June 12, 2012
ANGELICA YVETTE SANCHEZ, PLAINTIFF-APPELLANT,
JULIO RIVERA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-000825-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2012 -
Before Judges Reisner and Simonelli.
Plaintiff Angelica Sanchez appeals from the August 16, 2011 Family Part order, which transferred temporary residential custody of her daughter, M.R.,*fn1 to the child's father, defendant Julio Rivera. We affirm.
Plaintiff and defendant were in a dating relationship when M.R. was born in March 2003. The parties separated approximately one year later. Plaintiff subsequently gave birth to M.R.'s two half-siblings, and they all moved into plaintiff's mother's apartment. Because the apartment was small, M.R. slept in the living room, where she frequently stayed up late on school nights watching television.
On April 7, 2004, plaintiff filed a complaint for residential custody of M.R., and on May 17, 2004, defendant filed a counterclaim for residential custody. The parties entered into a consent order on June 29, 2004, which granted them joint legal custody of M.R., granted plaintiff residential custody, and granted defendant parenting time. The court subsequently entered an order on December 7, 2004, requiring defendant to pay $90 per week for child support, retroactive to October 13, 2004.
On March 11, 2005, defendant filed an application for a change in custody, alleging that plaintiff was not properly caring for M.R. In an April 15, 2005 order, the trial judge denied the application, but granted defendant additional parenting time. Thereafter, plaintiff filed several applications relating primarily to increasing child support. The last application resulted in a July 27, 2010 order, which increased child support to $159 weekly.
Beginning in November 2010, defendant began receiving notices from M.R.'s elementary school about his daughter. For example, defendant received a November 3, 2010 letter from the principal advising that as of October 29, 2010, M.R. had been late to school fourteen times, which disrupted her school day and most likely adversely affected her academic progress. M.R.'s subsequent second marking period report card revealed that out of eighty-nine school days, she had been late forty-seven times, or more than fifty percent of the school year to that point. In addition, M.R.'s teacher advised defendant that M.R.'s frequent lateness interrupted the classroom routine and set M.R. behind in class work.
Defendant received a January 6, 2011 letter from the principal advising that although plaintiff had purchased a program for M.R. to receive breakfast at school, the child was not eating breakfast on a regular basis because she was late to school, and she was not eating breakfast at home. M.R.'s teacher sent defendant emails in January and February 2011, advising that M.R. was late several times and did not have breakfast.
Based on these notices, on February 14, 2011, defendant applied for a change in custody. At a hearing on March 7, 2011, defendant testified and presented the above documentary evidence to the trial judge. Plaintiff testified that she has two other children to care for in the morning in addition to getting herself ready for work. She admitted that M.R. had been late for school and missed breakfast, but placed the blame for this on M.R., claiming that the child did not listen to her and had trouble getting up in the morning and getting herself dressed for school. Defendant responded that M.R. was never late for church and communion classes when she was with him on Sundays, she had a room of her own in his house, and she was still sleeping in the living room at plaintiff's home despite notice to plaintiff from the Division of Youth and Family Services (the Division) to obtain a bed for M.R.*fn2
The judge ordered a best interests evaluation with Dr. Paul Dasher. Thereafter, in May 2011, defendant received a letter from the principal at M.R.'s school advising that M.R. was late to school eighty-five times during the school year to that point, and this was "causing a disruption to [M.R.'s] school day and [was] most likely adversely affecting . . . her academic progress."
Dr. Dasher conducted individual interviews with plaintiff, defendant, M.R., plaintiff's mother, defendant's fiance, and the fiance's mother. He also conducted joint and bonding interviews with plaintiff, defendant, and M.R., and reviewed records from M.R.'s school, the Division, and the court. Dr. Dasher reported the results of the interviews and his document review in an August 12, 2011 written report, and concluded for the reasons stated therein that it was in M.R.'s best interests to reside primarily with defendant, with plaintiff having liberal parenting time. The doctor opined that "if the current situation persists, [M.R.]'s recent adjustment difficulties . . . could intensify[,]" and plaintiff does not understand how overburdening M.R. with parental responsibilities and failing to properly supervise her late night television and chronic lateness is affecting M.R. He also concluded that "if [M.R.] were to continue to be confronted with these issues in her mother's home, it is likely that her anger and frustration will intensify and there will be attendant behavioral problems more severe than what [she] is expressing at this time."
At a second hearing before a different judge, plaintiff did not dispute the contents of Dr. Dasher's report. Instead, she complained about the length of time he had spent with her, and alleged that he failed to return her telephone calls, was reluctant to interview her mother, and made his decision before meeting her.
After hearing the parties' testimony and reviewing Dr. Dasher's report, in an oral decision rendered on August 16, 2011, the judge concluded that the parties should have joint legal custody, but it was in M.R.'s best interests to grant defendant residential custody. After the judge rendered this decision, plaintiff became argumentative and refused to cooperate in setting a parenting time schedule. The judge instructed the parties to wait for a signed order, but plaintiff left the courtroom and did not return for the order. The judge entered an order on August 16, 2011, which granted temporary residential custody of M.R. to defendant, terminated his child support obligation, and granted plaintiff parenting time.
Plaintiff filed a notice of appeal on September 29, 2011. Thereafter, on October 6, 2011, the judge submitted an amplification pursuant to Rule 2:5-1(b), stating that he "had the opportunity to evaluate the demeanor of the parties," and found that defendant was "quite believable" and "rational, calm and willing to enter into discussions" regarding visitation and parenting M.R., while plaintiff "was argumentative, dismissive of the best interest evaluation . . . and was unwilling to participate in either mediation or discussing parenting time with regard to [M.R.]" The judge noted that plaintiff did not dispute that she could not give M.R. attention in the morning because of her two younger children, M.R. was allowed to stay up very late, and M.R. was late for school eighty-five times.
On appeal, plaintiff contends that the judge did not adequately address the factors set forth in N.J.S.A. 9:2-4c in awarding defendant residential custody of M.R., and instead based his decision solely on Dr. Dasher's report. She also contends that the judge erred in relying on Dr. Dasher's report without affording her an opportunity to cross-examine him. We reject these contentions.
"Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998). Moreover, "[t]he trial judge has the opportunity to observe the conduct and demeanor of witnesses and a better opportunity than a reviewing court." Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). Thus, "[i]n our review of an issue of custody the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976). See also Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994); Palermo v. Palermo, 164 N.J. Super. 492, 498 (App. Div. 1978). "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12.
N.J.S.A. 9:2-4c permits the court to determine a custody arrangement based on the child's best interests. In making this determination, the court must consider the following factors:
(1) the parents' ability to agree, communicate and cooperate in matters relating to the child;
(2) the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
(3) the interaction and relationship of the child with its parents and siblings;
(4) the history of domestic violence, if any;
(5) the safety of the child and the safety of either parent from physical abuse by the other parent;
(6) the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
(7) the needs of the child;
(8) the stability of the home environment offered;
(9) the quality and continuity of the child's education;
(10) the fitness of the parents;
(11) the geographical proximity of the parents' homes;
(12) the extent and quality of the time spent with the child prior to or subsequent to the separation;
(13) the parents' employment responsibilities; and
(14) the age and number of the children. [N.J.S.A. 9:2-4c.]
Further, when the parents cannot agree on a custody arrangement, "[t]he court shall specifically place on the record the factors which justify" the custody arrangement it reached. N.J.S.A. 9:2-4f. "[T]he articulation of reasons by the trial court in a child custody proceeding must reference the pertinent statutory criteria with some specificity and should reference the remaining statutory scheme at least generally, to warrant affirmance." Terry, supra, 270 N.J. Super. at 119.
Contrary to plaintiff's contention, the judge addressed the N.J.S.A. 9:2-4c factors in his October 6, 2011 amplification. As to factors (1), (2), (3), (7), (12) and (13), he concluded that the parties were "unable to agree, communicate and cooperate in matters regarding" M.R.; defendant was "willing to accept residential custody of his daughter;" "[i]t was beyond dispute that the needs of the child were not being addressed by the mother;" plaintiff "was unable to give [M.R.] the attention, supervision and quality time that she needs;" "[f]rom the reports and testimony it did not appear that there was quality . . . time spent with the child by" plaintiff; and defendant "works during the school day and is able to spend afternoons and evenings with his daughter" while plaintiff's "work schedule does not provide the same opportunity." The judge concluded that N.J.S.A. 9:2-4c(4) and (5) did not apply because "[t]he
[c]court was unaware of any domestic violence or of physical abuse of the child," and that factor six "was not addressed." As for N.J.S.A. 9:2-4c(8) and (9), the judge found that plaintiff allowed M.R. to stay up late watching television, M.R. was consistently late for school under plaintiff's care, and plaintiff often overlooked M.R. in the morning because of her two younger children. As for N.J.S.A. 9:2-4c(11), the judge noted that the parties' homes were not nearby one another, but they both had automobiles, thereby facilitating visitation.
We are satisfied that the judge's amplification clearly addressed the statutory factors applicable in this case. We are also satisfied that the judge did not rely solely on Dr. Dasher's report, and that the parties' testimony and the documentary evidence alone support the judge's decision that it was in M.R.'s best interests to grant residential custody to defendant.
Plaintiff contends that the judge erred in changing custody without a plenary hearing, and did not address the issue of changed circumstances. We disagree with these contentions.
"'[A] judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.'" Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div.) (quoting Sheehan, supra, 51 N.J. Super. at 287), certif. denied, 192 N.J. 73 (2007). A party seeking such modification bears the burden of proof. Ibid. (citing Sheehan, supra, 51 N.J. Super. at 287-88).
"A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand, supra, 391 N.J. Super. at 105; see also Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999) (stating that "a plenary hearing is not necessary in every case where removal of children is at issue, but rather only where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children").
The record confirms that there was a significant change in circumstances beginning in November 2010, which warranted a change in residential custody. M.R. was excessively late for school, which jeopardized her academic well-being, and she frequently missed breakfast and stayed up late on school nights, which jeopardized her physical well-being. Plaintiff caused and failed to ameliorate these conditions.
In addition, except to criticize Dr. Dasher, plaintiff does not explain how, even if her allegations about him were true, this created a genuine dispute regarding M.R.'s best interests. Importantly, plaintiff did not dispute any of Dr. Dasher's particular findings before the trial judge, and she does not do so on appeal. Thus, there was no genuine and substantial factual dispute regarding M.R.'s best interests requiring a plenary hearing. Nonetheless, the record confirms that the court held two hearings at which plaintiff was afforded the opportunity to dispute defendant's testimony and documentary evidence and Dr. Dasher's findings, which she failed to do.