September 13, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-364-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2010
Before Judges Graves, Sabatino and Kestin.
The parties are divorced with two children: a sixteen- year-old daughter and a fourteen-year-old son. Plaintiff S.S. appeals from an order dated September 22, 2008, dismissing his application for a hearing to determine whether custody of the children should be transferred to him. Plaintiff also appeals from various other rulings by the trial court, including an order requiring him to pay a portion of defendant's counsel fees. After reviewing plaintiff's contentions in light of the record, we affirm.
In August 2007, defendant D.G.-S. filed a motion for enforcement of litigant's rights, and plaintiff filed a cross- motion seeking enforcement of his parenting time and permission to retain a parental alienation expert to "address the effects of prolonged periods of interference with his bonding and parental time." Plaintiff also requested a hearing "to determine whether custody should be transferred based upon defendant's continued refusal to transport the children for parenting time, encouraging the children not to exercise parenting time, and planning other activities to [compete] with plaintiff's parenting time."
In a certification in support of his cross-motion, plaintiff explained how his relationship with his daughter, who was then thirteen, had deteriorated:
Things between my daughter and I deteriorated over [her] boyfriend. I had called one evening when it was my parenting time and she... and her boyfriend were there alone. I asked her, "who was there? Where was her mom? Was there an adult present?" She told me she didn't need an adult present and I disagreed. We argued and she has not had parenting time with me since then. I have expressed my frustration. At 13 years old, I don't feel that I should have to compete with her boyfriend to exercise my parenting time. Of course, she has made it clear that her mother is on her side. On April 20, 2007 I received the most disgusting e-mail from her that I have ever read in my life. The language is horrendous.... I cried for hours. There are no words to describe my pain. I am certain that the defendant is delighted. However, most responsible and normal parents would read this e-mail and know that my daughter is out of control. The defendant created this [by] empowering her to make decisions that a child should not make, particularly decisions about my parenting time and whether time with the boyfriend should replace my parenting time. My daughter tells me she is 13 and can make her own choices. What responsible parent allows a 13 year old to feel that they can make their own choices over issues like this. It's time for drastic measures. If the Court does not do something immediately to break the stronghold that the defendant has created and allowed, I am going to lose my children.
Recently, a friend of mine and a friend to the children described my children as victims of the casualties of a war. I've given that some thought and I understand why she said it.... Without quality and unimpeded time with my children, I am helpless. I need the Court to enforce its orders and give me the months of parenting time that I have been denied.
Following oral argument, the parties were ordered to either "agree on a visitation coordinator/facilitator" or to submit names of "proposed facilitators" to the court. The court also ordered that plaintiff was to have ten days of parenting time with the children at the home of his parents.
In a thirteen-page "order of disposition" dated September 21, 2007, the court denied plaintiff's cross-motion to hold defendant in violation of litigant's rights for refusing to allow plaintiff's parenting time and plaintiff's request for an immediate hearing. However, the court granted plaintiff's request to retain a parental alienation expert, noting that both parties believed the other party was at fault "for the clear problems illustrated by these filings."
Clearly there is a "chemistry" developing here between the parties and the children that appears to be unhealthy. In the last oral argument between the parties, it was shown by one of the daughter's emails that she is attempting to "manipulate" the parents, writing DAD when she is mad at MOM; writing emails to DAD when she is upset with him. When you couple possibly manipulative teenagers, as smart and sophisticated as the children are, with the thinly veiled and more often than it should be overt animosity of the parents toward each other, it makes for a sad situation for all.
Does the court believe that the MOTHER... at times "stokes the fires" of ill feeling of the children towards their FATHER both overtly and subliminally? Probably.
Does the court believe that the FATHER, of strong personality, busy and stressed, at times may behave in a gruff and apparently coarse and uncompromising manner with the strong willed, highly intelligent and very busy teenagers in a way that interferes with the relationship between them? Probably.
Are the children at time resistant to coming to the Vineland area, away from their friends and events and the excitement, and [the] far more appealing to them area of Cherry Hill, Camden County, for weekend or other visitation? Away from perhaps a boyfriend or girlfriend or weekend events that are important to them? Probably.
Clearly the relationships of these parties as described above are complex. The failure of the parents to be able to communicate and negotiate with each other and therefore and thereafter with the children, makes this a situation that no court can probably solve. Both parties are at least partially at fault. To determine if one is more at fault than the other, with the corresponding requirement of a divisive Plenary Hearing, possibly requiring testimony of the children[,] would do far more harm than good.
In a letter dated October 4, 2007, defendant's attorney advised the court that the children had been interviewed by a licensed clinical psychologist, and the psychologist's report raised "grave concerns about the children's emotional and physical well-being." Counsel requested permission to submit the report to the court and opposing counsel in order to assist the court "in developing a better understanding... about the fragile emotional state of the children and the concerns that this psychologist has for the children if we do not proceed cautiously and slowly in addressing parenting time with their father and any potential change of custody."
Plaintiff's attorney objected to the submission of the psychologist's report to the court. Nevertheless, the court determined it was "in the children's best interests" for the court to review the report. In addition, the court permitted plaintiff "to obtain a report from a psychological expert as to the children," if he wished to do so.
The daughter was diagnosed with severe depression in November 2007. She was admitted to an out-patient therapy program, and her medical records confirm that she was experiencing significant depression and anxiety.
In a letter to counsel dated March 12, 2008, the court noted there was a pending custody and parenting time cross- motion filed by plaintiff, and the court advised counsel that it was considering the appointment of an expert under Rule 5:3-3 or a guardian ad litem under Rule 5:8B "to determine the current status of the children, their concerns, if any, as to visitation with their father and how to address any such concerns." The court further noted that plaintiff wanted to "unilaterally and unquestionably enforce the existing parenting time order," but the court stated it was hesitant to enter such an order unless "the court expert says that is appropriate." The court also responded to defendant's objection "to litigation by letter" as follows:
The court believes it is clear the children are in some distress. The primary focus of this letter is not to "litigate by letter" but to deal with immediate concerns as to the children in an expeditious manner. With the lack of agreement between these parties and the tenor of this "litigation" the court believes it necessary to address the issues before it in a proactive manner.
During oral argument on March 20, 2008, the court sought input from the parties regarding the need for court-appointed experts, and plaintiff objected to the appointment of a guardian ad litem. Nevertheless, in a letter dated April 3, 2008, the court advised counsel as follows:
As per our recent telephonic conference and argument, the court has determined it to be in the best interests of the children that a guardian ad litem be appointed pursuant to R. 5:8B. The court hereby appoints Mary Cay Trace, Esquire as said guardian ad litem. Attached is an order as to the same. The court orders that all parties cooperate with Ms. Trace. Ms. Trace has all options as provided in said rule.
The court has set Ms. Trace's hourly rate at $190.00 per hour and the court orders that [S.S.] immediately forward to her a retainer of $2,500.00. The court reserves to assess this amount in some proportion to both parties, but orders that [S.S.] pay the money now "initially" so as to have the guardian ad litem involved with the children as soon as possible.
On April 10, 2008, the court explained that the appointment of a guardian ad litem was necessary to address significant emotional issues in the case:
The Court is concerned that the parents are letting their negative feelings as to each other influence them. Again Dad insists time and time again the Court should just order the children to visit with him although clearly it does not appear that they want to. The records show they do not want to. And according to Mom... my choice of words... the children would only go kicking and screaming. And I do not see how that would be in their best interest.
So the Court wants a disinterested third party that can with the least intrusion possible meet with and discuss the matter with the children, the parents, and the medical service providers... hence the guardian ad litem.
Unfortunately, plaintiff never paid the initial retainer for the guardian ad litem, and the court ultimately dismissed his application for a hearing to determine whether custody should be transferred. In a forty-eight page "order of disposition" dated September 22, 2008, which addressed plaintiff's recusal motion and other issues, the court explained that it was unwilling to hold a hearing on defendant's pending applications without input from the guardian ad litem:
The court had thought, that with verifying medical records and a guardian ad litem in place to independently monitor the CHILDREN, that if the MOTHER was engaging in some type of behavior near to as listed above, a mid-summer of 2008 transfer of custody to the FATHER, with a mid-summer "adjustment period" while the CHILDREN were not in school, was not out of the question. But the FATHER has refused to follow the court's orders as to the medical records and as to the guardian ad litem, preventing the court from obtaining the information which may have justified the relief the FATHER sought (a transfer of custody). It seems that unless the court did exactly what the FATHER and his attorney insisted, to simply, on the hearsay words and oral argument of [S.S.'s] counsel, to take what the court considers to be the drastic action of a custodial change, with the resultant substantial ramifications on a teenage and near to teenage child, the FATHER is not satisfied with, and refuses to follow, the court's orders. But without the medical reports and without a guardian ad litem in place for the CHILDREN, the court was loath to act, and quite frankly, refused to do so.
Nevertheless, the court was troubled by plaintiff's lack of contact with his children and ordered both parties and the children to participate in counseling with a psychologist or psychiatrist selected by plaintiff:
[S.S.] shall be permitted to retain an expert psychologist or psychiatrist who has an office in Camden County, the county in which the CHILDREN reside. This expert shall provide therapy to the family with concentration as he or she sees fit, but with the hope of returning [S.S.] and the CHILDREN to a normal parent and child relationship. [D.S.-G.] is required to make the CHILDREN attend this counseling, which shall be scheduled, as much as possible, taking into consideration the CHILDREN'S current schedules and extracurricular requirements. "Required to make the CHILDREN attend" means just that; the CHILDREN shall be required to attend, "kick[ing] and screaming" literally and metaphorically if necessary; the court considers this requirement, to attempt to reinstate a relationship between [S.S.] and the CHILDREN to be of paramount concern to this situation. The CHILDREN must attend and cooperate as to the same.
