Opinion
DOCKET NO. A-1419-13T1
04-22-2015
J.S., Plaintiff-Appellant, v. B.V.H., Defendant-Respondent.
J.S., appellant, argued the cause pro se. B.V.H., respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-610-08. J.S., appellant, argued the cause pro se. B.V.H., respondent, argued the cause pro se. PER CURIAM
Plaintiff J.S. appeals from portions of the August 30, 2013 order of the Family Part granting defendant B.V.H.'s motion to transfer jurisdiction of custody issues in this matter to West Virginia. J.S. also challenges the judge's denial of his motion to modify his child support obligation and her determination that he was voluntarily underemployed. Finding no merit to these and plaintiff's other claims, we affirm.
J.S. and B.V.H. were married in 1994 and had three children, Cindy, John, and Tracy, who are now nineteen, eighteen, and seventeen respectively. The parties have been before us on two prior occasions.
We utilize pseudonyms to refer to the children to protect their privacy and for ease of reference.
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In 2009, we affirmed the trial court's finding that on December 4, 2007, J.S. had committed an act of domestic violence against B.V.H. and that a final restraining order (FRO) was warranted. [B.S. v. J.S.], No. A-3703-07 (App. Div. Apr. 3, 2009) (slip op. at 3-7), certif. denied, 200 N.J. 210 (2009).
In 2011, we affirmed a finding of abuse or neglect entered on March 30, 2009, against J.S. That action was instituted under Title Nine by the Division of Youth and Family Services (now known as the Division of Child Protection and Permanency), after John, then eleven years old, was injured by J.S. during the December 4, 2007 incident. N.J. Div. of Youth & Family Servs. v. B.S., No. A-3554-09 (App. Div. May 12, 2011) (slip op. at 2).
We reproduce portions of our 2011 opinion relating to the December 4, 2007 incident that have relevance here:
[B.V.H.] testified . . . [s]he returned home from teaching religious education classes with John and his sister, Tracy, around 6:15 or 6:20 p.m. J.S. was upset that his dinner was not yet prepared because he "liked his dinner between 5:00 [and] 5:30 [p.m.]" [B.V.H.] began preparing dinner in the kitchen and poured herself a glass of wine from a bottle she had in the refrigerator.
J.S. then pushed [B.V.H.] several times until she fell backward and hit her head on the furniture. John intervened and told J.S. to "stop hurting mommy." J.S. responded that John should "stay out of it," and J.S. punched John in the stomach, back and head. [B.V.H.] tried to pull J.S. off John and admitted she could have scratched J.S.'s neck and back in the process. [B.V.H.] called out to her daughters to call the police. J.S. yelled, "you're not doing that to me again," and disconnected the phone. [B.V.H.] was unable to get the phone to work, and was searching for her cell phone when the police arrived.
[Id. at 3-4.]
J.S. testified that he was attacked by B.V.H., and John was injured during a "scuffle" with Cindy. Id. at 4-5. The trial court found J.S.'s explanation for John's injury "nothing short of incredible," and concluded that the Division established that John "is at a substantial risk of harm for physical abuse from [J.S.]" Id. at 8-9.
In 2007, J.S. filed a complaint for divorce. On August 14, 2009, a different Family Part judge entered an order under the matrimonial docket granting B.V.H.'s motion to temporarily remove the three children to the State of West Virginia. The judge found that the removal was made by B.V.H. in good faith and would advance the children's best interests. In August 2009, B.V.H. moved with the children to West Virginia and has remained there.
The matrimonial matter was tried over seven days in March and April 2011. On March 7, 2012, a judgment of divorce (JOD) was entered, awarding B.V.H. sole physical and legal custody of the three children. J.S. was ordered to pay $212 per week in child support, and B.V.H. was permitted to permanently relocate with the children to West Virginia.
