F.S. VS. R.A.L. (FM-04-1177-14, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5315-15T1
F.S.,
Plaintiff-Appellant,
v.
R.A.L.,
Defendant-Respondent.
____________________________
Submitted May 14, 2018 – Decided July 30, 2018
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FM-04-1177-14.
F.S., appellant pro se.
David M. Lipshutz, attorney for respondent.
PER CURIAM
Plaintiff-husband, F.S.1, appeals from a June 29, 2016 entry
of Final Judgment of Divorce after a lengthy trial. The Honorable
1
Because there are allegations of abuse and neglect as well
mental health issues, we use initials to protect the privacy of
the parties.
Mary Beth Kramer, J.S.C., rendered her thorough, well-supported
decision from the bench on June 22, 2016, and we affirm.
Plaintiff and defendant-wife, R.A.L., met in Brazil in 2002
and married on June 27, 2007. They have one child together, B.S.
Plaintiff filed a complaint for divorce on April 12, 2014. A
trial was conducted over twenty days throughout 2015 and 2016.
The parties had previously litigated other Family Part issues,
including restraining orders under the FD docket, matters with the
Division of Child Protection and Permanency (the Division) under
the FN docket, and numerous other motions before Judge Kramer. At
the heart of this trial were plaintiff's concerns regarding
defendant's mental health and ability to co-parent their child.
During the trial, the judge heard from numerous witnesses
including extensive testimony from plaintiff and defendant. Of
significance, the judge heard testimony from a joint custody
expert, Dr. Gregory Joseph, who also supplied a report. He
performed psychological testing, interviewed the parties and the
child, visited their respective residences, and observed them
interact with B.S. Both parties stipulated to Dr. Joseph's report.
Dr. Joseph opined defendant suffered from a delusional
disorder but not from schizophrenia. He found apart from the
delusions, her "functioning was not markedly impaired and the
behavior was not obviously bizarre or odd." Dr. Joseph determined
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defendant experienced numerous delusions centered on the unfounded
suspicion that plaintiff sexually abused their child. In addition,
defendant had other unfounded delusions, including: plaintiff was
sexually abusing his daughter from a prior marriage; that daughter
was sexually abusing B.S.; plaintiff was trying to poison defendant
and B.S.; plaintiff murdered his ex-wife; plaintiff was going to
harm her and/or B.S.; plaintiff was taking children to the attic
to molest them; and plaintiff had been gaslighting her.
The judge considered Dr. Joseph's opinion and agreed with him
because the record demonstrated after three years of extensive
investigations by the Division and multiple evaluations, there was
no evidence that these allegations were true or any reasonable
basis to believe or suspect them. The court noted while defendant
eventually recognized some of her delusions were false, she
steadfastly continued to believe the others. The court expressed
concern that defendant remained defiant in her delusions and lacked
understanding about how these allegations impacted others.
However, notwithstanding these concerns, the judge found defendant
was not negatively impacting B.S.'s perception of plaintiff and
was not the cause of B.S.'s behavioral problems.
At the conclusion of the trial, Judge Kramer addressed all
relevant issues and ordered plaintiff to pay limited duration
alimony of $250 per week for nine months from August 1, 2016,
3 A-5315-15T1
until May 1, 2017, and required plaintiff to maintain a $25,000
life insurance policy to secure the alimony. The judge also
required each party to be responsible for their own medical
insurance coverage. Addressing equitable distribution, the judge
awarded defendant $38,277 from plaintiff's retirement account,
pursuant to a Qualified Domestic Relations Order, and fifty percent
of the coverture of plaintiff's company stock acquired during the
marriage. Both parties retained their own bank accounts and
vehicles and were responsible for their individual debts.
Plaintiff retained the marital residence.
The judge gave sole legal custody of B.S. to plaintiff and
designated him parent of primary residence. The judge ordered a
schedule for defendant to enjoy parenting time with B.S. and
addressed holiday and vacation schedules. The judge also ordered
the child to participate in individual counseling, defendant to
engage in individual therapy, the parties to attend co-parenting
counseling, and defendant to pay child support of $184 per week.
Plaintiff appealed. On appeal, his arguments largely center
on defendant's mental illness. He maintains the court erred by
permitting the trial to proceed because defendant was severely
mentally impaired and the court should have appointed a guardian
ad litem (GAL). He asserts the court erred in accepting
defendant's testimony and should not have authorized defendant's
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unsupervised parenting with B.S. Plaintiff contends the court
erred by dismissing his tort claim against defendant and in its
conclusions regarding alimony, equitable distribution, and counsel
fees. We disagree.
"Because of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord
deference to family court fact-finding." Cesare v. Cesare, 154
N.J. 394, 413 (1998). We defer to a trial court's findings "unless
it is determined that they went so wide of the mark that the judge
was clearly mistaken." N.J. Div. of Youth & Family Servs. v.
G.L., 191 N.J. 596, 605 (2007) (citation omitted).
At the outset, it is unclear what relief plaintiff seeks
regarding a GAL. Plaintiff argues because the judge was on notice
that defendant was suffering from a mental illness, she should
have sua sponte appointed a GAL to represent defendant's interests.
Plaintiff did not raise the issue below and now argues "[f]rom a
practical view it might [be] more appropriate to let the divorce
stand and just insist that all further legal proceeding[s] with
[defendant] require a [GAL]." Because we do not give advisory
opinions, we reject this suggestion. Furthermore, plaintiff has
not explained what difference the appointment of a GAL would have
made.
Pursuant to Rule 4:86-4(d):
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At any time prior to entry of judgment, where
special circumstances come to the attention
of the court by formal motion or otherwise, a
guardian ad litem may, in addition to counsel,
be appointed to evaluate the best interests
of the alleged incapacitated person and to
present that evaluation to the court.
[(Emphasis added).]
Here, there was no motion, each party was represented by a
lawyer, and the court had the benefit of Dr. Joseph's evaluation
and testimony. Plaintiff has not explained what circumstances
would have required the sua sponte exercise of the court's
discretion.
Plaintiff next contends the court erred in accepting
defendant's testimony. We reject this argument. The judge
determined defendant was competent and understood her actions,
except for certain delusions she maintained. The judge did not
credit defendant's delusions. To the contrary, the judge
repeatedly rejected defendant's delusions and considered them
thoroughly in the context of her ability to continue parenting
B.S.
When the judge ordered defendant to have unsupervised
parenting time over plaintiff's objection, the judge articulated
reasons for the custody determination and addressed the N.J.S.A.
6 A-5315-15T1
9:2-4(c)2 factors. Conclusions of the Family Part regarding child
custody are "entitled to great weight and will not be lightly
disturbed on appeal." Sheehan v. Sheehan, 51 N.J. Super. 276, 295
(App. Div. 1958) (citing Zehrer v. Zehrer, 5 N.J. 53 (1950)). "The
touchstone for all custody determinations has always been 'the
best interest of the child.'" Faucett v. Vasquez, 411 N.J. Super.
2In 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 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. A parent shall not be deemed
unfit unless the parents' conduct has a
substantial adverse effect on the child.
[N.J.S.A. 9:2-4(c).]
7 A-5315-15T1
108, 118 (App. Div. 2009) (quoting Kinsella v. Kinsella, 150 N.J.
276, 317 (1997)).
The judge awarded plaintiff sole legal custody and granted
defendant unsupervised visitation on alternative weekends and
Wednesday evenings. Plaintiff contends defendant is mentally ill
and will harm B.S. by planting her delusions in his head.
Judge Kramer addressed these contentions and concluded they
were unproven. The judge relied largely on the testimony of Dr.
Joseph, who opined defendant did suffer from delusional disorder,
but her "functioning was not markedly impaired and the behavior
was not obviously bizarre or odd."
At trial, plaintiff presented Dr. Colleen Sherman, the
child's therapist, to attest to plaintiff's belief that defendant
was harming B.S. The court, in its oral opinion, noted Dr. Sherman
expressed a belief that defendant was negatively influencing
B.S.'s perception of plaintiff, but her conclusions lacked
evidentiary support because she drew those conclusions almost
entirely from information received from plaintiff. As such, there
is sufficient credible evidence to support the judge's custody
findings, and we discern no reason to disturb them.
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The judge also declined to award plaintiff damages for his
Tevis3 claim for intentional inflection of emotional distress. The
judge reasoned plaintiff could not maintain such a claim because
defendant's false allegations of sexual assault resulted from her
mental health issues, and accordingly, the allegations were not
intentional or reckless.
In order to prove intentional infliction of emotional
distress, plaintiff was required to show:
(1) defendant acted intentionally; (2)
defendant's conduct was so outrageous in
character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly
intolerable in a civilized community; (3)
defendant's actions proximately caused him
emotional distress; and (4) the emotional
distress was so severe that no reasonable
person could be expected to endure it.
[Segal v. Lynch, 413 N.J. Super. 171, 191
(App. Div. 2010) (quoting Buckley v. Trenton
Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)).]
As the judge concluded, plaintiff cannot recover when
defendant did not act intentionally. Dr. Joseph opined defendant
suffered from delusional disorder regarding her belief that
plaintiff sexually assaulted B.S. Plaintiff's claim fails on the
intent element because defendant suffers from a delusional
disorder. See American Psychiatric Association, The Diagnostic
3
Tevis v. Tevis, 79 N.J. 422 (1979).
9 A-5315-15T1
and Statistical Manual of Mental Disorders § 297.1 (5th ed. 2013)
(defining delusion as "[a] false belief based on incorrect
inference about external reality that is firmly held despite what
almost everyone else believes and despite what constitutes
incontrovertible and obvious proof or evidence to the contrary.").
Accordingly, defendant cannot act intentionally to inflect
emotional distress if she truly believes this underlying reality
to be true.
Plaintiff further argues the judge incorrectly awarded
defendant alimony, a proportionate share of his 401k, and counsel
fees. Regarding alimony, plaintiff maintains the court did not
consider the parties only lived together for thirty-two months
because defendant was studying abroad. As to the division of
marital assets, he argues it was error to reduce the allocation
of his 401k by fifteen percent, when he spent over $54,000 on
defendant's education. Lastly, plaintiff contends the Family Part
erred in requiring him to pay his own counsel fees. Because the
judge's decision is amply supported by credible evidence in the
record, we affirm.
Regarding alimony, despite plaintiff's contention, the judge
determined the length of the marriage was six years and ten months
based on the date of marriage and when defendant filed a complaint
for a temporary restraining order. The court considered it
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immaterial that the parties did not live together until 2010
because the testimony indicated that defendant remained in Brazil
to complete her education pursuant to an agreement between the
parties wherein she received support and encouragement from
plaintiff. As such, the court properly awarded defendant limited
duration alimony of $250 per week for nine months.
Regarding equitable distribution, the judge utilized the
factors set forth in N.J.S.A. 2A:34.23-1 and Rothman v. Rothman,
65 N.J. 219 (1974), to distribute plaintiff's 401k. The judge
made requisite findings regarding each factor. On appeal,
plaintiff contends the judge did not consider the amount he paid
towards defendant's education expenses. However, the record
clearly reflects the judge noted, in her findings, that plaintiff
made significant contributions to defendant's education and
earning power and gave those contributions requisite weight.
Lastly, plaintiff asserts he should not be responsible to pay
his counsel fees because defendant's mental illness and false
allegations caused the divorce proceeding to continue for such a
long period of time. In her oral decision, the judge discussed
each element required under Rule 5:3-5(c) and concluded each party
is responsible for their own counsel fees and costs. She noted
the parties became so invested in their positions that they lost
sight of any middle ground or any potential avenues to bring this
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matter to an amicable resolution. The court found both parties'
actions elongated the proceedings.
All additional arguments introduced by plaintiff are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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