D.S. VS. J.R. (FD-21-0103-13, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3272-17T4

D.S.,

Plaintiff-Respondent/
Cross-Appellant,

v.

J.R.,

Defendant-Appellant/
Cross-Respondent.
_____________________________

Submitted April 9, 2019 – Decided April 25, 2019

Before Judges Fisher and Geiger.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FD-21-0103-13.

Martin & Tune, LLC, attorney for appellant/cross-
respondent (Stefanie C. Gagliardi, of counsel and on
the brief).

Joseph J. Fritzen, attorney for respondent/cross-
appellant.

PER CURIAM
 This appeal arises from the ongoing dispute between plaintiff D.S. (Darla)

and defendant J.R. (Jerald) over the custody, parenting time, and school

enrollment of their young son Z.R. (Zeke), who is now seven years old.1 The

parties were in a dating relationship when the child was born and moved in

together to raise the child. After the relationship dissolved, continued co-

parenting issues led the parties to share joint legal custody and split physical

custody pursuant to a 2014 custody and parenting time consent order with the

understanding they would revisit the issues when Zeke was old enough to enroll

in kindergarten.

Jerald resides in Oxford. Darla resided in nearby Belvidere, but moved

temporarily to Marlboro, before moving permanently to Colts Neck. This

intrastate, seventy-mile change in residence precipitated Jerald applying to

modify the 2014 order in several respects. Jerald sought an order: (1) declaring

him parent of primary residence (PPR) and awarding him sole physical custody,

(2) directing Zeke be enrolled in school in Oxford, and (3) modifying the

parenting time schedule.

1
We use fictitious names to protect the privacy of all involved.

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 The trial court conducted a six-day plenary hearing and requested written

closing arguments. As part of her written closing argument, Darla claims she

sought an award of attorney's fees and costs. 2 The trial court issued an order

and thirty-three-page written statement of reasons denying Jerald's custody and

school enrollment applications but modifying the parenting time schedule. The

order and statement of reasons did not address Darla's fee request. Darla moved

for reconsideration of the increase in parenting time awarded to Jerald during

Zeke's sports season and the non-disposition of her request for an award of

attorney's fees and costs. The trial court dismissed the motion for

reconsideration only because Jerald filed a notice of appeal before the motion's

return date. Neither party requested a temporary remand for disposition of the

undecided attorney's fee issue.

Jerald appeals from the Family Part order deciding his custody, parenting

time, and school enrollment applications. Darla cross-appeals from a

subsequent order denying her motion for reconsideration of one aspect of the

parenting time ruling and for an award of attorney's fees.

2
Darla did not file a motion for counsel fees and costs prior to the trial court's
decision. She claims she requested an award of counsel fees in her written
closing argument. The closing arguments are not part of the record before us.
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 After close examination of the record, we affirm the custody and parenting

time rulings substantially for the reasons set forth by Judge Haekyoung Suh in

her thorough, thoughtful, and well-reasoned decision. We remand for

disposition of Darla's application for attorney's fees and costs.

I.

The following facts were adduced during the course of the plenary

hearing. The parties began dating in 2009. They became engaged in December

2010 but never married. They purchased a home together in Belvidere in June

2011. Darla was a waitress and Jerald was an information technology

technician. Zeke was born in October 2011.

The relationship deteriorated in April 2012 when an argument resulted in

Darla throwing off her engagement ring and ending the relationship. Zeke was

then six months old. Jerald left the Belvidere house and, by agreement, Darla

had one year to refinance the mortgage. Darla ultimately left the Belvidere home

in June 2017.

The parties agreed to the terms of a custody and parenting time consent

order in January 2014. Notably, the order did not designate a PPR or parent of

alternate residence. Day-to-day decisions for Zeke were allocated to the "on-

duty parent." Such routine decisions included: meals, babysitting, and

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transportation. The other parent was under no obligation to provide physical

childcare during the on-duty parent's parenting time. Both parties, however,

maintained the right to communicate with any physicians or other professionals

regarding Zeke.

