REED v. PETTIFORD

No. A-6108-12T3.

AARON S. REED, Plaintiff-Respondent, v. SHIRLEY Y. PETTIFORD, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Decided March 25, 2015.


Attorney(s) appearing for the Case

Alan D. Krauss argued the cause for appellant.

Respondent has not filed a brief.

Before Judges Accurso and Manahan.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This is a custody dispute over plaintiff Aaron S. Reed's twelve-year old son. The defendant, Shirley Y. Pettiford, is the boy's maternal grandmother. Defendant appeals from the Family Part's June 17, 2013 order denying her application for sole legal and physical custody of her grandson and granting plaintiff continued physical custody and sole legal custody of the boy. Plaintiff has not participated in the appeal. We affirm.

The boy's mother died in September 2004, when he was not yet two years old. Plaintiff and the boy's mother were not married. Upon his mother's death, the boy remained with plaintiff, and defendant assumed custody of the boy's older half-sister. Two months later, the Family Part issued an order awarding the parties joint legal custody of the boy.

In April 2005, defendant wrote a letter to the court asking to vacate the award of joint custody and expressing doubt as to whether plaintiff was the boy's biological father. She did not, however, challenge his paternity at that time. Instead, she acquiesced in the entry of an order in June 2005, permitting plaintiff to retain residential custody of the boy and allowing her visitation by private agreement.1

Plaintiff arranged for his son to visit defendant every other weekend for several years. As the boy got older and involved in sports and scouting, however, those activities began to interfere with defendant's visitation. The parties' relations became strained over plaintiff's refusal to compel his son to visit defendant when he wished to do other things, as well as other aspects of plaintiff's parenting with which defendant disagreed.

In June 2012, defendant filed an application to compel visitation.2 Plaintiff cross-moved for continued residential custody, sole legal custody and to terminate visitation. On the return date of defendant's motion, the court entered an order for visitation every other weekend, with sanctions for non-compliance, pending resolution of plaintiff's cross-motion. Over the course of the next several months, the court received the results of a best interests evaluation, interviewed the boy and conducted a plenary hearing before finally entering the order from which defendant appeals. The judge issued a comprehensive opinion from the bench applying the factors enumerated in N.J.S.A. 9:2-4. After reviewing the evidence in the record, the judge concluded

that the parties, if [they] ever had the ability to do so, have lost the ability to agree, communicate, and cooperate concerning the child's best interests. The maternal grandmother presents as someone who is being in competition with the father. She made, in her papers, sudden allegations of lack of paternity, the use of social security money which the father is receiving on behalf of the child from the mother as having been used for the father's own purposes. There [are] statements that the grandmother took the child to the doctor without the father knowing and a flu shot was administered. And the father had to learn from the child that this had [been] done, to the grandmother's sudden involvement with the school in October 2012. The guidance counselor or some individual from the school stat[ed] that before then she was unknown to the school even though he had attended there for well over a year. The child has observed that . . . his father and his grandmother seem to argue causing the child a great deal of stress and unhappiness. . . . . If the parties ever did work together, they are no longer working together. The child is distressed over the conflict between the parties and this distress is not in the child's best interests. I find that the maternal grandmother, while she may have the best intentions, has a clear interest in— and has made efforts to control the child's life, at times to the exclusion of the biological father, pointing to the flu shot and also her willingness to openly express to the child that she misses him when she isn't with him and that she wants to see him. Statements, which appear to be contributing to his distress that he's feeling. The court recalls the grandmother's testimony that she has an ability to change his life and meet his educational needs. She expressed a clear superiority to the father and the Court would note that her journal, contained in the best interest report . . . [in] an entry dated October 12, 2012, states "[plaintiff] simply does not have the intellectual . . . capability. . . to properly parent this child." The journal itself dated August 10, 2012 through January 8, 2013 reads as an ever increasing indictment of the father, [plaintiff] and the grandmother's perceived failures of the father as a person and a parent while [extolling] her own virtues. It is the clearest reflection of how this relationship, if it ever existed, has broken down. And to maintain the joint legal custody would continue this very negative situation, which is not in the best interests of the child.

Noting defendant's opportunity as a grandparent "to enrich the child's life with activities and her love," the judge nevertheless concluded

that joint legal custody between [defendant] and [plaintiff] . . . [is] not . . . in the child's best interest. Case law supports that and I would note that case law states the right of natural parents to custody of their minor children is one of the basic rights incident to parenthood [that] the right of natural parents to custody, care, and nurturing of their child has risen to the statute of a fundamental right and deserves special protection and except with the strongest of reasons and only upon a clear showing of a parent's gross misconduct or unfitness, or the most extraordinary of circumstances affecting the welfare of the child should this relationship be disturbed. [Plaintiff] has had the child physically since birth. While he presents as not a perfect parent, he certain[ly] presents as someone who is seeking the answers to the child's struggles and issues in an effort to give the child the best opportunity possible to grow up and meet his potential. . . . . As to the grandparenting time, the child has expressed a distinct interest in seeing his grandmother at times when he chooses to. I think the grandmother and the father and the child should spend some time discussing this situation, but notwithstanding how valuable time with a grandparent is, that it should not interfere with the child's own activities and interests. I would urge the parties to modify the prior schedule, alternating weekends between the father's home and the grandmother's home and respect the child's wishes in this fashion.

Notwithstanding that our review of a trial court's factual findings made in the course of a plenary hearing is limited, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), defendant raises twenty points of error on appeal:

I. WHETHER THE DECISION OF THE TRIAL COURT BELOW CONSTITUTED AN ABUSE OF DISCRETION BY VIRTUE OF NUMEROUS JUDICIAL ERRORS. II. WHETHER THE CHILD INTERVIEW CONDUCTED BY THE TRIAL COURT BELOW WAS INTENTIONALLY SKEWED IN A MANNER TO JUSTIFY THE ERRONEOUS DECISION OF THE COURT. III. WHETHER THE TRIAL COURT FAILED TO MAKE ADEQUATE FINDINGS OF FACT. IV. WHETHER THE TRIAL COURT FAILED TO FOLLOW THE CONTROLLING STATUTES, APPLICABLE CASE LAW, AND COURT RULES. V. WHETHER THE TRIAL COURT FAILED TO CONDUCT A FULL PLENARY HEARING TO RESOLVE MATERIAL ISSUES DISPUTE. VI. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION. VII. WHETHER THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] NOTICE OF MOTION FOR RECUSAL DURING THESE PROCEEDINGS. VIII. WHETHER ON NOVEMBER 13, 2012, WHILE IN A CONFERENCE IN THE COURTROOM OUTSIDE THE PRESENCE OF THE PARTIES, THE COURT, SUA SPONTE, STATED TO BOTH ATTORNEYS THAT IT DOES NOT FAVOR SOLE CUSTODY, AND WOULD NOT AWARD IT TO EITHER PARTY, AND FURTHER THAT IT ALSO WOULD NOT SET ASIDE THE JOINT CUSTODY OF THE MINOR CHILD SHARED FOR THE PAST 8.5 YEARS BETWEEN THE [DEFENDANT] AND [PLAINTIFF]. IX. WHETHER THESE JUDICIAL STATEMENTS, AS SET FORTH IN POINT VIII, THE TRIAL COURT ULTIMATELY DID EXACTLY WHAT IT SAID IT WOULD NOT DO. TO [DEFENDANT'S] FURTHER DISMAY, IT HAS COME TO THE ATTENTION OF THE UNDERSIGNED COUNSEL THAT SAID CONFERENCE WITH JUDGE WASSERMAN AND BOTH COUNSEL WAS APPARENTLY DEEMED "OFF THE RECORD" WITHOUT KNOWLEDGE OF [DEFENDANT'S] COUNSEL, AND THEREFORE APPEAR TO BE UNABLE TO PRODUCE THAT IMPORTANT PORTION OF THE TRANSCRIPT OF THIS MATTER AS IT APPARENTLY DOES NOT EXIST TO THE BEST OF [DEFENDANT'S] KNOWLEDGE. X. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO ORDER A DNA PATERNITY TEST BASED UPON THE PROFFERS OF COUNSEL THAT THE [PLAINTIFF] HAD PREVIOUSLY SOUGHT CUSTODY OF THE MINOR CHILD ONLY TO RECEIVE MONTHLY SOCIAL SECURITY SURVIVOR'S BENEFIT PAYMENTS WHICH EXCEED $1,200 PER MONTH AT PRESENT. XI. WHETHER THE TRIAL COURT FURTHER ABUSED ITS DISCRETION WHEN IT RULED THAT THEREFORE THE ISSUE OF PATERNITY WOULD NOT BE CONSIDERED A PART OF THIS CASE, THEREBY ELIMINATING THE KEY THRESHOLD ISSUE OF PATERNITY AND ALSO PREVENTING COUNSEL FROM EXPLORING [PLAINTIFF'S]CREDIBILITY THROUGH CROSS-EXAMINATION AND OTHER WITNESSES. XII. WHETHER THE TRIAL COURT FURTHER ABUSED ITS DISCRETION BY NOT ALLOWING THE [DEFENDANT] TO CALL WITNESSES WHO WOULD HAVE TESTIFIED THAT NOT ONLY WAS [PLAINTIFF] NOT THE BIOLOGICAL FATHER, BUT ALSO THAT HE WAS UNFIT TO BE SUCH REGARDLESS. THESE THREE INDIVIDUALS SPENT AN ENTIRE DAY OUTSIDE THE COURTROOM WAITING TO TESTIFY, ONLY TO INEXPLICABLY AND UNJUSTIFIABLY [BE] BARRED FROM PROVIDING THEIR TRUTHFUL AND CRITICAL TESTIMONY TO THE ATTENTION OF THE COURT. XIII. WHETHER THE TRIAL COURT COULD HAVE MADE ADEQUATE FINDINGS OF FACT WHEN IT CONSISTENTLY, THROUGHOUT THE NINE MONTHS OF CONTESTED PROCEEDINGS, EITHER IGNORED IN ITS ENTIRETY OR DID NOT FACTOR IN THE MINOR CHILD'S DECLINING EDUCATIONAL STATUS, POSSIBLE DEMOTION FROM THE 5TH GRADE, 60+ MISSED OR TARDY HOMEWORK ASSIGNMENTS, AND HIS BEHAVIORAL PROBLEMS WITH SCHOOL PERSONNEL. XIV. WHETHER THE TRIAL COURT FURTHER COULD NOT HAVE MADE ADEQUATE FINDINGS OF FACT WHEN IT ALSO CONSISTENTLY EITHER IGNORED OR DID NOT FACTOR IN THE MINOR CHILD'S HISTORY OF A LACK OF MEDICAL ATTENTION, NEED FOR EYE GLASSES, AND INCORRECT SHOE SIZES. ALL OF THIS NEGATIVE INFORMATION AND THAT SET FURTHER IN POINT XIII IS FOUND IN THE MULTITUDE OF EMAILS PROVIDED TO THE TRIAL COURT BY [DEFENDANT'S] COUNSEL FROM [THE MINOR CHILD'S] SCHOOL AND DIRECTLY AT THE COURT'S REQUEST. XV. WHETHER THE TRIAL COURT ALSO ABUSED ITS DISCRETION IN FAVORING THE [PLAINTIFF] OVER THE [DEFENDANT] THROUGHOUT THE PROCEEDINGS EVEN TO THE EXTENT OF IMPLICITLY ENCOURAGING THE [PLAINTIFF] TO NOT TESTIFY AND THEREBY INSULATE HIMSELF FROM CROSS-EXAMINATION, WHICH THE COURT HAD TO HAVE KNOWN WOULD BE HARMFUL TO [PLAINTIFF'S] CASE. XVI. WHETHER THROUGHOUT THE PROCEEDINGS, THE TRIAL COURT FAILED TO TAKE INTO ACCOUNT NOT ONLY THAT [DEFENDANT] IS THE GUARDIAN OF THE MINOR'S SISTER, . . ., WHO RESIDES WITH [DEFENDANT], BUT ALSO THAT SHE IS AN EXEMPLARY GRANDMOTHER WHO ONLY WANTS WHAT IS BEST FOR HER MINOR GRANDSON. [DEFENDANT] IN NO MANNER WHATSOEVER HAS EVER SOUGHT TO IMPEDE THE MINOR'S NATURAL PEER DEVELOPMENT AND ACTIVITIES, BUT RATHER HAS ENCOURAGED THE SAME AND PROMOTED IT THROUGH TRANSPORTATION, FUNDS, AND OTHER SUPPORT. XVII. WHETHER THE TRIAL COURT FURTHER ABUSED ITS DISCRETION AND THE RULES IN DENYING [DEFENDANT'S] NOTICE OF MOTION FOR RECUSAL. IT WAS PATENTLY CLEAR THAT THE COURT HAD ALREADY RULED ON THE ISSUE OF PATERNITY, AND THAT BY SO DOING, TOTALLY UNDERCUT [DEFENDANT'S] COUNSEL IN QUESTIONING THE LACK OF CREDIBILITY OF THE [PLAINTIFF], WHICH WOULD HAVE AFFECTED THE ENTIRE OUTCOME OF THE CASE. THIS ALSO MADE IT IMPOSSIBLE FOR THE [DEFENDANT] TO OVERCOME THE ERRONEOUS PRESUMPTION IN FAVOR OF THE [PLAINTIFF] AS APPLIED IN THE NEW JERSEY SUPREME COURT CASE OF WATKINS V. NELSON. XVIII. WHETHER THE TRIAL COURT FURTHER ABUSED ITS DISCRETION IN DENYING THE [DEFENDANT'S] REQUEST FOR A STAY OF THE PROCEEDINGS PENDING AN INTERLOCUTORY APPEAL TO THE APPELLATE DIVISION ON THE CRITICAL ISSUES OF A DNA PATERNITY TEST OF [PLAINTIFF] AND THE ADVERSE RULING DISALLOWING ANY TESTIMONY REGARDING SAID ISSUE AT TRIAL. XIX. WHETHER THE TRIAL COURT FURTHER ABUSED ITS DISCRETION IN DENYING [DEFENDANT'S] MOTION TO TRANSFER THIS MATTER TO MORRIS COUNTY WHERE THE MINOR CHILD AND CUSTODIAL PARTY RESIDE. XX. WHETHER THE ABOVE LIST OF NUMEROUS REVERSIBLE ERRORS AND HIGHLY EGREGIOUS ABUSES OF DISCRETION BY THE TRIAL COURT IS INCLUSIVE.

Having reviewed these contentions in light of the record and applicable law, we find none to be of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that the issue of the boy's paternity was never properly before the trial court. The New Jersey Parentage Act (the Act), N.J.S.A. 9:17-38 to-59, governs the issue of paternity in this state. The Act was created "to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide a procedure to establish parentage in disputed cases." Fazilat v. Feldstein, 180 N.J. 74, 82 (2004) (quoting Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to Senate Bill No. 888, at 1 (Oct. 7, 1982)). Although plaintiff was never married to the boy's mother, he is presumptively the boy's father under subsections a(4) and (5) of the Act because he has received the minor child into his home, provides him support and has always openly held him out as his natural child. N.J.S.A. 9:17-43a(4)-(5).

That statutory presumption may be rebutted only by clear and convincing evidence that plaintiff is not the child's biological father. N.J.S.A. 9:17-43b. Rule 5:14 outlines the procedural rules by which an application for determining a parent-child relationship is presented for the Family Part's consideration. The rule requires that proceedings under the Act must be brought by verified complaint. R. 5:14-1. Although defendant has apparently been supplied information since at least 2005 suggesting to her that plaintiff is not the boy's father, the record does not reveal that she has ever filed any pleading, much less a verified complaint, seeking an adjudication of the boy's parentage. The trial court correctly rebuffed defendant's attempts to informally raise the issue in the context of the parties' custody dispute.

We further note that a judge is not considered partial or biased merely on account of rulings that are unfavorable toward the party seeking recusal, State v. Marshall, 148 N.J. 89, 186-87 (1997). As the record reveals no other basis for defendant's motion that the court recuse itself, we do not conclude that the judge abused her discretion in denying defendant's motion. State v. McCabe, 201 N.J. 34, 45 (2010).

Because the judgment of the trial court is based on findings of fact adequately supported by evidence, we affirm. R. 2:11-3(e)(1)(A); see Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Affirmed.

FootNotes


1. The court asked the parties when they first appeared before her in 2012 for their understanding as to why the judge had entered the order for joint custody in 2005. The reasons for the order are not apparent on this record. In her decision, the judge noted "[t]he reasons for the joint legal custody order remain unclear, but seem to have involved, at least in some respect, the fact that the maternal grandmother represented that she could provide health insurance for the baby."
2. We have adopted the caption used by defendant, although it appears at odds with the posture of the parties. Defendant has failed to include this complaint in her appendix, as well as several other documents that she references in her brief and the transcripts of certain motions she complains were wrongly decided. We are under no obligation to search the record to substantiate an argument advanced in an appellate brief. See State v. Hild, 148 N.J.Super. 294, 296 (App. Div. 1977) (holding that an appellate court need not undertake an "independent examination of the record" on behalf of parties who fail to support their legal arguments with "appropriate" references to the record).

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