A torrent of nineteen post-judgment motions ensued, resulting in the entry of seventeen orders. J.S. sought to appeal the two most recent orders, entered on May 15, 2013 and August 30, 2013. His appeal of the May 15 order was dismissed by our order entered on December 31, 2013.
The August 30, 2013 order granted, in part, B.V.H.'s motion to transfer jurisdiction of this matter to West Virginia. That portion of the order provided, "the [c]ourt declines to continue to exercise exclusive jurisdiction as to custody matters and relinquishes jurisdiction as to same. Thus, the parties are free to address any future custody issues in the state of West Virginia." The motion judge denied J.S.'s requests to reduce his child support payments and to remove him from the Division's child abuse registry. His motion for additional visitation time was granted.
On appeal, J.S. raises the following points:
I.
THE JUDGE ABUSED HER DISCRETION BY TRANSFERRING VENUE AWAY FROM THE CHILDREN'S HOME STATE OF NEW JERSEY.
II.
THE TRIAL COURT'S ORDER THWARTS THE NONCUSTODIAL PARENT'S OBJECTIVE OF PERMANENT, FULL-TIME EMPLOYMENT.
III.
ON REMAND, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE TO AVOID FURTHER PREJUDICE TO THE PLAINTIFF.
IV.
THIS COURT SHOULD REVERSE THE REMAINDER OF THE AUGUST 30, 2013 ORDER BECAUSE THE JUDGE DISREGARDED AN OVERWHELMING NUMBER OF NEW JERSEY PRECEDENTS IN ORDER TO FAVOR DEFENDANT.
A. THE TRIAL COURT ERRED BY FAILING TO CONSTRUE PLAINTIFF'S INCOME AS SPORADIC AND HIS CURRENT UNDER-EMPLOYMENT AS PERMANENT AND INVOLUNTARY.
B. THE TRIAL COURT ERRED BY NOT WEIGHING THE PARTIES' RESPECTIVE FINANCIAL CIRCUMSTANCES WHEN DENYING PLAINTIFF'S MOTION TO MODIFY CHILD SUPPORT.
C. THE TRIAL COURT ERRED BY DISREGARDING DEFENDANT'S NONCOMPLIANCE WITH THE TERMS OF VISITATION.
D. THE DECISION TO TRANSFER VENUE WAS INAPPROPRIATE FOR SUMMARY TREATMENT.
V.
THE COURT DID NOT PROPERLY RE-CALCULATE PLAINTIFF'S CHILD SUPPORT BUT SUMMARILY DISMISSED THE REQUEST, IN VIOLATION OF PRECEDENT.
Our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). These factual findings are binding on appeal if supported by adequate, substantial, and credible evidence. Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Particular deference is afforded to family court fact-finding because of the family courts' special jurisdiction and expertise in family matters. Id. at 413. A trial court's legal conclusions, however, are not entitled to deference. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010).
We first address J.S.'s argument that the motion judge erred in transferring jurisdiction of custody matters to West Virginia. The Uniform Child Custody Jurisdiction and Enforcement Act, as enacted in New Jersey, states, in part, that a court that has made an initial child custody determination shall have exclusive jurisdiction over the matter until:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.
[N.J.S.A. 2A:34-66(a).]
We have held that New Jersey will retain exclusive jurisdiction under N.J.S.A. 2A:34-66(a)(1) until both the requisite "significant connection" and "substantial evidence" elements are lacking. Griffith v. Tressel, 394 N.J. Super. 128, 142-43 (App. Div. 2007). When the relationship between the child and the parent remaining in New Jersey with exclusive, continuing jurisdiction becomes too attenuated, then the State loses exclusive, continuing jurisdiction because there is no longer a "significant connection." Id. at 145.
