Opinion
DOCKET NO. A-1881-12T4
03-17-2014
JENNIFER M. STEVENS, Plaintiff-Appellant, v. AMIR A. SHAH, Defendant-Appellant.
Jessica Ragno Sprague argued the cause for appellant (Weinberger Law Group, LLC, attorneys; Ms. Sprague, on the briefs). Charles P. Cohen argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Motion for reconsideration granted.
Before Judges Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-3868-08.
Jessica Ragno Sprague argued the cause for appellant (Weinberger Law Group, LLC, attorneys; Ms. Sprague, on the briefs).
Charles P. Cohen argued the cause for respondent. PER CURIAM
Plaintiff Jennifer M. Stevens appealed from a November 14, 2012 order of the Family Part which continued joint legal custody of the parties' child, but awarded temporary physical custody of the child to defendant Amir A. Shah. In an unpublished opinion, we reversed and remanded to the motion judge to make a record referencing the statutory factors she considered and the reasons for her custody determination. Stevens v. Shah, No. A-1881-12 (App. Div. July 17, 2013). We did so because we were not provided with a transcript of the judge's oral findings, which the parties contended were not part of the record.
The parties then provided a transcript of the judge's oral decision of November 12, 2012, and, as a result, by order dated August 19, 2013, we stayed our decision of July 17, and reinstated the appeal. The relevant procedural history and the facts based on the record before us, are set forth in our July 17, 2013 opinion and are incorporated by reference herein.
I.
On August 31, 2012, the motion judge issued an order that the Essex Vicinage Family Division conduct a best interests investigation as to the child. On November 5, 2012, the judge held a motion hearing, at which time the parties and the judge reviewed the best interests report, and the judge took testimony from the parties. On November 14, 2012, the judge issued an order stating:
For reasons stated on the record, joint legal custody of the child shall continue with [plaintiff] and [defendant]. Temporary physical custody of the child shall remainThe same day, the court placed its statement of reasons on the record. The court began by indicating it based its decision on the best interests report and the testimony of each party. The court then recited the relevant facts and applied them to the elements listed in N.J.S.A. 9:2-4(c). The court found all factors were equal, except that the child's continuity of education would be served by allowing him to continue kindergarten in New Jersey. In finding the rest of the factors were equal, the court rejected each party's claims that those factors weighed in favor of himself or herself.
with the [defendant]. The child shall remain in the Union School System. The [plaintiff] is granted liberal parenting time with the child. The parties shall agree upon a date and times for parenting time.
These factors are as follows:
the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.
[N.J.S.A. 9:2-4(c)].
It is from that decision that plaintiff appeals.
II.
Generally, a party seeking to modify a custody arrangement "must demonstrate changed circumstances that affect the welfare of the child[]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citations omitted). After such a showing is made, the court must decide whether a modification is in the "best interests" of the child. Ibid. (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). In making the "best interests" determination, the court must address the factors set forth in N.J.S.A. 9:2-4(c) and "must make a record referencing the statutory factors it has considered and the reasons for its custody determination." J.A. v. A.T., 404 N.J. Super. 132, 145 (App. Div. 2008) (citing Gubernat v. Deremer, 140 N.J. 120, 139 (1995)).
We conclude that the court satisfied these requirements. Specifically, after analyzing each of the factors, the court found the only determinative factor was the continuity of the child's education. The court recognized that, at the time of the hearing, the child had been attending kindergarten in New Jersey for almost two months. The court noted that Ohio schools started earlier in the year than New Jersey schools, so switching the child to Ohio would put him behind the other Ohio students. Accordingly, the court granted defendant temporary physical custody of the child during the kindergarten year.
Additionally, the court provided that "[t]he parents are free to after the kindergarten year to come to whatever agreement they should choose, they might choose as [the child] matriculates to his first grade year and beyond. But for now the order of the Court will be that [defendant] has residential custody." Furthermore, the decision provided that "[t]emporary physical custody of the child shall remain with [defendant]. The child shall remain in the Union School System."
Because the decision was grounded in the child's best interest of continuity for the kindergarten year, and since all other factors were determined to be equal, plaintiff is permitted to seek physical custody without asserting changed circumstances. However, assuming plaintiff makes the request for residential custody and the parties do not agree, the court should conduct an evidentiary hearing to determine the best interests of the child at that time.
Defendant represents that the child is currently attending first grade in Union. This shall not preclude plaintiff from seeking physical custody of the child.
Plaintiff argues that she is entitled to a remand because the court did not provide her with the opportunity to present expert testimony. In custody proceedings, courts must provide parties "every reasonable opportunity" to introduce expert testimony. Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982); see also Kinsella, supra, 150 N.J. at 318-19. Here, plaintiff had a reasonable opportunity to present expert testimony. Plaintiff knew that custody was a contested issue, but never obtained an expert or requested the opportunity to obtain an expert during the course of the litigation.
The facts here are different from Fehnel, where the wife sought to introduce an expert report, but did not have the opportunity to retain an expert earlier because the husband only indicated he was seeking custody on the day of trial. Fehnel, supra, 186 N.J. Super. at 212-13. Therefore, plaintiff is not entitled to a remand on this ground.
Plaintiff also contends that she is entitled to a remand because the court's decision is not supported by substantial, credible evidence. According to plaintiff, the court improperly relied on the child being enrolled in a New Jersey school. Plaintiff argues the court created this situation by allowing defendant to enroll the child over her objection and without conducting a best interests analysis.
The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). These findings may not be disturbed unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal citation omitted). Moreover, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
"Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff's argument is not persuasive. The court did not decide whether defendant could enroll the child in school. Additionally, there is no evidence that plaintiff objected to defendant enrolling the child in school in New Jersey. Instead, the court made a detailed and well-reasoned decision on the basis of the information in the record. This information included the best interests report, the parties' testimony and certifications. The court addressed the relevant evidence and its application to the statutory factors. As such, we determine that the court's decision was supported by substantial credible evidence and should not be disturbed on appeal.
Plaintiff argues she is entitled to a remand because the court did not establish a parenting schedule. The record belies this assertion. The court granted defendant physical custody during the school year and plaintiff custody during the summer and school breaks.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION