Opinion
DOCKET NO. A-1838-12T3
08-28-2014
WALTER MAGUIRE, Plaintiff-Appellant, v. CATHERINE MAGUIRE, Defendant-Respondent.
Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost and Matthew S. Coleman, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Lihotz and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-97-11. Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost and Matthew S. Coleman, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff Walter Maguire appeals from several provisions of a November 13, 2012 Dual Final Judgment of Divorce (JOD). Specifically, he challenges the factual underpinnings supporting sole authority granted to Catherine Maguire to determine the course of the children's education; the delegation of determinations to a parenting coordinator (PC); the amount of income imputed to him and the resultant calculated alimony and child support obligations; and the award of counsel fees to defendant. We agree the judge inappropriately deferred determinations to the PC and that provision in the JOD must be vacated. In all other respects, we affirm.
I.
We include a general factual overview, taken from the trial record. Later, in our discussion of each issue presented on appeal, we provide additional facts necessary to add context and understanding to plaintiff's challenges.
The parties were married on December 1, 1984, and moved to New Jersey in September 2007. In August 2009, plaintiff relocated when his job was moved to California. Initially, the family planned to follow. However, defendant reconsidered, and decided against the move. Plaintiff filed for divorce on July 14, 2010.
The parties have three sons, two of whom have now reached the age of majority and the youngest is now sixteen. At the time of trial, plaintiff resided in California and defendant and the two younger children resided in New Jersey. The oldest child had moved to Ohio.
For almost the entire marriage, defendant was not employed outside the home. Plaintiff pursued a career in pharmaceutical sales, first in Connecticut, later in New Jersey, then in California. Plaintiff lost his job on November 14, 2011. Although he was interviewing, during trial, plaintiff had not obtained a new position.
When the oldest child reached school age, the parties considered enrolling him in public school. Defendant was uncomfortable with such an arrangement because of perceived health risks resulting from the child's significant food allergies and the fact that only the school nurse was capable of administering necessary medications were he to experience anaphylactic shock. Consequently, the parties agreed to home school the child.
With plaintiff's agreement, defendant assumed responsibility for the child's education. She participated in a network of families who also home schooled their children and followed a core curriculum taught by different home schooling parents. When the parties' middle and youngest child reached school-age, plaintiff and defendant agreed they too would be home schooled and defendant would continue to guide the children's educational process. The proposed long-term educational plan was described by plaintiff. He acknowledged defendant would direct the boys' education up to high school, at which point he would assume responsibility to transition them through career planning. The boys would not go to college until they were "self-directed," that is, when each intended to pursue a desired career. Only then would he apply for admission and pay the costs of their higher education.
At some point, a more holistic learning model, known as "delayed academics" was favored over a more structured home schooling program. Generally, the method advocates children should not be pushed to achieve formal academic goals, but rather be permitted to learn at their individual pace when mentally, physically, and emotionally ready to do so, which defendant suggested was age twelve or thirteen. Until then, children are exposed to many topics to increase their level of curiosity and directed to develop good habits. Defendant then embraced "unschooling," which allows children to direct the learning process based on individual interests. She explained a child becomes "very excited about different topics and learning and whenever they get excited and they want to learn a topic, that's what you teach them." Defendant followed the unschooling methodology prior to the parties' separation. Plaintiff was aware of this practice and described unschoolers as following "three main components . . . they don't use curriculums, they don't use lesson plans, and they don't do testing."
In their primer, The Successful Homeschool Family Handbook, (1994), Dr. Raymond and Dorothy Moore developed a flexible home school program by building an unstructured curriculum, known as delayed academics, emphasizing learning based on a child's needs and interests. The method values the freedom to be creative and rejects adherence to more a traditional core academic plan, which is viewed as pressuring children to learn before they are ready. The method also discusses character building, service to others, instilling values and social skills.
The term "unschooling" is attributed to John Holt in his 1981 book, Teach Your Own, which was revised and re-released in 2003 by Pat Farenga as Teach Your Own: The John Holt Book of Homeschooling.
Prior to trial, the parties agreed to appoint a PC and to participate in family/reunification therapy. Cross-motions were filed regarding the direction of the children's education. On May 25, 2012, the court ordered the parties to present their respective educational plans and proposed parenting time provisions to the PC. The order provided the PC would implement a parenting plan and make recommendations regarding the children's educational future based on reports submitted by Sharon Ryan Montgomery, Psy.D., who performed a forensic custody evaluation. Also, Holly L. Blumenstyk, M.Ed. prepared an assessment of each child's educational status.
Trial was held over six days. Plaintiff testified and presented the expert opinions of Blumenstyk and Dr. Joseph Petrosino, Director of Pupil Services at Somerset County Vocational and Technical High School (Vo-Tech). Defendant testified and presented the expert opinions of Elaine V. Jett, Ph.D., President of the Dyslexia Institute of America and Margaret Tuttle, Director of the Dyslexia Center of Princeton. By stipulation, the parties agreed to admit Dr. Montgomery's custody evaluation, which included recommendations regarding the children's education; she did not testify. Finally, the parties agreed the court could consider and weigh a certification from Pamela Horn, Director of Pupil Person Services for the Franklin Township Board of Education and Director of the Child Study Team.
A JOD was entered on November 13, 2012. The parties marriage was dissolved based on their respective claims of irreconcilable differences. Regarding the collateral issues, the judge provided a seventy-five page written statement of reasons setting forth her findings and conclusions. She granted the parties joint legal custody of the two minor children, with defendant designated as the parent of primary residence and plaintiff as the parent of alternate residence. Among the other provisions, the judge denied plaintiff's application to compel defendant to enroll the children in public school, but ordered the parties "to confer about major issues affecting the children's health, education, and welfare" and "pending further [o]rder of the [c]ourt or agreement, the status quo of the children's current educational circumstances w[ould] not be disrupted" so that the children "shall continue their current form of education (which includes home schooling for [the youngest child], and coursework at Somerset County Vo-Tech [for the middle child]. . . ." The youngest child was required to participate and the middle child was to be encouraged to participate in testing and tutoring requested or recommended by the PC. The order provided plaintiff's parenting time "as arranged with the reunification therapist . . . and the new PC. . . ." The parties were to share the expense of reunification therapy and the PC's fees, with plaintiff paying fifty-nine percent and defendant paying forty-one percent.
Plaintiff was to pay $339 per week for child support and $1,047 per week in alimony, along with his pro rata share of health insurance, the children's educational, and post-secondary school costs. Plaintiff was required to advance $15,000 to cover the cost of tutoring and other educational expenses recommended by the PC. Finally, the order provided plaintiff would pay $30,000 toward defendant's counsel fees and costs through a credit against equitable distribution. This appeal followed.
II.
Our review of a family judge's factual findings and credibility determinations following a non-jury trial is limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "We are bound by the trial court's findings 'when supported by adequate, substantial, credible evidence.'" Finamore v. Aronson, 382 N.J. Super. 514, 519 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citations omitted)). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare, supra, 154 N.J. at 412 (citation and internal quotation marks omitted). We afford particular deference "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M, 211 N.J. 420, 448 (2012) (citing Cesare, supra, 154 N.J. at 413). This "'feel of the case' . . . can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
Reversal is warranted when a trial court's findings are "so wide of the mark that a mistake must have been made[,]" M.M., supra, 189 N.J. at 279 (citations and internal quotation marks omitted), including factual findings "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221, (1963)). Simply, when a reviewing court concludes there is insufficient evidentiary support for the trial court's findings, we reverse.
We also consider whether the trial judge properly exercised reasonable discretion. "While the 'abuse of discretion standard defies precise definition,' we may find an abuse of discretion when a decision 'rest[s] on an impermissible basis' or was 'based upon a consideration of irrelevant or inappropriate factors.'" State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div.) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citations and internal quotation marks omitted)), certif. granted, 214 N.J. 233 (2013). Finally, our review of a trial court's legal conclusions is always de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
III.
