J.J.R. v. K.A.R.

• Decision Date: 19 November 2021
• Docket Number: A-1268-20
• Parties: J.J.R.[1], Plaintiff-Appellant, v. K.A.R., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

J.J.R.^[1], Plaintiff-Appellant, v. K.A.R., Defendant-Respondent.

No. A-1268-20

Superior Court of New Jersey, Appellate Division

November 19, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 2021

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No FM-08-0542-19.

Kennedy & Vassallo, attorneys for appellant (Nancy Kennedy Brent, on the briefs).

Law Offices of Lynda L. Hinkle, LLC, attorneys for respondent (Jarred McCart, on the brief).

Before Judges Fasciale and Firko.

PER CURIAM.

In this post-judgment custody and parenting time dispute, plaintiff J.J.R. (father) appeals from the Family Part's December 11, 2020 order denying his motion to change the residential custody status of the parties' daughter E.R., born in 2005. The judge granted defendant K.A.R.'s (mother) cross-motion to compel cooperation relative to parenting time and granted her request for counsel fees in the amount of $1 983 to be paid by plaintiff. For the reasons that follow, we affirm the decision to deny plaintiff's motion to change the residential custody status of E.R., but we reverse and remand the award of counsel fees because the judge did not address the factors required by Rules 5:3-5(c), 4:42-9, and RPC 1.5(a).

I.

The following facts are derived from the motion record. The parties divorced in April 2019, after a sixteen-year marriage. Two children were born of the marriage: Z.R., born in 1998; and E.R., a daughter born in 2005, who is the subject of the matter under review. Although not referenced in the final judgment of divorce (FJOD), the parties executed a two-page property settlement agreement (PSA) on March 16, 2019. On May 1, 2020, the parties entered a consent order, which modified the FJOD.

The FJOD granted joint legal custody of the parties' two children and liberal, reasonable parenting time, as agreed to by the parties. Defendant was designated as the parent of primary residence (PPR), and plaintiff was designated as the parent of alternate residence (PAR). Plaintiff was ordered to pay child support of $132 per week directly to defendant. The PSA reiterated the terms of custody and parenting time but reduced the child support obligation to $86 per week. After the consent order was entered, E.R.'s relationship with defendant deteriorated to the point she no longer wanted to reside with defendant.

According to defendant, she attributes E.R.'s unhappiness to her stricter parenting style and "setting rules." On the other hand, plaintiff stated E.R. informed him that defendant "is very belittling to her"; "does not take her feelings into consideration"; "seems out of control of her emotions"; "is attempting to manipulate [E.R.]"; "refuses to consider rational and logical perspectives if they differ from her own thoughts"; and "is trying to cast herself as a victim."

Thereafter, E.R. began living with plaintiff. E.R.'s grades declined, which defendant blamed on plaintiff's lack of structure and discipline, while plaintiff pointed out the challenges of online learning during the COVID-19 pandemic.

The parties' ability to co-parent worsened as evidenced by defendant's allegation that plaintiff unilaterally took the then fifteen-year-old E.R. to a gynecologist to obtain a birth control prescription. Defendant was not advised of the prescription until plaintiff was on his way to a pharmacy to fill it.

Defendant also claims plaintiff took E.R. to another unspecified doctor's appointment without her prior knowledge, and he refused to communicate with her regarding E.R. Plaintiff refused to return E.R. to defendant's home. Defendant alleges this failure to communicate adversely affects her relationship with E.R., and plaintiff fails to encourage E.R. to reengage in individual and joint therapy with defendant despite E.R.'s prior consistent attendance.

On September 17, 2020, plaintiff filed a motion seeking the following relief: (1) "[a] change in the physical custody of the parties' minor [child], [E.R.], . . . with [p]laintiff being named the [PPR]"; (2) "[p]arenting time to be determined between the parties with substantial input from [E.R.]"; (3) "[a] recalculation of child support"; and (4) any other equitable remedies. Defendant filed a notice of cross-motion for post-judgment relief on November 23, 2020, requesting the judge: (1) deny plaintiff's motions; (2) enforce the PSA as it pertains to parenting time; (3) require E.R. to continue with therapy; and (4) award her counsel fees and costs.

Due to the COVID-19 pandemic, the hearing on the motions was scheduled to take place via Zoom on December 11, 2020. An email to the parties' attorneys was sent on December 10, 2020, containing a Zoom link and the date, time, meeting identification, and passcode for the hearing. The judge heard oral argument from both counsel, and the litigants were allowed to appear virtually.

Later that same day after the hearing, the judge issued a written fifteen-page memorandum and order. The judge denied plaintiff's motion for a change in the parental residency designation and to recalculate child support. The judge highlighted that defendant is "the primary caretaker" of E.R. and "has greater autonomy over the day-to-day decisions with the child." In his memorandum and order, the judge found:

[p]laintiff has failed to meet his burden. The circumstances he describes simply represent the struggles of raising a teenager. As joint custodians, the parties share "the legal authority and responsibility for making 'major' decisions regarding the child's welfare," not "minor day-to-day decisions." Beck [v. Beck], 86 N.J. [480], 487 [(1981)]. Plaintiff has not followed that principle. He has not encouraged E.R. to mend her relationship with her mother, despite [d]efendant's efforts to work on the issues that divide them. And perhaps more troubling, he unilaterally decided to have E.R. stop attending therapy and start taking birth control pills. Such major decisions require consultation between both joint custodial parents.

Plaintiff suggests that parenting time for E.R. should be her decision, asking that "[p]arenting time be determined between the parties with substantial input from the parties['] minor daughter." That would not be appropriate. The parties must first get on the same page, or at least in the same book, regarding parenting of E.R. True, a child of her age should be heard. But she should not have the final say. The parents (one or both) cannot abdicate their role as parent to ensure the health, safety and welfare to the very child for which they are legally and morally responsible.

The judge ordered the parties to attend "either family therapy or mediation" pursuant to Rule 1:40-5(a)(2).^[2] The judge also denied plaintiff's request to recalculate child support because no changed circumstances were established. As to defendant's cross-motion, the judge granted her request for counsel fees and ordered plaintiff to pay the sum of $1, 983 on an installment basis. Plaintiff's application to stay the counsel fee award pending his appeal was denied by the judge.

II.

On appeal, plaintiff argues the following points:

(1) the judge failed to apply the best interests of the child standard warranting reversal and remand;

(2) the judge's decision was not based on adequate, substantial, and credible evidence;

(3) counsel fees were erroneously awarded to defendant without application of the Rule 5:3-5(c) factors; and

(4) the judge erroneously proceeded without plaintiff being present.

Appellate courts reviewing a trial court's findings adhere to a well-settled standard of review. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Parish v. Parish, 412 N.J.Super. 39, 47 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Therefore, we will "not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant[, ] and reasonably credible evidence as to offend the interests of justice.'" Cesare, 154 N.J. at 412 (first alteration in original) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The conclusions of Family Part judges regarding child custody "are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J.Super. 120, 123 (App. Div. 1976) (citing Sheehan v. Sheehan, 51 N.J.Super. 276, 295 (App. Div. 1958)). Because this court recognizes "the special expertise of judges hearing matters in the Family Part," Parish, 412 N.J.Super. at 48 (citing Cesare, 154 N.J. at 412), it will only disturb the Family Part's factual findings if "they are 'so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (quoting Rova Farms, 65 N.J. at 483-84). An appellate court, in consequence, will only reverse the family court's conclusions if those conclusions are so "'clearly mistaken' or 'wide of the mark'" that they result in the denial of justice. Parish, 412 N.J.Super. at 48 (internal quotations omitted) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). The Family Part's legal conclusions, however, are reviewed de novo. See N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 183 (2010).

Plaintiff argues the judge erred in failing to consider the best interests of E.R. in assessing whether a change of custody and parental designation was appropriate. He also contends the judge disavowed the evidence and allowed his "personal feelings about a...