September 19, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-538-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 1, 2012
Before Judges Espinosa and Kennedy.
Defendant appeals from a post-judgment order that changed the custody arrangements agreed upon in the parties' property settlement agreement (PSA) without a plenary hearing. For the reasons that follow, we reverse and remand.
Plaintiff and defendant were married in 1992 and had four children. When they divorced in January 2008, the terms of their PSA were incorporated into their Final Judgment of Divorce (JOD). The PSA provided that the parties would have joint legal and residential custody of their four children, Rick,*fn1 Sam, Colin, and Missy, with defendant serving as the parent of primary residence.
In February 2009, plaintiff filed a motion, seeking sole legal and residential custody of the parties' children, the appointment of a parenting coordinator and an expert to perform a custody evaluation, and other relief. Defendant filed a cross-motion to enforce several provisions in the PSA, including the parties' agreement that defendant serve as the primary caretaker. The motion judge denied plaintiff's request for sole legal and residential custody of the children and ordered that all provisions of the PSA were to be enforced. The judge also appointed Sharon Montgomery, Psy.D., to serve as a parenting coordinator.
In May 2010, the parties agreed "in accordance with the recommendation of Dr. Montgomery" for an updated evaluation for the purpose of ascertaining "the most appropriate treatment plan and parenting plan." The evaluator's findings, conclusions, and recommendations were to be submitted to the parties in writing. The resulting consent order appointing Dr. Alex Weintrob, M.D. stated:
If the parties agree with the evaluator's recommendations, then the parties shall enter into a Consent Order to implement them. If the parties disagree with the evaluator's recommendations, then either party may make an application to the Court seeking a Court Order to address the subject of whether or not the recommendations shall be ordered by the Court.
Approximately one year later, the trial court sua sponte appointed Terryann Bradley, Esq. to serve as guardian ad litem for the parties' four children.
On May 9, 2011, Dr. Weintrob submitted a 134 page evaluation to the court, which was later supplemented by an addendum dated May 19, 2011. Dr. Weintrob recommended that physical and legal custody of Colin and Missy be changed from defendant to plaintiff. He did not recommend a change of physical custody for Sam or Rick, but recommended that legal custody of them be given to plaintiff.
Defendant filed a motion to maintain the parties' custody arrangements and further sought a plenary hearing to resolve the custody issues. In addition to discovery, defendant sought leave to retain her own custody expert. Plaintiff opposed defendant's motion and, on June 23, 2011, he cross-moved to implement Dr. Weintrob's recommendations.
With these motions pending, the court entered two sua sponte orders that expanded Bradley's role as guardian ad litem. Bradley was ordered to address the parties' custody issues and to provide a written certification in response to the parties' motions concerning Dr. Weintrob's recommendations. When she submitted her report, she concurred with Dr. Weintrob's recommendations.
After Bradley's report was submitted, defendant wrote a letter to the court, and requested an opportunity to meet with Bradley to address what she termed "factual inaccuracies" in the report and asked for Bradley to speak to additional persons, including the children.
The motion judge rejected defendant's request to meet with Bradley. Adopting the recommendations of Bradley and Dr. Weintrob, on July 22, 2011, the court denied defendant's motion, ruled that a plenary hearing was unnecessary, and granted plaintiff sole legal and physical custody of Colin and Missy.
Plaintiff was also granted sole legal custody of Sam, over whom defendant would maintain physical custody. The parties were to share legal custody of Rick, with defendant serving as his primary caretaker.
On August 15, 2011, defendant filed an order to show cause, seeking to restrain and enjoin plaintiff from enrolling Colin and Missy in any school other than the Millburn public schools. This was ultimately heard by the motion judge as a motion for reconsideration of the July 22, 2011 decision. The judge denied defendant's request for oral argument, and denied defendant's motion for reconsideration.
