July 23, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1542-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2012 -
Before Judges Sabatino and Ashrafi.
In this post-divorce appeal, plaintiff L.S., formerly L.C., ("plaintiff" or "the mother") appeals from orders of the Family Part dated December 22, 2010, and August 1, 2011, that modified the parenting time arrangements for the parties' three children. She argues that the court violated her due process rights by increasing the parenting time of defendant V.C. ("defendant" or "the father") and by changing the residential custody status of two of the children without holding an evidentiary hearing. We disagree that the Family Part violated plaintiff's rights and affirm the orders.
The case has a troubling history. The parties were married in 1999, separated in 2005, and divorced in 2007. They have two daughters, now ages twelve and nine, and one son, age seven. Since the parties' separation, the older daughter has adamantly rejected having a relationship with her father. The other two children have more normal relationships with both parents in the midst of a highly disputatious divorce, but they, too, have exhibited negative effects of the hostility between their parents.
The father has sought to rehabilitate his relationship with the older daughter through therapy and reunification strategies, but those efforts have been unsuccessful so far. The mother states that she wants her children to have better relationships with their father, but she is immutably distrustful of him, and anyone else who does not view the situation as she does and therefore has sided with him in plaintiff's eyes. Plaintiff accuses her ex-husband of domestic violence against her and reports judicial support of that accusation, although a final adjudication of domestic violence was never entered. A temporary restraining order that she obtained at the time of their separation was dismissed after a contested hearing.
She also accuses him of physical abuse of the children, but investigations by the Division of Youth and Family Services (DYFS) have not resulted in any such finding. Neutral evidence has failed to corroborate the mother's accusations, including video recordings from security cameras in the father's home and the statements of observers hired for the express purpose of monitoring the father's visits with the older daughter. The father has a history of failing to control his anger, and he has displayed insensitivity to his children's needs and feelings, but the substantial weight of evidence indicates verbal and minor physical excesses by the father, not physically abusive conduct toward the children.
Distressingly, the children are deeply involved in the acrimony and have become active participants in their parents' animosity. They misbehave and are disrespectful and sometimes physically aggressive toward their father. The older daughter has defied her father and then reported physical and verbal abuse that is contradicted by the video evidence and the accounts of third parties. The younger daughter has manifested signs of joining in the older daughter's campaign against her father out of a sense of loyalty to her sister. The boy has misbehaved and shown aggression of various kinds.
The mother's pro se brief on appeal is coherently written, but it is not an appropriate document for purposes of litigation. It is mostly a lengthy diatribe making unfounded accusations of error or corruption against all who do not agree with her. She justifies her singular point of view by the need to protect herself and the children against violence and abuse. But instead of arguing from the record to prove her allegations, she presents a personal narrative of perceived wrongs - by her ex-husband, by her ex-husband's attorneys, by the court-appointed psychologist assigned to evaluate the family and to propose a therapeutic parenting plan, by several other therapists, by the two judges who have heard parts of the case and have both now recused themselves because of actions taken by her, by the retired judge who serves as parenting coordinator, by the guardian ad litem assigned by the court to protect the legal rights of the children, by the professional observers who have been engaged to make certain that the older daughter is not mistreated while in the company of her father, by DYFS which has not substantiated abuse, by the nanny who helps care for the younger children during the father's parenting time, and by the father's father who admittedly slapped the six-year-old boy when he repeatedly called his grandfather a vulgar name containing the f*** word.*fn2
Most of the factual statement in plaintiff's brief is not supported by citation to the record, a requirement of our appellate rules of procedure, R. 2:6-2(a)(4). Where citations to the appendix or transcript appear, they are often references to a phrase or statement taken out of context to mean something that clearly was not meant when the phrase or statement was uttered.