Plaintiff argues "the court abdicated its parens patriae responsibility to ensure that the boys meet the core educational requirements of the State of New Jersey by not directing that defendant immediately enroll the boys in public school." He believes the weight of the trial evidence unmistakably showed significant educational deficits experienced by the children, unequivocally proving defendant failed to fulfill her role in guiding their education. Therefore, he maintains a change in the educational program is required to protect the children's best interest.
The right to raise one's children without State interference is a fundamental freedom, entitled to constitutional protection. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972). "Our law recognizes the family as a bastion of autonomous privacy in which parents, presumed to act in the best interests of their children, are afforded self-determination over how those children are raised." In re D.C., 203 N.J. 545, 551 (2010). This right includes choices regarding education. See Fawzy v. Fawzy, 199 N.J. 456, 476 (2009) ("[T]he entitlement to autonomous family privacy includes the fundamental right of parents to make decisions regarding custody, parenting time, health, education, and other child-welfare issues between themselves, without state interference."). Moreover, this "right does not evaporate when an intact marriage breaks down." Ibid.
However, parental authority is not absolute. Moriarty v. Bradt, 177 N.J. 84, 102 (2003). The State may intercede when it is necessary to protect a child's physical or mental health. V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). "Situations have arisen requiring a state to exercise its parens patriae authority to guard children from harm." Moriarty, supra, 177 N.J. at 102 (citing Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944) ("recognizing when circumstances place child in imminent danger, or affect his well-being, state could properly intrude on that private realm of family life to protect child from harm")). Generally, situations authorizing the State to override parental discretion are those when the child's life and safety are at risk. See Id. at 102-03 (citing federal and state cases).
Further, when parents divorce and cannot agree on fundamental issues involving the care and custody of their children, "the court becomes the default decision maker." Fawzy, supra, 199 N.J. at 476. N.J.S.A. 2A:34-23 authorizes "the court may make such order . . . as to the care, custody, education and maintenance of the children, . . . as the circumstances of the case shall render fit, reasonable and just . . . . [.]" See Beck v. Beck, 86 N.J. 480, 485 (1981). The concept starts with the understanding parents involved in custody disputes are "granted both equal rights and equal responsibilities regarding the care, nurture, education and welfare of their children." Ibid. (citing N.J.S.A. 9:2-4). Thereafter, to determine the overall best interests of the children, the facts and circumstances facing the family are assessed and weighed as outlined by the fourteen custody factors enumerated at N.J.S.A. 9:2-4. See Sacharow v. Sacharow, 177 N.J. 62, 80 (2003) (stating the central objective of any custody decision is to serve the "best interests of the child[ren]"). At its core, the "best interests of the child" standard ensures the safety, happiness, and welfare of a child. See Fantony v. Fantony, 21 N.J. 525, 536 (1956). A trial judge faced with determining how each child's interests are best served must decide what arrangement "foster[s], not hamper[s]," a healthy parent-child relationship. Nufrio v. Nufrio, 341 N.J. Super. 548, 550 (App. Div. 2001). Such a decision is left "to the sound discretion of the trial court[.]" Pascale v. Pascale, 140 N.J. 583, 611 (1995).
N.J.S.A. 9:2-4 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.
The state's "compulsory school attendance law permits home schooling." Forstrom v. Byrne, 341 N.J. Super. 45, 53-54 (App. Div. 2001). The statute, N.J.S.A. 18A:38-25, provides:
Every parent, guardian or other person having custody and control of a childThe law does not require or authorize the local board of education to review and approve the curriculum or program of a child educated at home. The burden remains on the parent to satisfy N.J.S.A. 18A:38-25, if the educational outcome is challenged. See State v. Massa, 95 N.J. Super. 382, 386 (1967). See N.J.S.A. 18A:38-31 ("[A] parent or guardian or other person having charge and control of a child between the ages of 6 and 16 years, who shall fail to comply with any of the provisions of the article [N.J.S.A. 18A:38-25] relating to his [or her] duties, shall be deemed to be a disorderly person and shall be subject to a fine of not more than $25.00 for the first offense and not more than $100.00 for each subsequent offense, in the discretion of the court.").
between the ages of six and 16 years shall cause such child regularly to attend the public schools of the district or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or to receive equivalent instruction elsewhere than at school.
Plaintiff does not challenge the determination of joint legal custody or the designation of defendant as the parent of primary residence. Rather, he seeks sole custodial authority to direct the children's educational needs, asserting, in the words of the trial judge, "[d]efendant has mismanaged the children's education[.]" Certainly, trial evidence revealed plaintiff's role in child-rearing, generally, and the children's education, specifically, was minimal until this litigation commenced. The parties agreed to home school the children; no evidence reveals plaintiff objected to utilizing the method of unschooling; and plaintiff admitted he left the day-to-day educational decision to defendant.
More important, at trial plaintiff was estranged from his sons, having not seen them for more than a year. Dr. Montgomery found the children believed plaintiff had abandoned them, physically and emotionally, and viewed his efforts to be solely responsible for their educational needs as "trying to dismantle their entire world and support system." Dr. Montgomery specifically noted that "'unschooling' was not merely an educational program for these children and their mother, but a way of life and a community and context[,]" a concept not appreciated by plaintiff.
Although the educational needs of both children were addressed at trial, at this juncture, the reality, conceded at oral argument before this panel, is that the middle child has attained majority, obviating the need for a custodial parent. The record includes minimal information of his current educational status. We are informed he enrolled in a macroeconomics course offered by a community college; however, to save tuition he enrolled while still a high school student, delaying sitting for his GED.
Blumenstyk determined the middle child has educational deficiencies in math, science and foreign language, which she believed would preclude him from meeting state high school graduation requirements. At trial, the middle child had been accepted into the Vo-Tech School's performing arts program.
Dr. Montgomery identified the child's "gaps" in certain academic areas but found the "positives outweighed the negatives." She recommended he not be placed in public school but be considered for an alternative school or community college.
Now, the youngest child has reached the sixteen years of age mandated in the compulsory education statute, which may also render moot any request that he attend public school. Nevertheless, because the issue was timely presented for the court's review and because of the nature of the controversy, we address the court's order, limited to the educational needs of the youngest child.
Plaintiff's expert Blumenstyk opined the youngest child was not receiving "education substantially equivalent to that available in a public school" and described his educational achievement as "dire." She opined he suffered "learning disabilities characterized by severe processing deficits in long-term retrieval, rapid naming, and perceptual speed, . . . dyslexia and a disorder of written language." Blumenstyk found the child's reading, writing, and math skills reached a second to third grade level, despite his age equivalent to seventh grade, when tested. She maintained a public school's "Individualized Education Plan" would address these learning deficits and increase his academic performance. Further, Blumenstyk believed unschooling was the "exact opposite" of how someone with dyslexia should learn, stating the child needed "direct, systematic instruction with consistent review." She advocated the need to immediately address these problems.
Following Blumenstyk's report, defendant sought an evaluation by Dr. Jett and an assessment by Tuttle. Dr. Jett limited her review to existing records; Dr. Tuttle performed testing to make an assessment. Both refuted Blumenstyk's dyslexia diagnosis. These experts concluded the child merely needed instruction in "reading comprehension, decoding and spelling." Once that was addressed, Tuttle's testing found his performance markedly improved. However, Tuttle identified different deficiencies, and her "testing show[ed the child had] areas of cognitive processing skill deficits that are likely to contribute to difficulties with language-based learning." Tuttle's evaluation placed the child at a fifth-grade level in reading and a third-grade level in spelling. She recommended the identified deficiencies would best be addressed "in a non- traditional learning environment[.]" Dr. Montgomery also concluded the youngest child's "learning disabilities appears to be well established" and recommended he receive "extensive one to one instruction."
The trial judge considered all testimony and documentary evidence, making specific factual findings as required by the statute. The judge did not make a finding regarding whether the child was dyslexic, but determined there were "gaps in [the child's education as noted by those who tested [him]." She also assessed the parents' abilities to address these needs, finding plaintiff responded to "questions pertaining to the children's education in generalities[,] whereas [d]efendant came across as much more specific and attuned to the children's current needs and developments." Further, although "[p]laintiff objected to the children's home[] schooling . . . he could not offer any well-reasoned, well-investigated options."
The judge rejected plaintiff's position to end home schooling, after weighing plaintiff's lack of information, his past deference to defendant on education issues, the intolerance for home schooling developed with the filing of the divorce complaint, his poor relationship with each child, his lack of contact and his dismissiveness of the children's preferences. Also, when considering the viability of plaintiff's request to have sole say in the children's education, the judge considered the children's preferences; defendant's extended involvement in their education; defendant's willingness to provide tutoring, as was done for the oldest child, and even her concession that if ordered, she would enroll the children in public school; plaintiff's continued California residency; and Dr. Montgomery's recommendation against forcing the child to attend public school. The judge concluded defendant should continue the home schooling program; however, she required it be accompanied by "supplemental tutoring." Also, because the past testing was aged, the judge ordered updated testing to discern the child's current needs. Finally, the judge decided to "leave it to the PC to coordinate the timing and necessity of any testing" and further to "make recommendations about the areas [the youngest child] would benefit from one-on-one instruction."
We reject as unfounded, plaintiff's argument these findings and conclusions ignore the absolute duty to ensure the child receive a proper education. The judge's course properly balanced the need to address the diagnosed deficits while also considering this teenage child's expressed preferences. Contrary to plaintiff's assertions, the unschooling method was not an absence of education or "no education." Indeed, the oldest child demonstrated his proficiency by achieving the top ten percent of the GED class, passing with honors. The middle child's talents resulted in his acceptance in the Vo-Tech performing arts program and admission to community college class. Although credit for these achievements is influenced by individual determination, successful achievement may also validate past practices, showing defendant's methodology is more than mere whimsy.
We will not disturb the provisions of the JOD denying plaintiff's application for sole legal custody as to the children's education and denying his application to compel their enrollment in public school. The judge's well-reasoned opinion, grounded on substantial, credible evidence in the record, determined plaintiff's request would not advance the best interest of the children. See Cesare, supra, 154 N.J. at 411-12.
We reject as lacking merit plaintiff's contention the judge erred by denying his request, which was purportedly based on defendant's fear the child would be bullied in public school, be exposed to gang activity or have difficulty assimilating. R. 2:11-3(e)(1)(E). The discussion was in the context of defendant's position, which was not refuted or rebutted by plaintiff and was not the foundation of her conclusion.
We do agree, however, that the judge's resolution, which transferred the determination of the youngest child's need for testing and tutoring to the PC was error. Moreover, for different reasons than those advanced by plaintiff, we conclude the mandate that he turn over $15,000 to "be utilized towards the children's tutoring/supplemental instruction and other educational expenses" must be reversed.
This court has repeatedly acknowledged the constant demands for intervention placed upon our Family Part judges. Parish v. Parish, 412 N.J. Super. 39, 53 (App. Div. 2010). This case easily demonstrates the need for the court to address the detail of ordinary parental authority because the parties' continued disagreement shows they have abdicated that role. Were these parents objectively able to view only their children's needs, rather than remaining in their intractable polar positions, this matter could have been resolved long ago. Nevertheless, when parties to litigation are unable to settle their differences, the judge must end the controversy, not defer to another. Id. at 52.
This matter easily qualifies as a high conflict, extremely challenging case. The parties rejected many alternative possibilities to settle some issues; plaintiff changed counsel several times and trial counsel even moved to be relieved in the midst of the trial; plaintiff advanced a position at the commencement of the trial only to change or withdraw it as the trial days elapsed; and often the documentary evidence was less than helpful to establish facts.
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We recognize the record may not have been sufficient to finally resolve the nature of the educational needs of the youngest child; however, the issue was squarely before the court. Absent the parties' agreement otherwise, the judge should have ordered the educational testing to be accomplished by a date certain, then, when the results were released, required the parties to advance their respective proposals for tutoring and supplemental educational services along with anticipated cost. We cannot abide the deferral of this, a critical issue in this litigation, to the PC, who may only "aid in the implementation of a parenting time plan." Id. at 53 (citation omitted).
