DOCKET NO. A-4463-10T4 (N.J. Super. May. 4, 2012)

DOCKET NO. A-4463-10T4


J.M., Plaintiff-Appellant, v. J.R., Defendant-Respondent.

Krista Lynn Haley, attorney for appellant. DeMarco & Lore, attorneys for respondent (Raymond P. DeMarco, on the brief).




Before Judges Lihotz and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1997-10.

Krista Lynn Haley, attorney for appellant.

DeMarco & Lore, attorneys for respondent (Raymond P. DeMarco, on the brief). PER CURIAM

Plaintiff J.M., to whom we refer by the pseudonym Jane, and defendant J.R., to whom we refer by the pseudonym James, are the parents of a daughter born in January 2007. Jane appeals the February 16, 2011 and April 11, 2011 orders of the Family Part to the extent they (1) grant James expanded parenting time, (2) deny her request to modify the times of parenting exchanges, (3) deny her request to increase their daughter's preschool attendance; and (4) modify the parent-child holiday schedule. We affirm in part and remand in part.


The background of the parties' relationship and prior litigation is set forth at length in our opinion deciding a prior appeal, J.M. v. J.R., No. A-2953-08 (App. Div. Apr. 15, 2010) (slip op. at 2-6), which we incorporate by reference. We affirmed portions of the order then on appeal, but remanded for "a hearing to determine the issue of custody on a more permanent basis." Id. at 12. We did so because the only orders in place regarding custody were "various domestic violence restraining orders" which gave Jane "'temporary custody.'" Ibid. We also ordered that "[a]ll further orders not directly involving domestic violence should be entered under the non-dissolution docket number." Id. at 13.

We ordered the non-dissolution case transferred to Middlesex County because of a conflict that had previously led to the transfer of the domestic violence case to that venue.

We instructed the remand judge to "fully consider the factors set forth in N.J.S.A. 9:2-4, as well as applicable case law, in determining what custody arrangements should be implemented." Id. at 12. We added that "any necessary adjustments to parenting time and [child] support may be considered in light of the custody arrangement chosen by the judge assigned to the case." Id. at 14.

The remand eventually resulted in a plenary hearing, following which the judge granted sole legal custody to Jane, who was designated the parent of primary residence. The judge based his decision on the following factors: (1) James's "inflexibility" in dealing with Jane when discussing matters relating to their daughter; (2) "the existence and reason[s]" for entry of the final restraining order (FRO); and (3) James's unfounded accusations "of misbehavior by Hunterdon County Family Court personnel" and his having misled a prior judge by stating that the FRO had been appealed to the Appellate Division, when in fact it had not. In coming to his decision, the judge referred to James as "someone who is obstinate, legalistic and rigid," and stated that he was "troubled about [James]'s credibility."

The Court determined that joint physical custody was "neither practicable nor feasible," nor was it in the best interests of the child. In coming to this determination, the judge considered the geographical distance between the parties' homes (twenty-three miles), the existence of the FRO, and the parties' inability to communicate with one another.

However, the judge went on to explain that his determinations concerning custody did not mean that James "should not have reasonable parenting time." He noted that by Jane's own testimony and the emails she submitted to the court, the interactions between James and their daughter are positive. Accordingly, the judge ordered that the then current parenting time schedule remain in place, but modified it by affording James an overnight on Monday and Tuesday of the weeks during which he was not scheduled to have weekend parenting time. The judge also awarded James two nonconsecutive weeks of parenting time in the summer, between June 30 and September 1. The judge also recognized that a holiday schedule between the parties was already in place, but afforded them thirty days to agree to a modified holiday schedule. The judge stated that, if the parties did not submit a modified holiday schedule, "the Court's holiday schedule will be adhered to." On February 16, the judge issued an amended order in which he reduced James's weekly child support by three dollars because he had modified overnight parenting time.

In his order denying Jane's motion for reconsideration, the judge awarded Jane a similar summer vacation schedule, and stated on the record that his failure to do so previously was an oversight.

The amended order also corrected an error in the initial order which stated that James would receive an overnight on Monday, as opposed to Monday and Tuesday. The amended error also corrected a typographical error.

Jane moved for reconsideration. After hearing oral argument and delivering an oral decision on April 11, 2011, the judge filed an order on that motion. In relevant part, the order denied reconsideration of parenting time and, because the parties had not been able to agree on their own holiday schedule, the judge established one for them. This appeal followed.


Jane raises four issues on appeal. She argues that the judge erred in expanding James's parenting time and in establishing a holiday schedule. She also argues that the judge failed to rule specifically on her request to change the time of the parenting exchange and her request to enroll the parties' daughter in additional pre-school.


As we observed in our earlier opinion, our scope of review of a Family Part judge's factual findings in the context of an evidentiary hearing is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412.

In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. As a result, "we do not second-guess . . . the exercise of their sound discretion." Ibid.

We recognize that "'[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). However, a trial judge's legal decisions are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194; Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

Decisions concerning custody and visitation rights are addressed to the sound discretion of the Family Part judge and will be reversed only for an abuse of discretion. Levine v. Bacon, 152 N.J. 436, 442 (1998). In such cases, we are obliged to affirm the judge's decision unless the judge's findings are "so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412. Unless the discretion exercised by the judge is clearly arbitrary and unreasonable under the particular circumstances, it is not the function of an appellate court to substitute its judgment for that of the motion judge. Smith v. Smith, 17 N.J. Super. 128, 133-34 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952). An appellate court should not interfere in the discretion exercised by the judge absent a clear showing by the appellant that the "action of the trial court is plainly erroneous and manifestly a misuse of its discretion." Id. at 133.