Plaintiff accuses the Family Part judge who entered the orders from which this appeal is taken of being insensitive and biased against her. She argues that a simple reading of the crucial August 1, 2011 hearing transcript demonstrates the judge's bias and his alleged lack of concern for the dire needs of her children. Our reading of the transcript demonstrates just the opposite. Throughout the August 1, 2011 hearing, Judge Troiano showed diligence, concern, fairness, patience, and evenhanded consideration of issues and arguments presented by attorneys for both parties.
Similarly, plaintiff perceives bias by the court-appointed parenting evaluator, David Brodzinsky, Ph.D. She contends that his report is full of omissions and distortions. Our reading of the seventy-nine-page report leads us to a different conclusion. Dr. Brodzinsky documented every piece of evidence he reviewed - a seven-page list of items - and he recounted detailed narratives of every clinical evaluation and every interview he conducted before reaching his conclusions and making his recommendations. Dr. Brodzinsky spoke to at least twenty-two persons who might have some knowledge of relevant facts about this family. Besides evaluating the parties and the children through extensive personal contact as well as the study of recorded information, he spoke to the family's therapists, the professional observers of the father's parenting time, family members of both parties, the nanny, school personnel, and persons as far removed from the divorce case as the children's dentist and their karate teacher. Our reading of Dr. Brodzinsky's report indicates an exhaustively detailed account of the doctor's findings, comprehensively explained conclusions and recommendations, and no favoritism in assessing the parents' joint responsibility for the family's troubles.
Plaintiff's accusations against the retired judge who has been engaged by the parties to serve as parenting coordinator are particularly vituperative. Both parties originally consented to have the retired judge serve as parenting coordinator and they agreed that the father would pay his fees. Yet as events developed and the parenting coordinator did not adopt her views, plaintiff began and has continued to accuse him of bias, overreaching, and corruption, in part because he is paid by her ex-husband.
She also claims that Judge Troiano abdicated his responsibility to make decisions to the parenting coordinator and the expert psychologist. See P.T. v. M.S., 325 N.J. Super. 193, 216 (App. Div. 1999). Our review of the record indicates otherwise. In a very difficult case, the judge utilized the services of those professionals to gather and report information about the endless fighting between the parents and the consequences upon the children's best interests. He reviewed their reports and considered their recommendations. The record leaves no doubt in our minds that Judge Troiano carefully considered the issues and potential remedies and personally made decisions within the sphere of his authority regarding the parenting disputes.
Having said all that, we do find that plaintiff has a colorable issue on appeal that requires more detailed discussion. Did Judge Troiano properly dispense with an evidentiary hearing and instead rely on the report and recommendations of Dr. Brodzinsky in ordering modification of the parenting arrangement and schedule? In the circumstances of this case, we are confident that he did.
The judgment of divorce granted the parties joint legal custody of the children and designated the mother as the parent of primary residence. The father was granted parenting time with all three children on alternate weekends, alternate Mondays, and every Wednesday night. As we understand the parenting schedule, he was to have five overnights with the children for every two-week period. The older daughter, however, refused to spend time with her father. Individual and family therapy was ordered to attempt to resolve the older daughter's resistance.
During the months that the divorce case was pending and after a judgment of divorce was entered, the parties had many disputes about the details of sharing time with the children. A parenting coordinator was appointed, and his role and function were expressly included within the terms of the judgment of divorce. Two years after the judgment was entered, by consent order dated August 21, 2009, the parties agreed to utilize the services of the retired judge as a replacement for the prior parenting coordinator. In 2009, the court ordered that Dr. Brodzinsky investigate and evaluate the circumstances of the parenting difficulties and recommend a reunification strategy with the older daughter. In accordance with the first step of Dr. Brodzinsky's initial report dated September 15, 2009, arrangements were made for the father to have visits with the older daughter once per week on Wednesday evenings. A psychologist was hired as a neutral observer to be present during the visits and to keep detailed notes of what occurred. The visits were typically in the father's home with the younger children also present.
