NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman, and J. N. Harris.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1254-06. Candida M. Harty (Arnold & Porter, LLP) of the District of Columbia and California bars, admitted pro hac vice, and Michael D. Hynes argued the cause for appellant (DLA Piper LLP, Ms. Harty, and Reed Smith, LLP, attorneys; Mr. Hynes and Ms. Harty, of counsel and on the briefs).
Mark H. Sobel argued the cause for respondent (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Mr. Sobel and Jacqueline M. Printz, of counsel and on the brief; Ellen C. Marshall, Lisa B. DiPasqua, and Amanda B. Sherman, on the brief).
In this divorce action, defendant mother alleged that plaintiff father sexually abused the parties' young daughters. The court found otherwise, concluding mother had endangered her children's health and safety by intentionally manipulating them and turning them against their father. The court awarded father sole custody. Mother appeals from portions of the final judgment of divorce, alleging a variety of trial errors, including the court's failure to hold an independent hearing on the abuse allegations pursuant to Title 9 prior to the custody trial, its exclusion of purportedly critical evidence of that abuse, and its failure to appoint the children a law guardian, which she contends irreparably influenced the outcome of the custody litigation to her detriment. Mother also challenges the significant counsel fee award in father's favor.
Based on our review of the voluminous record and applicable law, we are satisfied the findings of the trial judge, who presided over this tumultuous, bitter litigation spanning over four years and who conducted about seventy days of judicial proceedings from June 16, 2006 through August 18, 2009, are amply supported and legally based. Moreover, Judge James Convery made credibility assessments and provided painstakingly detailed factual and legal explanations for his rulings. Accordingly, we affirm substantially for the reasons articulatedin his oral rulings and his comprehensive written opinions of February 20, 2008, January 27, 2009, and August l8, 2009.
I.We include only the procedural history relevant to this appeal. Father filed a complaint for divorce on December 1, 2005, and mother filed an answer and counterclaim on January 30, 2006, alleging, in part, that father had sexually abused the parties' daughters, then aged six and three and one-half. A prior domestic violence complaint filed by mother, dismissed by the court following trial on November 7, 2005, spawned investigations of father by the Essex County Prosecutor and the Division of Youth and Family Services ("DYFS"), which resulted, respectively, in a decision not to present the matter to a grand jury and an initial finding that the abuse allegations were unsubstantiated. Pursuant to an inquiry from mother, on June 20, 2006, the New Jersey Attorney General advised it found no abuse of discretion by the prosecutor's office in declining to proceed and thus would not intervene.
Father then filed an emergent application to be reunited with the children. Mother filed opposition and a cross-motion seeking, in part, permission to amend her counterclaim to include a claim under N.J.S.A. 9:6-8.21 ("Title 9") and for the appointment of a law guardian for the children. By order ofJuly 27, 2006, the court directed, in part, that mother remain the parent of primary residence; reinstated the parenting plan previously agreed to by the parties with supervision of father during his parenting time by his family members; and generally denied the relief sought in mother's cross-motion.
In response to father's emergent application to transfer custody of the children to his parents and the court's receipt of additional information from DYFS, by orders of December 8, 2006, the court directed mother's parenting time to be supervised pending the return date, and appointed Barry Katz, Ph.D. as a therapist for the children. Mother filed a cross-motion seeking suspension of father's parenting time. By oral decision and order of December 21, 2006, Margaret Dee Hellring, Esquire was appointed as Guardian Ad Litem ("GAL"), the maternal grandmother was directed to move into mother's house to supervise mother's future parenting time with the assistance of other family members, and trial was scheduled to commence on February l5, 2007.*fn1
On January 29, 2007, mother filed an order to show cause seeking reconsideration of the July 27, 2006 order, a suspension of father's parenting time with the children pending completion of a Title 9 fact-finding hearing, and recusal of the judge. By orders of the same date, the court denied all relief sought by mother in the proposed order, which included, in part, appointing Hellring as the law guardian; forwarding the complaint to the prosecutor's office; suspending contact between father and the children pending a Title 9 hearing; and holding an immediate fact-finding hearing under Title 9.
Mother filed an emergent interlocutory appeal. By order of February 2, 2007, we denied mother's emergent application for a Title 9 hearing and disqualification of the trial court, noting, in part, that father had supervised parenting time since July 2006, and we were "satisfied that the issues raised by [mother] in her Title 9 complaint will be thoroughly addressed at the hearing scheduled to commence on February 15, 2007."
At the request of the GAL, the court entered an order on February 6, 2007, appointing Susan Cohen Esquilin, Ph.D. as an independent expert retained on behalf of the children. A trial on the issues of custody and sexual abuse commenced on February 15, 2007, over approximately fifty non-continuous days, and concluded on April 16, 2009.
On March 30, 2007, on father's motion, and with opposition by mother
and the GAL, Judge Convery issued an order barring the
GAL from "attend[ing] the trial sessions except as a witness until
further order of the Court." The court issued a written opinion on
that date, primarily concluding there was no best interest need for
the GAL's attendance at the plenary sessions and the significant
expert fees should be minimized.*fn2 By order of April
l7, 2007, the court denied mother's motion for reconsideration.
On or about October l5, 2007, father moved in limine to bar mother from utilizing the testimony, reports or tapes of interviews of psychologist Joyanna Silberg, Ph.D. The court conducted an N.J.R.E. 104 ("104") hearing over seven days from October 24, 2007 through January 9, 2008. Dr. Silberg testified, along with psychologists Anna Salter, Ph.D. and Sharon Ryan Montgomery, Psy.D. By order of February 20, 2008, the court barred mother from calling Dr. Silberg as a witness and from using her expert reports, letter, tapes, and interviews. The court's ruling was explained in a lengthy written opinion appended to the order. The trial court denied a stay, and by order of April 22, 2008, we denied mother's motion for leave to appeal and request for a stay.
In accordance with N.J.R.E. 803(c)(27), on February 27, 2008, mother provided notice of her intent to offer alleged disclosures by M.M., the parties' older daughter, of sexual abuse by father. The court conducted a 104 hearing over fourteen days from March 10 through August 20, 2008. In a ninety-two page written opinion of January 27, 2009, memorialized in an order of the same date, Judge Convery barred as untrustworthy the admission of M.M.'s testimony and any sexual abuse statements attributed to M.M.
The parties' remaining witnesses as to custody testified. On April 7, 2009, the court orally ruled that Hellring's testimony was limited to those portions of her investigation and report pertaining to her observations and resulting perceptions relating to custody and parenting time issues, and barred expert testimony sought to be presented by mother that relied on M.M.'s inadmissible statements. The ruling was memorialized in an order of April 13, 2009.
On August l8, 2009, Judge Convery issued a final dual judgment of divorce and 109-page accompanying opinion, awarding father sole custody and attorney and expert fees of nearly $2,000,000. Mother was granted supervised parenting time upon her completion of eight weeks of psychotherapy with supervised overnight parenting time to begin after six months. The judge denied mother's motion for a stay pending appeal. By order of August 28, 2009, we denied mother's emergent application to the same effect. This appeal ensued.
II.We abridge the factual statement contained in this voluminous record as many of the facts are recited at length in the judge's opinions, which we are satisfied accurately reflect the testimony and evidence before the court. We highlight those facts pertinent to the issues on appeal. The omission of a specific recitation of facts does not in any way indicate they were overlooked in our review of the record.
Both parties are well educated and earn considerable livings as ophthalmologists with private practices, father in New Jersey and mother in New York City. They were married on August 29, 1998, and have two daughters of the marriage, M.M. born on January 15, 2000, and J.M. born on August 28, 2002. The parties sought marital counseling from three successive therapists as early as 2001, to address, from father's perspective, the parties' lack of emotional intimacy, and from mother's perspective, father's sexual aggression. Mother sought legal advice about ending the marriage from at least a dozen attorneys beginning as early as December of that year. She would come to record many of her conversations with father, the children, and mental health professionals on the advice of one of those attorneys, and began keeping a journal, as well, early in 2005.
Father left the marital home on March 12, 2005. Mother admitted on cross-examination that M.M. became hysterical when he left and wanted her father to stay. He moved back home for a few weeks but finally left in mid-April. The parties executed a shared parenting agreement affording father three overnight visits with the children each week.
