Opinion
DOCKET NO. A-0080-12T4 A-0082-12T4 A-0906-12T4
04-28-2014
JARRED CIPRIANI, Plaintiff-Respondent, v. ASHLEY FONTANA, Defendant-Appellant. JARRED CIPRIANI, Plaintiff-Appellant, v. ASHLEY FONTANA, Defendant-Respondent. JARRED CIPRIANI, Plaintiff-Respondent/Cross-Appellant, v. ASHLEY FONTANA, Defendant-Appellant/Cross-Respondent.
Jerome J. Turnbach argued the cause for appellant (A-0080-12), respondent (A-0082-12), appellant/cross-respondent (A-0906-12) Ashley Fontana (Marcus, Brody, Ford & Kessler, L.L.C. and Jay Turnbach, L.L.C., attorneys; Mr. Turnbach and Maryjane Dobbs, on the brief). Richard A. De Michele, Jr., argued the cause for respondent (A-0080-12), appellant (A-0082-12), respondent/cross-appellant (A-0906-12) Jarred Cipriani (Stolfe, Zeigler and Legreide and De Michele and De Michele, attorneys; Abigale M. Stolfe, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Sabatino and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-1381-10.
Jerome J. Turnbach argued the cause for appellant (A-0080-12), respondent (A-0082-12), appellant/cross-respondent (A-0906-12) Ashley Fontana (Marcus, Brody, Ford & Kessler, L.L.C. and Jay Turnbach, L.L.C., attorneys; Mr. Turnbach and Maryjane Dobbs, on the brief).
Richard A. De Michele, Jr., argued the cause for respondent (A-0080-12), appellant (A-0082-12), respondent/cross-appellant (A-0906-12) Jarred Cipriani (Stolfe, Zeigler and Legreide and De Michele and De Michele, attorneys; Abigale M. Stolfe, on the brief). PER CURIAM
Defendant Ashley Fontana (appellant in A-0080-12) and plaintiff Jarred Cipriani (appellant in A-0082-12) filed separate appeals from certain provisions of the July 25, 2012 post-trial judgment of the Family Part regarding custody of, and parenting time with, their son. In A-0906-12, Fontana appeals from a post-judgment order dated October 19, 2012, denying her motion for sanctions and additional discovery. We have consolidated the three appeals.
Having considered the arguments raised in light of the record and applicable legal standards, we affirm in part, and reverse in part as to the judgment under review in A-0080-12 and A-0082-12. In A-0906-12, we affirm.
Before turning to the specific arguments of the parties, we briefly set forth some of the procedural history and testimony adduced at trial.
As to A-0080-12 and A-0082-12
Cipriani and Fontana met while students at St. Joseph's University in Philadelphia. His hometown was near Pittsburgh, Pennsylvania, and Fontana was from Brick. She became pregnant in April 2009, although she did not realize that she was pregnant until July, at which time she told Cipriani. During a November visit to her doctor, Fontana learned that the baby's abdominal development was lagging; the doctor placed her on bed rest for the remainder of the pregnancy. She did not return to school but was able to complete her final exams from home. The parties planned that Fontana would remain at home during the upcoming spring semester while Cipriani completed his degree. He anticipated looking for a job in New York City after graduation.
It suffices to say, however, that the relationship between Cipriani and Fontana, and their respective families, grew strained. Although they became engaged near Thanksgiving, Fontana broke off the engagement shortly before the parties' son was born, around the same time that Cipriani, on the advice of his parents, demanded a paternity test. After the child's birth in January 2010, Cipriani initially refused to sign the birth certificate until there was proof of his paternity. He testified that he did so, in part, based upon consultation with his father, a successful attorney. He ultimately did sign the birth certificate.
Paternity tests revealed that Cipriani was, in fact, the child's biological father.
The baby lived with Fontana in her family's home in Brick. The parties again became engaged in February 2010, but Fontana again broke off the engagement. Cipriani visited with his son most weekends through March 2010, and Fontana regularly texted him photos of the baby. But, tensions continued.
Cipriani began spending weekends at a hotel near the Fontana home. He testified that he was "tr[ying] to create some boundaries between [himself] and [Fontana's] parents." After a heated argument with Fontana's father in April, Cipriani filed a complaint seeking sole legal and residential custody of the child. Fontana answered and filed a counterclaim seeking sole legal and residential custody, as well as a determination of Cipriani's child support obligation.
After graduation, Cipriani moved back to his parents' home in the suburbs of Pittsburgh. On May 28, 2010, the court heard argument and entered an order granting the parties joint legal custody, with Fontana designated the parent of primary residence and Cipriani designated the parent of alternate residence. Cipriani was provided parenting time on alternate weekends (Thursday through Monday), and the parties were ordered to meet in Harrisburg, Pennsylvania to exchange custody of their son.