The motion judge found that B.V.H. has been residing in West Virginia with her three children since 2009, which she found was a "substantial period of time." The children attend school in West Virginia, they are treated by medical professionals there, and B.V.H. has enjoyed sole legal and physical custody of the children since the entry of the JOD. Moreover, when the children visit J.S., the parenting time takes place in Tappan, New York, which is the location of J.S.'s father's house. The record before us is devoid of proof that the children continue to have any significant connection with New Jersey, or that there is available in New Jersey "substantial evidence" bearing upon the children's care, protection, training, and personal relationships. We are satisfied that the motion judge properly transferred jurisdiction of the custody issues to West Virginia.
J.S. next argues that the motion judge's denial of his motion to be removed from the child abuse registry hinders his ability to secure permanent, full-time employment. When the Division determines that an allegation of child abuse or neglect is substantiated, the perpetrator's name must be entered into the Division's child abuse registry. N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998) (citing N.J.S.A. 9:6-8.11; N.J.A.C. 10:129A-3.4). After the entry of the March 30, 2009 order finding that J.S. had neglected John, J.S.'s inclusion in the child abuse registry was mandatory. We affirmed the finding of abuse or neglect in 2011, B.S., supra, slip op. at 2, and defendant sought no further review.
Any application to expunge a name from the child abuse registry must include the Division as a necessary party and must include proof that the allegation was unfounded. See N.J.S.A. 9:6-8.40(a); N.J.A.C. 10:129-8.2. Defendant did neither and the motion judge properly declined to consider his application.
J.S. next challenges the motion judge's determination that he is capable of finding work and that his underemployment is a willful choice. The judge based this finding on the fact that J.S. voluntarily surrendered his realtor's certification, he is able-bodied and healthy, he has a dual master's degree in finance and management information systems, and he is a certified financial planner. The judge found that
[t]he plaintiff's continued "proofs" of applying to [upper-level] and mid-level positions for which he may not be qualified are particularly suspect in view of the extended period of time during which he has remained unemployed, bolstering the [c]ourt's findings that this is plaintiff's willful choice. In the event that plaintiff worked consistently for a lower income, the [c]ourt would be more inclined to consider his request for a reduction [in child support payments]. At this time, the
[c]ourt finds that his request for a reduction in child support is made in bad faith and is a result of his own poor decisions.
We are satisfied that the motion judge's finding that J.S.'s financial situation is elective, given his qualifications and the quality of his job search, is supported by sufficient, credible evidence in the record. We perceive no valid basis to overturn the judge's finding or her denial of his motion to modify child support.
As we are not remanding, we need not address J.S.'s claim that we should direct that this matter be assigned to a new judge. However, given the volume of litigation this divorce has spawned, it would be unrealistic to assume that our decision will end the conflict and the numerous trips to the courthouse. Therefore, we provide the following observation.
A judge may be disqualified when "there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(g). "While not strictly a matter of disqualification, the appellate court has the authority, although this power is ordinarily sparingly exercised, to direct that a different judge consider the matter on remand in order to preserve the appearance of a fair and unprejudiced hearing." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:12-1 (2015).
J.S. argues that a different judge should be assigned on remand because the trial judge incorrectly granted B.V.H.'s motion to change jurisdiction and incorrectly denied his motions to modify child support and remove his name from the child abuse registry. Distilled to its essence, J.S.'s argument is that the adverse rulings by the motion judge demonstrate her bias.
"Bias cannot be inferred from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008). There is no evidence in the record to suggest that the motion judge was biased in favor of B.V.H., and the examples of "bias" highlighted by J.S. are mischaracterizations of the proceedings.
For example, J.S. argues that questions by the trial judge about his job search evidenced "operative bias," which prevented him from presenting a legal argument. After reviewing those portions of the transcript cited by J.S., we find nothing prejudicial about the questions asked by the court.
J.S. also alleges that the trial court ignored precedent in rendering her decision as another example of bias. Having reviewed the legal issues, we discern no error in the motion judge's application of the relevant case law. As we have noted, the judge provided adequate reasons to support her conclusions, and J.S. has provided no reason to preclude her from further participation in this matter.
The remainder of J.S.'s arguments lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION