K v. VS. C.Y. (FD-09-1122-12, HUDSON COUNTY AND STATEWIDE)
A-2590-15T1
| N.J. Super. Ct. App. Div. | Aug 4, 2017Background
- Parties: K.V. (plaintiff/appellant) and C.Y. (defendant/respondent); child B.A.V. ("Brian") born April 23, 2009.
- Procedural history: lengthy Family Part custody/support trial (15 non-consecutive days); trial judge issued detailed oral opinion (Dec. 14, 2015) and final order (Jan. 12, 2016); appeal by plaintiff.
- Facts relevant to custody: parties dated, cohabited briefly after birth, then separated (plaintiff moved out Jan. 2010); defendant primarily handled daily care thereafter; daycare conflict began 2011 and triggered litigation.
- Custody evaluator: defendant retained Dr. Mathias R. Hagovsky to perform a best-interest evaluation; plaintiff declined to retain an expert; court found Dr. Hagovsky credible and influential.
- Court findings: joint legal custody awarded; defendant designated primary residential parent; court found both parents fit, defendant more organized/communicative, and defendant had been primary residential parent since 2010.
- Support and fees: court imputed $77,000 annual income to plaintiff (finding underemployment), set modified weekly support (including arrears recovery), and awarded defendant $20,000 in counsel fees out of $173,423 claimed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred by not awarding joint physical custody | K.V.: trial court should have awarded joint physical custody rather than naming defendant primary residential parent | C.Y.: evidence supports defendant as primary residential parent given history of care and routine | Held: Affirmed — court permissibly found defendant primary residential parent based on N.J.S.A. 9:2-4(c) factors and evaluator's report |
| Whether imputed income ($77,000) was improper | K.V.: court failed to analyze just cause for his underemployment before imputing extra income | C.Y.: court properly considered education, work history, and labor statistics to impute income for guideline calculation | Held: Affirmed — court found plaintiff underemployed, relied on qualifications and Dept. of Labor data, and properly imputed $77,000 |
| Whether counsel-fee award was improper under N.J.S.A. 5:3-5(c) | K.V.: court misapplied statutory standard and should not have awarded fees | C.Y.: sought fees for prolonged litigation caused largely by plaintiff’s conduct and discovery failures | Held: Affirmed — discretionary fee award upheld; court found plaintiff’s conduct contributed to protracted litigation and awarded $20,000 |
| Whether trial court abused discretion or made clearly unsupported factual findings | K.V.: appellate reversal warranted because findings inconsistent with evidence | C.Y.: trial court made detailed, credible findings supported by record and evaluator testimony | Held: Affirmed — appellate court deferred to Family Part factfinding (credibility/evaluator weight) and found no abuse of discretion |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (1998) (standard of review for trial-finding deference in family matters)
- Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474 (1974) (‘‘adequate, substantial, credible evidence’’ rule)
- Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010) (appellate review standard quoting Cesare)
- Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366 (1995) (no deference to legal conclusions)
- Faucett v. Vasquez, 411 N.J. Super. 108 (App. Div. 2009) (best-interests analysis and N.J.S.A. 9:2-4(c) framework)
- Kinsella v. Kinsella, 150 N.J. 276 (1997) (best-interests-of-the-child touchstone for custody)
- Nufrio v. Nufrio, 341 N.J. Super. 548 (App. Div. 2001) (discretion in custody-type decisions)
- Terry v. Terry, 270 N.J. Super. 105 (App. Div. 1994) (weight given to trial judge in child custody matters)
- Eaton v. Grau, 368 N.J. Super. 215 (App. Div. 2004) (counsel-fee awards in Family Part are discretionary)
- Chestone v. Chestone, 285 N.J. Super. 16 (App. Div. 1995) (standard for review of fee awards)
- Fidelity Union Trust Co. v. Berenblum, 91 N.J. Super. 551 (App. Div. 1960) (abuse-of-discretion review for fee awards)