At trial, Fontana testified that the parties subsequently altered the scheduled parenting time to run from Wednesday through Sunday.
Disputes continued to arise over virtually every aspect of the child's life. Over the next eighteen months, the court had to resolve numerous motions filed by both sides. For example, because there was disagreement over the date Fontana selected for the child's baptism and its effect upon his scheduled weekend visitation, Cipriani moved by order to show cause for compensatory parenting time, which the judge granted by order of July 15, 2010. In September, the judge entered an order settling the parties' dispute over Cipriani's support obligations. The parties could not agree over parenting time for the upcoming Thanksgiving and Christmas holidays; in November, the judge entered an order giving Cipriani parenting time for a week that included Thanksgiving, and providing for Fontana to have the child from Christmas Eve to New Year's Eve.
Meanwhile, also in September 2010, the child was seen by a pediatric orthopedist, Dr. J. Andrew Bowe, who diagnosed him with "a muscular torticollis." At trial, Fontana claimed Dr. Bowe advised that the child should not be in one position for long periods of time. Bowe issued a prescription for physical therapy and a note recommending that the child not be in a car seat for more than one hour.
Torticollis is "[a] contracted state of the muscles on one side of the neck, causing the head to tilt toward that side and to rotate so that it faces the opposite side. Also called wryneck; stiff neck." Ida D. Dox, Ph.D. et al., Attorney's Illustrated Medical Dictionary T55 (1997).
Unfortunately, rather than telling Cipriani directly about the situation, Fontana had her counsel advise that parenting time would necessarily have to take place in New Jersey because the child could not travel to Harrisburg. Cipriani chartered a private plane to pick up the child in New Jersey and fly him to Pittsburgh at a cost of $5000; Fontana booked a commercial flight to return with him to New Jersey.
While in Pittsburgh, Cipriani and his family arranged for a medical evaluation of the child, which led Cipriani to believe there was no basis for the car seat restriction imposed by Dr. Bowe. The child's condition apparently resolved as the result of continued physical therapy and exercise.
Dr. John Tydings, an orthopedic surgeon, testified as an expert for Cipriani at trial. He is not a pediatric orthopedist, nor had he ever examined the parties' son. Based upon a review of medical records, however, Dr. Tydings opined that the child's condition did not require restrictions on travel, provided that rest stops were taken every two or three hours, "as would be appropriate for a child of that age anyway."
Day-to-day parenting decisions continued to generate disputes. The parties argued over haircuts for their son, when he should be potty trained, when and where he should go to the dentist and whether he should take medication for allergies. In November 2011, having "not [been] convinced the transportation issue [was] a burdensome one to the child at this time," the judge entered an order maintaining the parenting time schedule. He further ordered that both parties should have their respective custody experts agree on a third expert and, if there was no agreement, the judge would appoint a third expert. The order further permitted the parties to "make an additional application regarding custody" after the evaluations were completed.
By the time trial began in March 2012, the parties' relationship was at a low ebb. They communicated almost exclusively by email or text message, many laden with palpable acrimony. Those written communications reflect regular disputes over the parenting time schedule established by the judge and the exchange of their son in Harrisburg. At trial, each side proposed alternatives.
Cipriani testified that he was still residing in his parents' home, where the child had his own room, books and toys. Depending upon his future employment, Cipriani planned to move out and establish his own home in the Pittsburgh area. At the beginning of trial, he was working full-time as a staff accountant at the McQuillan Group; by the end of trial, Cipriani was no longer working there and was searching for other employment in Pittsburgh, while doing some work for his family's commercial real estate business.
Fontana continued to live with her parents and her brother in Brick. She shared a room with the child, but the family was renovating another room in the house that was to be his bedroom. She earned her bachelor's degree from St. Joseph's in September 2011, and was working part-time. Fontana believed the parenting time schedule would eventually interfere with the baby's preschool classes, which were to begin in September 2012, and his ability to establish friendships.
The exchanges of the child were marred by unpleasantness and pettiness which we need not discuss in great detail. Cipriani and his family, for example, would change the child's clothes and remove toys he had with him when they took custody, keeping his New Jersey clothes and toys separate from those he had when he visited Pittsburgh. Cipriani complained that Fontana was not driving half the distance to Pittsburgh because she attempted to conduct the exchanges at the Harrisburg exit closest to her home, not the one that was the midpoint between the two locations. He acknowledged changing the pickup location by threatening to return to Pittsburgh with the child if Fontana did not appear at his chosen location. For her part, Fontana complained that driving to Harrisburg was burdensome to her, her family, and the child, consuming an entire day, with bad weather, construction, and traffic often complicating the trips.