In this appeal, defendant presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN ORDERING THE IMMEDIATE TRANSFER OF CUSTODY WITHOUT AN EVIDENTIARY HEARING IN THE ABSENCE OF EXIGENT CIRCUMSTANCES POINT II
THE TRIAL COURT ERRED IN ORDERING A TRANSFER OF CUSTODY BASED UPON CONFLICTING CERTIFICATIONS AND THE HEARSAY REPORTS OF THE CUSTODY EXPERT AND GUARDIAN POINT III
THE TRIAL COURT ERRED IN ORDERING A TRANSFER OF CUSTODY BASED UPON
THE HEARSAY REPORTS OF THE CUSTODY EXPERT AND GUARDIAN AND DENIED [DEFENDANT] FUNDAMENTAL DUE PROCESS RIGHTS IN REFUSING HER REQUEST FOR HER OWN EXPERT, DENYING DISCOVERY, AND THE RIGHT TO CROSS-EXAMINE THE EXPERT AND GUARDIAN POINT IV
PLAINTIFF FAILED TO MEET HIS BURDEN OF SHOWING CHANGED CIRCUMSTANCES TO JUSTIFY A TRANSFER OF CUSTODY POINT V
THE TRIAL COURT ERRED IN FAILING TO ADDRESS THE STATUTORY FACTORS, ESPECIALLY IN REFUSING TO INTERVIEW THE CHILDREN POINT VI
THE COURT ERRED IN DENYING [DEFENDANT'S] MOTION FOR RECONSIDERATION POINT VII
THE COURT MUST REMAND THE MATTER TO A DIFFERENT TRIAL COURT JUDGE TO INSURE A FAIR AND UNBIASED HEARING
We turn first to the trial court's decision to decline to conduct a plenary hearing. The parties agreed at the time of their divorce that they would have joint legal custody and that defendant would be the parent of primary residence for all four children. After plaintiff's first motion to change custody was denied, the parties agreed to an updated evaluation for the purpose of ascertaining "the most appropriate treatment plan and parenting plan." The parties did not agree in advance that they would accept the recommendations contained in the evaluation. To the contrary, it was agreed that either party could use the evaluator's recommendations as a basis for a motion to the court regarding a change in custody. Plaintiff's motion to implement Dr. Weintrob's recommendations was then a motion to change custody.
"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Upon presenting prima facie evidence of changed circumstances, the party seeking the modification is entitled to a plenary hearing. See ibid.
However, to make a change in custody without affording the parties a full plenary hearing requires more than just a change in circumstances affecting the welfare of the child. Unless there are exigent circumstances, changes in custody are not to be ordered without a plenary hearing. R. 5:8-6; Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010); Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005). Where there is no evidence of any "imminent harm or threatened harm to the well-being" of the child, "there is no justification . . . [to make] a custody decision on an emergent basis, without a plenary hearing[.]" G.C. v. M.Y., 278 N.J. Super. 363, 368 (App. Div. 1995).
The trial court viewed this as a case in which exigent circumstances existed, stating "every single person who has opined to this Court" said there were exigent circumstances, which required it to decide the case immediately. The court also stated that if it failed to act quickly, "something drastic" would happen, either with plaintiff or the children. However, neither the court nor plaintiff has identified any exigent circumstance that posed "imminent harm or threatened harm to the well-being" of any of the children.
As a general rule, we accord deference to the facts found by a family court in recognition of "the family courts' special expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, when there has been no hearing, we need not defer to the conclusions of the trial court. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). Since the trial court reached its finding of exigent circumstances without affording defendant a plenary hearing, the opportunity to obtain her own expert, or any discovery, we need not afford deference to the judge's conclusion that exigent circumstances existed.
The trial court relied upon Dr. Weintrob's comprehensive report and Bradley's report, which included her review of reports and summaries of interviews she conducted with persons with relevant information. We summarize relevant portions of those reports.
Dr. Weintrob conducted extensive interviews with the parties, their children, and multiple mental health professionals who had been involved with the family. In his general observations, Dr. Weintrob stated it was "clear that these children have been exposed to an ongoing 'toxic' environment at least since 2005 and likely earlier." He made the following general comment:
It is my impression, supported by many, if not all, of the professionals who are currently, or in the past, involved with these parties that there is no optimal solution to the conflict over custody. In my opinion, we are dealing not only with the best interests of these children, but also the least detrimental alternatives. While any custody option, decision, or recommendation will hopefully lead to some amelioration of the current level of tension and chaos these children have experienced for many years, are continuing to experience, and likely will continue to experience to some degree, it is probable that there will also be negative consequences. Recommendations will be made in an attempt to minimize such consequences and maximize the positives. [(Emphasis added).]