According to mother, the final separation was precipitated by an argument about the parties' tax returns, during which father threw papers down at her from the balcony above their living room and then ran down the stairs toward her, chasing her into the bedroom and frightening her. After father left, she contacted an organization offering support for women in abusive relationships and attended individual and group counseling there over the next few months. The parties continued psychotherapy together after their separation, as well, until their respective psychiatrists advised on June 15, 2005, contrary to mother's suggestion and to her considerable and obvious disappointment,that they would not diagnose father with a borderline or narcissistic personality disorder.
On September 25, 2005, father brought the children home after a visit. Shortly thereafter, a dispute arose over whether he should put the children to bed alone because M.M. was upset and reluctant to let mother leave the room. The parties agree that, after some argument between them, father touched mother's face and kissed her just before leaving, telling her the marriage was "done," though mother recalled the action as more aggressive than did father. According to mother, M.M., who had been standing near her when father left the house, assured her later that night that she would "protect" mother from father.
Mother promptly obtained a temporary restraining order ("TRO") prohibiting father from contacting her or the children*fn3
on the basis of that incident. Mother's complaint made no mention of any alleged sexual or other abuse of her or the children. Nor did she mention such abuse when she presented each child's school a copy of the TRO the following day and instructed Jeffrey Truppo, M.M.'s school principal, that father was not allowed on the premises. Truppo suggested the school's guidance counselor, Jean Pasvankias, meet with M.M.
That evening, mother brought the children to Cathy Ludwig, a crisis mental health evaluator recommended by her attorney. Mother acknowledged at trial that she discussed the prior day's events with the children before their visit with Ludwig "to document what they had witnessed as far as the incident" with father and she had "started to correct [M.M.'s] recollection" of the prior night. She claimed, though, that she stopped upon realizing that M.M. should report the incident from her own memory.
Ludwig was the first person to formally interview M.M.*fn4
She testified at trial on behalf of mother. According to
Ludwig, she explained to M.M. that she was a therapist whose job it
was to help M.M.'s family and, to that end, would take extensive
contemporaneous notes of what M.M. said so that she could write a
report "that the judge and the attorneys and her parents would
eventually see." Ludwig asked open-ended questions to make M.M.
comfortable about discussing the subject, and, throughout, M.M.
remained focused, articulate, and eager to talk, though understandably
somewhat anxious given the circumstances of the interview.
M.M. told Ludwig that, on the night of the incident, she saw her father grab her mother's face and shout in her ear,"[I]t's done," before storming out of the house. M.M. related that her father had never been that mean or done anything like that to her mother before, and that was the first time M.M. had ever been scared of him. Asked specifically if there was ever any "hitting" in the household, M.M. recalled that her father had once yelled at her while she was trying to walk down the stairs because she was not going fast enough, picked her up and carried her to her bedroom, and then hit her on the back as he put her to bed. She commented that her father never hit her sister, though, because "she's too little to get hurt."
M.M. generally described her father as "shouty and cranky" and shared more specifically that "[m]ommy says that daddy is mean to everybody including her cousins" and that she "agree[s] with mommy." Ludwig related that M.M. spontaneously offered, as well, that her father had removed her mother's name from a family credit card, which "[w]asn't very nice." Ludwig found that particular disclosure unusual and the matter inappropriate for a parent to discuss with such a young child.
Ludwig further testified that M.M. additionally volunteered that her mother "never hits or yells" at her or J.M. and "only yells at daddy sometimes." M.M. related that her parents had been arguing for a long time and she felt as though she were caught in the middle. Moreover, M.M. expressed that if she had to choose, she would prefer to live with her mother, but would be "sad" if she could not also see her father.
Ludwig prepared a report and recommended the children continue to have regularly scheduled parenting time with their father, M.M. have individual therapy, and mother, the children, and, if appropriate, father, have family therapy. She was surprised to find that M.M. later made disclosures of sexual abuse and reviewed her records to ensure that she had not failed to recognize any indication of abuse during the interview. Although child abuse was not her specific area of expertise, she was confident, given her extensive education and the fact she had treated a child who had been sexually abused, that M.M. had given no indication of abuse. In his January 27, 2009 opinion, the court noted that mother testified she believed Ludwig had testified truthfully, and he found "Ludwig clearly had sufficient expertise to offer the intended testimony and her testimony was sufficiently reliable."
Mother testified that the following day, September 27, 2005, she provided background information to Pasvankias in anticipation of a counseling session with M.M. Mother related that she described her relationship with father as abusive and revealed several "red flag" incidents that concerned her about possible sexual abuse of the children. She also testified she reminded M.M. that day that no one was allowed to touch her "private parts" and M.M. should feel comfortable telling her mother anything. On cross-examination, mother admitted that she had never voiced a concern to any of her attorneys that her children had been sexually abused.
Based on their conversation, Pasvankias told mother to expect a call from another counselor to schedule an interview with M.M. Shana Goldman, a school crisis counselor and social worker, called mother early the next morning, September 28, 2005, before she brought M.M. to school, to schedule an appointment later that day. Mother admitted she told Goldman about "red flags" she had claimed to perceive, about a sex schedule she claimed father had imposed on her, about her sexual history with father, and about mother being a victim of domestic violence.
Mother presented Goldman as her witness at the N.J.R.E. 803(c)(27) ("803(c)(27)") hearing. Goldman testified she met with M.M. later in the day on September 28, 2005 in the music room at school for the first of two interviews. Goldman related that she sat on the rug in the music room with M.M. and asked some general preliminary questions about school. Goldman escorted M.M. to the bathroom at the child's request and waited outside the stalls. There was considerable discussion duringGoldman's testimony regarding M.M.'s purported statement to her at that time regarding "a secret." Goldman testified that M.M. said she had a secret and it was not with anyone specific. However, according to Goldman's sworn statement to Detective Susan Johnson of the Morris County Prosecutor's Office on September 29, 2005, M.M. had said she had "a really big secret that only mom and I know about" and she could not share with Goldman, and according to Goldman's 2006 deposition, M.M. had said she "had a secret and mom does not know it."
Goldman further testified that after being encouraged to share the secret, M.M. reported that her father had put "poopy" in her face. When M.M. left the stall and washed her hands, she demonstrated what her father had done, using a crumpled up piece of paper towel in her hand. According to Goldman's sworn statement to Detective Johnson, when she asked M.M. for specific details, the child elaborated that it happened every time she visited her father's house and he did it while "fully dressed" in his "suit for work."
Goldman brought M.M. back to the music room and asked her whether anything else had happened that made her feel uncomfortable. According to Goldman, M.M. responded that her father sometimes did "gross" things that she preferred not to discuss, because she was scared. Goldman related that M.M. thenreported that her father forced her to watch him shower, where he touched his "pee pee" for a long time and then "pee[d]" on his hand. He then asked her to give him a towel and to touch his penis with it, but she was "grossed out" after touching his pubic hair and ran off. Asked whether she touched her father's penis with anything else, she replied she had done so with a broom handle, so that she could remain far away. When Goldman then inquired whether M.M. had ever seen her father's penis on another occasion, M.M. claimed she saw her father kiss it and that he asked her to do so, but she refused. According to Goldman, M.M. confided that these things made her feel "bad," and Goldman assured her that her father should not have asked her to do any of those things, that she was right to feel as she did, and that Goldman herself was sorry he had done them.
Goldman admitted that, when first asked, M.M. denied that her father had touched her "pee pee" and said she would never let him do so. Goldman then specifically asked M.M. whether her father had touched J.M.'s "pee pee" and M.M. demonstrated by moving her finger up and down in the air. Goldman again assured M.M. that her father had no right to do so and that it was "like breaking the law."
After the interview, Goldman brought M.M. to her classroom, where she resumed her normal activities. Goldman apprised Truppo of the situation, and he called the police while she contacted mother and DYFS.
Goldman met with M.M. a second time that day in the nurse's office. The nurse, Susan Gould, reviewed the concepts of good and bad touching with M.M. using a stuffed animal, and M.M. demonstrated on the stuffed animal how her father had touched her sister, placing her finger between its legs. When asked to demonstrate how her father was mean to her, she punched the stuffed animal in the head and chest with a closed fist. In response to direct questioning, M.M. informed Gould, contrary to her earlier denial, that her father had also touched her "peepee." Gould reassured M.M. that she was sorry about what he had done. Gould observed no signs of abuse during the child's physical examination. As more fully discussed infra, in his January 27, 2009 opinion, Judge Convery found Goldman "not [to] be a neutral interviewer and became [mother's] advocate demonstrating a clear bias in obtaining statements from [M.M.] to inculpate [father] that he sexually abused his daughter."