Jerald exercised his parenting time with Zeke pursuant to a fourteen-day

schedule. In week one, Jerald had parenting time from Monday afternoon to

Tuesday morning, and then again from Friday morning until Monday evening.

In week two, Jerald had parenting time after work on Thursday until Darla got

off work on Friday. During all other times, Darla exercised parenting time with

Zeke. This schedule was suspended during enumerated holidays, with the

parties alternating the holiday schedule annually.

When Zeke turned five years old, Jerald contacted Darla to reevaluate the

parenting time schedule before enrolling the child in kindergarten. Jerald

suggested the parties split their time with Zeke evenly so he could develop a

bond with his step-brother Peter. In addition, Jerald desired to help Zeke with

his homework more than once a week.

Specifically, Jerald proposed altering week one so he had parenting time

from Monday afternoon to Wednesday morning, with the Friday through

Monday weekend parenting time remaining the same. Week two would be

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altered so Jerald exercised parenting time from Wednesday afternoon to Friday

morning. The proposed change would result in Jerald having one extra day of

parenting time per week. The proposal would continue to alternate the weekend

schedule. At this point in time the parties lived ten minutes apart.

Darla unequivocally rejected Jerald's proposal. Her focus was on reducing

transitions between homes. To that end, Darla counter-proposed Jerald decrease

his parenting time with Zeke and visit him during preschool and drive him home

to Darla. In light of their co-parenting difficulties, Darla suggested they confer

with the court-appointed coordinator, Dr. Lee Monday.

Dr. Monday recommended Jerald receive an extra night during the week

with Zeke. Darla again rejected the expansion of Jerald's parenting time. She

insisted increasing Jerald's parenting time was not in Zeke's best interest. Darla

reaffirmed her desire to reduce household exchanges, particularly once Zeke

would enroll in school full time.

Darla informed Jerald that Zeke's Belvidere kindergarten registration was

approaching. Jerald wished to discuss whether Zeke would be attending school

in Belvidere or Oxford before registering him. Darla responded, "[a]s the parent

of primary residence I feel that it makes more sense to reenroll him at

Belvidere." Jerald replied, "I don't feel that you being parent of primary

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residence should rule out the best possible academic choice for [Zeke]. There

is no penalty in holding off on registration until we can come to an agreement

on this and finalize the parenting plan."

Darla then informed Jerald she was listing her Belvidere home for sale

and exploring housing options in Ocean, Bergen, and Passaic counties.

Notwithstanding Darla's stated intention to relocate and Jerald's protests, Darla

unilaterally enrolled Zeke in Belvidere for the 2017-2018 school year. Jerald

continued his objections and accused Darla of "extreme parent alienation."

Darla sold the Belvidere home in June 2017.

In July 2017, Darla moved into a townhouse in Marlboro with her then-

fiancé, her two sons from a previous marriage, and Zeke. In August 2017, Darla

and her fiancé wed. In December 2017, the couple signed a lease to rent, with

an option to purchase, a home in Colts Neck, roughly seventy miles from

Oxford. Darla paid a monthly mortgage of $1600 in Belvidere; her monthly rent

in Colts Neck was $3550.

Darla stayed at home and cared for her children full time. She claimed

the reason for the move was unrelated to Jerald. Rather, the move was motivated

to increase proximity to her husband's job sites in Mount Vernon, New York and

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Cherry Hill; to avail the children of the better school districts in Monmouth

County; and by her desire to be near the Jersey shore.

Both parties testified to their co-parenting struggles. Jerald testified he

was more disciplined and structured in his parenting style, as compared to

Darla's permissive approach. Their numerous, common disagreements included:

responses to Zeke's illnesses, Zeke's desire to sleep in his mother's bed, the cost

of child care, dietary considerations relating to Zeke's food allergies, haircuts,

Zeke's participation in therapy, how to communicate with Zeke, missed phone

calls with Zeke during the other parent's parenting time, Zeke's participation in

sports, dividing parenting time and transitions, and how to split custody in the

summer.

