Opinion
DOCKET NO. A-3211-13T3
04-11-2016
M.I., Plaintiff-Appellant, v. J.I., Defendant-Respondent.
Karin Duchin Haber argued the cause for appellant (Haber, Silver & Simpson, attorneys; Ms. Haber, of counsel; Jennifer M. Russoniello, on the brief). Respondent J.I. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-47-11. Karin Duchin Haber argued the cause for appellant (Haber, Silver & Simpson, attorneys; Ms. Haber, of counsel; Jennifer M. Russoniello, on the brief). Respondent J.I. has not filed a brief. PER CURIAM
Plaintiff M.I. and defendant J.I. were married in 1999 and have two daughters — one born in 2005 and a second born in 2008. Both parties are professionals; plaintiff is a veterinarian, and defendant is a psychiatrist.
Given the nature of some of the trial testimony we recount, we have used initials to accord the parties a level of confidentiality.
Plaintiff filed her complaint for divorce in 2010, which was followed by more than two years of acrimonious motion practice during which some of the time the parties represented themselves. When trial commenced in December 2012, plaintiff was represented by counsel, and defendant continued to represent himself. The trial continued over non-consecutive days for more than one year, and the testimony painted a sad tale of two "adults" who refused to put aside their hatred and animosity for each other, even though the best interests of their children were at stake.
The final judgment of divorce (JOD) entered on February 11, 2014, awarded defendant sole legal custody of the children, subject to "advance written notice of each and every legal custody issue for which [defendant] intends to render a decision . . . with enough advance notice to give [plaintiff] sufficient time to seek Court intervention . . . ." The JOD further provided that the parties would "share physical custody in a fifty/fifty basis" during a two-week cycle pursuant to a "pickup" and "drop off" schedule. Defendant was named "the parent of primary residence" and given the right to unilaterally select the children's schools upon notice to plaintiff. Despite defendant's admission that he violated pendente lite support orders, neither the JOD nor the judge's extensive written opinion addressed the issue.
Plaintiff now appeals. She argues that the judge failed to apply the best-interests-of-the-children standard in making his custody award, the decision was unsupported by the factual record, and the judge's mistaken exercise of discretion in failing to compel defendant's cooperation with the mutually-agreed upon custody evaluator, Dr. Edwin A. Rosenberg, effectively eliminated the opportunity for a complete, current custody evaluation at trial and tainted the custody determination. Plaintiff also argues that, without considering the parties' daughters' best interests, the judge permitted defendant to unilaterally choose the school they would attend. Plaintiff further contends that the judge failed to properly award her reimbursement for defendant's violation of pendente lite support orders and erred in not awarding her counsel fees. Plaintiff urges us to reverse portions of the JOD regarding custody, parenting time, school choice and child support, and remand the matter for further proceedings before a different Family Part judge.
We have considered these arguments in light of the record and applicable legal standards. We remand the matter for further proceedings in accordance with this opinion. We retain jurisdiction.
I.
As the judge stated in his written decision following trial, "the major issue in controversy was the custody of the parties['] two daughters." We recently reiterated that "[d]etermining what custodial arrangement is in the best interest of a child requires the Family Part judge to apply the statutory factors outlined in N.J.S.A. 9:2-4[.]" D.A. v. R.C., 438 N.J. Super. 431, 450 (App. Div. 2014). That statute provides:
In 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 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. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.
[N.J.S.A. 9:2-4(c).]
In this case, the judge's written opinion began with more than three pages of references to trial testimony demonstrating the demeaning, belligerent and offensive conduct each party showed the other and, in defendant's case, the court. The judge noted, for example, plaintiff's refusal to follow court orders and defendant's false testimony under oath. Based upon the parties' obvious inability to communicate and cooperate, the judge concluded that "joint custody will not work with this couple." He then considered at length the trial testimony as it pertained to the remaining statutory factors. We quote at length the judge's ultimate conclusion:
[T]his is simply not a case where joint legal custody will work, though joint legal custody is the optimum result in most cases. [Plaintiff and defendant] are simply incapable of cooperating on any matter. Unless one of the parents is given sole legal custody[,] the Court fears it will be insinuated into every major and minor decision regarding the care and upbringing of [the children]. [Defendant] calls [plaintiff] names, is demeaning towards her, has no faith in her judgment, and has unremitting anger issues leaving him incapable of controlling himself with regard to anything with which [plaintiff] is involved, including in the Court setting.