Not surprisingly, Cipriani and Fontana had different views of whether the travel was adversely affecting their son. She claimed the drive was becoming increasingly difficult as the child became older and more "antsy" in the car. Cipriani believed that by and large, their son was able to easily handle the ride and accommodate himself thereafter so as to enjoy the time spent in Pittsburgh.
Cipriani had no intention of moving to New Jersey, or Philadelphia. Nevertheless, he proposed that parenting time be equally divided between Fontana and himself, with their son spending one week with his mother in New Jersey and the next week with Cipriani and his family in Pittsburgh. Alternatively, Cipriani wanted to be awarded primary residential custody because he was "a more stable and fit parent and [his] family [was] more stable."
Fontana preferred that the child's travel time be reduced. She believed the solution was for Cipriani to visit their son in New Jersey, so they would have more quality time together and develop a closer relationship.
Extensive expert testimony was adduced at trial. Fontana's attachment expert, Robert Emery, Ph.D., testified that it was a biological imperative, and essential to a child's psychological development, that during the first three years of life he develop a secure and stable relationship with a primary attachment figure. The child should only be separated from the primary attachment figure for short periods of time, meaning a maximum of only two consecutive overnights. In Dr. Emery's opinion, equally dividing parenting time was a "scary" trend, more concerned with fairness to parents than the best interests of the children involved.
Dr. Emery supported joint physical custody but only if the child was four or five years old and there was a high level of cooperative communication between the parents. Additionally, the parents needed to live relatively close to one another, so the child could attend school, develop peer relationships, and have as little disruption of his life as possible.
Dr. Emery rejected Cipriani's proposed week on/week off schedule as unsuitable for a three-year-old child. But, Dr. Emery acknowledged that he had never evaluated the parties' son, could not say who his primary attachment figure was, and saw no evidence that the child had been harmed by the parenting schedule established when he was an infant.
Cipriani's expert, Jeffrey Siegel, Ph.D., acknowledged attachment theory and its relevance to the early years of a child's life. However, Dr. Siegel believed it was only one of many theoretical perspectives on child development, and, even among attachment theorists, there were disputes as to whether children are capable of forming multiple secure primary attachments.
Dr. Siegel agreed in general that parents should not put their children through too many transitions of custody, and that parents, not children, should bear the burden of traveling and dealing with awkward scheduling. Dr. Siegel opined that this case appeared to be an "outlier," because the child was doing better than would be expected if attachment theory were applied; he appeared to be thriving, having formed secure attachments to both of his parents. Siegel acknowledged that the parties' geographic situation was "not ideal", as the best circumstance would be for both to live within three-to-five miles of each other. However, Dr. Siegel believed equal parenting time on alternating weeks was feasible.
Dr. Siegel had not conducted clinical interviews nor had he observed the child with his parents.
The parties also presented competing psychological experts. Neil Rosenblum, Ph.D., Cipriani's expert, testified that the parties' son was "a very happy, well-adjusted youngster," with cognitive development appropriate for his age. Dr. Rosenblum believed the child had developed primary attachments to both of his parents, and significant, meaningful relationships with members of his extended family on both sides. As to an appropriate parenting time schedule, Dr. Rosenblum believed that a week-on/week-off parenting schedule was appropriate and would facilitate the formation of a strong attachment between Cipriani and the child.
The judge asked if there was any problem with extending such a schedule to a month at a time. Dr. Rosenblum responded, "a week would be a healthier schedule now. I think a two-week schedule could be considered when the child is a year or two older." Dr. Rosenblum would recommend spending summers and long vacations with the parent of alternate residence only when a child reached school age. Dr. Rosenblum further opined that there needed to be greater cooperation and communication between Cipriani and Fontana, and that Fontana did not appear to view Cipriani as a co-equal parent.
Fontana called Charles Katz, Ph.D, as her expert. He recommended that Fontana continue as the parent of primary residence, and Cipriani see the parties' son more frequently than every other weekend, exercising some of his parenting time in New Jersey. Dr. Katz recommended that visits to Pittsburgh be limited to one weekend per month, and that the visits be shortened, from Friday through Sunday. Dr. Katz found it "ludicrous" and "totally irresponsible" to suggest that custody alternate weekly between Pittsburgh and New Jersey because the child would have "no home base." In his opinion, such a schedule would actually damage attachments to both Cipriani and Fontana, as well as their extended families. Dr. Katz also opined that the child appeared to be manifesting symptoms of stress during his transfers between households.
David Holmes, Ph.D., testified as the court-appointed custody expert. Dr. Holmes rejected the alternate-week parenting schedule proffered by Cipriani; indeed, he would reject that schedule even if the parents lived relatively close to one another. He further opined that the current visitation schedule of alternate extended weekends in Pittsburgh made it difficult for the parties' son to develop a sense of safety in any one place.
Dr. Holmes recommended that Fontana continue as the parent of primary residence, and Cipriani have overnight parenting time every Saturday night in Philadelphia, because it was familiar, neutral ground and less onerous to both parents. Dr. Holmes believed that Cipriani "should be coming to his son, not the other way around." Finally, Dr. Holmes criticized the acrimony that had developed between Cipriani and Fontana. He recommended a parenting coordinator to facilitate communication and cooperation between the two, and, like Dr. Rosenblum, believed the parties should spend some time together when exchanging custody of their son.
In a lengthy written opinion incorporated into the judgment entered on July 25, 2012, the judge comprehensively considered the evidence in light of the statutory factors that frame the court's discretion when deciding issues of custody and parenting time. See N.J.S.A. 9:2-4(c). He entered an order that continued joint legal custody with Fontana being the parent of primary residence. However, he modified the parenting time schedule, ordering that Cipriani could spend time with the parties' son in Brick, or in Philadelphia, on the first, third and, if applicable, fifth weekend of every month. If the parenting time was in Philadelphia, Fontana was required to transport the child there on Saturday morning and pick him up on late Sunday afternoon or in the evening. If Cipriani came to Brick, he was entitled to "liberal parenting time," "even during the week," and "out of the presence and the home of [Fontana]."
The judge awarded Cipriani two weeks of his choice to exercise parenting time during the remainder of summer 2012. "In the future," however, Cipriani was awarded eight consecutive weeks of parenting time every summer. The judge essentially divided parenting time equally during the Christmas and Easter holidays, specifically providing Cipriani with parenting time at Christmas in even-numbered years. However, recognizing "[f]rom prior motion practice" that "the Thanksgiving holiday [was] an important holiday to [Cipriani]" during which his "extended family traditionally gather[ed] together to celebrate," the judge ordered that Cipriani would have parenting time every Thanksgiving "so long as this remains the Cipriani practice."
Fontana filed her appeal, and Cipriani filed his the next day. While both appeals were pending, by order dated May 15, 2013, we granted Fontana's motion seeking a remand "for the limited purpose of conducting a hearing on the issue of summer parenting time." A second Family Part judge, Judge Madelin F. Einbinder, conducted the remand.
By separate order dated May 15, 2013, we denied Cipriani's motion to consolidate yet a fourth appeal, A-3872-12, with these three appeals. The original notice of appeal in that case was filed on April 23, 2013, and seeks review of Judge Einbinder's March 15, 2013 order that imposed sanctions on Cipriani because he failed to cooperate with the parenting coordinator. An amended case information statement was filed on May 2, 2013, however, that seemingly requests review of Judge Einbinder's October 19, 2013 order, the subject of Fontana's appeal in A-0906-12.
By order dated June 14, 2013, Judge Einbinder determined that in 2013, Cipriani could exercise six weeks of summer parenting time in three blocks, of two consecutive weeks each. She also determined that during summer 2014, Cipriani could exercise a total of six weeks of parenting time divided into two blocks, each three consecutive weeks.
Fontana filed a fifth appeal on July 26, 2013, A-5740-12, challenging the summer parenting schedule ordered by Judge Einbinder.
As to A-0906-12
Although the judgment provided that Cipriani would begin his weekend parenting time on Saturday mornings, and Fontana would pick the child up "Sunday late afternoon or early evening," it also provided that "[s]hould any of the regular parenting time weekends of [Cipriani] be extended by a school holiday (e.g., President's Day, Martin Luther King Day, etc.), [the parties' son] shall enjoy that additional day with [Cipriani]."
On July 31, 2012, Cipriani selected two weeks for his summer parenting time commencing Friday, August 17, 2012. This resulted in a parenting time period extending over nineteen consecutive days, since he was also entitled to parenting time during the Labor Day weekend. Based on the judgment's language regarding holiday weekends, Cipriani intended there would be an exchange of custody on the Tuesday after Labor Day. Fontana immediately objected, claiming the amount of time the child would be separated from her was too great. She also argued that the return date was Monday, September 3, not Tuesday, and that the child's first day of pre-school was September 4.
On August 17, 2012, the trial judge conducted a hearing at the request of counsel. He clarified that three-day holiday weekends were to end on Mondays, not Tuesdays, as Cipriani had argued. However, by letter dated Friday, August 31, 2012 (the Friday before Labor Day weekend), emailed to Fontana at 4:30:55 p.m., Cipriani advised that he would not return the child until Tuesday, September 4. Fontana alleged that the letter was prepared at the law offices of Cipriani's father.