Dr. Weintrob ruled out the option of joint custody:
[A]ny joint parenting arrangement is out of the question for this couple at this time. . . . While, at times, they have certainly succeeded in addressing their children's needs, there have been repeated tensions, which all parties assert, have left them exhausted. . . . Both parties state clearly that they cannot coparent. The level of ongoing animosity combined with their nearly total inability to communicate in a reasonable fashion, even in the presence of the parent coordinator, makes such an option unworkable.
In considering the risks and benefits of awarding sole custody to defendant, Dr. Weintrob observed that she had been "the primary caretaker of the children . . . and has, by most accounts, been quite competent in this regard[.]" He noted that the children love her; she loves them and would do her best for them if awarded sole custody. He described the risks of sole custody as including an "[e]ven greater interference in the children's ongoing development of a relationship with their father[;]" that her emotional issues "cause her difficulty in making the appropriate decisions for the children, particularly when these involve medical issues[;]" that her ability to make unilateral decisions would be unimpaired by plaintiff's "more restrained input" and that plaintiff's role as parent would likely be marginalized.
As for awarding sole custody to plaintiff, Dr. Weintrob noted various benefits, including that there were "multiple indications that he offers a significantly more reasoned and calmer approach to the children and is better able to put aside his own feelings and thus address the children's needs[;]" that he "demonstrates a high level of emotional and general stability[;]" that "he appears to have a greater ability to make reasoned and thoughtful decisions, including in the area of medical decisions[;]" that "[h]e appears to be fully aware of the difficulties involved with any transfer of custody[;]" and that "[h]e appears to better appreciate the children's need for therapeutic intervention." Dr. Weintrob also opined that plaintiff was "significantly more able" to include defendant in decision-making than she is. Dr. Weintrob couched the risks of awarding sole custody to plaintiff largely in terms of the impact on defendant and the children's loss of a level of ongoing contact with her.
Dr. Weintrob noted that, despite the assistance of parent coordinators, family therapy, and defendant's own multiple therapists, defendant continued to experience difficulties in attempting to coparent and has often been unable to control her impulsive tendencies. He described the change in circumstances that warranted reconsideration of the custody arrangement, including the following: the children "do not appear to be doing as well as [defendant] suggests" and the two older boys "have little ongoing relationship with their father[;]" that all four children "are being exposed to a continuing high level of friction between their mother and father and their mother and [stepmother];" that defendant "has demonstrated continuing, although intermittent, difficulties in terms of regulation of her emotions[;]" and that while there had been no increase in the amount of time the two younger children spent with their father, there was a decrease in the amount of time the two older children spent with him.
Dr. Weintrob recommended that physical and legal custody of Colin and Missy be changed from defendant to plaintiff. He suggested that the children could spend time with their mother after school; that there be limited overnights with her until they were used to the change but that, thereafter, an expansion of the time with her could be considered. Dr. Weintrob regarded Sam's situation a "most complicated" one. He did not recommend a change of physical custody for Sam or Rick but strongly recommended boarding school for each and that they should spend increasing amounts of time with their father. He also recommended that legal custody, which he defined as decision-making for any major decisions, especially medical and educational decisions, be given to plaintiff.
In his closing recommendations, Dr. Weintrob stated,
Above all, I recommend as early an end to the litigation as possible. Further involvement in Court, particularly in the event of a trial, is only likely to fuel the tensions between the parties and bring out the worst in both of them, much to the potential detriment to these children, with the risk of imperiling their ongoing development.
In sum, Dr. Weintrob described the custody issue here as a difficult one with no optimal solution. Although he plainly considered plaintiff better suited to have decision-making authority for all the children, he also recognized that defendant was a loving and loved parent who had been "quite competent." He identified no imminent threat of harm if she continued to have custody of the children. The "risk of imperiling their ongoing development" arose from the continuation of this painfully contentious litigation, not from defendant's parenting.
On July 18, 2011, Bradley submitted her report. She reviewed Dr. Weintrob's report and the pleadings; interviewed the parties, plaintiff's wife, and a former nanny; and had telephone conferences with mental health professionals involved in the matter as well as the parenting coordinator. She did not interview the children because she did not believe it would be beneficial to them and because there were logistical obstacles to such interviews.
Her description of her interview with Dr. Weintrob included the following:
I asked Dr. Weintrob if there was an immediate threat to the children if custody was not changed. Dr. Weintrob stated that there is not an immediate threat with regard to [Colin] and [Missy]. However, there is always an ongoing threat. What he did say to me was particular in terms of timing was that it was best if this transition be done over the summer. [(Emphasis added).]
It is unclear from the report whether the statements attributed to Dr. Weintrob are quotations or Bradley's interpretation of statements he made. However, the "ongoing threat" is undefined.
Bradley stated that Marsha Reich, the therapist for Colin and Missy, told her, "the longer this goes on, the less chance these kids will have any normalcy." Bradley also reported that Reich "indicated to [her] that she has a real sense that something bad may happen and that [defendant] may lose control." Reich agreed that a change in custody would provide the children with "a new, calmer existence" and that, if there was going to be a transition in custody, it should occur before the end of the summer.
Bradley also interviewed the therapists for Sam and Rick. Both agreed that boarding school would be good for the boys. Bradley reported that Sam's therapist, Dr. Kearse, said boarding school is "this kid's 'one shot.' If this does not happen, [Sam] will not be independent or develop himself." Bradley said Dr. Kearse stated that if Sam remained at home "who knows what will happen."
Bradley recommended that both Rick and Sam be encouraged to attend boarding school, that plaintiff be designated as the parent of primary residence for Colin and Missy, and that he have primary legal custody of all four children. She provided the basis for her recommendations, which included the following:
A. All parties involved recognized that [defendant] loves the children and the children love her. However, from my perspective, [defendant] has significant issues which render her nearly incapable of prioritizing the children's best interests and their needs above her own. None of this is intentional. It seems as if she is unable to control her emotions and impulses.
B. It appears that [defendant] often acts inappropriately and either does not recall her actions or justifies them. . . .
My recommendations are also based on the fact that [defendant] has historically undermined the mental health professionals involved in this matter, the children's therapy and other decisions reached as to the children.
C. I further make my recommendation that [plaintiff] be deemed as the parent of primary residence of [Colin] and [Missy] based on my perception that it is [defendant's] actions that have deprived the children of a relationship with [plaintiff].
Again, no imminent threat was identified. The stated preference of some professionals for a transition to occur during the summer does not equate with a need to do so to avoid identifiable harm to the children. Hearsay statements such as "who knows what will happen" and that a therapist has "a real sense that something bad may happen," untested by cross-examination, are simply too indefinite to provide a sufficient basis for stripping a custodial parent of custody without a hearing on the ground that exigent circumstances require it. See Entress, supra, 376 N.J. Super. at 133 ("Clearly, the 'frustration' of a psychologist is not an exigent circumstance, nor is an unsworn uncross-examined letter from the psychologist a basis for changing custody.").
We are therefore satisfied that the trial court erred in proceeding to transfer custody without affording defendant a plenary hearing.
Defendant argues that the trial court erred in denying her requests to retain her own expert, to conduct discovery, and to cross-examine Dr. Weintrob and Bradley. We agree.
The use of experts in family law cases is governed by Rule 5:3-3. Under the rule, where experts are "selected by the mutual agreement of the parties or independently by the court . . . [n]either party shall be bound by the report of the expert so appointed." R. 5:3-3(d). Further, the rule explicitly states, "[n]othing in [the] rule shall be construed to preclude the parties from retaining their own experts, either before or after the appointment of an expert by the court, on the same or similar issues." R. 5:3-3(h). The rule also provides that once the court-appointed or private expert submits his/her report "[t]he parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of" and cross-examine the expert. R. 5:3-3(f)-(g); Kinsella v. Kinsella, 150 N.J. 276, 318, 319-20 (1997).
In Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007), the trial court admitted an expert's report into evidence without offering the defendant an opportunity to obtain her own expert, or to depose and cross-examine plaintiff's expert. Id. at 495. Because of these and other procedural deficiencies which failed to comply with the requirements of Rule 5:3-3(e),(f),(g), and (h), we reversed the order entered in reliance upon that report and remanded for a hearing. Id. at 496.
