December 11, 2012
On appeal from the Superior Court on New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2664-10, and Hudson County, Docket No. FM-09-1722-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically November 15, 2012 -
Before Judges Reisner, Yannotti and Hoffman.
In this divorce case, defendant M.S.L. appeals from two interlocutory orders, dated November 19, 2010 and November 30, 2010, awarding custody of the parties' child to plaintiff A.K.L., and from the dual final judgment of divorce (JOD) dated March 11, 2011.*fn1
The orders resulted from a bench trial held before Judge Mary F. Thurber, on eleven days between April 2010 and August 2010. On November 19, 2010, the judge issued an order awarding plaintiff sole custody of the child, for reasons set forth in an oral opinion placed on the record on that date. On March 11, 2011, Judge Thurber issued a comprehensive written opinion setting forth her findings of fact and conclusions of law concerning the divorce judgment, including the custody issue. Having reviewed the record, we find that Judge Thurber's decisions are supported by substantial credible evidence, are consistent with applicable law, and do not represent an abuse of discretion. Accordingly, we affirm the orders on appeal.
The facts are set forth at length in Judge Thurber's opinions and need not be repeated here in the same level of detail. The parties are both immigrants from India and both have family still living there. They were married in 2002.
They have one child, who was born in 2005. They separated in January 2009, and plaintiff filed a divorce complaint in March 2009.
The post-filing events were contentious. In January 2010, A.K.L. sought to take the child with him on a trip to India. M.S.L. filed a motion opposing the trip, claiming that A.K.L. intended to kidnap the child and keep her permanently in India. Although the judge ordered that A.K.L. not take the child on the trip, she later determined that M.S.L. had submitted perjured certifications in support of her motion.
After hearing extensive trial testimony, the judge found that when the child was in M.S.L.'s custody, M.S.L. engaged in a pattern of force-feeding her. The court-appointed expert had opined that if M.S.L. had kept the child at the table for meals longer than a half hour, it would be a matter of concern to him. The judge found that M.S.L. kept the child sitting at the table for hours. Based on her evaluation of witness credibility, the judge found these facts*fn2
The court finds that M.S.L. committed a number of extremely distressing acts related to feeding - force-feeding [A.L.], dumping food on her head, losing control and screaming at her, pulling her hair, cursing at her in English and Hindi, calling her stupid, idiot, slapping her. A.K.L. testified that when [A.L.] was younger (1-2 years old) he witnessed such out-of-control scenes one to two times per month. He stated that he, his mother-in-law ([S.S.]) and their nanny all had to intervene at various times to stop M.S.L. and to help her calm down. M.S.L. did not dispute that she sent A.K.L. an email promising not to hit [A.L.], or that she wrote a note stating "[A.L.] I am deranged, I will hurt you."
At trial M.S.L.'s mother denied ever having seen M.S.L. force-feed [A.L.] However, she had admitted in a taped conversation with A.K.L. that M.S.L. had recently told her ([S.S.]) many of the things she had done and [S.S.] was "shocked" and told M.S.L. she would "take her to a mental asylum."
Dr. Hagovsky testified that A.K.L. was a fit parent and could be a full-time parent to [A.L.]. He did not believe (as M.S.L. charged) that A.K.L. was seeking custody for financial bargaining reasons, but rather because he (A.K.L.) genuinely believed he would be the better custodial parent.
The judge made the following additional factual findings supporting her conclusion that joint custody was not practicable in this case:
M.S.L. contends in her trial brief that the parties cannot agree, communicate, or cooperate. A.K.L. suggests they might be able to do so in the future if M.S.L. were to engage actively in psychotherapy, but he feels they are unable to do so at present. M.S.L. seeks to portray A.K.L. as rigid and controlling and not cooperative. That is not what he court found. The court found over the many months of pre-trial proceedings as well as during the months of trial that it was overwhelmingly M.S.L. who was resistant and controlling. She began the case by insisting that A.K.L.'s parenting time be supervised, with no justification for that. She fought against any and every increase, however slight, in A.K.L.'s time with [A.L.]. She delayed mediation and meeting with experts even though she was unemployed and had family members who could have watched [A.L.]. The court finds as a matter of fact that M.S.L. made threatening gestures to A.K.L. during pick-up and drop-off, including throat-slitting gestures and a hand gesture suggesting manacles/handcuffs after the extent of her actions vis-a-vis the Grand Jury were disclosed . . . . She is clearly unable to separate her personal conflicts with A.K.L. from their roles as parents.
M.S.L. repeatedly insisted on sending food when she was instructed not to, created scenes in front of the child, jumped to erroneous negative conclusions about actions taken by A.K.L. while with [A.L.], and became accusatory and confrontational based on those erroneous conclusions. There certainly did come a time when A.K.L. became unwilling to discuss modifications or compromises except through counsel, but the court find that was a product of a very difficult, sustained, contentious process.