We reject plaintiff's contention the child's needs should be met without cost through enrollment in public school. First, the judge's best interest analysis rejected public school enrollment at this juncture. Second, although Blumenstyk suggested an individualized education plan would be prepared and administered to assist the child's educational needs, this does not occur automatically, as it must be demonstrated to the school's satisfaction that an evaluation is warranted. Blumenstyk's opinion was grounded on her finding of dyslexia, a diagnosis that was refuted by Dr. Jett and Tuttle.
As to the fund to pay the supplemental educational costs, the amount was neither based on evidence in the record nor related to established needs. Further, no support for plaintiff's need to advance funds to defendant was provided when actual payment was allocated between the parties and an approximate $5000 trust fund designated for the children's education was released to her. Although we find nothing to support plaintiff's exaggerated contention this "blank check" would allow defendant to spend the money for her needs, we nevertheless conclude the absence of findings for the imposed obligation requires this provision be set aside.
We remand the matter to the trial judge for further proceedings related to these two issues: i.e., the need for and scope of educational assistance for the youngest child and the cost of those services. Also, the parties are free to address current educational needs of the middle child, if he continues a course of higher education.
Plaintiff next urges error resulted by the judge's imputation of income. He argues imputation is appropriate only when a party is voluntarily unemployed or underemployed, and should not be applied in his case of involuntary loss of employment. We reject this argument. R. 2:11-3(e)(1)(E). We include these brief comments.
"'Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability.'" Gnall v. Gnall, 432 N.J. Super. 129, 158 (App. Div. 2013) (quoting Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004) (citation omitted)), certif. granted, 217 N.J. 52 (2014). A trial judge's determination in this regard will not be disturbed absent an abuse of that discretion. Ibid. (citation omitted).
Here, defendant was the sole wage-earner since the birth of the parties' first child. He lost his employment in November 2011, and remained unemployed, in any capacity, for more than a year. He offered relatively brief testimony regarding his national job search, at times including the name of a company for which he had or was scheduled to attend an interview, and in few instances mentioning the outcome of an interview. Gleaned from the trial judge's findings is that plaintiff's evidence of his reemployment efforts since he lost his position was neither reasonable nor supported.
The trial judge further detailed plaintiff's past income and rejected as incredible his assertion that he could earn only $80,000 plus a bonus of approximately $20,000 to $25,000 each year. She explained her findings regarding plaintiff's earning capacity. See Storey, supra, 373 N.J. Super. at 474 (holding imputation of income "is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability").
Following our review, we cannot agree using income imputation or its amount were erroneous and we find no abuse of discretion. The judge's underlying findings are consistent with and supported by the competent credible evidence in the record. Id. at 474-75. The judge made findings of fact, discussing the factors relevant to an award of alimony and child support as mandated by N.J.S.A. 2A:34-23(a) and (b). She then meticulously considered controlling legal principles in reaching her conclusions. Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). We must accord those findings deference. Ibid. See also Cesare, supra, 154 N.J. at 412.
Plaintiff next challenges the award of attorneys' fees and the order that he alone pay Dr. Montgomery's and Blumenstyk's expert fees. In our review, we understand the assessment of counsel and expert fees lies within the sound discretion of the trial court, "and will not be reversed except upon a showing of an abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). See also Rendine v. Pantzer, 141 N.J. 292, 317 (1995).
An award of fees in a Family Part matter is governed by Rule 5:3-5(c). See Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008) ("Rule 4:42-9(a)(1) authorizes the award of counsel fees in a family action on a final determination pursuant to R[ule] 5:3-5(c)."). Further, "applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a)." R. 4:42-9(b).
Rule 5:3-5(c) provides:
Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, . . . nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, [and] enforcement of agreements between spouses . . . relating to family type matters. . . . In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained: (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any
other factor bearing on the fairness of an award.
In allowing defendant's counsel an additional sum of $30,000, the judge considered each of the applicable factors, including the reasonableness of counsel's request, the parties' financial circumstances, the amount of debt owed by each party and his and her respective liquid and non-liquid assets, the ability of the parties to pay their own fees or to contribute to the fees of the other party, the reasonableness and good faith incurred by both parties in pursuit of or opposition to pendente lite and trial disputes, plaintiff's lack of credibility and the results obtained.
We reject plaintiff's argument that the judge's review failed to assess the reasonableness of the work billed by defendant's counsel. We find meritless plaintiff's assertion that the award must be reversed because counsel's certification of services lacks sufficient detail and was merely accepted by the court at face value "without critical review. . . ." See Mayer v. Mayer, 180 N.J. Super. 164, 169 (App. Div.), certif. denied, 88 N.J. 494 (1981). Counsel's certification detailed the nature of phone calls, meetings, conferences, court appearances and preparation. It also identified each attorney or paraprofessional providing each service. We find no basis to set aside the judge's finding that counsel's fee request itemizing the work performed was "quite reasonable, in light of [the attorney's] skill[], . . . work effort as presented to the [c]ourt, and . . . level of experience."
Prior to trial, plaintiff advanced the funds to pay Drs. Montgomery and Blumenstyk. His trial request for a credit, requiring defendant to share this expense, was denied. The judge concluded plaintiff held a superior economic position based on his liquid assets, absence of debt, and earning ability. On the other hand, defendant had no employment, limited skills, heavy debt and no liquid funds. In reaching her conclusion, besides these facts, the judge also considered the parties positions advanced at trial and the results obtained, concluding the equities favored plaintiff's responsibility for payment. We do not conclude the judge abused her discretion in denying plaintiff's request for defendant to contribute to these expenses.
Plaintiff's final argument needs limited attention. He perceives "the trial court had a bias against him and . . . let its bias affect its decision in almost every issue it had to decide." Nothing could be further from the truth. Moreover, "[b]ias cannot be inferred from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008) (citation omitted).
Plaintiff's lack of objectivity, particularly regarding the children's educational accomplishments and aspirations, as well as defendant's role in their caretaking, required great expenditure of time, treasure and emotion. The judge fully appreciated the concern for the children's need for academic success. What she found unacceptable was plaintiff's inability to accept responsibility for the results of his conduct. For example, despite plaintiff's insistence on the children's need for academic success, when the oldest child sought funds to pursue a post-secondary program of study, plaintiff rejected the prospect and sought his son's emancipation. When the middle child was accepted to the academic and performing arts programs at Vo-Tech, plaintiff interceded with the director, expressing his concern the child was not academically capable of attending, which resulted in a modified acceptance limited to the performing arts program. Plaintiff insisted on sole legal and physical custody, without fairly assessing his actions, which caused deep estrangement with all three children. Also, he gave no consideration to his choice of geographic location, which would completely disrupt the children's lives by requiring relocation to California, severing ties to friends and activities in New Jersey. Finally, plaintiff disregarded the children's ability to express reasoned choices on issues affecting them.
The judge noted plaintiff's lack of foresight increased the length and cost of the trial. For example, he initially insisted the middle child attend public school, then withdrew this request noting the child was beyond the age of the compulsory education statute. He stated an intention to call Dr. Montgomery at trial, but when the date of her appearance arrived, he changed his mind and agreed to stipulate admission of her report. On more than one occasion plaintiff was completely incredible. A striking example was his testimony taking exception to the facts set forth in his own case information statement, despite his certification to its accuracy.
Although we have reversed the court's referral of issues to the PC, we note likely she intended this decision and expenses necessary to lessen the trial for further court review. Aside from that, we determine the judge's opinion on the myriad of legal issues was thorough and well-reasoned. She appreciated her role and detailed credibility and other factual findings. See R. 1:7-4(a) (setting forth a judge's duty to make findings of fact and conclusions of law all matters tried without a jury). The judge clearly understood the law and properly applied it to her findings. Through it all, the trial judge demonstrated a level of patience and diligent performance that shines through the pages of this record.
Affirmed in part and reversed and remanded in part. We do not 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