Heather Frommer, a DYFS caseworker, conducted M.M.'s third interview that day. According to the records admitted into evidence, M.M. disclosed to Frommer that her father yelled and was mean to her and to her sister and mother, that he had hit her and her sister, and grabbed her mother's face. M.M. denied, when asked, that he had done any other bad things.
Detective Johnson conducted M.M.'s fourth interview that day. She conducted a videotaped interview with M.M. in Frommer's presence for just under an hour. The detective related that M.M. vacillated in her answers, for example, when asked directly whether her father ever touched her private parts, she answered "no" and later admitted talking to Goldman about her father touching her "pee-pee." Judge Convery viewed the videotape of the interview.
When they arrived home that night, mother told M.M. that she was proud of her for discussing "things that were hard to talk about," and reminded M.M. that she should feel free to talk with her about anything.
The following day, an examination by Dr. Nina Agrawal, a pediatrician specializing in child abuse, revealed no evidence of physical abuse to either girl.
Karen Smarz, Ph.D., a DYFS psychologist, testified about her interview of M.M. about six weeks later, on November 14, 2005, as part of the agency's investigation. According to Dr. Smarz, M.M. repeated that her father had put "poopy" in her face, had digitally penetrated her, everything also happened to her sister, and all the abuse occurred at both her father's andmother's houses. Yet, earlier in the interview when Dr. Smarz had asked M.M. whether anything had happened to her body that she did not like, M.M. recalled only getting a cast on her arm, rather than any instance of sexual abuse.
By letter of March 12, 2007, Dr. Katz, the court-ordered therapist for the children, related to the court the following incident, among other items pertaining to the parties and children:
[Mother] has been adamant and detailed in her reporting of how [M.M.] has been sexually abused and tormented by her father causing significant and enduring psychological trauma. [Mother] has repeatedly reported that [M.M.] is currently terrified of her father as a result of his acts of sexual abuse and repeated threats to [M.M.] that he is going to murder the child. [Mother] has reported that signs of traumatic stress symptoms occur at home and at school. [Mother] has emphasized that therapy must focus on sexual abuse treatment for [M.M.], and that the therapist must get [M.M.] to discuss her abuse by her father. [Mother] would not accept the possibility that any of the information reported by [M.M.] could be distorted or confounded in any way. In fact, when this issue was presented to [mother] by the therapist, she proceeded to "faint" in the therapist's office. She lay down on the floor and did not get up or respond until the therapist announced to her that he was going to call 9ll. At that point, [mother] did get up and sit on the couch. [Mother] complained of the office being hot and not having eaten earlier as the cause of her fainting. It is noted that the office was warm that day, but that [mother's] announcement that she was going to faint took place right after the issue regarding potential contamination or distortion of the data was presented to her.
Dr. Katz was replaced with Amie Wolf-Mehlman, Ph.D. on June 15, 2007, after the children frequently missed sessions and reported they preferred not to have a male therapist.
Turning to the custody issue, at trial both parties testified they were involved with their children's upbringing and they could flexibly schedule their ophthalmology practices to accommodate parenting time with their children. After reunification, the children spent supervised time with father at his parents' home. They engaged in outdoor activities together, and father prepared their meals and helped them with their homework. He explained that he wanted the children to have positive relationships with both parents and their extended families, but related that mother frequently disregarded the parenting agreement, removed all pictures of him from the marital home, limited the children's telephone conversations with him, and discouraged them from showing him affection in her presence. His mother and sister testified and confirmed the affection the girls showed to him and his family.
Mother explained that she had taken on greater child-rearing responsibilities after the children's former live-in nanny left her employ and emphasized that she lived close to their new school. In addition to M.M.'s teacher and a camp counselor, who testified to both parents' involvement in M.M.'s education and activities, and mother's office manager, who attested to mother's efforts to modify her work schedule to accommodate her parenting responsibilities, mother offered Hellring, who reported warm interactions between each party and the children. However, mother declined to offer her parents or brother to testify either as to their court-ordered supervision of mother's parenting time with the children or to any of M.M.'s traumatic episodes at her mother's house. Accordingly, pursuant to Michaels v. Brookchester, 26 N.J. 379 (1958), the court drew an inference that their testimony would have been unfavorable to mother.