The court further found that M.S.L. had once attacked A.K.L. "with a knife or scissors and stabbed herself with scissors, and that she poisoned his drinking water with hair chemicals, causing him to be ill." The judge also found that M.S.L. filed false criminal complaints against A.K.L. solely "to satisfy her animus toward plaintiff" and with no concern whatsoever about the possible consequences to their child "if her father were incarcerated for the alleged financial wrongdoing." The judge concluded that M.S.L. required a psychiatric evaluation and continued therapy.
Not surprisingly, in light of her factual findings, the judge concluded that A.K.L. was "the more stable parent" and could provide a more stable environment for the child, and that "A.K.L. is the more fit parent." The judge found that M.S.L. had physically abused the child in the past and had acted with irrational vindictiveness toward A.K.L. After making further factual findings on all fourteen factors concerning custody, the judge determined that the child's "best interests required that her father be granted sole legal and residential custody."
On the issue of support, the judge found that both parents were capable of significant earnings and that defendant could find employment in her chosen professional field, particularly since she would have no child custody obligations. The judge did not award alimony to either party, and neither party to this appeal questions that determination.
In very detailed factual findings, Judge Thurber also addressed equitable distribution. In those findings, she determined that each party had provided some less-than-credible testimony. She particularly did not believe the parties' self-serving testimony and evidence about loans from their respective families, or the disposition of jewelry and coins. She also did not credit M.S.L.'s allegations that A.K.L. siphoned off marital assets. She found M.S.L. was "deceptive and dishonest with the court" about the $65,000 proceeds from the sale of property in Secaucus. She credited A.K.L.'s testimony about one specific loan from his father. That testimony was corroborated by an independent witness, an investment advisor from Merrill Lynch.
On the issue of counsel fees, the judge ordered defendant to pay plaintiff approximately $60,000, based on her findings that defendant took unreasonable positions and "was caught in repeated misrepresentations and false statements, demonstrating a notable lack of good faith" throughout the litigation.
In reviewing Judge Thurber's decisions, it is not our role to second-guess her factual findings. Rather we are bound by those findings so long as they are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular deference to the judge's evaluation of witness credibility. Id. at 412-13. And we defer to the expertise of the Family Part in addressing child custody and other matrimonial issues. Ibid.; Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). We review a trial judge's decisions concerning the allocation of assets for equitable distribution, and concerning counsel fees, for abuse of discretion. See William v. Williams, 59 N.J. 229, 233 (1971); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).
On this appeal, M.S.L. argues that the court erred in transferring custody of the child to A.K.L., abused its discretion regarding equitable distribution, and erred in making the counsel fee award.*fn3 All of her appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Thurber's comprehensive opinions. We add the following comments.
On the issue of child custody, M.S.L. contends that the judge should have uncritically accepted the opinions of the court-appointed expert. We cannot agree. The judge carefully explained why she did not accept the expert's view that giving M.S.L. custody would be in the child's best interests. Those reasons included her conclusion that the expert relied on inaccurate factual assumptions. We defer to the judge's evaluation of the expert's credibility, and her feel for the case after hearing eleven days of testimony from the parties and their witnesses.
The record plainly reflects that M.S.L. is a deeply troubled individual, who abused the parties' child and would stop at virtually nothing to keep the child away from A.K.L. Defendant's reliance on the tender years doctrine is misplaced; that doctrine is outdated and our courts no longer rely upon it. See Gubernat v. Deremer, 140 N.J. 120, 139 (1995). Judge Thurber set forth her detailed consideration of each applicable factor concerning child custody, pursuant to N.J.S.A. 9:2-4, and we find no basis to disturb her conclusions. See Beck v. Beck, 86 N.J. 480, 498 (1981).
In addressing equitable distribution, M.S.L. argues that the judge erred in giving A.K.L. credit for assets that he claimed were pre-marital assets but which M.S.L. asserts became marital assets, as well as in giving him credit for post-complaint contributions to marital assets. She also challenges the judge's finding that $200,000 in Resurgent India Bonds belonged to plaintiff's father. The judge's decision on equitable distribution was heavily influenced by her evaluation of witness credibility. We cannot agree with M.S.L.'s arguments, which are based on testimony that the judge did not find credible.
Finally, M.S.L. argues that the approximately $60,000 that the judge ordered her to pay toward A.K.L.'s counsel fees was unfair. We disagree. The judge found that M.S.L. litigated numerous issues in bad faith, relied on perjured testimony, and caused A.K.L. to incur hundreds of thousands of dollars in counsel fees. The fee award to A.K.L. was modest in light of M.S.L.'s conduct.