For her part[,] [plaintiff] does not even attempt to communicate with [] defendant; ignores his input when it is provided; refuses to engage him in issues regarding the health, education and welfare of the children; and gives him no credit for his ability to parent and simply will not cooperate in a joint custody posture with [defendant]. She has caused [defendant] to be referred, unnecessarily in the Court's view, to the Division of Child Protection and Permanency. [Plaintiff] has spread potentially damaging rumors about [defendant] in the community and to [defendant's] friends and colleagues. Plaintiff has telephoned the police with unwarranted welfare checks. Importantly, [plaintiff] fails to even attempt to co-parent, completely refusing to communicate. She has tried to cast blame on [defendant] for injuries to the children occurring when she was parenting.
All that being said, the Court awards [defendant] sole legal custody in this case because in spite of all the problems with each of the parties, and there are serious and extensive concerns with each, [defendant] has shown the better propensity and ability to follow Court Orders.[] She has defied Court Orders consistently and regularly. She has not abided Orders regarding rights of first refusal. She has not abided Orders regarding the dogs being in the home. She has not abided Orders requiring joint decision making, constantly making unilateral decisions that are major in impact whether it has to do with education or medical issues. Furthermore, her judgment on many of those occasions has been lacking — whether permitting babysitters she barely knew to sleep in the same bed with the children, or allowing [her older daughter] to ride on a motorcycle . . . when her feet did not touch the foot pegs, or leaving the children unsupervised
to be burnt by a rice steamer or to fall off a changing table or fall out of a stroller. [Plaintiff] has also charged [defendant] with hitting the children, an unsubstantiated allegation of abuse. They have both lied to law enforcement and the Courts with regard to their physical altercations. It is a mess. But[,] at the end of the day[,] the Court finds that [defendant] would have a better likelihood of following Court Orders regarding custody and parenting because he has demonstrated a much greater propensity to do so during the pendency of the case, and is more likely to communicate with [plaintiff] as to what is occurring in the lives of the girls, which even though the Court grants him sole legal custody, it will require him to do prospectively.The judge's findings about defendant's failure to follow court orders were limited to a footnote, which we omitted from the text above, but now provide. Specifically, the judge
Emblematic of the difficulty with awarding [plaintiff] legal custody, as the trial was concluding and [plaintiff] was once again testifying about [defendant's] harassment, she was asked to demonstrate and prove her allegations . . . by playing the messages left by [defendant] on her cellphone. First, her mail box was full and no longer receiving messages though she had been ordered multiple times to answer her e-mails and voicemails. Furthermore, [plaintiff] was initially unable to play the voicemail because she could not remember the password, causing the Court to wonder whether she ever listens to her voicemail. Finally, when [plaintiff] did recall the password and played the many messages from [defendant], there was absolutely nothing harassing in the tone or substance of any of the saved voicemail messages.
recognize[d] [that] defendant failed, even refused, to follow the Court Order regarding his financial contributions; and he never ceased sending inappropriate and demeaning emails to plaintiff and her attorneys and would not obey the Court's directives during the actual trial; but still his record of compliance is superior to hers.
Against this backdrop, we consider plaintiff's specific contentions.
II.
Initially, we are unpersuaded by plaintiff's argument that the judge's factual findings were "unsupported by the record." In this regard, we accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). "In matrimonial matters, this '[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility[.]'" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Cesare, supra, 154 N.J. at 412). Therefore, "[r]eversal is warranted only when a mistake must have been made because the trial court's factual findings are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . .'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Our review of the record satisfies us that the judge's factual findings were supported by credible and substantial evidence. Plaintiff's arguments to the contrary are primarily challenges to credibility determinations, particularly as to plaintiff, who, as the judge stated in his written opinion, generally suffered from "severe credibility problems," and the relative weight the judge accorded to plaintiff's actions and those of defendant. We find no fault with the judge's credibility findings. However, for the reasons that follow, the judge's written decision failed to explain his factual determinations, and how they impacted his custody decision, in two critical respects.
A.
Plaintiff argues that the judge applied an improper legal standard because the custody decision rested upon a determination that defendant was more likely to comply with the court's orders, instead of the foremost concern driving any custody award, i.e., the best interests of the children. See, e.g., Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) ("the primary and overarching consideration is the best interest of the child"); Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009) (calling the best interests standard "[t]he touchstone for all custody determinations"), certif. denied, 203 N.J. 435 (2010). We do not believe the judge applied an improper legal standard.
Although the judge examined the trial testimony against all of the statutory factors and made factual findings as to each, he failed to explain why, in the end, the award of sole legal custody to defendant was in the girls' best interests. We might infer that the judge concluded defendant's more probable compliance with future court orders implicitly would benefit the children's well-being, but he never said that or explained why that was so. On remand, the judge shall explain why the children's best interests are served by awarding defendant sole legal custody.
B.
A remand is also required so the judge may address the lack of findings regarding the testimony of Dr. Rosenberg. We provide the factual and procedural context.
Plaintiff filed her complaint on July 25, 2010. Earlier that month, represented by counsel and in the context of ongoing domestic violence litigation, plaintiff and defendant entered into a consensual agreement. Defendant agreed to vacate the marital home, and the parties agreed that plaintiff would be the parent of primary residence. The agreement set forth a parenting schedule.
In December 2010, plaintiff moved for various relief, including the appointment of a "joint expert" to conduct a custody and parenting time evaluation. In his opposition papers, defendant agreed to the parties "mutually select[ing]" a joint expert, with each party "equally responsible" for the associated costs. In January 2011, the parties agreed to retain Dr. Rosenberg as a joint expert. In an order dated March 8, 2011, the court acknowledged the parties' agreement, stating: "By consent, Dr. Edwin Rosenberg shall perform the custody evaluation the cost of which shall be equally shared by the parties."
On November 2, 2011, Dr. Rosenberg sent the attorneys for both parties a preliminary report. In his cover letter, he described the document as "not a 'full' report," but one designed to allow the attorneys and their clients "an opportunity to know what I am going to recommend if I were required to prepare a full report," thereby offering the parties "an opportunity to settle this custody dispute." Dr. Rosenberg advised that if there were no settlement, he would prepare a full report which "will have the same recommendations that are contained in this brief report."
The November 2011 report recommended that the parties share joint legal custody of the children. Noting that the parties had been unable to co-parent to date, Dr. Rosenberg stated that "the solution to that problem is not to give either parent sole legal custody." He also recommended that plaintiff be the parent of primary residential custody, and he set forth a recommended parenting schedule.
Shortly after the report was circulated to counsel, defendant indicated that he would be representing himself going forward. By e-mail to Dr. Rosenberg dated November 9, 2011, which was later revealed to have never been served on plaintiff or her counsel, defendant stated:
Does not look like the custody dispute will be solved via your report and even if it is/will I decline that the final report be produced. If she would like to procure such a copy or want such a report produced she will need to pay for it in its entirety. Additionally, if there is any of my retainer left I would request a refund of those funds asap.By letter dated December 12, 2011, Dr. Rosenberg complied with defendant's request and returned his money, but he also indicated his intention to complete the report and bill defendant accordingly.
In January 2012, plaintiff moved to compel defendant to return the money to Dr. Rosenberg and direct completion of the full report. The transcript of the March 2, 2012 oral argument on the motion indicates the judge's initial intention to grant plaintiff's application. However, after colloquy with defendant, who advised that he had no objection to the judge seeing the initial report, the judge ordered production of the initial report and that Dr. Rosenberg furnish a letter "as to what tasks are left remaining for him to complete the report." The judge's March 2, 2012 order denied plaintiff's request without prejudice, but required the parties to submit a copy of Dr. Rosenberg's initial report along with a letter "outlining what additional information would be contained in a full report." Plaintiff submitted a copy of the initial report to the judge, but Dr. Rosenberg never prepared the requested letter.
Motion practice regarding Dr. Rosenberg's final report continued. Now representing herself, plaintiff filed a cross-motion in June 2012, requesting that Dr. Rosenberg be ordered to prepare a final report, the costs to be shared thirty percent by plaintiff and seventy percent by defendant. The judge's June 29, 2012 order provided, somewhat confusingly, that plaintiff's request was "reaffirmed as it was addressed in a previous order. The plaintiff should follow up with Dr. Rosenberg as previously ordered."
In September 2012, again representing herself, plaintiff filed another motion seeking an order compelling Dr. Rosenberg to continue his evaluation, since his first set of interviews occurred more than one year earlier, prepare a full report and sit for deposition. Also in September, Dr. Rosenberg wrote the judge and advised that plaintiff had contacted him for further work on the case. Dr. Rosenberg agreed with plaintiff that his November 2011 report was stale, but given defendant's opposition to his involvement, he did not feel he could proceed with any update unless ordered to do so by the court. Thus, he asked that the judge "order [him] to update [his] evaluation and order [] plaintiff and [] defendant to cooperate with the evaluation and equally share in the cost of the update."
On October 1, the judge responded to the letter, stating it was "up to the parties . . . to trigger, through consent or by motion, further forensic work; the Court will not order additional work sua sponte." Defendant opposed plaintiff's request and sought an order "deny[ing] any further and superfluous involvement of Dr. Rosenberg in this case," specifically citing the judge's October 1 letter.
The judge's November 16, 2012 order denied plaintiff's motion. In his written statement of reasons, the judge explained:
Plaintiff's prayer to order Dr. Rosenberg to continue his evaluations and to order that Plaintiff depose Dr. Rosenberg is denied without prejudice. Dr. Rosenberg never gave
the Court his initial report nor did the Court receive a letter from Dr. Rosenberg as to what additional information or data would be contained in a full report. However, Plaintiff suggests something different — she wants updated information. The Plaintiff also wants to depose Dr. Rosenberg and the Court notes that she did not need Court order previously to do so, but now discovery is closed. The trial starts on December 3, 2012 and this case is approaching [two and one-half] years. Plaintiff has the right to subpoena Dr. Rosenberg to testify and to bring his report. Defendant will be barred from objecting to the preliminary report on the basis that it is not a full final report; and from objecting to information Dr. Rosenberg may provide in testimony fleshing out or elaborating on information contained in the preliminary report.
The record reflects that plaintiff's counsel served the preliminary report on the judge as per the judge's prior order in March 2012. --------
Plaintiff called Dr. Rosenberg as a witness on the first day of trial, December 3, 2012. He testified that his last contact with the parties and their children was between May and August 2011, about eighteen months earlier. Dr. Rosenberg believed that his November 2011 report was stale and incomplete, and he did not think he could support the recommendations he made at that time. With the cooperation of both parties, Dr. Rosenberg believed he could provide a complete, updated report within three weeks and be prepared to make a recommendation regarding custody. The record reveals that the next court date was scheduled for December 24, 2012.
The judge indicated to plaintiff's counsel that he would not "proceed[] in that fashion," explaining,
We're now in a situation where even if I ordered Dr. Rosenberg to do an update, . . . and even if . . . I ordered [defendant] to cooperate — I have this wrinkle here where [Dr. Rosenberg] already made recommendations, which I'm assuming are somewhat against [defendant], or else he wouldn't have balked at the full report. And I don't know that because I never read the preliminary report.
But let's say . . . it is. How is [defendant] going to really cooperate? How is Dr. Rosenberg really going to be able to write an objective report? I'm going to wind up with all sorts of additional issues . . . going forward.
I want [Dr. Rosenberg] to testify. I want you to call him and to have him testify to what he had at the point that he had done his evaluations. And I recognize that there is some stale aspect to it. And you can certainly ask him questions as to how things that have transpired since . . . would have changed his ultimate result.
When plaintiff's counsel noted that defendant had unilaterally violated the consent order appointing Dr. Rosenberg as a joint expert, the judge found fault with the expert's "process," wherein Dr. Rosenberg had filed an initial report hoping it would foster settlement, but the preliminary recommendation "irritated one party." The judge granted plaintiff's counsel a recess to prepare Dr. Rosenberg to proceed with his testimony. When court reconvened, Dr. Rosenberg resumed testimony and testified for the entire day. He again testified for an entire day in February 2013.
Dr. Rosenberg detailed defendant's psychiatric history and the diagnoses other mental health professionals had made regarding his condition. Dr. Rosenberg also interpreted defendant's scores on psychological tests that he had administered to defendant. Dr. Rosenberg often indicated that further information would assist him in rendering a final custody evaluation. He also acknowledged that resolving the parties' differing claims regarding incidents of abuse and maltreatment would assist.
As noted above, in his initial report, Dr. Rosenberg had recommended a joint custody arrangement, with plaintiff designated the parent of primary residence and the parties sharing the children on an eight day/six day schedule over the course of two weeks, with nine exchanges of the children during that time period. However, based upon his psychological testing of defendant, information he obtained from collateral sources, and what he had heard and observed at trial, Dr. Rosenberg now modified his recommendations.
Without addressing all aspects of the November 2011 report, Dr. Rosenberg testified that both parties had "psychological issues that resulted in mean-spirited, impulsive behaviors." He believed that defendant had good parenting skills, whereas plaintiff needed parenting skills training. However, concerned about defendant's ability to maintain emotional and impulse control, Dr. Rosenberg recommended that defendant's parenting time be supervised pending a psychiatric evaluation.
Plaintiff argues that the judge abused his discretion by not compelling the completion of Dr. Rosenberg's evaluation, or granting an adjournment so the expert could update the report. Plaintiff correctly points out the Court has long recognized that "[i]n implementing the 'best-interest-of-the-child' standard, courts rely heavily on the expertise of psychologists and other mental health professionals." Kinsella, supra, 150 N.J. at 318. However, under the circumstances presented, we conclude the judge did not mistakenly exercise his discretion, or that his discretionary decision actually prejudiced plaintiff.
Our standard of review is limited, meaning that we do not decide the issue anew but only whether the judge properly exercised his broad discretion over the pre-trial and trial proceedings. "A proper exercise of judicial discretionary authority 'connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" D.A., supra, 438 N.J. Super. at 451 (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
In November 2011, defendant refused to cooperate any further with Dr. Rosenberg, initially chosen through the parties' mutual consent. The original consent order signed by the judge did not compel compliance by the parties; it only required them to equally share the costs. In March 2012, the judge ordered production of Dr. Rosenberg's initial report and sought a letter explaining what other information would be contained in any final report. That letter was never produced.
Plaintiff chose to represent herself for a period of time immediately thereafter, and moved to compel completion of the report and have defendant pay his share. She never requested that the court appoint its own expert, nor did she retain her own expert. See R. 5:3-3. On the first day of trial, plaintiff renewed her request to have Dr. Rosenberg prepare an updated report because the initial report was stale.
The judge proposed a sensible solution, given the late hour. Dr. Rosenberg could testify regarding his initial report, be provided with factual developments that had occurred since, which were supported by the evidence, and be asked to explain how, if at all, those facts changed his opinion. To penalize defendant's conduct, the judge prohibited defendant from objecting to the initial report or otherwise challenging Dr. Rosenberg's testimony supplementing the initial report.