By order dated December 22, 2010, Judge Troiano increased to two evenings per week the father's parenting time with the older daughter, still under the watch of a professional observer. The judge also ordered an increase in the father's parenting time with the two younger children, adding one more overnight every two weeks for the purpose of reducing the number of transitions of the two younger children between the parents. Because plaintiff opposed the increased parenting time and made accusations against the father regarding the children's safety and welfare, Judge Troiano issued an order dated January 19, 2011, directing Dr. Brodzinsky to conduct a "best interests" investigation pertaining to the children and to issue another report. Three more orders were entered over the next several months containing detailed directives as to parenting time, therapy for the older daughter, and payment of the expenses of the professionals involved.
On June 7, 2011, Dr. Brodzinsky issued his second report, the seventy-nine-page evaluation previously described. After providing detailed factual information, Dr. Brodzinsky thoroughly explained his conclusions, with references to the factual evidence and support for his conclusions in relevant research and literature. An important part of his conclusions for purposes of the current dispute is that the prior efforts to reunify the older daughter and the father had failed. As the observational notes of the visits demonstrate, the daughter's resistance did not dissipate, and the presence of the two younger children may have put the father's relationship with them at risk as well. By seeing the older daughter's conduct firsthand in the presence of their father, the younger siblings seemed to be emulating her and joining in her open defiance of their father, perhaps out of a sense of loyalty to their sister or mother.
Another significant conclusion reached by Dr. Brodzinsky is that the deteriorating parental relationships have been caused by "active parental interference by the favored parent and parenting deficiencies in the rejected parent, as well as a high level of case litigation." This conclusion led to Dr. Brodzinsky's rigorously detailed explanation of his recommendations for family therapy and a new parenting arrangement. The general theme of the recommendations, in the doctor's words, is "a parallel parenting plan rather than a cooperative one" because of the high level of conflict between the parties and their inability to set aside their animosity.
In itemized form, Dr. Brodzinsky made thirty-one recommendations for attempted reunification of the father with the older daughter, therapy for the daughter and the parents, and judicial and professional oversight to control and attempt to resolve the parenting time difficulties of the family. The recommendations proposed specific parenting schedules, the services of mental health and legal professionals, and close oversight and supervision by the court.
Regarding the parenting schedule, Dr. Brodzinsky recommended that the father's visitation schedule with the older daughter be reduced from two evenings per week to one weekday evening per week and one three-hour weekend visit per month, the latter involving a family activity away from the father's home. He recommended that the two younger children not be present for the weekday evening visits. All visits with the older daughter were to continue under the observation of a neutral professional, whose role was to be expanded to provide parenting advice to the father.
As to the younger children, Dr. Brodzinsky recommended a modification of the parenting schedule with the objective of reducing further the transitions from one parent's home to the other. He recommended for each two-week period that one parent have the two younger children every Monday and Tuesday and the other parent every Wednesday and Thursday. The parents would then alternate Fridays from after school through Monday morning school drop-off time. This plan would give each parent a five- day block of time one week followed by the same two weekdays the following week. The plan contemplated equal parenting time with the two younger children, seven days and nights for each parent. Dr. Brodzinsky recommended the parents be jointly designated as sharing residential custody of the two younger children under this arrangement because designating one parent as the parent of primary residence has been "misunderstood and misused" by the mother.
By order dated June 20, 2011, the trial court scheduled a conference to consider Dr. Brodzinsky's recommendations and ordered counsel to be present with their clients. That directive changed, however, because of the vacation schedule of the mother's newly-hired attorney. On the rescheduled conference date of August 1, 2011, the mother was not in attendance, possibly because of confusion about the requirement that she attend. Her attorney attended the conference and was given ample opportunity to present her views.
The attorney's primary position was that the mother disagreed with and opposed most of Dr. Brodzinsky's conclusions and recommendations, and that the court was required to hold an evidentiary hearing to determine whether and how to implement any of those recommendations. The father's attorney was willing to proceed to such a hearing if necessary but requested immediate implementation of the recommendations pending an evidentiary hearing so that attempts at reunification would not be delayed further. Judge Troiano heard argument and carefully discussed with the attorneys whether a hearing was required.
In the end, the judge decided to enter an order implementing almost all of Dr. Brodzinsky's parenting time and therapeutic recommendations without holding an evidentiary hearing. The judge reasoned that Dr. Brodzinsky's report was painstakingly detailed and supported by the evidence recounted in the report. Protracted examination of the doctor in a courtroom would not be productive and would only drain the parties financially and delay the outcome. Furthermore, the engagement of additional evaluators and experts, as requested by the mother, would be deleterious to the welfare of the children. The mother had previously objected to the children being subjected to repeated examinations and evaluations, and she did not have a ready proposal to engage yet more experts. The judge concluded that the time had come to move forward with an order and not delay the matter further for more evaluations and an evidentiary hearing. Stating that he had reviewed Dr. Brodzinsky's report several times, the judge issued the order of August 1, 2011, adopting Dr. Brodzinsky's recommendations, with two modifications, for a new parenting time arrangement and continuing therapy and monitoring of the family's parenting
While it is true that significant changes in custody and parenting arrangements will usually require a plenary hearing where a party opposes the change, Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005); Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982), there is no per se rule that an evidentiary hearing is required for all modifications of custodial and parenting arrangements. Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 81 (2006). Family Part judges may consider whether genuine issues of fact exist that require a hearing. Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). They may also consider whether the "financial and personal" costs to the litigants of lengthy hearings may be more detrimental than helpful to resolving the dispute and to the best interests of the children. Barblock, supra, 383 N.J. Super. at 123.
In this case, the modification of the parenting schedule was not the type of change of custody or atypical parenting arrangement that we have cautioned may be ordered only after hearing conflicting testimony under oath. Entress, 376 N.J. Super. at 128, 133; P.T., supra, 325 N.J. Super. at 214; Fusco, supra, 186 N.J. Super. at 327-28. Judge Troiano described the change from the mother being the parent of primary residence of the two younger children to joint residential status as "a label" that did not effect a major alteration of the custodial status of the children in this case. We agree.
The court is not bound by labels placed on the type of custodial relationship of the parents and the children. O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002). The objective of the court is to protect the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Because of the Family Part judge's close familiarity with the parties and with the factual circumstances, the judge is granted discretion to make modifications of parenting arrangements with that objective in mind.
Here, the orders appealed from increased the father's time with the younger children, and they continued attempted reunification visits with the older daughter, but they did not essentially alter the custodial arrangement for the children. Judge Troiano had the authority to make the changes in accordance with the recommendations of the professionals who had studied the parties, the children, and the problems of the divorce.
As we have stated, we also reject plaintiff's argument that Judge Troiano abdicated his responsibility to make decisions to the parenting coordinator and the court-appointed parenting evaluator. The judge's careful consideration of the numerous issues and his modification of some of the recommendations in Dr. Brodzinsky's report is an indication of his personal decision making. In fact, the judge expressed his intent to monitor and supervise the conflict closely.
Having reviewed the record and Judge Troiano's reasons for issuing the orders of December 22, 2010, and August 1, 2011, we conclude that he did not abuse his discretion in proceeding without a hearing in the particular circumstances of this case. See Hand, supra, 391 N.J. Super. at 112.
Finally, plaintiff argues that the judge ordered monetary sanctions against her without reviewing the financial status of the parties, but the orders appealed from contain no monetary sanctions or specific directives pertaining to compensation of professionals. Additionally, the judgment of divorce contained substantial terms of equitable distribution, thus providing a basis to conclude that the parties have assets with which to share in the expenses of professionals that have been engaged during this litigation.
In sum, we conclude that plaintiff has not provided any ground for us to interfere with the Family Part's fairly conducted proceedings or diligent efforts to address this family's many difficulties.