On appeal, plaintiff presents the following arguments:
THE COURT ABUSED ITS DISCRETION IN FAILING TO HOLD A HEARING ON PLAINTIFF'S CROSS-MOTION TO ENFORCE HIS PARENTING TIME, IN SUSPENDING HIS PARENTING TIME WITH HIS DAUGHTER AND SUBSTANTIALLY REDUCING IT WITH HIS SON, IN DISMISSING HIS CROSS-MOTION WITHOUT A PLENARY HEARING AND IN WRONGFULLY RELYING ON PSYCHOLOGICAL REPORTS THAT WERE PROVIDED TO THE COURT BUT NOT TO PLAINTIFF'S COUNSEL.
THE COURT ABUSED ITS DISCRETION IN FAILING TO HOLD A PLENARY HEARING ON THE PLAINTIFF'S ORDER TO SHOW CAUSE, IN REFUSING TO HOLD A R. 1:10-1 CONTEMPT HEARING REGARDING DEFENDANT'S INTERFERENCE WITH THE PROCEEDING, IN FAILING TO KEEP THE MEDICAL RECORDS, AND IN ORDERING PLAINTIFF TO PAY COUNSEL FEES.
THE COURT ABUSED ITS DISCRETION IN APPOINTING A GUARDIAN AD LITEM BASED UPON A RECOMMENDATION IN A PSYCHOLOGICAL REPORT PROVIDED TO THE COURT BUT WITHHELD FROM THE PLAINTIFF FOR MONTHS AND BY USING THIS RECOMMENDATION AS A MEANS TO ABDICATE ITS JUDICIAL RESPONSIBILITY.
THE COURT ABUSED ITS DISCRETION IN REFUSING THE REQUESTS OF PLAINTIFF'S COUNSEL THAT IT RECUSE ITSELF.
THE COURT ABUSED ITS DISCRETION IN FORCING PLAINTIFF TO PAY FOR [THE DAUGHTER'S] TUTORING EXPENSES WHEN HER GRADES FELL AFTER HE NO LONGER HAD ANY CONTACT WITH HER.
THE COURT ABUSED ITS DISCRETION IN REQUIRING PLAINTIFF TO PAY $20,000 IN COUNSEL FEES TO DEFENDANT.
After examining these contentions in light of the record, the briefs, and the applicable law, we are satisfied that plaintiff's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm with the following comments.
In his fourth point, plaintiff contends the judge erred in refusing to recuse himself. In a letter brief dated August 12, 2008, submitted in support of plaintiff's motion, plaintiff's attorney claimed that various actions and rulings by the trial court were "improper." Plaintiff's attorney also stated:
"Plaintiff has no faith that he will be treated fairly by the Court."
Paragraphs (a) through (f) of Rule 1:12-1 set forth specific circumstances that require a court to disqualify itself, and Rule 1:12-2 provides that a "party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge's disqualification." A recusal motion alleging court bias is governed by Rule 1:12-1(f), which requires a judge to disqualify himself or herself for any "reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so."
The disposition of a motion for disqualification is "entrusted to the 'sound discretion' of the trial judge whose recusal is sought." Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)). In this case, the trial court's reasons for denying plaintiff's motion included the following:
When the motion was originally filed, and reviewed by this court, the court's initial thoughts were to grant the recusal motion; but the reason(s) as to the same would not be as argued by [S.S.]. Quite frankly, the court determines that it suffers no prejudice in regard to this case as for or against [S.S.], there is no appearance of the same and the court believes there is no objectively reasonable reason to believe that the proceedings in this matter have been, or will be unfair. In fact, the court believes, as argued by counsel for [D.S.-G.], that the court has been quite patient with [S.S.], especially as to his continual requests that the court modify custody of the CHILDREN, while he refuses to take those actions necessary (medical reports, retainer for the guardian ad litem) for the court to render an informed decision as to the same.
In our view, the matter was correctly decided. As the trial court noted, plaintiff's disagreement with the court's decisions was insufficient to justify recusal. State v. Walker, 33 N.J. 580, 591 (1960) ("Absent a showing of bias or prejudice, the participation of a judge in previous proceedings in the case before him is not a ground for disqualification."). Moreover, we are satisfied from our independent review of the record that there was no objective factual basis for the judge to recuse himself.
Plaintiff also challenges the award of counsel fees to defendant in the amount of $20,000. An award of counsel fees in matrimonial matters is discretionary. R. 4:42-9(a)(1); Williams v. Williams, 59 N.J. 229, 233 (1971). "In determining whether a counsel fee should be imposed, the court must look at the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998).
In this case, the trial court found that plaintiff's financial circumstances were superior to those of defendant "by a considerable amount"; and that plaintiff's initial application, which "seemed to be [in] good faith," became unreasonable because of plaintiff's "failure to accept and meet the terms and conditions of the court's orders." Those findings are supported by substantial credible evidence, and we affirm the counsel fee award substantially for the reasons set forth in the order entered on November 5, 2008.