SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4617-17T4

DAVID WEINMAN,

Plaintiff-Respondent/

Cross-Appellant,

v.

LAURA WEINMAN, n/k/a

LAURA WEINMAN-TRICHON,

Defendant-Appellant/

Cross-Respondent.

_____________________________

Argued telephonically April 22, 2020 –

Decided May 12, 2020

Before Judges Koblitz, Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, Docket 

No. FM-20-0509-14.

Brian P. McCann argued the cause for appellant/crossrespondent (Callagy Law, PC, attorneys; Brian P. 

McCann, on the briefs).

James P. Yudes argued the cause for respondent/crossappellant (James P. Yudes, PC, attorneys; James P. 

NOT FOR PUBLICATION WITHOUT THE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.
2

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Yudes, of counsel; Kevin M. Mazza and Elsie 

Gonzalez, on the briefs). 

PER CURIAM

Defendant Laura Weinman-Trichon appeals from an April 30, 2018 order 

entered following a twenty-one-day post-judgment plenary hearing adjudicating 

the issues of emancipation, child support, and college contribution. Plaintiff 

David Weinman cross-appeals challenging the denial of counsel fees. We 

affirm.

We recite the relevant facts, which are set forth in greater detail in Judge 

Thomas J. Walsh's thorough and well-written forty-page opinion. The parties 

married in 1992. The marriage lasted nine years during which they had a son 

and a daughter born in 1998 and 2000, respectively. From the outset of the 

parties' separation in April 2001, a few months before plaintiff filed the 

complaint, defendant involved the children either directly or indirectly in the 

parties' conflict. Even though pendente lite plaintiff enjoyed joint legal custody 

and shared parenting, defendant continuously violated court orders by depriving 

him of parenting time or disparaging him to the children, who were then just a 

three and one-year old. 

Defendant's conduct increased when plaintiff began dating his now wife. 

Defendant began to control where plaintiff could enjoy parenting time and 
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continued to limit it and involve the children in every unfortunate exchange and 

incident with plaintiff. When defendant began dating a man whom she would 

later marry, she enlisted his efforts in the conflict, leading to confrontations with 

plaintiff and police involvement, which the children witnessed. 

Notwithstanding these difficulties, the parties settled their case and

divorced in 2003. Their amended judgment of divorce stated they agreed to 

share joint legal custody of the children, designated defendant the parent of 

primary residence and awarded plaintiff parenting time one evening per week

and alternate weekends, shared the holidays on an alternating year basis, and 

allotted him one week of his choice for summer vacation. Plaintiff agreed to 

pay child support and provide medical insurance for the children. 

Regarding college expenses, the parties' agreement stated:

At such time as each child graduates from high school 

and has the academic ability and inclination to attend 

college or other post high school educational 

institution, the parties shall be responsible for payment 

for the costs and expenses thereof according to their 

respective incomes and financial ability. The parties 

shall confer and consult with each other concerning the 

choice of college and the cost. Each child shall apply 

for all available loans, grants, and scholarships.

Post-judgment, defendant continued to interfere with parenting time, 

leading plaintiff to file an enforcement motion in 2003. On July 25, 2003, the 
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court granted plaintiff's motion and appointed a therapeutic mediator to work 

with the family, with authority to "issue directives" and "report to the court." 

Defendant's conduct did not abate. She signed municipal complaints against 

plaintiff's then-fiancé alleging harassment; despite an agreement reached with 

the aid of the therapeutic mediator, she refused to allow the children to attend 

plaintiff's wedding, necessitating police involvement; and she complained to 

municipal officials that the children were made to sleep in a basement in 

violation of fire regulations.

Defendant continued to frustrate plaintiff's parenting time by relocating 

from Passaic to Union County. As a result, plaintiff relocated his dental practice 

and residence to Union County to be near the children, only to have defendant 

move the children to Pennsylvania. Following more litigation, the parties 

executed a consent order in June 2007 allowing defendant to remove the children 

to Pennsylvania, with jurisdiction remaining in New Jersey. 

Pursuant to the consent order, the parties agreed plaintiff would have 

parenting time with the children every other weekend from Friday night until 

Sunday. However, defendant frustrated plaintiff's contact with the children. She

refused to meet in person with the therapeutic mediator and refused to 

communicate in a civil manner or cooperate with the parent coordinator. 
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Defendant continued to enlist her now-husband's involvement to prevent

parenting time, which led to confrontations at the children's sports events and 

email communications wherein defendant's husband purported to school 

plaintiff on parenting. During 2008, the parties had several meetings with the 

therapeutic mediator to address defendant's interference with parenting time, but 

defendant did not cooperate. 

Beginning in 2008, defendant started empowering the children, then ten 

and eight years of age, to communicate directly with plaintiff regarding 

parenting time. The children's communications uniformly offered excuses 

defendant gave them as to why they would not see plaintiff. As a result, plaintiff

missed important holidays and did not see the children for several months. 

Furthermore, defendant continued to assail plaintiff with vitriolic emails. When 

plaintiff complained to the therapeutic mediator, defendant responded she would 

not permit the therapeutic mediator to dictate to her how to write an email.

As a result, in February 2009, plaintiff filed an enforcement motion 

regarding parenting time. The court entered an order requiring defendant to 

cooperate in facilitating plaintiff's parenting time and to participate in quarterly 

meetings with the therapeutic mediator. 
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In March 2009, the court wrote to the parties, relaying the therapeutic 

mediator's opinion that defendant was interfering with plaintiff's involvement 

with the children. The court's letter further stated the therapeutic mediator's

recommendation that plaintiff "should have at least one full weekend with the 

children without interference by the mother." On April 2, 2009, the court 

appointed the therapeutic mediator as a parenting coordinator. 

The parties met with the parenting coordinator in May 2009, agreed to 

adjust plaintiff's parenting time to once-monthly uninterrupted weekends with 

the children where they would not participate in their sports or social events. 

However, on Labor Day weekend 2009, defendant failed to deliver the children 

for their scheduled weekend with plaintiff. The parenting coordinator wrote to 

the court stating defendant "continues to thwart parenting time between the 

children and their father." 

The children continued to email plaintiff directly regarding parenting 

time, and virtually all their communications sought to limit or cancel parenting 

time. When plaintiff invited the children to his stepson's bar mitzvah, the 

children ultimately agreed to attend the reception only, after the parenting 

coordinator intervened. When plaintiff emailed the parties' daughter asking her 

to wear a "fun dress" to the event, defendant later emailed him to suggest his 
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wife dictated their daughter's attire, that his wife was the "boss" and plaintiff a 

"mouse," and that defendant and the children consider it "a source of 

entertainment at dinner!"

In September 2010, following a dispute with defendant, the parenting 

coordinator resigned. The parties' post-judgment litigation continued in 2011. 

The court entered orders dated April 25, 2011, which in pertinent part appointed 

a new parenting coordinator and found defendant in violation of litigant's rights 

for refusing to cooperate with the prior parenting coordinator. Plaintiff's 

parenting time continued to be sporadic and limited to no more than once per 

month. 

In October 2013, defendant filed a motion for New Jersey to relinquish 

jurisdiction in favor of Pennsylvania and to fix the parties' respective obligations 

for the children's college expenses. Plaintiff cross-moved to vacate any 

"obligation to contribute toward [the] children's college education expenses 

unless the [d]efendant strictly complies with a number of conditions precedent" 

involving parenting time. After extensive litigation on the issue of jurisdiction, 

including before us,

1

the parties consented to maintaining jurisdiction in New 

Jersey. The college contribution issue was not resolved.

 

1 Weinman v. Weinman, No. A-2096-13 (App. Div. Jan. 29, 2015).
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From January 2014 through June 2015, plaintiff contacted the children 

regarding parenting time, but they refused to see him. In February 2015, 

defendant filed a motion, including a request to review child support and allocate 

college expenses. Plaintiff cross-moved for reunification therapy with the 

children. On April 24, 2015, the court entered an order directing both parties to 

complete a best interest evaluation, psychological evaluations, and reunification 

therapy. The second parenting coordinator resigned a few days before entry of 

the order.

In June 2015, the parties entered into a consent order appointing a

reunification therapist. The reunification therapist testified the understanding 

was she would report to the court regarding her work with the family and their 

meetings would not be confidential. 

During this time, the parties' son was searching for colleges. Plaintiff 

emailed defendant asking to be included in the college decision process and she 

replied that he had "been given many opportunities to be involved in the college 

selection process" but chose not to participate, and if there were any schools he

wanted their son to consider, he should advise her and she would arrange for 

visits. Plaintiff also communicated with the parties' daughter about parenting 

time, but she did not respond.
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The parties and the children completed a best interests assessment with a

court appointed evaluator who issued a report in August 2015. Defendant and 

the parties' daughter told the evaluator plaintiff was to blame for the difficulties 

in their relationship and both children stated they did not want a relationship 

with him. The evaluator concluded both children "need time to reconnect with 

their father without feeling they are rejecting or abandoning their mother." She 

recommended the reunification therapy continue. 

In August 2015, the children's paternal grandfather died, and plaintiff 

asked them to attend the funeral, but they declined. Plaintiff expressed 

disappointment at the state of their relationship and texted the parties' daughter 

the following: "this truly saddens me but I will always keep the door open and I 

want to talk about it with [reunification therapist] at [our] next meeting."

The next month the reunification therapist terminated therapy due to the 

lack of progress. She wrote to the court and explained that after meeting with 

the children for eight sessions and attempting to "work toward unified 

visitation," the children "remained intractable in their willingness to even 

discuss" reunification. She stated neither child wanted to visit in plaintiff's 

home and desired only a superficial relationship with him. 
10 A-4617-17T4

In September 2015, defendant participated in a psychological evaluation, 

which concluded she was "guarded and defensive" and overreacted to minor or 

normal stress with extreme concern and complaints. The evaluation concluded 

the "[p]rior attempts at reconciling the children with their father were thwarted 

by [defendant]" and she "demonstrated developmentally inappropriate 

empowerment of children to choose and decide to be with their father." The 

evaluator diagnosed defendant with histrionic personality disorder. 

Plaintiff's psychological evaluation concluded he was "outgoing and 

friendly[,]" capable of handling day-to-day stressors, displayed appropriate 

expectations of the growth and development of children, as well as an 

understanding of appropriate family roles. The evaluation concluded plaintiff

exhibited a psychologically healthy outlook on life.

By December 2015, the parties' son applied and was admitted to several 

colleges, all without any input from plaintiff. Defendant provided plaintiff with 

copies of the acceptance letters, asked him to complete a financial aid 

application for colleges, and he complied. In February 2016, the court ordered

a second best-interests evaluation. The court reserved its decision, pending the 

plenary hearing, on defendant's application to have plaintiff contribute to the 
11 A-4617-17T4

children's college expenses and for a recalculation of child support in light of 

plaintiff's allegation that "he has been alienated from the children" by defendant. 

In April 2016, plaintiff emailed the parties' son to express his support 

during the college decision process and hope they could have a relationship. He

recommended the son attend Penn State for its "world-renowned engineering 

department as well as the world's largest alumni network" and offered to 

contribute $12,000 per year toward tuition. He wrote "I truly want to guide you 

and be [a part] of the decision." The parties' son, who ultimately did not attend 

Penn State, replied by rejecting plaintiff's suggestion and stating plaintiff's email 

demonstrated "why I don't have a relationship with you right now." 

The next communication plaintiff received were emails in May 2016 from

defendant and later the parties' son informing plaintiff of the school the son 

selected. Given the son's enrollment, the court granted defendant's motion for 

contribution to college and ordered plaintiff to pay one-half of the son's expenses 

pending the plenary hearing.

Plaintiff texted the parties' daughter during the summer of 2016 but 

received no response. In August 2016, defendant contacted plaintiff only to 

advise him of his portion of the costs for the daughter's SAT tutor. Plaintiff 

complied with his court ordered obligation to pay one half of the son's fall 2016 
12 A-4617-17T4

and spring 2017 tuition and expenses. He also paid his half of the daughter's 

college application and SAT fees.

The second best interests evaluation was completed in September 2016. 

Each child told the evaluator they did not want to interact with plaintiff's wife. 

The parties' daughter stated she was too busy to spend full weekends with 

plaintiff. At the conclusion of plaintiff's session with the children, he hugged 

them and told them he loved them. In defendant's session with the evaluator, 

she expressed frustration at plaintiff's attempt to become involved in the college 

process. The evaluator concluded "[u]nfortunately, [the children] were not 

provided with the opportunity to spend time with their father, to heal hurt 

feelings, [and] to persevere during difficult times." She strongly recommended 

individual therapy, and defendant "remove herself from the situation" allowing 

the children and their father "to navigate their future." She also encouraged the 

children to "work on resolving their feelings" and devote "the time and 

opportunity to grow" a relationship with plaintiff. 

The college selection process for the parties' daughter mirrored the son's. 

In July 2017, plaintiff emailed the daughter to express support during the college 

process, offered to contribute financial assistance to match what he was paying

for the son's education and suggested she apply to public and private schools to 
13 A-4617-17T4

increase her chances at receiving aid. The daughter replied that she would apply 

to the schools that would give her "the best opportunity to succeed" and also 

wrote "[y]ou made it very clear that in order for us to have a relationship, I 

would have to have a relationship with your wife. I will tell you the same thing 

now that I told you then – that's not going to happen." Plaintiff's reply denied 

that she needed to have a relationship with his wife to have a relationship with 

him and offered to return to reunification therapy. However, the parties' 

daughter declined. Instead, in October 2017, plaintiff received an email from 

defendant informing him of the colleges their daughter planned to apply to, 

requesting plaintiff complete financial aid forms and offer the daughter advice 

on how to handle college admission interviews. 

At the plenary hearing, plaintiff, his wife, the reunification therapist, best 

interests evaluator, psychological evaluator, and plaintiff's forensic accountant2

testified. Defendant, the children, and defendant's forensic accountant also 

testified. In addition to the testimony, Judge Walsh considered volumes of 

written materials, including the parenting coordinator's notes, emails, text 

messages and other communications between the parties and the children. 

 

2 Prior to the plenary hearing, the parties engaged separate forensic accounting 

experts to prepare a cash flow analysis of plaintiff's dental practice to determine 

his ability to contribute to college expenses. 
14 A-4617-17T4

The judge concluded as follows:

Simply stated, this may be the worst case of 

parent alienation this court has ever seen. The efforts 

of [d]efendant . . . to ensure that [p]laintiff could not 

have a full and meaningful relationship with his 

children started on day one of the marital discord and 

continue to this day. This was evidenced by 

[d]efendant ensuring that her infant children were 

present, to watch [p]laintiff move out, telling them that 

their father was leaving them. It continued when she 

immediately began to dictate the exact terms and 

circumstances when [p]laintiff would see his children, 

at one point insisting he could only have visitation in 

the former marital residence. The court was asked, 

early and often, to allow him to have visitation and then 

to enforce visitation. She would ignore every [c]ourt 

[o]rder, repeatedly forcing the matter back to court. 

Plaintiff would beseech the court for help. He would 

repeatedly involve the police departments to enforce his 

rights to see his children. . . .

. . . . 

A number of altercations occurred . . . [including] 

violent arguments that this court finds were largely 

instigated by [d]efendant and over time involving 

[plaintiff's wife] much more than [p]laintiff. Having 

had the opportunity to observe the testimony and 

review the evidence, it is easy for this court to see why 

[p]laintiff's countenance is much more reserved than 

his current wife. He is not a man given to show a great 

deal of outward emotion. Despite incredible claims 

from the [d]efendant, there is not a single piece of 

evidence over the course of these nearly twenty years 

where [p]laintiff would be gratuitously nasty, which the 

correspondence show is her stock in trade. He is a quiet 
15 A-4617-17T4

and reserved type who would strain to avoid conflict. 

The same does not seem true of his wife. 

. . . .

The truth is there was a paucity of actual things 

that [p]laintiff did that would warrant any estrangement 

from the children. Given this, the court concludes, 

[d]efendant made up allegations. Defendant 

complained they were sleeping in an illegal basement, 

an assertion rejected by both the family court and 

[municipal] officials. She claimed that [p]laintiff was 

cutting up the children's clothing. She told [the parties' 

son] that his father had obviously drowned his phone. 

When they moved to [Union County], she again made 

an identical complaint about the sleeping conditions. 

The children were so caught up with the craziness that 

when their father wrote to them, they claimed it was 

actually [his wife] 'ghost writing' the messages. 

Defendant admitted that they would sit around and 

ridicule [plaintiff] and [his wife]. Her denial at trial, as 

against the absolute mountain of evidence to the 

contrary, is simply not credible. 

The children's perspective of their father is 

completely warped because of the alienation. [The 

parties' son] did not remember that his father was his 

first soccer coach, crediting his stepfather with being 

the only one who helped him with soccer. The children 

complained that their father would not come to their 

events, or take them to them, during his parenting time. 

They had no way to know, of course, that the parenting 

coordinator attempted to have [d]efendant stay away 

from the events when [p]laintiff had parenting time, 

since there had been so much hostile interaction, a 

suggestion she refused. The truth is [p]laintiff would 

make the drive to Pennsylvania, and they would only 

be allowed to say a quick hello, not spend any time with 
16 A-4617-17T4

him. [The parties' daughter] did not even remember 

him going at all.

The facts show that the alienation was a long ago 

success. It started when they were infants and grew 

worse. When they were barely in grade school, 

[d]efendant empowered them to communicate directly 

with their father that they did not want to attend 

visitation. When he relocated his home and medical 

practice to be closer to them, they were almost 

immediately spirited away to Pennsylvania. 

Neither of the children so much as invited their 

father to their [b]ar/[b]at [m]itzvah, with [the parties' 

son] admitting he was not invited by claiming it was a 

["]public event["]. This shows that by the time they 

were thirteen years old, they had essentially written him 

out of their lives. When their [paternal] grandfather . . . 

passed away, they would not even attend the funeral 

unless it was on their terms. [The parties' daughter]

admits she has never even contacted her father on his 

birthday. When the court ordered that they participate 

in a best interest evaluation, they reacted in anger, with 

[the son] saying he was nearly eighteen and should be 

done with this. When the reunification therapist 

suggested they focus on the future, they were outraged 

that they did not get to air their list of grievances. At 

all times, they adamantly refused contact with 

[plaintiff's wife]. 

Finally, the mindset of [the parties' son] as he 

prepared for college is completely encapsulated in his 

essay in support of a scholarship. Line one read: 

"During my high school career, I have had to endure my 

parent's acrimonious divorce." Of course, it goes 

without saying that the "acrimonious divorce" took 

place when [he] was a toddler. The only thing 

happening during [his] high school years was his 
17 A-4617-17T4

father's efforts to have a relationship with him. The 

second line read: "My father chose not to be a 

prominent figure in my life, but he did choose to be one 

in my mother's life, making things extremely difficult 

both financially and emotionally for her, and by 

extension, my sister and me." Again, none of this is 

true whatsoever. Assuming [the parties' son] believes 

what he wrote, which this court accepts; his mother had 

to have [misled] him. 

Finally, even with the issue of college 

contribution pending before the court, both [children]

chose to exclude [p]laintiff from the process, allegedly 

depending on their mother to send emails updating the 

process. He was, for all intents and purposes, 

completely excluded. In addition, they made clear, 

both at the best interests evaluation and in therapeutic 

reunification that they would not even consider a 

relationship with their father unless it was exactly on 

their terms. 

Judge Walsh's order emancipated the children as of their eighteenth

birthdays, finding their conduct placed them beyond plaintiff's sphere of 

influence. As a result, the judge concluded plaintiff should not have any 

obligation to pay for their college educations. Notwithstanding the children's

emancipation, the judge analyzed the Newburgh v. Arrigo3factors and found 

they did not favor compelling plaintiff to fund college. He ordered the funds 

plaintiff paid for college without prejudice be returned to him. The judge 

 

3 88 N.J. 529 (1982).
18 A-4617-17T4

calculated a child support figure retroactive to the date the parties' son turned 

eighteen and then calculated a reduced figure for the daughter's support, until 

her graduation from high school. 

The judge addressed each party's request for counsel fees pursuant to the 

relevant factors under the court rules. He noted plaintiff attempted to settle the 

dispute by offering to pay the equivalent of Penn State tuition for each child's 

education. Plaintiff spent $286,427 and defendant $163,259.49 to try the case. 

The judge concluded plaintiff was in better financial condition and defendant's 

financial condition was unknown. The judge found plaintiff made good faith 

attempts to engage in discovery and defendant violated discovery orders, which 

caused the court to bar evidence she did not produce until the trial. However, 

the judge concluded the financial circumstances did not warrant awarding 

plaintiff fees. 

I.

"When reviewing a trial judge's order, we defer 

to factual findings 'supported by adequate, substantial, 

credible evidence.'" However, reversal is warranted 

when the expressed factual findings are "so manifestly 

unsupported by or inconsistent with the competent, 

relevant and reasonably credible evidence as to offend 

the interests of justice."
19 A-4617-17T4

Discretionary determinations, supported by the 

record, are examined to discern whether an abuse of 

reasoned discretion has occurred.

While an "abuse of discretion . . . 

defies precise definition," we will not 

reverse the decision absent a finding the 

judge's decision "rested on an 

impermissible basis," considered 

"irrelevant or inappropriate factors," 

"failed to consider controlling legal 

principles or made findings inconsistent 

with or unsupported by competent 

evidence." 

This court does not accord the same deference to 

a trial judge's legal determinations. Rather, all legal 

issues are reviewed de novo.

[Ricci v. Ricci, 448 N.J. Super. 546, 564-65 (App. Div. 

2017) (internal citations omitted) (alteration in 

original).]

A.

Defendant argues the decision to declare the children emancipated and 

terminate plaintiff's obligation to contribute to college expenses was an abuse 

of discretion. She asserts the judge overemphasized the children's lack of 

relationship with plaintiff. She argues the children were not emancipated

because they remained financially dependent and the judge "improperly 

intertwined" emancipation with the college contribution dispute. She asserts the 

college contribution issue was settled when the parties divorced and the court 
20 A-4617-17T4

should have enforced their agreement pursuant to Avelino-Catabran v. Catabran, 

445 N.J. Super. 574 (App. Div. 2016), rather than undertake a new analysis 

pursuant to Newburgh. 

"A child's decision to seriously pursue a college education alone does not 

create the required dependency allowing him or her to be unemancipated. . . .

[F]acts matter, and the judge must fully analyze all circumstances that separated 

[the child] from [his or] her parents and their homes." Ricci, 448 N.J. Super. at 

577-78. Judge Walsh's finding that the children were estranged from plaintiff,

wanted no relationship with him, let alone allowed him to meaningfully 

participate in the college selection process as the parties had agreed during the 

divorce, is amply supported by the substantial, credible evidence in the record. 

In situations where a child seeks neither a relationship, nor guidance from 

a parent, and instead looks to a parent only as a source of funds, that parent is

relieved of the obligation to fund the child's college education. See Moss v. 

Nedas, 289 N.J. Super. 352, 356 (App. Div. 1996) (noting a parent cannot be 

viewed as a "wallet" and deprived of involvement in the college decision making 

process).

We disagree that the parties' prior agreement to share the college 

obligation irrevocably bound the judge.
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Although the court will enforce an agreement to 

the extent it is just and equitable, when it appears no 

longer fair to do so, the court is not bound by the 

agreement or its prior orders. . . . Thus, "if 

circumstances have changed in such a way that 

requiring [a party] to pay for college would no longer 

be equitable and fair, the court also remains free to alter 

the prior arrangement." 

[Moss, 289 N.J. Super. at 359-60 (quoting Lepis v. 

Lepis, 83 N.J. 139, 161 n.12 (1983)).]

The circumstances here differ from Avelino-Catabran. In that case, it was 

appropriate to enforce the parties' agreement to split college costs because the 

dispute centered on a party's ability to pay, which the trial judge determined did 

not undo the agreement, because there were other sources to fund the obligation. 

445 N.J. Super 585. More importantly, in Avelino-Catabran we did not declare

agreements to pay for college immutable to a change in circumstances. To the 

contrary, we held "if circumstances have changed in such a way that strict 

enforcement of the agreement would no longer be equitable, a court remains free 

to alter prior arrangements." Id. at 590. Here, the circumstances no longer made 

it equitable to enforce plaintiff's obligation to support the children and 

contribute to their college education.
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B.

Defendant argues the judge's admission of the therapeutic mediator's notes 

into evidence was error. She asserts she did not have an opportunity to call the 

therapeutic mediator as a witness because the court initially ruled her notes 

would not be evidential. She argues the court's reliance on Rule 5:3-3(a) was 

misplaced because the therapeutic mediator was not qualified as an expert, could 

not serve in such a capacity pursuant to Rule 1:40-5(a)(3), and her notes 

constituted hearsay.

Defendant also argues the judge abused his discretion in permitting the 

reunification therapist to testify. She alleges the therapist was a social worker 

and could not testify pursuant to the social worker privilege, N.J.R.E. 518, which 

the therapist could not waive without the consent of the children and the parties, 

N.J.R.E. 534(c). 

Our review of the trial court's evidential rulings 

"is limited to examining the decision for abuse of 

discretion." Parker v. Poole, 440 N.J. Super. 7, 16 

(App. Div. 2015) (quoting Hisenaj v. Kuehner, 194 N.J. 

6, 12 (2008)). We will only reverse if the error "is of 

such a nature as to have been clearly capable of 

producing an unjust result." Ibid. (quoting R. 2:10-2). 

[Ehrlich v. Sorokin, 451 N.J. Super. 119, 128 (App. 

Div. 2017).]

Rule 5:3-3(g) provides: 
23 A-4617-17T4

An expert appointed by the court shall be subject to the 

same examination as a privately retained expert and the 

court shall not entertain any presumption in favor of the 

appointed expert's findings. Any finding or report by 

an expert appointed by the court may be entered into 

evidence upon the court's own motion or the motion of 

any party in a manner consistent with the rules of 

evidence, subject to cross-examination by the parties.

Although the admission of the therapeutic mediator's notes without 

subjecting her to cross-examination was contrary to Rule 5:3-3(g), it does not 

warrant reversal. The contents of the notes were cumulative of other testimony,

and the judge relied on the testimony of the psychologist who evaluated the 

parties and fact witnesses to draw his conclusions. Furthermore, the most 

probative evidence of estrangement arose well after the therapeutic mediator 

became the parent coordinator in 2009 and then resigned in 2010. Therefore, 

the admission of the notes was not "clearly capable of producing an unjust 

result." R. 2:10-2. Defendant's remaining arguments relating to the therapeutic 

mediator are without sufficient merit to warrant further discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

The decision to permit the reunification therapist to testify did not violate 

any privilege. Privileges are not absolute. Kinsella v. Kinsella, 150 N.J. 276, 

308 (1997). When there is no expectation of confidentiality or privacy, the 

privilege does not apply. Hedden v. Kean Univ., 434 N.J. Super. 1, 14 (App. 
24 A-4617-17T4

Div. 2013). There is no evidence either party or the children had an expectation 

of privacy vis-à-vis each other or the court regarding the reunification therapy. 

The therapist provided progress reports to the court prior to the hearing and the 

goal of therapy was to provide the court insight into and a means of measuring 

the progress in achieving reunification. The admission of the reunification 

therapist's testimony was not an abuse of discretion.

C.

Finally, on the cross-appeal, plaintiff argues the court erred when it failed 

to award him counsel fees. We discern no abuse of discretion. 

Counsel fee determinations rest within the trial judge's sound discretion. 

Williams v. Williams, 59 N.J. 229, 233 (1971). We will disturb a trial court's 

determination on counsel fees "only on the 'rarest occasion,' and then only 

because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 

317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). 

Judge Walsh performed a thorough analysis of the RPC 1.5(a), Rule 4:42-

9, and Rule 5:3-5(c) factors and concluded they did not weigh in favor of an 

award of fees to plaintiff. Substantial, credible evidence in the record supported 

his decision. 

Affirmed.