The consent order entered into by the parties here expressly stated that "[i]f the parties disagree[d] with the evaluator's recommendations, then either party [could] make an application to the Court seeking a Court Order to address the subject of whether or not the recommendations [would] be ordered by the Court." Despite this provision and the unequivocal terms of Rule 5:3-3, the trial court denied defendant's request to submit her own expert report, conduct discovery, or cross-examine Dr. Weintrob. The court similarly denied defendant's request to meet or otherwise contest the Guardian's report. Those decisions were especially unwarranted considering that Dr. Weintrob called his evaluation "rather unusual in its complexity" and admitted that he "really struggled with his ultimate decision."
Plaintiff argues that Rule 5:3-3 is inapplicable because the Consent Order "appoint[ed] Dr. Weintrob as a neutral evaluator." He argues further that, even if the rule applies, this court should follow Rule 1:1-2 and "relax" or "dispense" with Rule 5:3-3's requirements to avoid "injustice." Finally, plaintiff argues that Rule 5:3-3(f) only allowed defendant to submit an expert report "at the same time" Dr. Weintrob submitted his report. These arguments are unpersuasive.
The fact that Dr. Weintrob can be characterized as a neutral evaluator does not preclude defendant from the opportunity to challenge his report. Rule 5:3-3(d) expressly provides that where experts are "selected by the mutual agreement of the parties or independently by the court . . . [n]either party shall be bound by the report of the expert so appointed."
Although the rule permits the submission of opposing reports at the same time, it does not limit a party's right to challenge the report by requiring the simultaneous submission of reports. Subparagraph (h) states, "Nothing in this rule shall be construed to preclude the parties from retaining their own experts, either before or after the appointment of an expert by the court, on the same or similar issues." Subparagraph (f) provides that after the submission of expert reports, the parties "shall . . . be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert."
The rule therefore clearly anticipates that discovery and the right to challenge an expert's report does not end with the submission of the expert report. The rule explicitly provides for discovery, including the deposition of the expert, after the report is submitted. As noted, the rule is silent as to any time limitation on when a party may submit an opposing expert report. In the absence of any time limitations imposed by the rule, it lies within the discretion of the trial court to determine the time frame for such a reasonable opportunity and it is appropriate to take into consideration the importance of avoiding unreasonable delay in the resolution of the custody issue.
Finally, we are satisfied that the argument that the requirements of Rule 5:3-3 should be "relaxed" to deprive defendant of any opportunity to challenge the expert report lacks any merit. Therefore, we conclude that the trial court erred in denying defendant a reasonable opportunity to retain her own expert, conduct discovery, and cross-examine Dr. Weintrob and Bradley.
Defendant also argues that the trial court erred in failing to address the statutory factors set forth in N.J.S.A. 9:2-4(c) and in declining to interview the children. We disagree.
"Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand, supra, 391 N.J. Super. at 105. Although the trial court did not specifically reference N.J.S.A. 9:2-4(c), the trial court adequately addressed the relevant statutory factors. The court acknowledged its obligation to render an opinion "in the best interest of the children" and then made numerous factual findings that directly implicated the statutory factors.
Rule 5:8-6 provides in pertinent part:
As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). . . . If the court elects not to conduct an interview, it shall place its reasons on the record. [(Emphasis added).]
This rule vests the trial court with the discretion to interview the children or not. Here, the trial court declined to do so and placed its reasons on the record. The trial court stated that requiring the children to testify in a hearing would "exacerbate the very, very tense and difficult position that all of these children are in." This was consistent with the observations of Dr. Weintrob and others that the children were affected by the very contentious nature of parents' litigation.
We perceive no abuse of discretion in the court's decision not to interview the children.
Defendant asks us to direct that this matter be remanded to a different judge for further proceedings. We decline to do so. We perceive the errors committed here to be a function of the court's sense of urgency in resolving the custody issue in the best interest of the children - a perspective that was supported by the information available - rather than the result of any bias against defendant. We are satisfied that the trial court is fully capable of affording defendant a reasonable opportunity to conduct discovery and retain her own expert and of conducting a plenary hearing fairly. We emphasize that the opportunity for discovery is to be a reasonable, and not unlimited, one and that parameters should appropriately be set to avoid unnecessary delay in the resolution of the custody dispute.
To the extent we have not discussed any issue raised in this appeal, we are satisfied that it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.