During the hearing, Darla sought an order formally designating her PPR.

In support, she argued she was always the de facto PPR, because she spent more

days with Zeke and she is his mother.

Jerald countered his house was more stable than Darla's. He also

expressed concern that Darla would alienate Zeke against him because Darla did

not want Zeke to be like Jerald. Jerald testified this concern was born of Darla's

confession of the same to him.

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 Dr. Monday's testimony largely corroborated the parties' recitation of

events. Jerald's best-interests expert, Dr. Dennis Shaning, opined Jerald should

be granted primary physical custody of Zeke. He acknowledged, however, that

both parties were capable of caring for Zeke.

Jerald currently lives in Oxford with his wife Jennifer, her two children,

and their son in a house they have owned for at least two years. Darla currently

lives with her husband Jose, her two sons from a previous marriage, and Zeke.

Darla was due to deliver another child in May 2018. Since January 2018, Darla

and her husband have rented a house in Colts Neck.

In a comprehensive written opinion, Judge Suh considered each of the

fourteen custody factors set forth in N.J.S.A. 9:2-4. Judge Suh found the

following factors in equipoise: the parents' ability to agree, communicate, and

cooperate in matters relating to the child; the interaction and relationship of the

child with his parents and siblings; the needs of the child; the stability of the

home environment offered; the fitness of the parents; and the age and number of

the children. In addition, the court found the following factors inapplicable: 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; and the preference of the

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child when of sufficient age and capacity to reason so as to form an intelligent

decision.

Judge Suh found the following factors weighed in Jerald's favor: the

parent's willingness to accept custody and any history of unwillingness to allow

parenting time not based on substantiated abuse; and the geographical proximity

of the parents' homes. The judge found the following factors favored Darla: the

quality and continuity of the child's education; the extent and quality of the time

spent with the child prior to or subsequent to the separation; and the parents'

employment responsibilities. Judge Suh determined it was in Zeke's best

interest to reside primarily with Darla and attend school in Colts Neck.

The judge expressed concern over Darla's "demonstrated parental

alienation." Ultimately, the distance between Oxford and Colts Neck rendered

a shared parenting plan infeasible. To partially compensate, the court granted

Jerald compensatory parenting time on days the schools in Colts Neck were

closed, such as in-service teacher days, parent-teacher conference days, and

school holidays. The parties were further ordered to alternate spring and winter

school breaks and set an exchange location halfway between the parties in

Bridgewater. The court also awarded Jerald parenting time after school on

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Wednesdays of weeks he did not have weekend parenting time, thereby

providing parenting time to Jerald every week.

To take into account Zeke's participation in organized sports, the judge

awarded Jerald parenting time during one athletic season per school year on the

first three weekends per month, with Darla exercising parenting time on the last

weekend. Darla was required to transport Zeke to Jerald's house for mid-week

practices or games. In addition, Jerald and Zeke were charged with the decision

of which sport he would play. The judge found it equitable to concentrate

Jerald's parenting time during a given sports season, with Darla being

responsible for mid-week transport, because Darla's sudden move to Colts Neck

adversely impacted Jerald's ability to participate in sports with Zeke.

Outside of the chosen sports season, Jerald would exercise parenting time

on alternating weekends from Friday after school until Sunday at 5:00 p.m.

Parenting time alternated weekly during the summer school break, with Jerald

having parenting time for the first week of summer and Darla receiving the last

week. The court did not alter the existing holiday parenting schedule or the

required phone access during the other parent's parenting time.

In her motion for reconsideration, Darla sought an award of attorney's fees

and costs. Counsel's certification in support of the motion stated Darla incurred

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legal fees and costs totaling $35,367.11 relating to the trial court proceedings.

Because the retainer agreement provided for a substantially discounted hourly

rate of $200 per hour, the total award sought was $23,935.60.

Jerald sought a stay of the trial court's ruling, which the trial court denied.

Jerald also sought reconsideration and an award of attorney's fees and costs of

$39,395 for services rendered related to the plenary hearing.

This appeal and cross-appeal followed. Jerald filed a notice of appeal on

March 26, 2018. Because the appeal was filed before the trial court decided

either party's motion for reconsideration and counsel fees, the court dismissed

the motions because it lacked jurisdiction.3

Jerald argues the trial court abused its discretion by: (1) failing to consider

Darla's parental alienation when it designated her PPR; (2) failing to consider

Darla's parental alienation and refusal to co-parent when it determined the best

3
Jerald's notice of appeal and case information statement did not include the
April 17, 2018 order denying his motion for reconsideration and attorney's fees
and costs. We review "only the judgment or orders designated in the notice of
appeal." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456,
459 (App. Div. 2004). Therefore, the order is not part of his appeal. Nor did
Jerald brief the issue of the denial of counsel fees in his merits brief. "An
appellant may not raise new contentions for the first time in a reply brief." L.J.
Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App.
Div. 2014). We decline to consider the issue. Bacon v. N.J. Dep't of Educ., 443
N.J. Super. 24, 38 (App. Div. 2015).
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interests of the child; (3) failing to consider the significant impact of the child's

relationship with Jerald caused by Darla's relocation to Monmouth County; and

(4) failing to invoke its parens patriae power to protect the minor child from the

harm inflicted by Darla. Jerald further argues the case should be remanded to a

new trial judge.

In her cross-appeal, Darla argues the April 17, 2018 order must be

remanded because the trial court never ruled on her request to further explain

the parenting time adjustment and to compel Jerald to contribute to Darla's legal

fees.

II.

Our scope of review of Family Part orders is limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). We owe substantial deference to Family Part judges'

findings of fact because of their special expertise in family matters, id. at 413,

especially where the evidence is largely testimonial and rests on the judge's

credibility findings, Gnall v. Gnall, 222 N.J. 414, 428 (2015). We will not

"disturb the 'factual findings and legal conclusions of the trial judge unless [we

are] convinced that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to offend the

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interests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc.

v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

When the parents of a minor child live separately, our trial courts are

empowered to review, modify, and effect custody determinations. N.J.S.A. 9:2-

3. "[T]he concept of 'joint custody' encompasses both legal and physical

custody." Mamolen v. Mamolen, 346 N.J. Super. 493, 498 (App. Div. 2002)

(citing Pascale v. Pascale, 140 N.J. 583, 595-96 (1995)). The statute directs the

court to consider, without being 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.

[N.J.S.A. 9:2-4.]

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 In resolving a custody dispute, "the primary and overarching

consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J.

276, 317 (1997). "The best-interest analysis is an additional requirement

'superimposed upon an analysis of the statutory scheme.'" Ibid. (quoting Terry

v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994)).

III.

In our view, Jerald's arguments collapse into one another. Each point

argues abuse of discretion based on alleged failures of the trial court to consider

facts within the record. This interpretation is reinforced by Jerald's reply brief,

which reiterates abuse of discretion is evident by the trial court's alleged failure

to consider and weigh parental alienation, Darla's refusal to co-parent, the best

interests of the child, the need for the child to be protected from further harm,

and the negative impact suffered by the child and Jerald in rendering its decision.

In her cross-appeal, Darla argues the trial court erred by denying her

motion for reconsideration that sought, in part, clarification relating to the

parenting time adjustment ordered by the trial court, which resulted in Jerald

receiving disproportionate parenting time during a sports season.

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 We are unpersuaded by these arguments and affirm the trial court's

custody and parenting time rulings substantially for the reasons expressed by

Judge Suh. We add only the following comments.

Jerald's reliance on our opinion in Milne v. Goldberg, 428 N.J. Super. 184

(App. Div. 2012) is misplaced. In Milne, we recognized that noncompliance

with a court order may be a basis for a custody modification, or a change in the

designation of the PPR, in accordance with the Court's pronouncement in Beck

v. Beck, 86 N.J. 480, 499 (1981). Id. at 206. We further recognized the

consonance between this edict and Rule 5:3-7, which explicitly states remedies

for a parent's violation of orders relating to custody or parenting time include

"temporary or permanent modification of the custodial arrangement provided

such relief is in the best interest of the children." Id. at 207 (quoting R. 5:3-

7(a)(6)).

Unlike Milne, this case does not involve refusal by a party to abide by an

order or judgment, much less willful refusal to do so. Although Darla may have

been difficult to deal with in certain respects, she did not violate court decrees. 4

4
Darla did not need court approval to move to more distant residences within
New Jersey. Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003);
Helentjaris v. Sudano, 194 N.J. Super. 220, 230 (App. Div. 1984).
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 To be sure, the trial court considered Darla's conduct and the impact of

her relocation. Judge Suh's decision is rife with references to, and consideration

of, Darla's parental alienation and the impact her move to Monmouth County

had on Jerald's parenting time. While the judge did not consider parental

alienation or the impact of the move as separate factors, the issues were

interwoven as considerations throughout her analysis. In that regard, the court

stated it "remains concerned about [Darla's] demonstrated parental alienation,"

and found "[c]ompensatory time is necessary." The court cautioned: "If there

are further concrete examples of parental alienation by [Darla], the court can

envision a scenario where it may be in [Zeke's] best interests to reside with

[Jerald] in Oxford."

Judge Suh properly applied the facts of this case to each of the statutory

custody factors, and weighed those findings against the backdrop of the best

interests of the child standard. Judge Suh determined, on balance, the factors

weighed in favor of Darla. The resulting rulings are amply supported by

substantial credible evidence in the record. We discern no abuse of discretion

and affirm the custody and parenting time rulings.

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 IV.

We next discuss Darla's application for an award of attorney's fees and

costs. Attorney's fees may be awarded in a family action pursuant to Rule 5:3-

5(c). R. 4:42-9(a)(1). "An allowance for counsel fees and costs in a family

action is discretionary." Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div.

2004) (citing R. 4:42-9(a)(1)); see also R. 5:3-5(c).

Darla's motion for attorney's fees and costs was not filed until March 6,

2018, some twenty-five days after the trial court rendered its substantive

decision. Darla certifies her written closing argument included a request for an

award of counsel fees. The fee application was undecided when Jerald filed a

notice of appeal on March 26, 2018. The trial court ruled the pending appeal

deprived it of jurisdiction to decide the fee applications filed by both parties.

See Pressler & Verniero, cmt. 1 on R. 2:9-1(a) (stating "the trial court does not

have jurisdiction pending appeal to entertain a motion for . . . reconsideration"

(citing Kiernan v. Kiernan, 355 N.J. Super. 89, 92 (App. Div. 2002))). But for

the filing of the appeal, the trial court would have rendered a decision on the fee

applications.5 Accordingly, we remand Darla's counsel fee application to the

5
While the order appealed from did not dispose of all issues as to all parties
due to the pending motions for reconsideration and fee applications, Jerald did

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trial court for a decision on the merits. In doing so, we express no opinion on

the merits of the application.

Affirmed in part and remanded in part. We do not retain jurisdiction.

not move for a limited remand, did not move to dismiss the cross-appeal as
interlocutory, and has shown no prejudice. "Failure to do so may be considered
by the court in evaluating whether to grant leave to appeal nunc pro tunc. "
Pressler & Verniero, cmt. 3 on R. 2:4-4(b) (citing N.J. Mfrs. Ins. v. Prestige
Health Grp., LLC, 406 N.J. Super. 354, 359 (App. Div. 2009)); see also
McGowan v. Barry, 210 N.J. Super. 469, 472 n.2 (App. Div. 1986). Jerald's
motion for reconsideration and an award of counsel fees was also pending when
he filed his notice of appeal. Also, Darla's motion to file her cross-appeal as
within time was granted. R. 2:4-4(b)(2). "Under these circumstances, we
exercise discretion and grant leave to appeal as within time[,]" to consider the
merits of the custody and parenting time rulings affecting the parties' young son.
Prestige Health, 406 N.J. Super. at 359.
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