SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0353-15T2

M.E.M.,

Plaintiff-Respondent,

v.

D.H.N., JR.,

Defendant-Appellant.

___________________________________

Argued Telephonically July 13, 2017 – Decided

Before Judges Koblitz and Sumners.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Middlesex County, 

Docket No. FM-12-1304-14.

D.H.N., Jr., appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

After relocating sixty miles away from where his children

resided and voluntarily retiring from his employment, defendant 

sought to modify a Judgment of Divorce (JOD) by obtaining primary 

residential custody of his two youngest daughters, an adjustment 

of parenting time, and termination of child support. Plaintiff 

NOT FOR PUBLICATION WITHOUT THE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.

September 22, 2017
2 A-0353-15T2

filed a cross-motion seeking primary residential custody of the 

two daughters and other relief. 

Defendant appeals subsequent orders of July 10, 2015, July 

23, 2015, August 19, 2015,1 and September 8, 2015. The Family 

Part judge, in pertinent part, ordered: appointment of a Guardian 

Ad Litem (GAL) for the two youngest daughters; an adjustment of 

parenting time and drop-off location; defendant to pay the balance

of the GAL's fee, plaintiff's outstanding shares of the 2013 income 

tax refund and the proceeds from the sale of the marital home, and 

plaintiff's counsel fees for violation of litigant's rights; and

plenary hearings, which resulted in plaintiff receiving primary 

residential custody of the daughters and an increase of defendant's

child support. Having considered defendant's arguments in light 

of the record and applicable law, we affirm substantially for the 

reasons stated by the trial judge in her written statements of 

facts and conclusions of law.

The parties were divorced by entry of a JOD in February 2014. 

Germane to this appeal, the judgment incorporated a marital 

separation agreement (MSA), which provided that they have joint 

legal and residential custody of their three daughters, seventeen, 

fifteen, and twelve years old at the time, with shared parenting 

 

1 Two orders were issued on this date.
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time. Nine months later, a court order was entered giving 

plaintiff sole residential custody of the oldest daughter due to 

changed circumstances. Thereafter, defendant retired and 

relocated sixty miles away from where his two youngest daughters 

resided with plaintiff, making the shared residential custody 

arrangement impractical. He subsequently filed a motion to obtain 

primary residential custody of his daughters and termination of 

child support; asserting that his new hometown has a better school

system and is in an environmentally safer area.

2 Plaintiff crossmoved for: primary residential custody; modification of parenting 

time drop-off; recalculation of child support; full payment of her 

shares of the 2013 tax refund and the sale of the marital home;

and sanctions against defendant for violations of court orders 

related to the distribution of marital assets.

On July 10, 2015, the trial judge entered an order denying 

much of the relief sought by the parties without prejudice pending 

a plenary hearing, and appointed a GAL for the daughters to issue 

a written recommendation regarding residential custody. R. 5:8B.

Pertinent to this appeal, defendant was also ordered to pay 

 

2 Defendant sought custody of his middle daughter in the event 

that she not return to the parochial school she was attending. 

She did, however, return to the school.
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plaintiff the balance of her shares of the 2013 income tax return 

and the sale of the marital home, in the amounts of $1,265 and

$7,170.27, respectively, and attorney's fees in the amount of 

$1000 due to non-compliance and enforcement of court orders.3 On 

July 23, the judge ordered that, subject to reallocation at the 

final hearing, defendant pay the remainder of the GAL's fees 

totaling $870.

At the plenary hearing, both parties testified and the GAL's 

report recommending that plaintiff receive primary residential 

custody of the daughters was admitted into evidence.4 The next 

day, August 19, the judge issued an order with a statement of 

facts and conclusions of law awarding plaintiff primary 

residential custody of the children. The judge found that it was 

in the daughter's best interest to primarily live with plaintiff

because their socialization and schooling had always been in the 

area where plaintiff lived. In finding there was a "toxic 

relationship between their parents[,]" the judge recognized the

"potential negative impact of separating the three children and 

 

3 An issue related to the distribution of the parties' pension was 

amicably resolved when defendant agreed to execute a Qualified 

Domestic Relations Order.

4 The GAL met with plaintiff and the children, but defendant 

declined to be interviewed. The judge determined that "defendant's 

explanation for not making any effort to participate based upon 

an unsuccessful emergent appeal was specious at best."
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reducing their day to day contact and support with each other." 

The judge rejected as unsubstantiated defendant's contention that 

there was a better school system where he lived. Defendant was 

designated as parent of alternate residence and was given parenting 

time "every other weekend from Friday evening - Sunday evening, 

and one (1) midweek, after school, parenting time event per week

to be exercised in the area of the children's school and/or place 

of residence." Based upon the change in custody, the judge ordered 

recalculation of child support. In a separate order of the same 

date, the trial judge denied defendant's motion for 

reconsideration of the July 10 order for failure to attach a copy 

of that order, Rule 5:5-4(a), and for being untimely filed. R.

4:49-2.

On September 8, 2015, five days after a hearing, the judge 

issued an order with a statement of facts and conclusions of law 

providing that defendant's weekly child support would increase 

from $200 to $214 based upon plaintiff having primary residential 

custody and the Child Support Guidelines.5 The judge rejected 

defendant's contention that his $54,161.04 annual retirement 

income should be used to calculate his support because he was 

eligible to retire and that plaintiff's frivolous and fabricated

 

5 The prior amount of support was set forth in the MSA and was not 

based upon the Child Support Guidelines.
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conduct caused him to retire. The judge determined his rationale 

was not good cause; his retirement was voluntary and therefore 

imputed his last annual salary of $83,751.19. This appeal 

followed.

From what we can discern from defendant's rambling merits 

brief, he contends the judge ignored evidence and issued orders 

that are contrary to the MSA and have no basis in the law. Yet, 

he fails to cite any law to support his arguments, which is 

procedurally deficient under Rule 2:6-2(a)(6). See State v. Hild, 

148 N.J. Super. 294, 296 (App. Div. 1977). Nonetheless, we 

reviewed the record and discern no reason to disturb the trial 

judge's orders.

It is well settled that we must defer to the trial judge's

findings of fact if supported by sufficient credible evidence in 

the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing 

Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 

484 (1974)). We also must "accord deference" to the factual

findings of the Family Part because of that court's "special 

jurisdiction and expertise in family matters." Id. at 413. 

"Family Part judges are frequently called upon to make difficult 

and sensitive decisions regarding the safety and well-being of 

children." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 

2007). Family Part judges have "special expertise in family 
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matters" and we will "not second-guess their findings and the 

exercise of their sound discretion." Ibid. An abuse of discretion 

occurs when a decision is "made without a rational explanation, 

inexplicably departed from established policies, or rested on an 

impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & 

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

On issues of custody, the best interests of the child is the 

court's primary consideration in custody cases. Kinsella v. 

Kinsella, 150 N.J. 276, 317 (1997). A judge has the discretion 

under Rule 5:8B(a) to appoint a GAL where there is a disagreement 

over custody or parenting time/visitation. Isaacson v. Isaacson, 

348 N.J. Super. 560, 573 (App. Div.), certif. denied, 174 N.J. 364 

(2002). A GAL "acts on behalf of the court for the benefit of the

child and serves as an independent factfinder, investigator, and 

evaluator of what furthers the best interests of the child." Id.

at 574 (citing Pressler, Current N.J. Court Rules, comment on R.

5:8B (2002)). Because the GAL acts on behalf of the court, he or 

she has "no perceived bias in favor of one parent's position[.]"

Milne v. Goldenberg, 428 N.J. Super. 184, 201 (App. Div. 2012). 

Further, a GAL's role is merely advisory, as the court is not 

bound by a GAL's recommendations. Id. at 202. A court may not 

abdicate its decision-making to a GAL, although the court will 
8 A-0353-15T2

only run afoul of the rule, and abuse its discretion, if it 

"summarily adopt[s] the recommendations of the GAL." See id. at 

202-03.

Also reviewed for abuse of discretion are a trial judge's 

decisions to order payment of attorney's fees as a sanction and 

to modify child support. R. 1:10-3; Addesa v. Addesa, 392 N.J. 

Super. 58, 78 (App. Div. 2007); Gnall v. Gnall, 432 N.J. Super.

129, 158 (App. Div. 2013), rev'd on other grounds, 222 N.J. 414 

(2015).

Guided by these principles, we affirm the entirety of the 

trial judge's orders. The judge did not abuse her discretion in 

appointing a GAL, requiring defendant to pay the balance of the 

GAL's fees, awarding primary residential custody to plaintiff, and 

recalculating child support. Her decisions were based upon the 

credible facts presented by the parties and sound reasoning. She 

did not summarily adopt the GAL's recommendations. Although the 

MSA provided that each party incur their own attorney's fees, it 

does not, and cannot restrict a judge's authority under our rules 

of court to order payment of attorney's fees attributed to a 

party's non-compliance with court orders to enforce the MSA that

was incorporated into the JOD.

The judge also did not abuse her discretion in increasing

defendant's child support by imputing his annual salary at the 
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time of his voluntary retirement and applying the Child Support 

Guidelines due to the new residential custody arrangement. Given 

that defendant voluntarily retired despite having to support three 

daughters, there is no merit to his contention that his 

significantly lower annual retirement income should be used to 

calculate his child support. Equally without merit is defendant's 

argument that his eligibility to retire and plaintiff's conduct

forcing him to retire justifies support based on the lower income.

Finally, we defer to the judge's credibility finding that plaintiff 

was entitled to her outstanding shares of the income tax refund 

and the proceeds from the sale of the marital home.

Affirmed.