Plaintiff argues the judge should have adjourned the trial to permit Dr. Rosenberg to complete his report. She likens this situation to that presented in Fehnel v. Fehnel, 186 N.J. Super. 209 (App. Div. 1982). There, we reversed the trial court's denial of the plaintiff-wife's request for an adjournment to perform a custody evaluation. Id. at 210. We excused any delay in seeking an evaluation earlier because the custody issue was not clearly disputed until trial. Id. at 215-16. It is obvious that the circumstances here were vastly different. The custody decision was the critical issue at trial, and it was contested virtually from commencement of the litigation in July 2010.
More importantly, we fail to see how plaintiff suffered any prejudice by the judge's decision. Dr. Rosenberg's initial recommendation was that the parties share joint legal custody with plaintiff being the parent of primary residence, along with nearly equal amounts of parenting time. Although he was unable to reaffirm this opinion at trial because he lacked updated information, the thrust of his testimony was that any time defendant spent with his children must be supervised. Dr. Rosenberg explained that this change of opinion was based upon information he had since learned regarding defendant's extensive mental health history, his violent behavior and his lack of impulse control, which the doctor observed first-hand during trial. In short, Rosenberg's testimony greatly assisted plaintiff's case, and we fail to see how the production of a "final" evaluation report could have been more beneficial.
However, while we refuse to reverse based upon the judge's handling of the procedural issues that surround Dr. Rosenberg, we are constrained to remand for a related reason. Given the conduct of the parties toward each other and the court, the judge clearly recognized the ultimate custody determination required the exercise of judgment worthy of Solomon. If there were ever a case that would benefit from an impartial expert evaluation, this was the one, and, so, we fully understand the exquisitely difficult task faced by the judge.
Yet, in the twenty-two pages of his written decision that resolved the custody dispute, the judge hardly mentioned Dr. Rosenberg's testimony, nor did the judge ever indicate whether he found the testimony to be credible. Three of the six references in the decision to Dr. Rosenberg's two days of testimony simply serve to corroborate or rebut other testimony by the parties. Here are the other three more substantive references:
Ironically, Dr. Rosenberg, whom [] plaintiff called as a witness, actually testified [] defendant exhibited more effective parenting than plaintiff.Notably, the judge never addressed Dr. Rosenberg's ultimate conclusion at trial, i.e., that any time defendant spent with his children should be supervised.
Regarding Dr. Rosenberg's opinions, although generally his recommendations favored [plaintiff], he noted during his testimony she has a tendency to "provoke" [defendant], obviously important in the context of domestic violence and further supported by other incidents occurring since 2006.
Dr. Rosenberg, even though his recommendations were for the plaintiff to be the parent of primary residence, found [plaintiff] had uneven insight, had a hard time controlling her temper with angry outbursts, and needed parenting skills. Interestingly, he then concluded neither parent was psychologically unfit or toxic or a threat to [the children].
[Defendant], by the Court's own observations . . . is totally unable to control his emotions or behavior. Dr. Rosenberg found he had no empathy.
The judge obviously rejected Dr. Rosenberg's amendatory conclusions; but, he never said why. This is particularly puzzling, since the judge's factual findings supported Dr. Rosenberg's conclusion that defendant's anger and inability to control his impulsive conduct was problematic.
For example, the judge's written decision mentioned the numerous times he cautioned defendant about his behavior during trial, including calling plaintiff "a moron, retard or idiot." The judge acknowledged that he "was unable to reign in [defendant's] interruptions, eruptions, asides, outbursts and clear uncontrolled anger." The judge further found that "[e]very trial date was protracted significantly because of [defendant's] inability to follow Court direction." The judge cited the testimony of defendant's own treating therapist, who acknowledged defendant's "impulse control problems." The judge concluded that defendant "constantly is in battle with people." Although the judge noted the positive testimony of all the professionals regarding defendant's current mental state, the judge nevertheless repeated that his "own observations [of defendant] were troubling."
We therefore remand the matter so the judge may explain his assessment of Dr. Rosenberg's testimony, a jointly-agreed-upon expert, in light of all of the other testimony in the case, and the impact, if any, Dr. Rosenberg's opinions had upon the judge's ultimate custody decision.
In light of our decision to remand the matter, we do not at this time address plaintiff's separate argument that the judge erred by permitting defendant to enroll the children in the Sparta public school system in September 2014. To the extent he wishes to, or feels it necessary, on this issue, the judge may supplement what was already stated in his written decision.
Any discussion regarding plaintiff's claim that the judge mistakenly exercised his discretion by not awarding her a portion of her counsel fees shall also abide the remand.
III.
A remand is also required to address defendant's admitted refusal to pay pendente lite support, an issue not discussed in the judge's written decision. We provide some context.
Pursuant to the parties' July 2010 agreement and the March 8, 2011, pendente lite order, the parties agreed to equally share the schedule A and child-related expenses. On a bi-weekly basis, each party was required to pay $3,118.75 into a joint account in order to pay specified housing expenses and the children's health insurance.
At trial, plaintiff claimed that starting in September 2011, defendant stopped paying as required under the court order, and he did not pay his full share of some child-related expenses. She argued that defendant owed her $43,652 in housing expenses pursuant to the pendent lite order, representing $6236 per month for seven months between September 2011 and March 2012. She also requested $1872 for the parties' daughter's karate lessons, $260 for her dance lessons, and $890 for her therapy.
Defendant maintained that he had paid more than half of the parties' child-related expenses, including health insurance, rent to his parents, schooling, clothing, food, entertainment, and vacations. He defended his September 2011 decision to stop paying expenses relating to the marital home because the parties could not afford it any longer, but plaintiff refused to cooperate in selling the property at its reduced market value. Defendant also noted that plaintiff stopped making housing expense payments in April 2012.
Defendant testified that, by the time of trial, with plaintiff having lived in the marital home for sixteen months without paying the mortgage or taxes, "any discrepancy in terms of monies owed is easily a wash at this point." Defendant believed that he should not be held to the terms of the support order, issued early in the litigation, when he had no idea the divorce proceedings would take as long as they had.
Notwithstanding this evidence, and the parties' arguments in summation as to monies allegedly owed, the judge failed to address the issue in his written decision or in the JOD. In the context of ruling on custody and addressing the parties' non-compliance with court orders, the judge stated that defendant "failed, even refused, to follow the Court order regarding his financial contributions[.]" In the context of addressing equitable distribution, the judge wrote:
[T]here was back and forth by the parties as to whom had incurred certain expenses which should have been joint marital expenses with assertions there should be reimbursement ordered by the Court. The Court finds the evidence to be tit for tat and of no moment and impossible to sort out to any reasonable informed distribution.
Neither of these statements address defendant's admitted violation of the pendente lite support order. In this regard, the "[f]ailure to make explicit findings and clear statements of reasoning" makes our review impossible. Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)); see also R. 1:7-4(a). Therefore, on remand the judge shall rule on plaintiff's request for reimbursement of the pendente lite expenses due to her under the court's March 2011 order.
IV.
In sum, we remand the matter to the trial judge to address three issues. First, the judge shall address in greater detail why his factual determination that defendant was more likely to follow court orders served the best interests of the parties' children. Second, the judge shall address in greater detail the testimony of the jointly-agreed-upon custody evaluator, Dr. Rosenberg, provide an assessment of that testimony and explain what impact, if any, it had upon the judge's ultimate legal conclusion to award defendant sole legal custody of the parties' children. Third, the judge shall consider and decide plaintiff's request for reimbursement of pendente lite expenses pursuant to the March 2011 court order, which defendant admittedly refused to pay.
The judge shall serve plaintiff's counsel, defendant and the Appellate Division Clerk with his decision on remand within forty-five days of the filed date of this opinion. Both parties may file supplemental briefs with the Appellate Division Clerk, limited to no more than ten pages, within ten days of receipt of the judge's decision. This court shall retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION