TUHIN PANDYA VS. ROOPAL SHAH (FM-12-1499-12, MIDDLESEX COUNTYAND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4546-18T3

TUHIN PANDYA,

Plaintiff-Appellant,

v.

ROOPAL SHAH,

Defendant-Respondent.
_________________________

Submitted February 25, 2020 – Decided April 3, 2020

Before Judges Hoffman and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-1499-12.

Paul Alexander Clark, attorney for appellant.

Shane & White, LLC, attorneys for respondent (Lauren
Ann Miceli, of counsel and on the brief; Kenneth A.
White, on the brief).

PER CURIAM
 Plaintiff ex-husband Tuhin Pandya appeals from March 25 and June 3,

2019 Family Part orders, amending his parenting time and child support

obligations with respect to the parties' seven-year-old son, A.P. We affirm.

I.

We addressed the parties' marital settlement agreement (MSA) and

subsequent divorce in plaintiff's previous appeal, Pandya v. Shah, No. A-3900-

14 (App. Div. Dec. 8, 2016) (slip op. at 7). We derive the following facts from

the record.

The parties married in September 2010. Defendant gave birth to A.P.,

their only child, in January 2012. Less than two weeks later, plaintiff filed for

divorce, claiming defendant had an affair with her employer. After a year of

litigation, the parties agreed to the terms of their MSA, which the court

incorporated into their final judgment of divorce (FJD), entered on January 14,

2013. Among other things, the MSA addressed custody, parenting time, and

child support, and set forth the equitable distribution of marital property; in

addition, each party waived "any right to past, present or future alimony from

the other party."

Regarding A.P., the parties "agree[d] to retain joint legal custody over said

minor child, with [defendant] maintaining the primary residential custody over

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said child." The effect of the MSA was to designate defendant as the parent of

primary residence (PPR) and plaintiff as the parent of alternate residence (PAR).

The MSA initially provided plaintiff with limited parenting time: alternate

weekend parenting time, beginning Saturdays at 12:00 p.m. and concluding

Sundays at 6:00 p.m., in addition to two hours of parenting time every Tuesday

and Thursday. Effective October 2013, the MSA expanded plaintiff's parenting

time to include Friday overnights. This parenting time plan remained in place

until the entry of the March 2019 order under review. The MSA further set

plaintiff's child support obligation at $180 per week.

Shortly after the parties finalized their divorce, plaintiff began filing

motions, challenging the parties' MSA and FJD. Primarily, plaintiff argued, as

he continues on this appeal, that defendant had hidden assets and unreported

income, which the court should impute to defendant in determining the parties'

parenting time and child support obligations. This litigation resulted in March

25 and April 17, 2015 trial court orders, entitling defendant to retain all the

proceeds she received as the result of a settlement she reached with her former

employer, and increasing plaintiff's child support obligation to $343 per week.

In October 2016, we decided plaintiff's initial appeal in Shah, slip op. at

7. There, we affirmed the finding of the trial court that "defendant was not aware

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of and did not pursue her claims" against her employer until after the divorce.

Id. at 9. Moreover, we noted that "if the claims arose prior to the date of the

MSA, plaintiff . . . released defendant from asserting the right to equitable

distribution" of the claims. Ibid. Similarly, this court found plaintiff's claim,

that defendant allegedly transferred money to India during their marriage , also

lacked merit, since the parties acknowledged their satisfaction with each other's

asset disclosure in the MSA. Id. at 12-13. Therefore, we held the parties were

otherwise bound by the terms of the MSA.

Before his initial appeal concluded, on October 13, 2016, plaintiff filed a

motion seeking a recalculation of child support and adjustment of parenting

time. On December 14, 2016, the trial court entered an order reserving decision

on plaintiffs' motion pending a plenary hearing.

In preparation for the hearing, defendant retained Dr. Mathias Hagovsky,

Ph.D., a forensic psychologist, as a child custody expert. Plaintiff refused to

hire a joint expert and otherwise failed to retain his own expert. Over the course

of eight months, Dr. Hagovsky conducted extensive interviews with both

parties; in addition, he observed each parent separately with A.P. On March

31, 2017, Dr. Hagovsky issued a twelve-page report setting forth his findings

and recommendations.

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 The plenary hearing took place over a two-year span, with the trial court

hearing testimony on eleven different dates. Throughout the hearing, plaintiff

continued seeking additional parenting time and a modification of his child

support obligations.

Instead of focusing on the issues properly before the hearing judge, on

multiple occasions, and despite the judge warning plaintiff's counsel to avoid

raising issues already decided, plaintiff continually urged the court to reverse

prior decisions relating to the disclosure of defendant's assets. In response to

one such request, the trial judge stated, "Portions of the Appellate Division

decision were read into the record on multiple occasions. And the [c]ourt was

satisfied that those issues had been resolved by the Appellate Division and that

[plaintiff] would not get a second bite at the apple . . . ." The judge made it clear

that the issues before the court involved plaintiff's parenting time and his child

support obligation. Regarding these issues, plaintiff argued the judge should

split parenting time evenly and should designate him as the PPR. Defendant

accepted the recommendations of Dr. Hagovsky and maintained the parties

should continue to share joint legal custody, with her continuing as PPR.

Over two days, on March 21 and 25, 2019, the hearing judge rendered his

oral decision. The judge found the testimony of Dr. Hagovsky credible and

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adopted his parenting plan recommendation. Notably, the recommended

parenting plan substantially increased plaintiff's parenting time. Under the plan,

defendant continued as the PPR, "exercising parenting time nine out of fourteen

days with the plaintiff being [PAR] with parenting time five out of the fourteen

days[.]" The plan also provided plaintiff with "two and a half times more

overnights." The judge found "the parenting plan as outlined by Dr. Hagovsky

is in the child's best interest, with the express understanding that the parties may

exercise any discretion to expand upon it and adjust holidays to meet the needs

of the child and parties hopefully to achieve a level of cooperation."

Dr. Hagovsky's report also recommended the appointment of a parenting

time coordinator. The judge agreed, finding "this case cries out for a parent [ing

time] coordinator[,] at least until such time as the parties are able to

communicate and cooperate with each other." The judge appointed an attorney,

Eileen Foley, as the parenting time coordinator; based upon past experience, he

believed "she will be the voice of reason between the two parties."

Next, the hearing judge made his credibility assessments, finding

"plaintiff not . . . credible and defendant . . . credible." In support of this

determination, the judge recounted extensive observations he made throughout

the numerous hearing dates. He noted numerous inconsistences and "bizarre"

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positions taken by plaintiff throughout the litigation, concluding plaintiff was

the sole cause of the contentious relationship between the parties.

In deciding the custody issue, the trial judge reviewed the fourteen factors

set forth in N.J.S.A. 9:2-4 to determine what was in the best interest of A.P. The

judge provided a factual basis as to each factor in determining the new parenting

time plan. In addition to plaintiff's increased time overall, both parties were

allotted two consecutive weeks of summer parenting time, and should either

party wish to travel internationally, four uninterrupted weeks, provided the other

party is afforded the same time.

The hearing judge next addressed the issue of the parties' child support

obligations and requests for counsel fees. He attributed income to plaintiff of

$168,968 and to defendant of $32,350. He ordered plaintiff to pay child support

in the amount of $310.00 per week, payable by wage garnishment. The judge

also addressed a daycare issue raised by plaintiff: "The parties agree that there

was a period of time that the plaintiff paid for day care or child care when the

defendant had not incurred that expense[;]" however, due to lack of sufficient

proof at that time, the judge allowed each party to submit a certification

outlining the amounts overpaid within 41 days.

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 Next, the hearing judge turned to the issue of counsel fees. The judge

denied plaintiff's request for counsel fees explaining, "It is he who has protracted

this litigation . . . and his ill[-]advised position that has extended the litigation.

He has ignored [c]ourt orders, Appellate Division decisions and at time [s],

logic."

Turning to defendant's request for counsel fees, the judge first cons idered

the factors in Rule 4:42-9. Before reviewing those factors, the judge noted

[t]he [c]ourt is satisfied that [plaintiff] has taken an
unreasonable approach to this litigation. Whether
fueled by animosity or bad advice, he has taken
unreasonable, ill fated or just plain wrong positions.
This matter should have been resolved months ago to
the benefit of the parties' child, yet plaintiff continues.

Regarding the "parties' ability to pay," he determined plaintiff "is in a

much better financial position than the mother to satisfy his own fees as well as

contribute to the fees incurred by [defendant]." As to "the reasonableness and

good faith of the positions advanced by the parties," he found plaintiff's

cumulative actions "exemplify his bad faith in the broadest sense of the word."

The judge further noted defendant provided a certification of fees incurred but

plaintiff did not.

The judge addressed "the extent of the fees incurred by both parties,"

noting defendant incurred $76,319 in attorney's fees and expert costs of $6,775.

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He also noted defendant incurred $10,989 in fees while defending plaintiff's

initial appeal. Plaintiff's counsel did not provide a certification of services.

Regarding "the results obtained," the judge found defendant successfully

advanced her position through her expert, Dr. Hagovsky. As to "any other factor

bearing on the fairness of an award," he found defendant was "stoic" while

plaintiff "advanced false claims, misrepresented facts, ignored [c]ourt [orders]

and an Appellate Division decision[.] He has put his son in the middle and has

repeatedly advanced sometimes bizarre positions in an effort to get what he

wants. There's no sign of compromise regardless of whatever damage it may

cause."

The hearing judge also reviewed the Rules of Professional Conduct 1.5

(RPC 1.5), to guide his determination as to the reasonableness of a fee award,

addressing the eight factors set forth in the rule. He ultimately awarded

defendant counsel fees in the amount of $62,237.05. In his March 25, 2019

order, the judge confirmed the parties' continued joint legal custody of A.P.,

with defendant remaining the PPR and plaintiff continuing as the PAR. The

order also required plaintiff to reimburse defendant for the child's

extracurricular activities in the amount of $3,127.12, pursuant to the terms of

the MSA.

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 On June 3, 2019, the judge ordered that plaintiff receive a credit of $3,328

for the monies he paid for A.P.'s daycare since his unenrollment. Applying this

credit, the judge reduced the amount plaintiff owed defendant for attorney's fees

to $58,909.05.

This appeal followed. The only issues plaintiff properly raises on appeal

concern the orders relating to the parties' parenting time and custody, the

amended child support obligation, and the award of counsel fees. Plaintiff's

remaining contentions concern his repeated and untimely attempts to challenge

rulings that the trial court and this court previously addressed.

II.

Plaintiff first contends the hearing judge erred in not granting him shared

residential custody of A.P., on an equal "50/50" basis. He asserts the parent of

a minor child has a fundamental right to 50/50 parenting time "as a default

position," absent a showing of unfitness. He also argues the trial judge relied

on a "stale" expert report in determining the issue of parenting time.

"The scope of appellate review of a trial court's fact-finding function is

limited. The general rule is that findings by the trial court are binding on appeal

when supported by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.

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Co. of Am., 65 N.J. 474, 484 (1974)). Deference is particularly appropriate with

respect to credibility determinations based on witness testimony, since the court

had the ability to see and hear the witnesses, and with respect to family c ourt

factfinding, due to "the family courts' special jurisdiction and expertise in family

matters." Id. at 412-13.

Consequently, "we 'should not disturb the factual findings and legal

conclusions of the trial judge unless . . . convinced that they are s o manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice' or . . . determine the court

has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47

(App. Div. 2010) (quoting Cesare, 154 N.J. at 412).

"The touchstone for all custody determinations has always been 'the best

interest[s] of the child.'" Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App.

Div. 2009) (quoting Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). "Custody

issues are resolved using a best interests analysis that gives weight to the factors

set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App.

Div. 2007). The statute requires that

[i]n making an award of custody, the court shall
consider but not be limited to the following factors: the
parents' ability to agree, communicate and cooperate in
matters relating to the child; the parents' willingness to

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 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(c).]

When "the parents cannot agree to a custody arrangement, the court may

require each parent to submit a custody plan which the court shall consider in

awarding custody." N.J.S.A. 9:2-4(e). Lastly, when making "any custody

arrangement not agreed to by both parents," the "court shall specifically place

on the record the factors which justify" its order. N.J.S.A. 9:2-4(f).

"[T]he decision concerning the type of custody arrangement [is left] to the

sound discretion of the trial court[.]" Nufrio v. Nufrio, 341 N.J. Super. 548, 555

(App. Div. 2001) (second and third alteration in original) (quoting Pascale v.

Pascale, 140 N.J. 583, 611 (1995)). Therefore, on appeal "the opinion of the

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trial judge in child custody matters is given great weight . . . ." Terry v. Terry,

270 N.J. Super. 105, 118 (App. Div. 1994) (citations omitted).

We first note that plaintiff waived his initial right to an equal, shared

parenting time arrangement by virtue of the clear terms of the MSA. Therefore,

plaintiff was required to show a substantial change of circumstances in order to

modify the custody and parenting time provisions of the MSA. See Hand, 391

N.J. Super at 102. After making extensive credibility determinations, the

hearing judge considered each factor set forth in N.J.S.A. 9:2-4(c). The judge

referenced the extensive record which provided the basis for his decision that

plaintiff failed to satisfy his burden of showing a substantial change of

circumstances.

The hearing judge also properly considered the report of Dr. Hagovsky ,

despite plaintiff's contention that the report was "stale." Defendant offered Dr.

Hagovsky as a qualified expert and plaintiff made no objections. Defendant

then moved Dr. Hagovsky's report into evidence for consideration, without any

objection from plaintiff. Plaintiff also never retained his own expert nor did he

request the judge to appoint one.

Furthermore, Dr. Hagovsky's recommendations provided plaintiff a

substantial increase in parenting time. The trial court did not err in considering

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Dr. Hagovsky's recommendation in determining the custody and parenting time

of the parties. The judge's decision comported with the evidence and unrefuted

expert testimony of Dr. Hagovsky. We also find no evidence to support

plaintiff's claim that Dr. Hagovsky's report was stale. Therefore, we discern no

abuse of discretion as to the judge's rulings addressing custody and parenting

time.

III.

Plaintiff also argues the judge erred in reassessing his child support

obligation and unreasonably awarded defendant attorney's fees. Specifically, he

contends the judge mistakenly failed to impute income to defendant and reduce

his obligation because A.P. no longer required daycare.

A judge's decision to grant or deny an application to modify child support

is reviewed for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21

(App. Div. 2006). "Of course, the exercise of this discretion is not limitless"

and remains guided by the law and principles of equity. Steneken v. Steneken,

367 N.J. Super. 427, 434 (App. Div. 2004). A judge abuses his or her discretion

where the award is "manifestly unreasonable, arbitrary, or clearly contrary to

reason or to other evidence, or the result of whim or caprice." Jacoby v. Jacoby,

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427 N.J. Super. 109, 116-17 (App. Div. 2012) (internal quotation marks and

citation omitted).

At the outset, the parties' MSA and our decision in Pandya, slip op. at 7,

effectively precludes plaintiff's continued arguments regarding the imputation

of defendant's past income. We previously determined that plaintiff did not

prove defendant hid substantial assets and concluded defendant's settlement was

not subject to equitable distribution. Additionally, the MSA stated that the

parties voluntarily waived the right to seek further discovery regarding any

issues that arose between them.

We conclude the judge properly determined plaintiff's ongoing child

support obligation. He provided his calculations on the record, which reflected

a reasonable exercise of his discretion. We discern no basis to conclude the

judge's rulings were manifestly unreasonable or improperly calculated.

Similarly, plaintiff argues the hearing judge did not adequately consider

the required factors in awarding defendant attorney's fees in the amount of

$62,237.05, before the daycare credit. He further contends, to the extent the

judge considered the requisite factors, the record did not support his

conclusions.

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 We review an award of counsel fees for an abuse of discretion. Where the

judge follows the law and "makes appropriate findings of fact, a fee award is

accorded substantial deference and will be disturbed only in the clearest case of

abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000);

see also Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). 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 Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting

Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265

(7th Cir. 1985)); Barr, 418 N.J. Super. at 46. This court will disturb a counsel

fee determination "only on the rarest of occasions . . . ." Litton Indus., Inc. v.

IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co.,

Inc. v. Collier, 167 N.J. 427, 444 (2001)).

Plaintiffs contention on appeal are misguided. In making his

determination to award defendant counsel fees, the hearing judge addressed each

factor in both Rule 4:42-9 and RPC 1.5; therefore, he relied on well-established

principles of law. With these principles in mind, the judge supported his

determination with numerous references to the lengthy hearing record.

Moreover, we note that defendant initially sought an award of $94,083. In

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considering the amount requested, the judge properly removed sums defendant

expended in prior proceedings, before plaintiff filed the motion under review,

and also declined to include defendant's expert's fees.

We therefore see no reason to disturb the judge's well-reasoned

determination reassessing plaintiff's child support obligation and awarding

defendant attorney's fees.

Affirmed.

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