Father presented two psychologists as custody experts, Edwin A. Rosenberg, Ph.D., and Dr. Montgomery,*fn5 who were accepted as such by the court. Dr. Rosenberg conducted a best-interests evaluation in accordance with the guidelines promulgated by the State Board of Psychological Examiners. He reviewed documents, met with the parties and children, and spoke with the children's former live-in nanny and mother's psychiatrist. Notably, he testified that mother told him father had been diagnosed with an Axis II disorder*fn6 by a psychiatrist and he later found out this was untrue and she had been upset by the psychiatrist's failure to make that diagnosis. According to Dr. Rosenberg, this showed that mother had "inflexibility" in her thinking, such that once she believes something she will not let it go, as in her belief she and the children were abused and father has an Axis II disorder.
Dr. Rosenberg testified about the psychological tests he performed and evaluated. The results suggested the parties were both capable of logical and coherent thinking and of perceiving people and events realistically, but exhibit diminished tolerance for frustration and a tendency toward impulsive actions and emotional outbursts, characteristics which would negatively impact their functioning as parents. Father's ability to form intimate relationships without giving his own needs priority over those of others lent to a more positive outlook on his parenting ability, while mother appeared inflexible in her beliefs and behavior and likely to place her own needs above those of others. Moreover, she was prone to anxiety, depression, and self-pity.
Dr. Rosenberg interviewed M.M. as part of the evaluation. She told him her father "stuck his finger in her bagina [sic]" and hit her and did "other mean things" but when asked what else, "she shut down" and said she did not remember. M.M. was "matter of fact" when recounting this and expressed no discomfort. The psychologist expressed doubts about how "spontaneous and real her disclosure [of abuse] was" because of her lack of sadness or anxiety when reporting the incidents. M.M. also said her mother promised they were moving, possibly to Manhattan.
Dr. Rosenberg found M.M. to be emotionally immature, as confirmed by her nanny's disclosure to him that M.M. frequently told untruths to seek attention. He explained that it was important that, at her age, M.M. develop a degree of "self-sufficiency and self[-]care and [be] self[-]soothing" and, to that end, she be encouraged by her parents to become more independent. Her relationship with mother, however, was deficient in that regard. While Dr. Rosenberg observed father promptly correcting M.M.'s behavior when she attempted to cheat in a game with her sister, mother was more lenient. Moreover, the children slept through the night in their own beds at their paternal grandparents' house but in bed with their mother at her house.
In observing the children with father, Dr. Rosenberg found neither child avoided physical contact with him and were comfortable being close to him physically. Father was also responsive to the children's needs, was "supportive and nurturing," and was able to be firm with M.M. without showing anger. Moreover, neither child appeared afraid of him.
In observing the children with mother, the expert observed she did not persist in trying to modify M.M.'s behavior that needed to be corrected, unlike father who persisted until the behavior subsided. The children were very competitive about mother's attention, and when she paid attention to J.M., M.M. pouted. M.M. also "regressed in her behavior" when mother showed physical affection to J.M., and sought to redirect her mother's attention back to her.
Dr. Rosenberg found father had "a positive nurturing relationship" with both children. He opined that father "would facilitate and encourage a relationship between his children and" mother, while she would be incapable of returning the favor, given her unsupported belief that he abused the children and her hostility to the idea of him even being granted supervised visitation. According to Dr. Rosenberg, M.M. wouldbe better able to develop into a more independent and self-sufficient person in father's care and this development would be hindered by her current relationship with mother because of M.M.'s regressive behavior when with her. Dr. Rosenberg recommended the parties be granted joint legal custody and concluded, in light of the N.J.S.A. 9:2-4 factors, that father be given primary residential custody. He recognized that the separation from mother would impact M.M. in the "short term," but in the long term he opined she would benefit by getting out of the symbiotic relationship with her mother. Moreover, because the children had had only limited, supervised visitation with father, and in view of mother's expressed feelings about father to the children, he recommended the children be permitted the opportunity for uninterrupted contact and bonding with father. Accordingly, Dr. Rosenberg recommended mother have limited contact for a period of time, with a graduated process for supervised parenting time.
Dr. Montgomery also met with the parties and children, as well as father's family members, and analyzed the statutory custody factors. When she interviewed M.M., she felt the child "was very prepped" to come to the meeting, and immediately started volunteering information that her father did "bad things," and looking for the psychologist's reaction. She found"most significant" M.M.'s "playful, at ease, comfortable demeanor" in discussing "very disturbing topics"; M.M. was almost gleeful in telling her about the sexual abuse. Furthermore, Dr. Montgomery related that M.M. sounded "very rehearsed" and there was a big disconnect between what she was saying and her affect. When discussing the sexual abuse, M.M. told Dr. Montgomery that it seemed as if she had talked about the abuse "a hundred" times and volunteered that she had frequently spoken about it with her mother. M.M. asked Dr. Montgomery if she were going to give M.M.'s drawings to the lawyers or judge, and when asked how she knew about the judge she said her mother told her. M.M. spoke negatively about her father throughout the evaluation, and Dr. Montgomery felt she "was going almost overboard to impress [the doctor] with the fact" that her mother was all good and her father was mean and not even a part of the family.
J.M. "rotely repeated" that her mother was angry at her father "because he did bad things," without "any emotional connection to the words," but could not elaborate or recall ever having seen her father do those bad things. She also related that her mother was sad when she visited with her father and she could not speak with him in front of her mother.
In observing the children with father, Dr. Montgomery felt "it was a very relaxed, natural interaction" and there was no detectable anxiety or apprehension. M.M. and J.M. both demonstrated physical affection towards father, and M.M's demeanor was relaxed and she put her arm around him.
Both parents appeared to attend to the children's needs and they were affectionate with mother as well. Dr. Montgomery did note that M.M. asked her mother what the word "licked" meant, which she found odd because in other interviews M.M. had reported she "licked her father's penis." At one point, mother referred to J.M. by her first and last name in a kidding manner, and M.M. looked straight at Dr. Montgomery to gauge her reaction and said J.M.'s last name was really her mother's maiden name. When mother corrected M.M., the child repeated the same thing, again looking directly at Dr. Montgomery with a smile on her face, trying to get her attention.
Dr. Montgomery also listened to tapes mother made of conversations with the children, finding the substance and process of taping to be "disturbing," opining that the content of some of the conversations negatively reinforced the children's feelings about father. For example, on either a tape recording or journal entry, mother asked whether father's "penis was soft or hard," and whether it was "pointing up"; accordingto Dr. Montgomery, this was "educational" and "very influencing of the child."
With regard to custody, Dr. Montgomery largely concurred with Dr. Rosenberg. She recommended a shared parenting relationship because abuse was not substantiated and had a concern if custody were slanted in mother's favor, that would continue to give the message to the children that something was wrong with father. She recommended the children spend an initial period of time completely with father to acclimate them to the fact they have "two parents that were on equal footing" and "equalize the playing field[.]" The psychologist opined that the period of separation from mother would also likely stop the conversations she continued to have with the children about the sexual abuse allegations and her "anxiety" about it would no longer be conveyed to the children.
Judge Convery credited the factual bases and opinions of the custody experts in his August 18, 2009 opinion. He noted that the "welfare of children will always be the overreaching consideration of the court[,]" and, in part, that both experts testified that father's interaction with the children was a "healthier one" than mother's and he would be "better able to nurture the children's growth and emotional independence."
Based on his assessment of all the testimony and evidence presented during the lengthy trial, some of which was contained in prior written opinions, the judge was satisfied "the children's emotional health and safety has been placed in jeopardy by [mother's] pattern of behavior during an extended period of the children's 'nurturing years' without any contact by [father] or his right to exercise his parental role in raising his children." He was concerned that the children, particularly M.M., would "continue to be at risk of her mother's manipulative behaviors to gain custody of the children at all costs and to attempt to eliminate [father] from his children's lives." He was of the opinion the children would be better able to separate and grow to be self-determined by being with their father as their primary parent.
The judge continued his analysis as follows:
The court accepts [father's] experts', Drs. Rosenberg and Montgomery, factual findings and conclusions that there must be a period of no contact between [mother] and the children to "sever or extricate" [mother's] feelings from the children's imposed beliefs about their father. [Father] has and will provide a more stable home environment than [mother]. From [mother's] actions in fostering the children's ill gotten beliefs about their father, her ceasing any contact with the children and their father, their paternal grandparents and extended family, the reported behaviors of the children only during [mother's] parenting time and with [mother] disobeying the prohibition of being with the children unsupervised, the court finds there was substantial adverse effect on the children in the environment offered by [mother].
Judge Convery concluded, in pertinent part:
Based on the body of evidence of [mother's] behavior and its adverse effect upon the children and [father], [he] shall be awarded sole legal custody of the parties' children and shall be designated the parent of primary residence [citations omitted]. [Father's] parenting of his children shall be unsupervised. However, as Dr. Montgomery cautioned, [father] must be vigilant and watchful at all times to protect himself from any accusations as the children's primary parent while the children are under his care and until the children undergo therapy and become re-educated. The children must continue to participate in family therapy [and] . . . continue their sessions with Dr. Wolf-Mehlman . . . .
The court further designated mother as the children's parent of alternate residence with her parenting time supervised by a court-approved supervisor and required mother to begin psychotherapy, appointed a Parent Coordinator, and set a detailed parenting schedule.
Pertinent to this appeal, the court awarded father $1,565,955.29 in attorneys' fees and costs and $255,406 in expert fees, totaling $1,821,361.29. According to the court, it particularly considered "the factor of fundamental 'fairness'" and, in part, exercised "its equitable power to redress an evil practice or wrongful conduct" on mother's part.
This obligation was expressly designated "to be in the nature of support to serve as a nexus in conjunction with the child support award," citing Winegarden v. Winegarden, 316 N.J. Super. 52 (App. Div. l998) and DiGiacomo v. DiGiacomo, 256 N.J. Super. 404 (App. Div. l992). Moreover, the court determined such award, under the circumstances of the case, to be as much "necessaries" as maintenance and support to the children, citing Pelusio v. Pelusio, 130 N.J. Super. 538 (App. Div. l974); ll U.S.C.A. § 523(a)(5). These rulings were reflected in a dual judgment of divorce, from which mother appeals.
III.On appeal, mother argues the court's failure to hold a Title 9 hearing or adjudicate the abuse allegations independently of and prior to the custody trial is reversible error. More specifically, mother argues a law guardian should have been appointed to protect the children's interests and help them express their wishes to the court as required by N.J.S.A. 9:6-8.23, and the court's failure to hold a Title 9 hearing caused the burden of proof to be impermissibly shifted. Mother further asserts as reversible error the court's exclusion of:
(1) GAL Hellring from attending trial and the limitation of her testimony to exclude reference to sexual abuse; (2) Dr. Silberg's reports, interviews and testimony; (3) other experts' reports and testimony regarding M.M.'s purported disclosures of sexual abuse; and (4) M.M.'s testimony regarding sexual abuse. Mother also argues in general terms that the court failed to faithfully follow the best interest of the children standard in resolving custody issues and abused its discretion in awarding father counsel and expert fees. We disagree with all of mother's contentions and affirm.
It is well-settled that a "trial court has broad discretion in the conduct of the trial[.]" Litton Indus. Inc. v. IMO Indus., Inc., 200 N.J. 372, 392 (2009). Moreover, our scope of review of a trial judge's factfinding and discretionary rulings is limited. Generally, we accord due deference to the credibility findings and the "feel of the case" by the trial judge who has heard and observed the witnesses, Pascale v. Pascale, 113 N.J. 20, 33 (1988); Gallo v. Gallo, 66 N.J. Super. l, 5 (App. Div. l961), and findings by the trial court are binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This is particularly so with Family Part judges who possess special expertise in these types of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
We reject mother's argument that an independent Title 9 proceeding was statutorily mandated and, as additionally suggested at oral argument, required by us in our interlocutory order of February 2, 2007. It is important to place into context the procedural posture of mother's Title 9 request. Following investigations, the police, DYFS, and the county prosecutor's office declined to institute criminal proceedings against father or to "originate ...