We have long recognized that "[t]he pivotal factor and paramount consideration in matters involving custody of minor children is the happiness and welfare of such children." Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958). Once custody has been decided, a court must still consider the happiness and welfare of the children. Cf. Beck v. Beck, 86 N.J. 480, 497 (1981) ("It would be incongruous and counterproductive to restrict application of [the best interests of the child] standard to the relief requested by the parties to a custody dispute.").

This concern must infuse the consideration of parenting time. "The children's best interest in this situation is closely related to the noncustodial parent's right to visitation. From that perspective, the 'cause' requirement of N.J.S.A. 9:2-2 implicates the best interests of the child as manifested through visitation with the noncustodial parent." Winer v. Winer, 241 N.J. Super. 510, 518 (App. Div. 1990) (internal citation and quotation marks omitted). Thus, the court must consider each parent's constitutional right to enjoy a relationship with their children. In re P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). The goal is to arrive at a reasonable parenting-time schedule consistent with the best interests of the children and the rights of the parents. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984) ("It is well[-]settled that the law favors visitation. . . . [C]ourts should endeavor that children of separated parents should be imbued with love and respect for both parents . . . by conferring reasonable rights of visitation on the [noncustodial] parent." (citations omitted)), certif. denied, 99 N.J. 243 (1985); In re Jackson, 13 N.J. Super. 144, 147 (App. Div. 1951) ("Consistent with the paramount concern for the welfare of the child . . . [a] court always determines that, whenever custody is awarded to a parent, the other parent shall not only be privileged to see the children at all times, but shall be encouraged by the parent custodian in seeing them as freely, as fully, as often, and as long as possible, and in a manner best suited to the encouragement of mutual affection." (internal citation and quotation marks omitted)); Barron v. Barron, 184 N.J. Super. 297, 301 (Ch. Div. 1982) ("Parental rights will be preserved unless enforcing them will adversely affect the 'safety, happiness, physical, mental and moral welfare of the child.'" (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956))); cf. V.C. v. M.J.B., 163 N.J. 200, 215-28 (holding that visitation is presumptive subject to N.J.S.A. 9:2-4 considerations), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).


With respect to parenting time and the holiday schedule, we will not second-guess the trial judge's exercise of his broad discretion. Smith, supra, 17 N.J. Super. at 133. We find sufficient explanation and factual support for those decisions in the record before us.

While we previously affirmed a different judge's refusal to expand parenting time, our remand specifically allowed for modifications of parenting time once custody was determined. In addition, as a child gets older, an expansion of parenting time is often appropriate. While the remand judge found that the parties' daughter was appropriately placed in Jane's sole legal custody because of James's problems in relating to Jane, he also determined that there were no such problems with his relationship to his daughter. We find no basis to conclude that the judge failed to comply with our directions for the remand or that he failed to follow applicable law. We affirm his orders as they relate to parenting time.

The judge invited the parties to agree upon a holiday schedule, but they were apparently unable to do so. In light of their inability, the judge appropriately crafted a schedule for the benefit of the parties and the child. We see no fundamental problem with the schedule developed by the judge. Consequently, we affirm the judge's order establishing the holiday schedule.

The judge appears to have denied Jane's request that the parties' daughter be enrolled in additional pre-school, although his precise reasons for doing so are far from clear. Jane's application presented two downsides. First, it would reduce James's parenting time. Second, it would increase his overall child support costs. The judge was apparently concerned about the additional cost to James, based upon James's intimation that he was considering bankruptcy. At the same time, however, the judge had some questions about James's credibility, based upon his prior misrepresentations that he had appealed the FRO. It is not clear from the record whether James actually had significant financial difficulties and whether he actually filed for bankruptcy.

We would ordinarily remand for further considerations of the issue, which was not adequately addressed by the remand judge. However, we are cognizant of the fact that the parties' daughter will be entering kindergarten in September of this year, approximately four months from the date of this opinion. By the time a remand could be completed, there would be little meaningful time for attendance at the additional preschool. In addition and of greater significance, our review of the record does not present a compelling case for the relief requested. The daughter is already attending preschool two days per week, and is having parenting time with her father during some of the time she is not in preschool. We are not convinced that the best interests of the child would be served by the proposed change at this time, nor are we convinced that the increased cost and decreased parenting time are appropriate. Consequently, we exercise our original jurisdiction under Rule 2:10-5, and deny the relief requested.

Finally, the judge never ruled on the issue of the change in the time of parenting transitions. It is not sufficient to enter an order that states something to the effect that "all other relief is denied" without any further explanation. Judges are required to explain the reasons for their decisions. See R. 1:7-4. We do not know whether the judge intended to deny relief and if so why, or whether he simply failed to consider the issue. Because we lack sufficient information to consider an exercise of original jurisdiction, we remand to the Family Part for consideration of that issue. We do not retain jurisdiction.

Affirmed in part; remanded in part.