A.K.L. v. M.S.L.
Docket No. A-1663-10T2/A-4120-10T2
Defendant appeals from 2 interlocutory orders, which resulted from a bench trial held before Judge Thurber on 11 days between April 2010 and August 2010. In November 2010, the judge issued an order awarding plaintiff sole custody of the child, for reasons set forth in an oral opinion placed on the record on that date. In March 2011, Judge Thurber issued a comprehensive written opinion setting forth her findings of fact and conclusions of law concerning the divorce judgment, including the custody issue.
The parties are both immigrants from India and both have family still living there. They were married in 2002 and have one child, who was born in 2005. The plaintiff filed a divorce complaint in March 2009. The post-filing events were contentious. After extensive trial testimony, the judge found that when child was in defendant’s custody, she engaged in a pattern of force-feeding her. The judge found that defendant kept the child sitting at the table for hours. The court also found that defendant had once attacked plaintiff with a knife or scissors and stabbed herself with scissors. Defendant also poisoned plaintiff’s drinking water with hair chemicals causing him to be ill. The judge also found that defendant filed false criminal complaints against plaintiff with no concern about the possible consequences to their child if her father were incarcerated for the alleged wrongdoing.
In light of her factual findings, the judge concluded that plaintiff was the more stable parent and could provide a more stable environment for the child. The judge found that defendant had physically abused the child in the past and had acted with irrational vindictiveness toward plaintiff. After making further factual findings on all factors concerning custody, the judge determined that the child’s “best interests required that her father be grated sole legal and residential custody.”
Judge Thurber also addressed equitable distribution. She credited plaintiff’s testimony about one specific loan from his father because that testimony was corroborated by an independent witness, an investment advisor from Merrill Lynch.
On the issue of counsel fees, the judge ordered defendant to pay plaintiff approximately $60,000 based on her findings that defendant took unreasonable positions and “was caught in repeated misrepresentations and false statements, demonstrating a notable lack of good faith” throughout the litigation.
On this appeal, defendant argues that the court erred in:
- Transferring custody of the child to plaintiff;
- Abused its discretion regarding equitable distribution; and
- Erred in making the counsel fee award.
- In reviewing the trial court’s findings, the appellate court is bound by those findings so long as they are supported by sufficient credible evidence. “We owe particular deference to the judge’s evaluation of witness credibility.” Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
- “And we defer to the expertise of the Family Part in addressing child custody and other matrimonial issues.” Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
- “We review a trial judge’s decisions concerning the allocation of assets for equitable distribution, and concerning counsel fees, for abuse of discretion.” William v. Williams, 59 N.J. 229, 233 (1971);Borodinksy v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).
- The tender years doctrine is outdated and the courts no longer rely upon it. Gubernat v. Deremer, 140N.J. 120, 139 (1995).
Custody: Defendant contended that the judge should have uncritically accepted the opinions of the court-appointed expert. The court disagreed. The court observed that the judge carefully explained by she did not accept the expert’s view that giving the defendant custody would be the child’s best interests. Those reasons included her conclusion that the expert relied on inaccurate factual assumptions. The court deferred to the judge’s evaluation of the expert’s credibility and her feeling for the case after hearing 11 days of testimony from the parties and their witnesses. Additionally, the record reflects that defendant is a “deeply troubled individual, who abused the parties’ child and would stop at virtually nothing to keep the child away from plaintiff.” Further, her reliance on the tender years doctrine was misplaced. Judge Thurber set forth her detailed consideration of each applicable child custody factor and the court found no basis to disturb her conclusions.
Equitable Distribution: Defendant argued that the judge erred in giving plaintiff credit for assets that he claimed were pre-marital assets but which defendant asserts became marital assets, as well as in giving him credit for post-complaint contributions to marital assets. She also challenged the judge’s finding that $200,000 in Resurgent India Bongs belonged to plaintiff’s father. As the judge’s decision on equitable distribution was heavily influenced by her evaluation of witness credibility, the court did not agree with defendant’s arguments, which were based on testimony the judge did not find credible.
Counsel Fees: Defendant argued that the counsel fee award was unfair. The court disagreed. The judge found that defendant litigated numerous issues in bad faith, relied on perjured testimony, and caused plaintiff to incur hundreds of thousands of dollars in counsel fees. Further the fee award was modest in light of defendant’s conduct.