SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 0353
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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 file d a brief.

PER CURIAM

A fter relocating sixty miles away f rom where his children resided and voluntarily retiring from his employment , d efendant sought to modify a Judgment of Divorce (JOD) by obtain ing 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 Plaintiff NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, 20172 A - 0353
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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 . T he 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; defenda nt to pay the balance
of the GAL 's fee , plaintiff's outstanding share s 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 hearing s , which resulted in plaintiff receiving primary residential custody of the daughters and an inc rease of defen d a nt '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 statement s of facts and conclusions of law . The parties were divorced by entry of a JOD in February 2014.
G ermane to this appeal , t he judg ment incorporated a marital separation agreement (MSA) , which provided that they have joint legal and residential custody of their three daughters , seventeen , fi fteen, and twelve years old at the time , with shared parenting

1 Two orders were issued on this date.3 A - 0353
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t ime . Nine months later, a court order was entered giving plaintiff sole residential custody of the oldest daughter due to changed circumstances. Thereafter, d efen d a nt retired and relocated sixty miles away from where his two youngest daughters resided with plaintiff , making the shared residential custody arrangement impractical . H e subsequently file d a motion to obtain primary r esidential custody of his daughters and termination o f child support ; assert ing that his new hometown has a better school

s ystem and is in an environmentally safer area . 2 Plaintiff cross

moved for : primary residential custody ; modifica tion of parenting time drop

- off; recalculation of child support; full payment of her
share s 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, t he 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 recommend ation regarding residential custody . R. 5:8 B . P ertinent to this appeal, d efendant was also order ed 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.4 A - 0353
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pla intiff the balance of her share s of the 2013 income tax return
and the sale of the marital home , in the amount s 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 r esidential custody of the daughters was admitted into evidence. 4 The next day, August 19, the judge issued a n order with a statement of facts and conclusions of law award ing 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 the ir social ization and schooling had always been in the area where plaintiff lived. In finding there was a " toxic relationship between their parents [,] " the judge recogn ized the "potential negative impact of separating the three children and

3 An issue related to the distribution of the parties' pension was amicably resolved whe n 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 base d upon an unsuccessful emergent appeal was specious at best."5 A - 0353
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reducing their day to day contact and support with each other."
The judge rejected as unsubstantiated de fendant's contention that
there was a better school system where he lived . De fendant 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 o rder 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 s tatement of facts and conclusions of law providing that defendant 's weekly child su pport would increase from $200 to $214 based upon plaintiff having primary residential custody and the Child Support Guidelines. 5 The judge rejected
defen d a nt 's contention that his $54,161.04 annual retirement income should be used to cal culate 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.6 A - 0353
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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 sala ry 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 procedura lly 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 d isturb the tr i a l judge's orders. It is well settled that w e 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 child ren." Hand v. Hand , 391 N.J. Super. 102, 111 (App. Div. 2007) . Family Part judges have "special expertise in family7 A - 0353
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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 w hen 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 Rul e 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 pare nt'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 will8 A - 0353
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only run afoul of the rule, and abuse its discretion, if it "summarily adopt[s] the recommendations of the GAL." See id. at
20 2
- 03 . A lso reviewed for abuse of discretion are a trial j udge's decision s 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 (Ap p. 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. T he judge did not abuse her discretion in appointing a GAL , requiring defendant to pay the balance of the
GAL's fee s , 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

M SA 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 order s to enforce the MSA that

was incorporated into the JOD. The judge also did not abuse her discretion in increas ing
defendant's child support by imputing hi s annual salary at the9 A - 0353
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time of his voluntary retirement and applying the Child Support Guidelines due to the new residential cu stody arrangement . Given
that defendant voluntarily retired despite having to support three daughters , t here is no merit to hi s contention that his significantly lower annual retirement income should be used to calculat e his child support . Equally without merit is defendant's argument that h is eligib i l ity to retire and plaintiff's conduct
forc ing 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 share s of the income tax refund
and the proceed s from the sale of the marital home. Affirmed.