ORSOLYA CSAK v. ATTILA KUCZORA (FD-02-0287-15, BERGEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1149-21
ORSOLYA CSAK,
Plaintiff-Appellant,
v.
ATTILA KUCZORA,
Defendant-Respondent.
________________________
Submitted October 17, 2022 — Decided October 28, 2022
Before Judges Mawla and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FD-02-0287-15.
Snyder Sarno D'Aniello Maceri & Da Costa, LLC,
attorneys for appellant (Stacey A. Cozewith, of counsel
and on the brief; Lydia Latona, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff Orsolya Csak appeals from an October 21, 2021 order granting
defendant Attila Kuczora primary residential custody of the parties' seven- and
nine-year-old children. Plaintiff also appeals from a December 10, 2021
denying her motion for reconsideration. We affirm.
On February 8, 2016, the parties, through counsel, entered a consent order,
which designated plaintiff the parent of primary residence and defendant the
parent of alternate residence, granted the parties joint legal custody, and granted
defendant parenting time. Relevant to the issues raised on this appeal, the
parties agreed, in the event they could not resolve future custody or parenting
time issues through mediation, they would "have the right to request the
appointment of . . . a joint custodial/parenting time expert and conduct a best
interest[s] evaluation." They also agreed "no change of circumstances must be
shown to commence the review and the evaluator shall review custody de novo
to determine what is in the children's best interest." If either party disagreed
with the joint expert's recommendation that party could retain their own expert,
and "[t]he dissatisfied party shall have the burden of filing an application with
the [c]ourt to contest the recommendation. . . . Both parties shall fully
participate and comply with all of [the joint expert]'s recommendations, requests
and timelines."
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In December 2017, the parties retained a joint expert who issued a report
in September 2018. Defendant disagreed with the report's recommendation and
retained his own expert, but the expert had difficulty gaining plaintiff's
cooperation. As a result, the parties returned to court, which entered a March
12, 2019 order, stating: "Plaintiff is best advised to cooperate with defendant's
best interest[s] evaluation[.] If plaintiff refuses, then [the] court may be in a
position to draw appropriate inferences." On June 18, 2009, the court entered
another order memorializing that the parties shall cooperate with defendant's
expert in the evaluation process.
In September 2020, defendant filed an order to show cause to transfer
custody and enforce plaintiff's obligation to comply with his expert's evaluation.
The judge denied the transfer of custody and compelled plaintiff's compliance
with the evaluation. The matter returned to court, and the judge entered an order
on May 25, 2021, which noted the appearance of counsel for both parties, and
scheduled a plenary hearing. In July 2021, the court held a conference and
plaintiff's counsel advised plaintiff had retained a custody expert but argued the
procedural posture of the case was improper because defendant had not formally
moved to challenge the joint expert's findings, as required by the parties' consent
order. The judge rejected counsel's argument because it elevated "form over
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substance[,]" noting defendant had requested a change of custody, each party
had retained an expert, and the case was ready for trial.
The matter was tried in six days, spanning three months. Defendant
testified and called four witnesses, including plaintiff, defendant's expert,
defendant's wife, and a parenting time supervisor. Plaintiff, who was self-
represented at trial, called her expert as the sole witness in her case-in-chief.
The judge also considered thirty-three exhibits admitted into evidence.
The trial judge found defendant, his expert, defendant's wife, and the
parenting time supervisor credible. However, he found plaintiff and her expert
not credible. He noted plaintiff's expert "failed to apply the best interest[s]
standard to his report[,] . . . failed to contact . . . defendant's collateral contacts[,]
. . . his report was not complete[,] and his testimony was based on [an
incomplete] set or analysis of the facts." Plaintiff's expert "selectively guarded
data . . . to place plaintiff in the best possible light." Rather than analyze the
N.J.S.A. 9:2-4(c) factors, the expert "focused on the bonding of . . . plaintiff
only and utilized . . . the rejected standard of the [tender] years doctrine where
he testified that the [plaintiff] breast-fed the children and . . . his quote was 'if
it's not broke, don't fix it,' and he made unsupportable gender assumptions . . . ."
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The judge also noted the expert contradicted himself; finding a bond between
the children and defendant and then opining the opposite.
Addressing the procedural history of the case, the trial judge noted "[t]he
catalyst for the plenary hearing was" defendant's September 2020 order to show
cause, which sought custody. The judge cited the prior history of the case,
including the March 2019 order and "multiple case management conferences"
held to gain plaintiff's cooperation with the custody evaluation. He noted neither
party objected to the court's directive that there would be a trial if the parties did
not agree to the joint expert's recommendation. Further, neither objected when
the court issued the May 2021 order scheduling the plenary hearing and plaintiff
secured her own expert.
Before addressing the statutory factors, the judge recounted the parties
had contracted for a de novo review of custody. The judge found defendant
proved it was in the children's best interests to reside with him and awarded
plaintiff the parenting time. On the other hand, there was no evidence
supporting plaintiff's opposition to defendant having custody on grounds of
alleged: Domestic violence in the parties' relationship; defendant's questionable
immigration status; and his criminal history, religious beliefs, and threats to
abscond with the children to another country. Rather, the judge credited the
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psychological testing performed by defendant's expert, whose "results are clear
that harm is befalling the children . . . due to . . . plaintiff's conduct, which will
manifest later in their lives if not addressed."
The trial judge analyzed the N.J.S.A. 9:2-4(c) factors. He found plaintiff
struggled to communicate, agree, and cooperate with defendant, and had a
history of unwillingness to allow parenting time. "Transferring primary custody
of the children to . . . defendant would ensure . . . there is proper communication
between the parties and allow for a stable line of communication to flourish.
This would lead to less finger-pointing, allegations, and ensure the children's
best interests are not overlooked." The judge found plaintiff prevented parenting
time by making false claims of domestic violence and denying defendant make
up parenting time. The evidence showed "defendant is more likely . . . and more
able to support . . . plaintiff's parenting time than the other way around. . . .
Creating false narratives of either party is incredibly damaging to the children."
The trial judge found defendant had a more stable home environment,
having: Lived in the same home since 2014; flexible work hours; worked within
walking distance of his home; and could be present for the children. The judge
also credited defendant's wife's testimony, which he found proved they had "the
ability to make a consistent home where they are fed, clothed, and cared for on
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a regular basis." Conversely, plaintiff moved frequently between several states,
had several jobs, and planned to attend law school, which would occupy most
of her time. The stability of the home environment would "allow for continuity
of [the children's] schooling and . . . afford [them] the best opportunity at
economic and social success."
The judge found the older child expressed a preference to plaintiff's expert
to see defendant and live closer to him. Although plaintiff resided in New Jersey
and defendant in Florida, the judge noted plaintiff recently owned real estate in
Florida and the father of a child she shared from a different relationship
consented to a move to Florida. Plaintiff's expert failed to mention this fact in
his report and "[p]laintiff . . . offered little or no evidence that [it] would be in
the [children's] best interest[s] that the custody remain . . . with her in New
Jersey."
Reviewing "the extensive data" provided by defendant's expert, the judge
concluded "plaintiff has a history of acting in a fashion which creates an adverse
impact on the children and compromises their long-term psychological and
social development." Although plaintiff was "fit in terms of basic needs, . . .
[she] is not fit to cooperate and co-parent with defendant, . . . which is a critical
factor . . . to foster a positive environment for the children to grow in."
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Plaintiff filed a reconsideration motion arguing: 1) defendant's counsel
should have been disqualified because plaintiff consulted with an attorney from
counsel's office; 2) the court lacked jurisdiction to try the case because the
consent order required the parties to attend mediation; 3) the court erred by
failing to appoint a guardian ad litem for the children; 4) the judge could not
make credibility findings regarding plaintiff because she did not testify; 5) the
court improperly denied plaintiff's request to call the joint expert as a witness;
6) defendant's September 2020 order to show cause did not seek a plenary
hearing and a trial should never have occurred; and, 7) the judge decided the
case based on stale evidence.
The trial judge denied the motion as without merit. He rejected plaintiff's
argument she did not testify, noting she provided testimony as a witness in
defendant's case and chose not to testify in her case-in-chief. The judge found
the evidence presented with plaintiff's reconsideration motion was not presented
at trial, although it was available during trial, and the court could not consider
new arguments. Further, plaintiff was estopped from challenging the court's
jurisdiction and the alleged conflict of interest because she raised neither claim
at trial. The judge found the motion was an attempt to reargue the evidence
presented at trial and an improper attempt at "another bite at the apple."
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The trial judge rejected plaintiff's argument regarding the guardian ad
litem, noting no such request was made. Moreover, the decision to appoint one
is discretionary, and "in this case, the best interests were addressed by the . . .
experts, . . . [t]he [c]ourt did not feel that a guardian ad litem was necessary,"
and plaintiff presented no evidence warranting such an appointment.
Plaintiff raises the following arguments on appeal:
POINT I. THE TRIAL COURT FAILED ITS DUTY
TO PREVENT OR INFORM PLAINTIFF OF
PROCEDURAL IRREGULARITIES AND
CONSEQUENCES RELATIVE TO HER
FUNDAMENTAL RIGHTS.
POINT II. THE TRIAL COURT FAILED TO
PROTECT THE BEST INTERESTS OF THE
CHILDREN BY INSURING THAT BOTH PARENTS
HAD THE ABILITY TO PRESENT THEIR CASE IN
FULL.
POINT III. THE TRIAL COURT ERRED IN
FAILING TO ENFORCE THE PARTIES' CONSENT
ORDER AND NOT ALLOWING [THE JOINT
EXPERT] TO BE CALLED AS A WITNESS.
POINT IV. THE TRIAL COURT ABUSED ITS
DISCRETION BY NOT INTERVIEWING THE
CHILDREN OR APPOINTING COUNSEL FOR THE
CHILDREN UNDER [RULE] 5:8A WHERE
PLAINTIFF PROCEEDED PRO SE AND
CONSIDERING THE ABSENCE OF EVIDENCE
PRESENTED AS TO THE CUSTODY FACTORS.
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POINT V. THE TRIAL COURT ERRED IN
RENDERING A CUSTODY DETERMINATION
WITHOUT MAKING COMPREHENSIVE
FINDINGS AS TO ALL OF THE STATUTORY
FACTORS AND ERRED IN RELYING ON AN
EXPERT THAT DID NOT EVEN MAKE A FINDING
ABOUT WHAT WOULD HAPPEN IF THE PARTIES
DID NOT LIVE IN THE SAME STATE WHEN THEY
DID NOT RESIDE IN THE SAME STATE AT THE
TIME OF THE ISSUANCE OF THAT EXPERT'S
REPORT.
I.
An appellate court's scope of review of the Family Part's factfinding is
limited. N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 476
(App. Div. 2012). Factual findings "are binding on appeal when supported by
adequate, substantial, credible evidence." O'Connor v. O'Connor, 349 N.J.
Super. 381, 400 (App. Div. 2002) (citing Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998)). "Because of the family courts' special jurisdiction and expertise in
family matters, appellate courts should accord deference to family court
factfinding[]" and the conclusions which flow logically from those findings of
fact. Cesare, 154 N.J. at 413. "Although we defer to the trial court's findings
of fact, especially when credibility determinations are involved, we do not defer
on questions of law." N.J. Div. of Youth & Fam. Servs. v. V.T., 423 N.J. Super.
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320, 330 (App. Div. 2011) (citing N.J. Div. of Youth & Fam. Servs. v. R.L., 388
N.J. Super. 81, 88-89 (App. Div. 2006)).
We review the denial of a reconsideration motion for an abuse of
discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). "A
motion for reconsideration is designed to seek review of an order based on the
evidence before the court on the initial [instance], . . . not to serve as a vehicle
to introduce new evidence to cure an inadequacy in the . . . record." Cap. Fin.
Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008).
A.
In Points I, II, and III of her brief, plaintiff asserts several alleged errors
regarding the conduct of the trial. She argues the trial court should have
informed her of the consequences for failing to: Present direct testimony on her
own behalf; effectively cross examine defendant and his expert; and present
"evidence to properly impact the credibility determinations of the trial court."
Citing Luedtke v. Shobert, 342 N.J. Super. 202, 214 (App. Div. 2001), plaintiff
claims her self-represented status affected the outcome because she was unable
to call the joint expert. She argues the procedural irregularities require a
reversal, namely, the court's failure to order mediation and require defendant to
file a formal motion contesting the joint expert's report prior to trial.
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A party's "status as a pro se litigant in no way relieves her of her obligation
to comply with . . . court rules . . . ." Venner v. Allstate, 306 N.J. Super. 106,
110 (App. Div. 1997). A litigant who represents themselves is "presumed to
know, and [is] required to follow, the statutory law of this State." Tuckey v.
Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989). However, it
is "fundamental that the court system is obliged to protect the procedural rights
of all litigants and to accord procedural due process to all litigants." Rubin v.
Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982).
In Luedtke, we reversed a custody determination because the trial court
did not afford the parties the opportunity to review the expert reports until the
day of trial and decided the matter without affording the parties the ability to
examine the experts. 342 N.J. Super. at 215-16. We also reversed because the
court performed an incomplete analysis of the statutory factors. Id. at 218.
A thorough review of the record convinces us plaintiff's contentions lack
merit. Indeed, plaintiff gave an opening statement, made and successfully
argued testimonial and documentary evidentiary objections, cross-examined and
re-cross-examined fact and expert witnesses 1 using documents and other
1
Plaintiff's cross-examination of defendant's expert spanned two days, which
does not convince us the trial judge was impatient or that plaintiff was rushed
through the proceedings.
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evidence, voir dired defendant's expert and qualified her own expert, and argued
in limine motions. The trial judge repeatedly guided plaintiff regarding how to
conduct the hearing, explained the rules of evidence including witness
impeachment and credibility, and gave her the time to examine witnesses,
including granting her request to end a trial day early to prepare her cross-
examination of defendant's expert the following morning. When plaintiff stated
she felt ill, the judge offered to adjourn trial until she recuperated . We are
unconvinced plaintiff was unable to present her case and there was ample
testimony and documentary evidence adduced for the judge to evaluate
credibility and decide the matter.
Luedtke is inapplicable because the parties here had expert reports in
advance of trial and were permitted to cross-examine the experts, plaintiff
jettisoned her counsel well before trial, and informed the court she was
proceeding without counsel. Moreover, although in Luedtke we held the trial
court erred by permitting the defendant's counsel to withdraw on the eve of trial
without a formal motion, id. at 212, the procedural irregularities in that case
were exclusive to the fact the defendant was self-represented and dissimilar to
the arguments raised here.
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Plaintiff's argument the trial judge committed a procedural violation by
not requiring defendant to file a formal motion objecting to the joint expert's
findings, is, as the trial judge said at the pretrial conference, elevating form over
substance. The record of the pre-trial proceedings clearly showed defendant
objected to the joint expert's findings, retained his own expert, who for months
had been attempting to meet with plaintiff to complete his evaluation, and that
a hearing was necessary to decide custody. None of this was a surprise to
plaintiff or inconsistent with the intent of the parties' consent order to evaluate
custody de novo in the event the parties could not agree.
We also discern no error regarding the failure of the joint expert to testify.
Plaintiff named the joint expert as a potential witness in correspondence to the
court, but never listed the expert on her witness list. Regardless, at the
conclusion of the second day of trial, the judge advised plaintiff she would have
to subpoena the joint expert to testify if she wanted to adduce evidence from
them. Plaintiff never subpoenaed the joint expert, despite the trial continuing
for four more days and summations occurring less than two months later.
B.
In Point IV, plaintiff argues the court should have interviewed the children
or appointed counsel for them. We are unpersuaded.
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Rule 5:8-6 permits the court to interview children in a custody dispute at
the request of a party or on the court's own motion. If the court declines to
interview a child pursuant to a party's request, it must put its reasons on the
record. The trial judge did not err, because neither party requested a child
interview. Moreover, we are unconvinced the custody decision suffered because
the judge did not conduct an interview. Indeed, the judge made findings
regarding the older child's preferences, which favored a custody award to
defendant, and the record lacks objective evidence the younger child held a
different view or that an interview would yield a different custody result.
We reach the same conclusion regarding plaintiff's assertion counsel
should have been appointed for the children. Again, neither party made such a
request, and the facts did not support the appointment of counsel on the court's
own motion. See R. 5:8A.
C.
In Point V, plaintiff challenges the sufficiency of the trial judge's analysis
of the N.J.S.A. 9:2-4(c) factors. She asserts the court decided the case based
"on significant voids of evidence and factual errors that ultimately effected its
decision regarding custody and parenting time . . . made scant findings of
facts[,]" and did not consider all of the statutory factors. Plaintiff argues the
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judge "regurgitated the findings" of defendant's expert, who did not opine "as to
custody and parenting time if [p]laintiff did not move to Florida."
Plaintiff's assertion the trial judge did not address the statutory factors
lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). A thorough review of the record shows the judge addressed each of
the N.J.S.A. 9:2-4(c) factors and made findings regarding those, which favored
an award of custody to defendant, the factors in equipoise, and the factors which
were inapplicable or had no effect on the decision.
Finally, the trial judge did more than adopt defendant's expert opinion.
Notwithstanding the substantial deficiencies in plaintiff's expert opinion, the
record demonstrates the judge considered both opinions. Despite finding
defendant's expert more credible, the judge extracted some of his findings from
evidence contained in plaintiff's expert report, showing he parsed the evidence.
The fact defendant's expert did not render an opinion regarding what would
happen if plaintiff did not move to Florida was neither fatal to the expert's
opinion nor the judge's decision, because the totality of the evidence supported
an award of primary residential custody to defendant, regardless of plaintiff's
residence.
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The findings relating to the custody award and denial of reconsideration
were supported by adequate, substantial, credible evidence. The trial judge did
not abuse his discretion and we discern no reversible error.
Affirmed.
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