obtained custody of Marissa, she was losing weight, frail and stressed. He took her to a lung specialist at Children's Hospital of Philadelphia for evaluation and treatment and to a nutritionist. Thereafter, Marissa's medications were substantially reduced; she no longer needed oxygen or the vest and she gained weight. As of June 2007, after living with M.T. for approximately fourteen months, Marissa weighed sixty-three pounds (a fourteen pound weight gain since the change in custody) and had only three colds or other respiratory difficulties requiring medical attention. In addition, her performance and attendance at school improved. Marissa also became more involved in Brownies, ice skating, piano lessons, dance school and played softball on a team that M.T. coaches.
J.L.T. testified about her strained relationship with M.T. and provided a different account of the problems during parenting time, which the court described as "without substantiation." She filed two domestic violence complaints against M.T., both of which were dismissed. M.T. obtained a final restraining order against J.L.T. based upon her throwing a boulder through his store window.
The Law Guardian testified that Marissa had expressed a desire to live with her mother. However, the court expressed its concern "based upon the evidence presented and the reports of the Parenting Coordinator together with the Law Guardian as to whether or not the child is saying that because she has been told to do so by [J.L.T.] or whether it is a true feeling." The court did not interview Marissa.
The court stated the following in awarding sole custody to M.T.:
Clearly the needs of the child are well taken care of by the Defendant as demonstrated by the substantial progress the child has made since being placed in his custody. The medical condition of the child and the treatments[,] etc. while living with the Plaintiff leaves a lot to be desired.
This Court is of the opinion based upon the evidence presented and a review of the many documents placed into evidence including the experts' reports, hospital reports, that the substantial improvement in this child is due to the strong efforts of the Defendant since the child came to live with him in March 2006. A simple review of the statements only by Dr. Montalvo as to the condition of the child in March '06 and the strong concerns she had for her then future well being compared to how the child progressed since that time can only lead one to the conclusion that the improvement has been due to the efforts and concern of the father.
The court granted M.T.'s request that J.L.T.'s daily contact with Marissa be limited to one telephone call per day. M.T. was authorized to make all medical decisions and required to keep J.L.T. advised. The court ordered that J.L.T. have parenting time in accordance with a schedule set forth in a letter from M.T.'s counsel dated March 24, 2008. As previously noted, J.L.T. did not appeal from this order.
J.L.T. filed a motion for additional visitation thereafter. The order dated December 5, 2008 denied her request for additional visitation during the Thanksgiving and Christmas holidays. The order also stated that she would have visitation on alternate weekends from Friday afternoon until 9:30 a.m. on Sunday on those weekends she has parenting time pursuant to an earlier order.
J.L.T. filed the motion that is the subject of this appeal in February 2009, approximately six months after the order awarding custody to M.T. M.T. filed a cross-motion for counsel fees and to restrict J.L.T. from filing further motions without leave of court. The trial court denied both the motion and cross-motion. J.L.T. appeals from the trial court's denial of her motion and M.T. cross-appeals from the denial of his cross-motion.
In this appeal, J.L.T. presents the following issues for our consideration:
THE TRIAL COURT FAILED TO APPLY THE PROPER PRINCIPLES AND STANDARDS IN ITS DENIAL OF ADDITIONAL PARENTING TIME BETWEEN THE PLAINTIFF AND THE CHILD.
THE COURT HAD A DUTY TO INTERVIEW THE CHILDREN OF THE MARRIAGE.
THE COURT IMPROPERLY DENIED THE REQUEST OF THE PLAINTIFF FOR PERMISSION TO OBTAIN PSYCHOLOGICAL COUNSELING FOR THE CHILD OF THE MARRIAGE.
THE COURT IMPROPERLY DENIED THE REQUEST OF THE PLAINTIFF FOR APPOINTMENT OF A PARENTING COORDINATOR.
M.T. raises the following issues in his cross-appeal:
DEFENDANT'S REQUESTED RELIEF, TO ASSESS COUNSEL FEES AGAINST PLAINTIFF AND TO RESTRICT PLAINTIFF'S RIGHT TO FILE FURTHER APPLICATIONS WITHOUT LEAVE OF COURT, SHOULD HAVE BEEN GRANTED.
After carefully considering the record, briefs and arguments of counsel, we are satisfied that none of these arguments have merit.
