Opinion
DOCKET NO. A-0737-12T2
06-05-2013
SUZANNE C. PHILLIPS, Plaintiff-Respondent, v. LAURENCE L. EMERSON, Defendant-Appellant.
Obermayer, Rebmann, Maxwell & Hippel, LLP, attorneys for appellant (Shari B. Veisblatt, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-337-02.
Obermayer, Rebmann, Maxwell & Hippel, LLP, attorneys for appellant (Shari B. Veisblatt, on the brief).
Respondent has not filed a brief. PER CURIAM
Defendant Laurence L. Emerson appeals from the Family Part's October 4, 2012 order denying his application to bar his daughter's attendance at a private parochial high school. We reverse and remand for further proceedings.
I.
Emerson and plaintiff Suzanne C. Phillips were divorced on November 4, 2002, pursuant to an "Amended Dual Final Judgment of Divorce." The judgment provided that "[t]he parties shall have joint legal custody of the four minor children born of the marriage" between 1995 and 1999. Phillips was designated "as the parent of primary residence and [Emerson] . . . as the parent of alternate residence." The present appeal involves only the parties' daughter, now fifteen years old.
During the marriage, neither the parties nor their children actively practiced their respective religious faiths. Emerson was raised Jewish; Phillips was raised in a Christian faith. The judgment provided that Emerson would have parenting time with his children on each of four specific Jewish holidays every year. In like vein, Phillips was granted parenting time on each of three specific Christian holidays. Beyond that, the parties made no particular arrangements for engaging their children in a faith community. Until 2012, all of the children attended public schools.
Emerson conceded that he "did not insist during the marriage that the children attend Hebrew school or otherwise be formally educated in the Jewish faith." However, he asserted, "it was important to me for our children to be educated about the Jewish faith and to participate in Jewish holidays and traditions."
According to Emerson, after Phillips re-married, "[she] has converted to Catholicism, or at least regularly attends Catholic services with her second husband." In early August 2012, Emerson learned that Phillips had enrolled their daughter in a private high school aligned with the Catholic faith. Emerson and Phillips had not previously discussed the matter, but Emerson was told by his daughter that she was interested in attending that particular high school. Emerson opposed the decision because, among other things, he viewed "[Phillips's] decision to send [the child] to Catholic school [as] part of a larger campaign to convert all of [the] children to Catholicism and to further separate the children from [him]."
Just before the 2012-2013 school term commenced, Emerson filed a motion asking the Family Part to enter an order barring the enrollment in the school or if that had already occurred, to order that the child be "un-enrolled . . . immediately." In opposition to Emerson's motion, Phillips submitted only unauthenticated "emails and/or correspondences forwarded by [the child] to . . . Emerson."
Phillips filed a motion too. In it, she sought to modify parenting time and increase child support.
In an April 2012 email, the child indicated that she had already decided to go to the private parochial high school because "girls at [public] school call me names . . . and other things that want to make me cry sometimes." She also wrote,
please don[']t look at it like it's a bad school, [I] know you're not very fond of me being catholic, but [I] chose to be that, not [M]om or anyone else. I have talked this through with [Mom] and [her husband] and they are letting me go, they just wanted me to tell you first. I honestly think [I] will do better at this [private] school, [because public school] isn't the place for me, they[']re too dramatic and they brag about everything.In response, Emerson emailed, "I'm sure [the private parochial high school] is a fine school, I am just not in favor of faith based religious schools, especially [C]atholic." He added, "had I known your [M]om had an inkling to be [C]atholic or it was important, I would never have married her and although we divorced, we had [four] children where I did not think [C]atholicism was going to be an issue."
After considering oral argument, but not taking testimony or interviewing the child, the Family Part denied Emerson's motion. The court noted that the child's writings suggested she chose the private parochial high school to be with some of her friends and to avoid what she perceived was an atmosphere of bullying. The court endorsed the child's decision because "she's going to get a good education in a place where she's comfortable," and "[i]f she elects to develop a [Catholic] faith in that regard, fine." The court discounted the motivation and conduct of Phillips by indicating, "up to this point, there hasn't been any active religious pursuit by either parent in either of the respective faiths." Accordingly, the court found no basis to enjoin the child's enrollment in the private parochial high school. This appeal followed.
Phillips's motion was likewise denied "in its entirety."
II.
We begin with well-established principles. "More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children." Parish v. Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010) (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)).
Also, "a family court's factual findings are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, the scope of our review is limited. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). "'[F]actual findings and legal conclusions of the [family court] judge [are not disturbed] unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
"Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, [appellate courts] do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Additionally,
we accord great deference to discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). "'[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.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (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.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
[Milne v. Goldenberg, 428 N.J. Super. 184, 197-198 (App. Div. 2012).]
On the other hand, we will not defer to a family court's decision where the court abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). Also, a judge's legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In the parties' divorce judgment, they were granted joint legal custody of their daughter with mutual obligations to consult and confer regarding major decisions. See Boardman v. Boardman, 314 N.J. Super. 340, 348 (App. Div. 1998) ("Under joint custody, the legal authority and responsibility for making 'major' decisions regarding the children's welfare is shared by both parents.") (citations omitted). Selecting a child's school and exposing the child to a particular faith community are major decisions. See Asch v. Asch, 164 N.J. Super. 499, 504-05 (App. Div. 1978) (determining that the child's schooling was a major decision that implicated consultation and cooperation and should not be made unilaterally in light of the parties' agreement to share joint custody).
The judgment explicitly provided that "[e]ach party agrees to communicate openly and freely with the other party concerning the health, education, needs and welfare of the children."
--------
We are satisfied that the factual matrix available to the Family Part judge was wholly insufficient and incomplete to warrant a conclusion that the child's best interests would be fostered by Phillips's unilateral decision respecting the child's high school education. The Family Part's findings and conclusions were not adequately supported by credible evidence because the record was unduly truncated. For example, although giving effect to the child's single email to her father, the child's voice was not heard by the court. Also, Emerson alleged that the child was being alienated from him through her acceptance of a faith foreign to his beliefs. Because the facts present genuine and substantial issues as to the effect of the schooling and faith choices on the child's total well-being, they invoke "the court's special responsibility to safeguard the interests of the child . . . because the child cannot be presumed to be protected by the adversarial process." Kinsella v. Kinsella, 150 N.J. 276, 317-18 (1997).
Emerson was entitled to a plenary hearing as to disputed material facts regarding the child's best interests, and whether those best interests are served by continuation of her enrollment in a private parochial high school. In advancing the best interests of the child, "the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the [issue in dispute] before their marital relationship foundered, subject to the predominant objective of serving the child's welfare comprehensively." Asch, supra, 164 N.J. Super. at 505.
We do not foreclose the possibility that after the plenary hearing, the Family Part might reach the same conclusion that it previously reached. The difference will be in the degree of parens patriae oversight that our family courts are obliged to provide to children, whether the children like it or not. Due to the start of the next school year being only three months in the future, we remand to the Family Part for a plenary hearing and decision to be concluded no later than August 6, 2013.
Reversed and remanded for further proceedings in conformance with this opinion. 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