NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0353-15T2
M.E.M.,
Plaintiff-Respondent,
v.
D.H.N., JR.,
Defendant-Appellant.
___________________________________
Argued Telephonically July 13, 2017 – Decided September 22, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-1304-14.
D.H.N., Jr., appellant, argued the cause pro se.
Respondent has not filed a brief.
PER CURIAM
After relocating sixty miles away from where his children
resided and voluntarily retiring from his employment, defendant
sought to modify a Judgment of Divorce (JOD) by obtaining primary
residential custody of his two youngest daughters, an adjustment
of parenting time, and termination of child support. Plaintiff
filed a cross-motion seeking primary residential custody of the
two daughters and other relief.
Defendant appeals subsequent orders of July 10, 2015, July
23, 2015, August 19, 2015,1 and September 8, 2015. The Family
Part judge, in pertinent part, ordered: appointment of a Guardian
Ad Litem (GAL) for the two youngest daughters; an adjustment of
parenting time and drop-off location; defendant to pay the balance
of the GAL's fee, plaintiff's outstanding shares of the 2013 income
tax refund and the proceeds from the sale of the marital home, and
plaintiff's counsel fees for violation of litigant's rights; and
plenary hearings, which resulted in plaintiff receiving primary
residential custody of the daughters and an increase of defendant's
child support. Having considered defendant's arguments in light
of the record and applicable law, we affirm substantially for the
reasons stated by the trial judge in her written statements of
facts and conclusions of law.
The parties were divorced by entry of a JOD in February 2014.
Germane to this appeal, the judgment incorporated a marital
separation agreement (MSA), which provided that they have joint
legal and residential custody of their three daughters, seventeen,
fifteen, and twelve years old at the time, with shared parenting
1
Two orders were issued on this date.
2 A-0353-15T2
time. Nine months later, a court order was entered giving
plaintiff sole residential custody of the oldest daughter due to
changed circumstances. Thereafter, defendant retired and
relocated sixty miles away from where his two youngest daughters
resided with plaintiff, making the shared residential custody
arrangement impractical. He subsequently filed a motion to obtain
primary residential custody of his daughters and termination of
child support; asserting that his new hometown has a better school
system and is in an environmentally safer area.2 Plaintiff cross-
moved for: primary residential custody; modification of parenting
time drop-off; recalculation of child support; full payment of her
shares of the 2013 tax refund and the sale of the marital home;
and sanctions against defendant for violations of court orders
related to the distribution of marital assets.
On July 10, 2015, the trial judge entered an order denying
much of the relief sought by the parties without prejudice pending
a plenary hearing, and appointed a GAL for the daughters to issue
a written recommendation regarding residential custody. R. 5:8B.
Pertinent to this appeal, defendant was also ordered to pay
2
Defendant sought custody of his middle daughter in the event
that she not return to the parochial school she was attending.
She did, however, return to the school.
3 A-0353-15T2
plaintiff the balance of her shares of the 2013 income tax return
and the sale of the marital home, in the amounts of $1,265 and
$7,170.27, respectively, and attorney's fees in the amount of
$1000 due to non-compliance and enforcement of court orders.3 On
July 23, the judge ordered that, subject to reallocation at the
final hearing, defendant pay the remainder of the GAL's fees
totaling $870.
At the plenary hearing, both parties testified and the GAL's
report recommending that plaintiff receive primary residential
custody of the daughters was admitted into evidence.4 The next
day, August 19, the judge issued an order with a statement of
facts and conclusions of law awarding plaintiff primary
residential custody of the children. The judge found that it was
in the daughter's best interest to primarily live with plaintiff
because their socialization and schooling had always been in the
area where plaintiff lived. In finding there was a "toxic
relationship between their parents[,]" the judge recognized the
"potential negative impact of separating the three children and
3
An issue related to the distribution of the parties' pension was
amicably resolved when defendant agreed to execute a Qualified
Domestic Relations Order.
4
The GAL met with plaintiff and the children, but defendant
declined to be interviewed. The judge determined that "defendant's
explanation for not making any effort to participate based upon
an unsuccessful emergent appeal was specious at best."
4 A-0353-15T2
reducing their day to day contact and support with each other."
The judge rejected as unsubstantiated defendant's contention that
there was a better school system where he lived. Defendant was
designated as parent of alternate residence and was given parenting
time "every other weekend from Friday evening - Sunday evening,
and one (1) midweek, after school, parenting time event per week
to be exercised in the area of the children's school and/or place
of residence." Based upon the change in custody, the judge ordered
recalculation of child support. In a separate order of the same
date, the trial judge denied defendant's motion for
reconsideration of the July 10 order for failure to attach a copy
of that order, Rule 5:5-4(a), and for being untimely filed. R.
4:49-2.
On September 8, 2015, five days after a hearing, the judge
issued an order with a statement of facts and conclusions of law
providing that defendant's weekly child support would increase
from $200 to $214 based upon plaintiff having primary residential
custody and the Child Support Guidelines.5 The judge rejected
defendant's contention that his $54,161.04 annual retirement
income should be used to calculate his support because he was
eligible to retire and that plaintiff's frivolous and fabricated
5
The prior amount of support was set forth in the MSA and was not
based upon the Child Support Guidelines.
5 A-0353-15T2
conduct caused him to retire. The judge determined his rationale
was not good cause; his retirement was voluntary and therefore
imputed his last annual salary of $83,751.19. This appeal
followed.
From what we can discern from defendant's rambling merits
brief, he contends the judge ignored evidence and issued orders
that are contrary to the MSA and have no basis in the law. Yet,
he fails to cite any law to support his arguments, which is
procedurally deficient under Rule 2:6-2(a)(6). See State v. Hild,
148 N.J. Super. 294, 296 (App. Div. 1977). Nonetheless, we
reviewed the record and discern no reason to disturb the trial
judge's orders.
It is well settled that we must defer to the trial judge's
findings of fact if supported by sufficient credible evidence in
the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing
Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,
484 (1974)). We also must "accord deference" to the factual
findings of the Family Part because of that court's "special
jurisdiction and expertise in family matters." Id. at 413.
"Family Part judges are frequently called upon to make difficult
and sensitive decisions regarding the safety and well-being of
children." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div.
2007). Family Part judges have "special expertise in family
6 A-0353-15T2
matters" and we will "not second-guess their findings and the
exercise of their sound discretion." Ibid. An abuse of discretion
occurs when a decision is "made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J.
561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
On issues of custody, the best interests of the child is the
court's primary consideration in custody cases. Kinsella v.
Kinsella, 150 N.J. 276, 317 (1997). A judge has the discretion
under Rule 5:8B(a) to appoint a GAL where there is a disagreement
over custody or parenting time/visitation. Isaacson v. Isaacson,
348 N.J. Super. 560, 573 (App. Div.), certif. denied, 174 N.J. 364
(2002). A GAL "acts on behalf of the court for the benefit of the
child and serves as an independent factfinder, investigator, and
evaluator of what furthers the best interests of the child." Id.
at 574 (citing Pressler, Current N.J. Court Rules, comment on R.
5:8B (2002)). Because the GAL acts on behalf of the court, he or
she has "no perceived bias in favor of one parent's position[.]"
Milne v. Goldenberg, 428 N.J. Super. 184, 201 (App. Div. 2012).
Further, a GAL's role is merely advisory, as the court is not
bound by a GAL's recommendations. Id. at 202. A court may not
abdicate its decision-making to a GAL, although the court will
7 A-0353-15T2
only run afoul of the rule, and abuse its discretion, if it
"summarily adopt[s] the recommendations of the GAL." See id. at
202-03.
Also reviewed for abuse of discretion are a trial judge's
decisions to order payment of attorney's fees as a sanction and
to modify child support. R. 1:10-3; Addesa v. Addesa, 392 N.J.
Super. 58, 78 (App. Div. 2007); Gnall v. Gnall, 432 N.J. Super.
129, 158 (App. Div. 2013), rev'd on other grounds, 222 N.J. 414
(2015).
Guided by these principles, we affirm the entirety of the
trial judge's orders. The judge did not abuse her discretion in
appointing a GAL, requiring defendant to pay the balance of the
GAL's fees, awarding primary residential custody to plaintiff, and
recalculating child support. Her decisions were based upon the
credible facts presented by the parties and sound reasoning. She
did not summarily adopt the GAL's recommendations. Although the
MSA provided that each party incur their own attorney's fees, it
does not, and cannot restrict a judge's authority under our rules
of court to order payment of attorney's fees attributed to a
party's non-compliance with court orders to enforce the MSA that
was incorporated into the JOD.
The judge also did not abuse her discretion in increasing
defendant's child support by imputing his annual salary at the
8 A-0353-15T2
time of his voluntary retirement and applying the Child Support
Guidelines due to the new residential custody arrangement. Given
that defendant voluntarily retired despite having to support three
daughters, there is no merit to his contention that his
significantly lower annual retirement income should be used to
calculate his child support. Equally without merit is defendant's
argument that his eligibility to retire and plaintiff's conduct
forcing him to retire justifies support based on the lower income.
Finally, we defer to the judge's credibility finding that plaintiff
was entitled to her outstanding shares of the income tax refund
and the proceeds from the sale of the marital home.
Affirmed.
9 A-0353-15T2