NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
The opinion of the court was delivered by
In this divorce case, defendant Rachel B. Alintoff appeals from the trial court's final child custody order, pursuant to
The trial court reviewed the facts in detail. It suffices here to highlight the following. In September 2011, after a period of marital difficulties, defendant vacated the marital home in New Jersey with two-year-old Matt, many of his belongings, passport, and other personal documents. She gave no advance notice to plaintiff. She relocated to her parents' home in Brooklyn, and never returned. Defendant claimed she feared for Matt's safety if left with plaintiff since he possessed a gun.
Soon thereafter, plaintiff filed his divorce complaint and an order to show cause to compel defendant to return Matt. On September 28, 2011, the parties entered into a consent order that provided the parties shared "joint legal and . . . physical custody," and granted plaintiff parenting time from Friday morning to Monday morning.
In the months that followed Matt's removal and the commencement of divorce proceedings, defendant took various steps that were at odds with shared decision-making involving Matt. In October 2011, she obtained an order of protection from a New York court, barring plaintiff from interfering with defendant's care and custody of Matt, but that court soon thereafter dismissed the action for lack of jurisdiction.
In December 2011, the court granted in part defendant's motion for pendente lite support, ordering plaintiff to cover defendant's schedule B automobile expenses, and pay $1157 in unallocated support to defendant.
Questions arose regarding Matt's development and whether certain interventions were warranted. Defendant obtained the evaluation of a speech therapist without plaintiff's participation. With plaintiff's consent (conveyed by his attorney), the therapist then treated Matt for six months. In early 2013, defendant unilaterally obtained evaluations of Matt from a New York City Board of Education contractor, OMNI Childhood Center of Brooklyn. Without consulting with plaintiff or notifying the court, defendant enrolled Matt in a Brooklyn pre-school geared for children with special needs, which provided occupational, physical and speech therapy. After learning of his enrollment from Matt, plaintiff consented to his son's continued participation rather than disrupt it. In the summer of 2013, defendant also enrolled Matt in a summer school without consulting plaintiff.
Plaintiff invited defendant to attend an evaluation of Matt by a New Jersey licensed occupational therapist plaintiff selected, Ursula Shah. Defendant appeared at the therapist's office as scheduled, but instead of participating, she objected to the session proceeding. Plaintiff had to obtain a court order to enable the evaluation to proceed.
Other evaluations were performed during the course of the litigation, some specifically for the purpose of trial. The parties jointly retained Patricia Baszczuk, Ph.D., who completed a 162-page custody evaluation in January 2013, based on a more than year-long process that included numerous interviews of the parties; observations of each party with Matt; psychological testing; questionnaires of numerous friends and family members; and review of Matt's records, communications between the parties, and videotapes of their interactions when transferring Matt. The trial court found Dr. Baszczuk's report and testimony credible and helpful.
After evaluating the statutory factors,
Dr. Baszczuk opined that plaintiff was better able to separate himself from the litigation and focus on parenting strategies. Dr. Baszczuk recommended the appointment of a parenting coordinator. She also recommended that plaintiff attend sessions with a therapist to deal with his anger. She recommended that defendant "undergo a neuropsychological evaluation to investigate possible underlying conditions for her emotionally charged and unregulated behavior toward [plaintiff]; tendencies toward cyclic emotional outbursts; [and] recurring and problematic information processing issues."
Defendant also obtained her own custody expert, Maria Salvanto, Ph.D., who opined that defendant should receive primary residential custody. However, the court gave no weight to Dr. Salvanto's opinion because, among other reasons, she did not comply with the Specialty Guidelines for Psychologists Custody/Visitation Evaluations promulgated by the New Jersey Board of Psychological Examiners.
In the midst of the trial, the parties jointly retained neurologist, Judith Bluvstein, M.D., to provide a litigation opinion after a pediatric neurologist, Yuri Brosgol, M.D., diagnosed Matt with autism spectrum disorder (ASD) or Asperger's syndrome.
In her ninety-page written decision, Judge Grasso Jones considered each of the statutory factors under
The court recognized that truly shared residential custody was impractical, given defendant's plan to remain in Brooklyn and plaintiff's plan to remain in New Jersey (factor 12). Thus, the court had to designate one parent as the primary residential parent.
Many of the factors did not favor either party. The court found that both parents deeply loved their son, had a close and loving relationship with him (factor 4), and were willing to accept custody (factor 2). Both parties were active and involved parents before the separation; the judge found that plaintiff, even when he worked outside the home, returned by 3:30 p.m. (factor 13). Although the court noted that plaintiff now worked from home, and defendant worked outside the home, neither parent's employment responsibilities interfered with their ability to serve as the parent of primary residence (factor 14).
There was no history of domestic violence (factor 5), and neither posed a safety risk (factor 6). The court noted plaintiff's sale of his handgun and rejected defendant's claims of substance abuse. The court found that Matt had special needs, although the trial evidence did not disclose a definitive diagnosis (factor 8). Plaintiff was slower than defendant to recognize Matt's needs for therapy, yet the court found that both parties would meet his needs. The court noted that plaintiff recognized the value of Matt's pre-school program and consented to it after learning about it after-the-fact, and defendant was a "wonderful champion for the child in seeking out educational and therapeutic opportunities." Matt's age did not favor one parent over the other (factor 15). Although defendant had already enrolled Matt in a Brooklyn kindergarten program to commence in the school year following trial (factor 10), the court found that Matt did not need to remain enrolled for continuity or quality reasons. He would be graduating from his pre-school in any event.
What tipped the balance in favor of plaintiff was the court's finding that if granted primary residential custody, plaintiff was more likely than defendant to coparent and work cooperatively. The court reviewed the parties' voluminous text messages and their parental performance during the pendente lite period. The judge found that neither parent was blameless. She did not withhold criticism of certain communications made by plaintiff. Yet, with respect to their "ability to agree, communicate and cooperate" (factor 1), the judge found:
The court considered defendant's tendency to act unilaterally, in connection with Matt's educational needs (factor 10). Although she was a "staunch advocate" for Matt, the court found she "parents as if she is the only parent." Notwithstanding that both parties had stable home environments (factor 9), the court expressed concern that defendant's immediate family did not support coparenting.
The court designated plaintiff as the parent of primary residence; defendant as the parent of alternative residence; and granted defendant parenting time three out of every four weekends, from the end of the Friday school day until Sunday at 6:00 p.m., plus Wednesday afternoon parenting time. Summer vacation time was to be divided equally and the parties would alternate significant holidays. Consistent with Dr. Baszczuk's recommendation, the court ordered plaintiff to attend therapy "to address recurrent issues and allegations of anger management[,]" and defendant was required to undergo a neuropsychological evaluation, and attend individual therapy. The parties were required to retain a parenting coordinator and to utilize a specified calendaring system, to assure they were informed of Matt's activities, appointments and events.
Pending defendant's appeal, and pursuant to a limited remand, the court later granted plaintiff's motion to terminate his pendente lite unallocated support obligation to defendant and awarded plaintiff child support. The court averaged plaintiff's income over a multi-year period, and imputed an income of $70,000 to defendant after finding defendant was voluntarily underemployed, and set child support at $124 a week. The court also denied defendant's recusal motion, which was based on her filing a federal civil rights suit against the judge and others. Defendant subsequently was permitted to amend her notice of appeal to include this order.
In a custody dispute, the trial court's "primary and overarching consideration is the best interest of the child."
In considering defendant's challenge to the court's custody order, we are mindful of our limited scope of review. We defer to the trial judge's fact-findings, and shall not disturb them unless convinced "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice."
On appeal, defendant revisits and reinterprets evidence in the record; challenges the court's reliance on Dr. Baszczuk's expert opinion, whom defendant attempts to discredit with ad hominem attacks and questions of her impartiality; and asks us to reach conclusions different from the trial court with respect to defendant's willingness to coparent and cooperate with plaintiff, and to secure the educational and therapeutic programs that Matt needs. In short, defendant asks us to substitute the trial court's judgment with our own.
That we shall not do. Given our standard of review and having carefully reviewed defendant's contentions with respect to the award of primary residential custody, we affirm substantially for the reasons set forth in Judge Grasso Jones's comprehensive written opinion. We discern no abuse of discretion in the court's decision to credit Dr. Baszczuk.
We briefly address defendant's assertion that the court committed reversible error by barring the testimony of proposed experts and the admission of certain reports regarding Matt's disabilities. These include: two undated reports of Candace Toussie, the speech language pathologist; the OMNI evaluation (consisting of a summary report); the social history report prepared by a licensed clinical social worker, Lea Mendelsohn,; a psychological evaluation of Matt by Shulamis Frieman, Psy.D.; a progress report by Matt's special education teacher at Special Sprouts, Lauren V. Zunde; and Dr. Brosgol's neurologic evaluation.
First, we discern no error in the court's use of discretion to bar Toussie's reports and the OMNI evaluation, as well as its decision to bar the Special Sprouts witnesses from testifying as experts — since they were not properly disclosed as such in discovery.
Defendant misplaces reliance on
Second, and more importantly, based on our examination of the precluded reports, the exclusion of the documents was not "of such a nature as to have been clearly capable of producing an unjust result."
We also shall not disturb the trial court's order on limited remand, compelling defendant to pay child support that was calculated based on defendant's imputed annual income of $70,000 and plaintiff's four-year averaged annual income of $152,000. We review the court's determination for an abuse of discretion,
We reject defendant's procedural arguments. First, the automatic stay imposed by defendant's bankruptcy filing did not bar the court from awarding child support.
We also discern no error in the court's finding that defendant, a college graduate with a prior history of full-time employment, was voluntarily underemployed as a part-time waitress working two nights a week. Defendant argues that the figure imputed to her was excessive. At a subsequent plenary hearing on the parties' financial issues, defendant will have an opportunity to present additional competent evidence of her skills, employability and earning capacity. Upon such a showing, a downward adjustment of the $70,000 imputed figure may be warranted.
Finally, we discern no merit to defendant's contention that Judge Grasso Jones was obliged to recuse herself once defendant decided to file suit against her in federal court. Defendant does not even include in the record a copy of the complaint that she contends justified recusal. We need not try to review an issue "when the relevant portions of the record are not included."
In any event, based on what has been presented before us, no "reasonable, fully informed person [would] have doubts about the judge's impartiality[.]"
To the extent not addressed, defendant's remaining points lack sufficient merit to warrant discussion in a written opinion.