In her certification in support of the motion here, J.L.T. expressed her dissatisfaction with the circumstances of visitation and with the services rendered by Stokes and Glass. She requested the appointment of a parenting coordinator, specifically a psychologist, Mathias Hagovsky, Ph.D. She raised allegations, which she acknowledged the court had previously rejected, that Marissa had suffered physical and psychological abuse by M.T. and asked the court to permit her to arrange for psychological counseling for Marissa, specifically with Marcy Pasternak, Ph.D. Perhaps unintentionally highlighting her repeated unwillingness to accept prior rulings that she did not appeal, she stated, "I also again request that the court either allow [Marissa] to have reasonable visitation with me and her sister or explain the reasons this visitation is denied" and "I again request that the court speak with [Marissa] and [her sister]."
The judge was not required to "wipe the slate clean" and consider the same contention just months after the order deciding custody and visitation "as if the earlier hearing had never occurred." Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). The motion judge was faced with arguments that amounted to no more than a disagreement with the decision he reached on those issues after a six-day plenary hearing. His written opinion reflects his examination of the evidence and assessment of the witnesses' credibility, findings that J.L.T. did not challenge on appeal. At oral argument, the court properly characterized the argument presented to him on these issues as the same argument he had heard and rejected before. Since nothing had changed, he found no reason to change any ruling. We agree. The court was entitled to give continued weight to the findings made following the plenary hearing and to leave his rulings undisturbed. Donnelly, supra, 405 N.J. Super. at 126. Those findings remain entitled to our deference. See ibid.; Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
The decision whether to interview Marissa was discretionary with the judge. Rule 5:8-6, which governs the trial of custody issues, provides that "the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren)." (Emphasis added). Thus, the clear language of the Rule provides that "the judge's interview with the child is discretionary rather than mandatory irrespective of the age of the child." Pressler, Current N.J. Court Rules, comment 1.4.3. on R. 5:8-6 (2010).
In addressing the request to interview Marissa, the motion judge stated, "I didn't feel it was necessary then, based on the testimony presented and I don't believe it's necessary now."
The testimony and evidence from a number of independent sources here presented a very disturbing picture of a mother who loves her daughter but who has failed to attend to her legitimate needs in a responsible manner and placed her at risk, apparently to promote her own interests. There was ample evidence to support the court's conclusion that custody had to be transferred to M.T., that J.L.T. had to be entirely removed from medical decisions involving Marissa and that substantial safeguards had to be in place to prevent J.L.T. from harming Marissa. In the face of such compelling evidence for the needed changes, it was unnecessary to solicit Marissa's views.
There was evidence also of J.L.T.'s manipulation and misrepresentation of facts for her own ends. Therefore, there was evidence to support the trial court's observation in its opinion that it would be questionable whether statements Marissa might make in an interview would represent her own feelings or what she had been told to say by J.L.T. Indeed, in light of the compelling evidence that a change in custody was required, it may well have been cruel to subject Marissa to an interview where her views would not alter the result, a factor noted by the trial court at oral argument. We find no abuse of discretion in the court's decision not to interview the children, either at the time of trial or as a result of this motion.
Finally, we turn to M.T.'s cross-motion for counsel fees and to restrict further motions by J.L.T.. These requests for relief arise from the fact that this motion represented J.L.T.'s second attempt to reargue issues resolved in the plenary hearing within months of the decision and order that she did not appeal. The decision whether to award counsel fees falls within the discretion of the court and is disturbed only when there has been a clear abuse of discretion, Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); City of Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 123, 125 (App. Div.), certif. den. 199 N.J. 515 (2009), that has not been shown here.
Although the court has the discretion to exercise "the extreme remedy of enjoining or conditioning a litigant's ability to present his or her claim to the court[,] [that remedy] must be used sparingly; it is not a remedy of first or even second resort." Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010).
In those limited instances where appropriate, an injunction should be issued only after the judge (1) makes a finding that past pleadings were frivolous or designed for an abusive purpose; (2) fully scrutinizes the newly filed pleadings and determines them to be repetitive and within the scope of the proscribed vexatious matters; and (3) has unsuccessfully attempted to abate the abuse by employing sanctions such as those provided by Rule 1:10-3 or Rule 5:3-7. Additionally, any restraint entered must be circumscribed, not global, and narrowly focus on the issues shown to warrant restraint. [Id. at 54-55.]
See also, Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 387 (App. Div. 2000). Applying those standards here, the court did not abuse its discretion in denying M.T.'s motion.
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