On September 5, Fontana filed a motion to enforce the judgment and for sanctions and discovery. Cipriani opposed Fontana's motion and filed a cross-motion requesting, among other things: (1) sanctions for Fontana's alleged violation of the judgment, specifically her alleged misrepresentation as to the first day of pre-school and her failure to exchange the child with Cipriani on August 17; and (2) a downward modification of his child support obligation.
Judge Einbinder heard argument on the motion and cross-motion. She noted Cipriani's admitted violation of the court's prior ruling but nevertheless denied Fontana's motion for sanctions and discovery. She also denied Cipriani's cross-motion for sanctions and dismissed his request for modification, concluding she lacked jurisdiction because the appeals had been filed. See R. 2:9-1(a). The judge stated:
I understand the level of frustration on both sides here. Although I have not been involved with this case previously, I have gotten the flavor of this case through counsels' comprehensive submissions in this matter. I also met with counsel in chambers on September 14th at which time we generated an Order about parenting time for that particular weekend, and in the Order it was provided if either party violates this Order, meaning the September 14th, 2012 Order, the Court shall consider sanctions.
I have not gotten to that level of frustration that all parties are at, at this point. However, I want to make it very clear to Mr. Cipriani and Ms. Fontana, do not consider that to be weakness from this Court. I have every intention of considering sanctions from this day on,
should either party . . . fail to follow through and comply with the Court's Orders in this case.
. . . .
However, I am giving all parties the benefit of the doubt this time. If there are any further deviations. . . from the Court Orders that are in effect, I have every intention and, in fact, I would say that the parties should apply to this Court for sanctions at that time. I decline today to issue sanctions either against Mr. Cipriani or Ms. Fontana for any alleged violations of the Orders.
. . . .
. . . I also am declining to order any depositions at this time . . . .
Fontana filed a notice of appeal challenging the denial of her motion for sanctions and for discovery on October 22, 2012. On October 26, Cipriani filed a notice of cross-appeal.
We summarily dismiss Cipriani's cross-appeal. From a passing reference in his brief and reply brief, we discern he contends that if we reverse the denial of Fontana's motion for sanctions, we must also reverse the denial of his cross-motion for sanctions. No support whatsoever is offered for this argument. The brief does not comply with Rule 2:6-2(a)(5), which provides that "[t]he legal argument . . . shall be divided, under appropriate point headings . . . ." An issue that is not properly briefed is deemed waived upon appeal. See Finderne Heights Condominium Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007). Cipriani's cross-appeal is dismissed.
I.
In A-0080-12, Fontana argues that the trial judge erred by awarding Cipriani eight consecutive weeks of parenting time every summer commencing 2013, and by awarding him parenting time during both Thanksgiving and Christmas holidays in even-numbered years. In A-0082-12, Cipriani contends that for a variety of reasons, the judge erred by not granting his request for joint legal custody. Alternatively, he seeks reinstatement of the parenting time schedule in place before trial. Cipriani also argues that the judge erred by limiting the testimony of Dr. Tydings and that he failed to "give due weight to the educational opportunities" for the child in Brick and Pittsburgh.
We set some well-known guideposts that inform our decision. "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Deference is particularly appropriate with respect to credibility determinations based on witness testimony, since the court had the ability to see and hear the witnesses, and with respect to family court factfinding, due to "the family courts' special jurisdiction and expertise in family matters." Id. at 412-13. "Consequently, we 'should not disturb the factual findings and legal conclusions of the trial judge unless . . . 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' or . . . determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).
"The touchstone for all custody determinations has always been 'the best interest[s] of the child.'" Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009) (quoting Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)), certif. denied, 203 N.J. 435 (2010). "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 v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). The statute requires that
[i]n making an award of custody, the court shall consider but not be limited to the following factors: 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 historyWhen "the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody." N.J.S.A. 9:2-4(e). Lastly, when making "any custody arrangement not agreed to by both parents," the "court shall specifically place on the record the factors which justify" its order. N.J.S.A. 9:2-4(f).
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).]
"'[T]he decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.]'" Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (second and third alteration in original) (quoting Pascale v. Pascale, 140 N.J. 583, 611 (1995)). Therefore, on appeal "the opinion of the trial judge in child custody matters is given great weight . . . ." Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994) (citations omitted).
In this case, the trial judge carefully considered all the statutory factors, and his fact-finding generally was firmly tethered to the evidence adduced at the hearing. We briefly cite some examples.
With respect to the first factor, the judge found that the parties were substantially unable to communicate or cooperate and each viewed the "other's conduct with skepticism, challenging each other's motivation in every act." The judge noted that "[t]his is not a proper foundation for the type of joint residential parenting schedule suggested by [Cipriani]." Ibid. Even if the parties had an amicable relationship, the judge noted the distance between the two mitigated against Cipriani's proposal for joint physical custody.
As for the sixth factor, the safety of the child, the judge found that both parents maintained safe environments for their son. However, he recognized "the dangers inherently lurking by the continuous and lengthy driving required under the agreement," especially since the parents were younger, relatively inexperienced drivers, and the driving occurred in all kinds of weather.
As for the ninth factor, the needs of the child, the judge concluded that Fontana was "more attentive" to the child's needs. He concluded that she sacrificed time for the child's benefit both before and after birth, whereas Cipriani "essentially continued his life as normal" and had complained to Fontana about the burden of raising a child. Moreover, the judge expressed concern over Cipriani's decision to remove the child's "comfort toys" each time he traveled to Pittsburgh, noting that experts on both sides agreed this was a mistake because "these items were personal to the child and should have remained with him."
As for the thirteenth statutory factor, the geographic proximity of the parents' homes, the judge found the 370-mile distance to be an "overriding issue," along with the high conflict nature of the case. The child's bi-weekly trips between New Jersey and Pittsburgh had been justified in the beginning in order to foster a relationship with both parents. However, the travel time was sixteen hours round-trip, and "[t]he toll upon the growing toddler [was] now more severe." Furthermore, the lengthy trips were "unduly disruptive of the lives of all parties involved in transportation," and involved the risk of accidents. Thus, the judge concluded the current transportation schedule was unsustainable.
Initially, we conclude that Fontana's challenge to that portion of the judgment that provided Cipriani with parenting time every Thanksgiving lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). The record clearly supports the judge's conclusion that Thanksgiving was a particularly significant holiday for the Cipriani family, and Christmas was important to both parties. Given the careful consideration the judge gave to all the statutory factors in fashioning the parenting time schedule, we cannot conclude he mistakenly exercised his discretion in this regard.
We also reject Cipriani's argument that the judge erred in not fashioning a parenting time schedule that equated to joint physical custody. He claims that the judge's factual findings were not supported by adequate, substantial, credible evidence, the judge misapplied the evidence to the statutory factors contained in N.J.S.A. 9:2-4 and he erred in weighing those factors by emphasizing the parties' inability to communicate and the geographical distance that separated them above all others. We disagree.
In Beck v. Beck, 86 N.J. 480, 498-99 (1981), the Court acknowledged that parents need not enjoy an amicable relationship for joint physical custody to be viable. However, the Court also recognized that parents must put aside their personal animosity in order to cooperate in matters of child rearing. Ibid. The inability of these parents and their extended families, both of whom provide critical support services to their young son and daughter, to cooperate leaps off the pages of the record in this case, and the judge so found.
Furthermore, the Court in Beck recognized that "[t]he geographical proximity of the [parents'] two homes is an important factor to the extent that it impinges on school arrangements, the children's access to relatives and friends (including visitation by the noncustodial parent), and the ease of travel between the two homes." Id. at 500. Here, the two homes are not proximate, and the judge reasonably found that requiring the parties' son to travel such vast distances on a regular basis was dangerous, burdensome, and not in his best interests. The facts of this case support the judge's denial of Cipriani's request for joint physical custody. Ibid. See also Pascale, supra, 140 N.J. at 595, 597 (joint physical custody is rare); Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.) (characterizing shared parenting arrangements as rare), certif. denied, 187 N.J. 81 (2006); Grover v. Terlaje, 379 N.J. Super. 400, 406 (App. Div. 2005) (joint legal custody is favored, but joint physical custody is rare).
We also reject Cipriani's alternate argument, i.e., that the judge should have maintained the parenting schedule that existed pre-trial. He claims that the evidence demonstrated the parties' son suffered no adverse consequences during the time it was in effect, and the parenting time schedule ordered by the court will harm his relationship with the child.
In Baures v. Lewis, 167 N.J. 91, 107 (2001) (citations omitted), the Court specifically recognized that research had not yet confirmed
any connection between the duration and frequency of visits and the quality of the relationship of the child and the noncustodial parent. Although confidence that he or she is loved and supported by both parents is crucial to the child's well-being . . . , no particular visitation configuration is necessary to foster that belief. According to scholars, so long as the child has regular communication and contact with the noncustodial parent that is extensive enough to sustain their relationship, the child's interests are served.The parenting time schedule ordered by the judge certainly provided Cipriani with regular contact with his son, albeit at perhaps a greater personal inconvenience than before.
More importantly, the judge's determination that moving the situs of the parenting time was in the child's best interests was amply supported by the substantial credible evidence in the record. The court-appointed expert, Dr. Holmes, strongly endorsed that proposal, and the judge recognized the increasing toll that the amount of travel time was taking on the child and Fontana. We affirm those portions of the judgment regarding the non-summer parenting time schedule.
On the other hand, the judge's award of eight consecutive weeks of summer parenting time to Cipriani was a mistaken exercise of discretion. In this regard, without accepting "attachment theory" or applying it to the facts of the case, the judge noted the parties' son was "approaching three years of age and given the apparent lack of ill effects despite having spent chunks of time with [Cipriani], the child is ready for longer periods of parenting time with [his father]." The judge further observed there was a "consensus even among attachment theory proponents that circumstances change for the child by the age of three years."
Initially, we note that neither party requested this relief, and Cipriani acknowledges in his brief that such an arrangement is more appropriate for school-age children. See, e.g., Mayer v. Mayer, 150 N.J. Super. 556, 568 (Ch. Div. 1977) (mother granted custody of thirteen and eleven-year-old children in Pittsburgh during school year; father granted custody of children in New Jersey over summers). More importantly, none of the five experts testified that it was in the child's best interests to spend eight weeks away from either parent. Cipriani's experts, Dr. Siegel and Dr. Rosenblum, recommended that, at most and under the particular circumstances of this case, alternate week parenting time, i.e., joint physical custody, was appropriate. When questioned by the judge whether the parties' son could handle visits longer than a week, Dr. Rosenblum responded no; he opined that even a consecutive two-week period of parenting time should not be considered until the child was a year or two older.
Almost immediately after the judgment was entered, the judge himself seemingly re-examined whether it was in the child's best interests to be away from Fontana for eight consecutive weeks. At a hearing held on July 27, 2012, Fontana raised the possibility of visiting her son in Pittsburgh during Cipriani's eight consecutive weeks of summer parenting time. The judge ruminated:
That's a good point . . . . Quite frankly, it's one that I considered during the preparation of this, and . . . and I failed to input anything to that effect in here. That's exactly what I expected. If she wanted to drive out, maybe she could have a weekend. I didn't want to interfere. Especially if he was going somewhere, that may not be a good thing. But if it was possible, if he was home and she wanted to come in on a weekend to see the child for a day or even two days, I didn't get that firm on my thoughts . . . . But I had considered it and it's something that certainly might be considered between the parties. . . . But it's something that should be addressed and probably can be addressed, and it wouldn't be unreasonable, in my opinion, to give her some short day or so time in the interim with the child. Certainly I didn't rule out in here, I didn't put anything in here about telephone contact, but I expect
the parties with the help of the parenting coordinator to be able to resolve things like that.
At the conference on August 17, held with respect to disputes over the two weeks of summer parenting time in 2012, the judge specifically noted that he considered two weeks to be the outer limit of any period of separation. He explained:
[B]ecause although I'm not particularly a hundred percent . . . satisfied with this concept of the attachment, there are some aspects that make sense. And one of the things that makes sense is you don't want to throw the child into a long-range time with a person until the child becomes more and more comfortable.The judge again noted his general agreement that Fontana should be allowed to visit during Cipriani's summer 2012 parenting time. The judge specifically rejected Cipriani's argument that any proposed visit by Fontana to Pittsburgh that summer would disrupt Cipriani's parenting time, stating:
[I]t was said that this is going to interfere with his parenting time if she were allowed to come . . . [to Pittsburgh] . . . . I'm not concerned with that as much as I am with the possible . . . discomfort of the child. The child being discomforted even for a few hours is enough for me to say if the mother feels it necessary, let her go travel out there. . . . If she's willing to take that trip, it's because she's concerned. And make no mistake about it, that's how it's viewed and how [Cipriani] should view it, and [Cipriani] should be thankful that the other parent is as concerned as she is for the welfare of their
child. And that's why I'm allowing her to go out there. I'm not saying she has to, but I'm allowing her because I'm, quite frankly, trepidatious. . . . [The child] never spent that much time away from her in a row, and I'm concerned.
Finally, our concern over this aspect of the post-trial judgment led to our order of temporary remand. Judge Einbinder reviewed the parties' written submissions, all expert testimony from the trial, and heard testimony from the parties. She concluded:
While this Court agrees with the general concept of a block of time for . . . Cipriani to enjoy parenting time with [the parties' son], it appears a more practical approach than eight consecutive weeks is called for. It is uncontroverted that [the child] . . . has never spent more than two weeks away from his mother. While eight consecutive weeks may be a long term goal as [the child] grows and matures, that large block of time at his age is too much, too soon.
. . . [I]t is this Court's Order that the best interest of [the child] . . . would be served by a summer parenting time schedule that encompasses a total of six weeks, to be broken up in blocks of two weeks at a time.
As noted, aspects of Judge Einbinder's order are the subject of Fontana's pending appeal in A-5740-12. We do not reach any particular conclusion about the order entered by Judge Einbinder, other than to say that the judge's reasoned consideration of the evidence and her determination about the nature and amount of summer visitation in 2013 and 2014 supports our determination in the present appeal that the award of eight consecutive weeks of summer parenting time to Cipriani was a mistaken exercise of discretion.
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In sum, it was a mistaken exercise of discretion to award Cipriani eight consecutive weeks of summer parenting time beginning in 2013 and continuing every summer thereafter. Neither party sought that relief, the expert evidence at trial did not support that determination, and the post-judgment proceedings evidence concerns expressed by the trial judge and, thereafter, Judge Einbinder as to whether it was appropriate. We therefore reverse that portion of the judgment. In the interim, the parties shall continue to utilize the summer parenting time schedule ordered by Judge Einbinder following our temporary remand.
Lastly, in separate point headings, Cipriani claims the trial judge erred by imposing certain limits on Dr. Tydings's testimony and failed to consider the relative educational opportunities available in Pittsburgh and Brick. The arguments lacks sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
Cipriani sought to elicit testimony from Dr. Tydings that he had spoken to Dr. Bowe, who was a colleague of his, and that Dr. Bowe told him that he (Dr. Bowe) never recommended the child remain in a car seat for only one hour at a time. The judge ruled that Dr. Tydings could not testify about the specific conversation he had with Dr. Bowe because it was hearsay.
We review the judge's evidentiary rulings for an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-84 (2010). N.J.R.E. 703 permits an expert to rely upon "facts or data" "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject," and those "facts or data need not be admissible in evidence." However, the Rule "was not intended as a conduit through which the [factfinder] may be provided the results of contested out-of-court expert reports." Agha v. Feiner, 198 N.J. 50, 63 (2009) (citations omitted); accord Konop v. Rosen, 425 N.J. Super. 391, 404-07 (App. Div. 2012); Day v. Lorenc, 296 N.J. Super. 262, 266-67 (App. Div. 1996).
Here, Cipriani intended to introduce as substantive evidence the contents of an alleged conversation between the two doctors, only one of whom was a witness. The judge properly refused to permit that testimony.
In a single paragraph in his brief, Cipriani argues that as a result of the judgment, Fontana was "afford[ed] . . . the right to enroll [the parties' son] in preschool and presumably elementary school in New Jersey[,]" and there was no testimony regarding the school system in Brick "for the purposes of this evaluation." The issue before the trial judge was limited to whether joint physical custody was appropriate, and, if not, what was the appropriate parenting schedule. The child's future educational needs were not at issue.
II.
Fontana appeals from Judge Einbinder's October 19, 2012, order that denied her motion for sanctions because Cipriani refused to return the child to her on Monday, September 3, 2012, as previously ordered by the trial judge. Fontana also argues that Judge Einbinder erred in denying her motion for discovery, specifically whether Cipriani was counseled by his father regarding the violation.
Rule 5:3-7(a) provides a variety of sanctions, including those available under Rule 1:10-3, that a judge may impose "[o]n finding that a party has violated an order respecting custody or parenting time . . . ." By its terms, the Rule imposes no obligation upon the judge to do so. Ibid.
"[W]e accord great deference to discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)). Thus, our review of a decision regarding sanctions is limited only to whether the judge mistakenly exercised her broad discretion. Id. at 197-99. "'[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.'" Id. at 197 (alteration in original) (quoting Hand, supra, 391 N.J. Super. at 111).
Here, although the judge correctly found that Cipriani had violated the trial judge's ruling regarding the return date for Cipriani's summer 2012 parenting time, she thoughtfully explained her reasons for not imposing any sanctions. The judge, however, placed all parties on notice of her intention to monitor the situation and impose sanctions as necessary. We find no mistaken exercise of the judge's discretion.
III.
In sum, in A-0080-12 and A-0082-12, we affirm all challenged aspects of the July 25, 2012 judgment under review, except for those provisions regarding Cipriani's summer parenting time in 2013 and thereafter; we reverse those specific portions of the judgment. Pending disposition of Fontana's appeal in A-5740-12, the parties shall abide by the schedule contained in Judge Einbinder's order of June 14, 2013. In A-0906-12, we affirm the order under review.
The parties are further ordered to forthwith schedule a case management and settlement conference regarding their pending appeals with Judge Philip Carchman. That conference shall take place within thirty days.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION