                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-1966-17T2

P.V.P.,

          Plaintiff-Respondent,

v.

F.J.C.,

     Defendant-Appellant.
__________________________

                   Submitted March 16, 2020 – Decided June 8, 2020

                   Before Judges Messano and Vernoia.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Monmouth County,
                   Docket No. FM-13-0449-09.

                   August J. Landi, attorney for appellant.

                   Senoff & Enis, attorneys for respondent (Michael Jude
                   Gunteski, on the brief).

PER CURIAM
      The parties are before us a third time. They married in 2003, and their

son, John, was born in 2008.1 As we explained in our two prior opinions, a final

restraining order (FRO) entered pursuant to the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and pendente lite orders

entered in the matrimonial litigation, awarded plaintiff custody of John and

granted defendant supervised visitation. P.V. v. F.C., No. A-3151-09 (App. Div.

Feb. 8, 2011) (slip op. at 1–2); P.V.P. v. F.J.C., No. A-2859-14 (App. Div. April

13, 2016) (slip op. at 2–3). The property settlement agreement executed by the

parties in 2010, and annexed to their judgment of divorce (JOD), provided that

plaintiff would have sole legal custody of John. With respect to parenting time,

the parties agreed to "abide the [c]ourt's [o]rder regarding reunification therapy."

      Motion practice continued unabated after the divorce, some history of

which we set out in our prior opinion. P.V.P. at 3–4. Ultimately, in May 2012,

the court entered an order granting defendant's request for a plenary hearing on

modification of custody and parenting time. Id. at 5. However, the judge then

hearing the matter delayed the plenary hearing until defendant paid in full a

$25,000 fee award. Id. at 10. We reversed and remanded the matter to the


1
  We have used initials in the caption of our opinion and fictionalized the child's
name throughout pursuant to Rule 1:38-3(d)(3) and (9).


                                                                            A-1966-17T2
                                         2
Family Part to conduct the plenary hearing on defendant's modification

application within ninety days before a different judge. Id. at 26–27.

       For our purposes, it suffices to say that the plenary hearing was not

scheduled within ninety days, and did not commence until April 26, 2017, before

a judge who had no prior involvement in the matter. After a multi-day hearing,

which we discuss below as necessary to address the issues presented on appeal,

the judge issued an oral decision and accompanying order (the June 2017

order).2 He concluded defendant had failed to present sufficient evidence of

changed circumstances to warrant modification of residential custody and

refused to modify the FRO that, among other things, prohibited defendant's

contact with his son, and hence, by implication, his presence at John's school.

The judge granted defendant unsupervised parenting time with John one

weeknight per week and one supervised overnight on the weekend, and, if after

two months without any incident, two unsupervised weeknights, all subject to

further evaluation at a hearing to be held November.3 The judge reserved on

plaintiff's application for counsel fees incurred during the plenary hearing.


2
    Defendant represented himself during the hearing.
3
  Defendant had remarried, and his new wife was supervising visitation between
John and defendant for several years at this point.


                                                                          A-1966-17T2
                                        3
      On September 19, 2017, the judge entered an order (the September 2017

order) awarding plaintiff $30,000 in fees and costs, which was seventy-five

percent of her request. In a written statement of reasons, the judge rejected

defendant's claim that plaintiff's opposition to his request to modify custody

demonstrated bad faith, since, at the time defendant brought the motion, he had

only limited court-ordered supervised visits with his son. The judge also found

that because defendant represented himself throughout the plenary proceedings,

he incurred no expenses. However, the judge concluded defendant protracted

the litigation and rejected all reasonable possibility of settlement. Noting that

defendant did not contest his ability to pay, the judge ordered defendant pay the

award within thirty days.

      On a date undisclosed by the record, plaintiff forwarded to the judge a

September 11, 2017 letter from John's treating psychologist, Charles D. Katz,

Ph.D., to plaintiff's counsel.     Dr. Katz had been counseling John for

approximately two-and-one-half years, and, before the plenary hearing,

defendant had filed an in limine motion to bar Dr. Katz's testimony and order

the appointment of a new therapist. 4 The letter detailed Katz's interaction with


4
  There is reference to the motion as pending in a transcript of proceedings
during an April 2017 case management conference that immediately preceded


                                                                         A-1966-17T2
                                       4
John during sessions held immediately before the first overnight visitation

contemplated by the June order, and those held thereafter. Simply put, the letter

painted the picture of a young boy tormented by apprehension of spending

overnight parenting time with his father and anxiety thereafter.

      Now represented by counsel, defendant filed a motion asking the court to

have John's court-appointed Guardian ad Litem (GAL) provide an updated

report and permit defendant to retain his own expert. It additionally sought

release of the transcript of an in-camera interview the judge conducted with John

during the plenary hearing, expungement of Dr. Katz's letter and an order barring

him from continuing to treat John. Defendant also sought to stay the prior award

of counsel fees pending further hearings on modification of custody and

parenting time.     Plaintiff cross-moved to terminate defendant's overnight

parenting time.

      The judge heard argument and rendered an oral decision. In part, in

addressing defendant's objections to Dr. Katz's report and his inability to

respond to "this lopsided view" of John's anxiety, the judge said

            [defendant] may take the position that maybe these are
            inappropriate feelings the child had . . . . There's no

the hearing. At the time, plaintiff's counsel indicated Katz did not wish to testify
and plaintiff did not intend to call him as a witness. Katz did not testify at the
hearing.
                                                                            A-1966-17T2
                                         5
            reason for these things. But the child expresse[d] it
            alone to me and then expresse[d] the same thing to the
            doctor? I mean, whether it has anything to do with
            [defendant's] fault or not, I'm still dealing with a child
            who has these anxieties, appears to have these anxieties
            based on what I've heard and what I saw when I
            interviewed him as well as [what] Dr. Katz saw.

The two orders entered by the court permitted the release of a CD and transcript

of the judge's in camera interview of John, denied defendant's request to retain

his own expert, denied expungement of Dr. Katz's report and permitted his

continued counseling of John, denied any stay of the fee award and suspended

overnight parenting time pending reunification therapy and a recommendation

from the therapist that it continue (the November 2017 orders).

      Defendant appeals from certain provisions of the June, September, and

November 2017 orders. He argues: the court violated his constitutional rights

by failing to hold the plenary hearing for five years after first ordered; and, that

the judge's findings following the hearing were unsupported by substantial

credible   evidence    and   defendant    demonstrated     substantially   changed

circumstances that justified an award of joint legal custody and expanded

parenting time. Defendant also contends that the November orders suspending

overnight visits resulted from a violation of his due process rights becaus e the

judge relied on Dr. Katz's letter to plaintiff's counsel without affording


                                                                            A-1966-17T2
                                         6
defendant an opportunity to rebut its contents.        Defendant also argues he

formally moved to modify the FRO, but the judge never ruled on the issue.

Lastly, defendant argues the award of counsel fees should be set aside.

      We have considered these arguments in light of the record and applicable

legal standards. We affirm in part, reverse in part, and remand for further

proceedings.

                                         I.

      While not condoning the significant delay between the 2012 order

granting defendant a plenary hearing and its start nearly five years later, we

reject plaintiff's asserted constitutional violation. Defendant correctly points out

that Rule 5:8-6 requires the court to set a custody hearing date "no later than six

months after the last responsive pleading." Initially, the order granting a plenary

hearing anticipated a brief period of discovery, but otherwise anticipated

compliance with the Rule. Discovery was extended, and unfortunately, the

judge then managing the case conditioned the hearing on defendant's payment

in full of a fee award.

      Shortly after our judgment reversing that condition and remanding, the

parties engaged in mediation. Both parties acknowledge that in July 2016, the

court conducted a case management conference at which they agreed updated


                                                                            A-1966-17T2
                                         7
discovery was necessary. In August, four months after our judgment, the parties

entered into a consent order permitting additional discovery, and, it appears from

the record that further discovery took place through December. Initially, the

hearing was assigned to a judge serving on recall. We cannot say with certainty

why he did not conduct the hearing; however, the matter was assigned to another

recall judge who held a case management conference on April 4, 2017, and

began taking testimony on April 26.

      During this time, defendant continued to have his regularly-scheduled

visits with John prior to the plenary hearing, and provided no evidence

supporting his claim that the delay allowed plaintiff to further alienate John's

affections for his father. As we discuss below, after conducting the plenary

hearing, the judge rejected defendant's claim. We need not address the argument

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

      Turning to defendant's substantive challenges to the June order, it is

axiomatic that the best interests of the child is the fundamental legal principle

guiding our review. D.A. v. R.C., 438 N.J. Super. 431, 450 (App. Div. 2014)

(citing Kinsella v. Kinsella, 150 N.J. 276, 317–18 (1997)).          "A custody

arrangement adopted by the trial court, whether based on the parties' agreement

or imposed by the court, is subject to modification based on a showing of


                                                                          A-1966-17T2
                                        8
changed circumstances, with the court determining custody in accordance with

the best interests standard of N.J.S.A. 9:2-4." Bisbing v. Bisbing, 230 N.J. 309,

322 (2017). "A party seeking to modify custody must demonstrate changed

circumstances that affect the welfare of the child[]." Hand v. Hand, 391 N.J.

Super. 102, 105 (App. Div. 2007). "Absent exigent circumstances, changes in

custody should not be ordered without a full plenary hearing." Faucett v.

Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009) (citing R. 5:8-6; Entress v.

Entress, 376 N.J. Super. 125, 133 (App. Div. 2005)).

      It is equally well-established that "[w]e grant substantial deference to a

trial court's findings of fact and conclusions of law, which will only be disturbed

if they are manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence." N.H. v. H.H., 418 N.J. Super. 262,

279 (App. Div. 2011) (quoting Crespo v. Crespo, 395 N.J. Super. 190, 193–94

(App. Div. 2007)).     This is particularly so where the evidence is largely

testimonial and rests on the judge's credibility determinations. Gnall v. Gnall,

222 N.J. 414, 428 (2015). In addition, we particularly "recogniz[e] the court's

'special jurisdiction and expertise in family matters.'"      Thieme v. Aucoin-

Thieme, 227 N.J. 269, 282–83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394,

413 (1998)). However, "[a] more exacting standard governs our review of the


                                                                           A-1966-17T2
                                        9
trial court's legal conclusions[,] . . . [which] we review . . . de novo." Id. at 283

(citing D.W. v. R.W., 212 N.J. 232, 245–46 (2012)).

       In this case, the hearing judge considered the statutory factors, and

defendant does not contend otherwise. Instead, defendant claims the judge

failed to address defendant's testimony with respect to the statutory factors, and

the judge's conclusion that the evidence was insufficient to demonstrate a change

of circumstances warranting modification was contrary to the prior orders

granting a plenary hearing on the issue. We disagree.

      The analytic paradigm is clear.          In considering an application for

modification, the issue

             is two-fold and sequential. Defendant must first make
             "a prima facie showing . . . that a genuine issue of fact
             exists bearing upon a critical question such as the best
             interests of the child[] . . . ." Pfeiffer v. Ilson, 318 N.J.
             Super. 13, 14 (App. Div. 1999) (alteration in original).
             Once a prima facie showing is made, defendant is
             entitled to a plenary hearing to resolve the disputed
             facts. Hand, 391 N.J. Super. at 111.

             [Faucett, 411 N.J. Super. at 127–28.]

In short, prior orders granting a plenary hearing by no means compelled the

result that defendant was entitled to modification of the existing custody and

parenting time orders. However, defendant seemingly fails to recognize that the

judge actually did modify the prior custody and parenting time arrangement.

                                                                             A-1966-17T2
                                         10
Pursuant to the June order, the judge granted defendant one, and potentially two,

unsupervised weeknight visits with John. Until then, all of defendant's parenting

time was supervised. The June order also granted defendant one supervised

overnight visit with John; until then, defendant had no overnight parenting time

with his son.

      We gather from the conclusion of defendant's brief—which asks for us to

exercise original jurisdiction and implement a specific parenting time

schedule—that he deems the June order to have been an inadequate

modification. We also note that defendant does not specifically challenge the

denial of that portion of his modification request that sought joint custody of

John. In any event, we reject the invitation to exercise original jurisdiction and

affirm the relevant provisions of the June order.

      In his oral decision following the plenary hearing, the judge specifically

reviewed the statutory factors with reference to the hearing testimony that

supported his findings.     The judge noted that while defendant produced

numerous witnesses, their testimony was not particularly helpful. He observed,

for example, that a number of witnesses were complimentary of plaintiff's care

toward John. In short, the judge heard testimony from plaintiff, defendant, and




                                                                          A-1966-17T2
                                       11
more than one dozen other witnesses. We find not basis to substitute our

judgment for that of the hearing judge.

                                       II.

      We consider out-of-sequence defendant's multiple challenges to the

November order. Defendant asserts that the judge violated his due process rights

by considering and relying on Dr. Katz's September 11, 2017 letter and using it

as a basis to terminate defendant's overnight visits with John. Defendant further

argues the judge "off-loaded his judicial responsibility" to the reunification

therapist, who the order charged with deciding when overnight visits could

resume. While "we are obliged to give deference" to what we recognize was the

judge's "exceedingly difficult and delicate decision[] as to the best interest of"

John under the circumstances presented, Abouzahr v. Matera-Abouzahr, 361

N.J. Super. 135, 157 (App. Div. 2003), whether the proceedings complied with

constitutional guarantees is a matter of law, for which we owe no deference to

the judge, E.S. v. H.A., 451 N.J. Super. 374, 383 (App. Div. 2017). We agree

that defendant was denied a fair opportunity to rebut the contents of Dr. Katz's

letter, and, because the judge relied heavily on that letter to modify defendant's

parenting time with John, we reverse those provisions of the November order

that suspended overnight visitation and remand for further proceedings.


                                                                          A-1966-17T2
                                       12
      "In implementing the 'best-interest-of-the-child' standard, courts rely

heavily on the expertise of psychologists and other mental health professionals."

Kinsella, 150 N.J. at 318. Our Rules specifically recognize the court's ability to

appoint its own expert, and the parties' right to retain their own experts. Rule

5:3-3(a). It is generally "improper for a court to decide a case in reliance on an

expert opinion without allowing the parties to examine the expert." Luedtke v.

Shobert, 342 N.J. Super. 202, 215 (App. Div. 2012). "Clearly, the right to cross-

examine expert witnesses is of central importance in custody matters[, and] the

right of cross-examination is a critical component of the adversary system." Id.

at 216; see also Entress, 376 N.J. Super. at 132–33 (reversing trial court's order

changing custody without a plenary hearing based on "unsworn letters from a

'frustrated' [court-appointed] therapist").

      As it relates to this case, the Court has specifically acknowledged that

"[e]valuators are more likely than treating psychologists to be objective, noting

a

             psychiatrist who has served as a therapist for one
             contesting party in the past, or who is currently a
             therapist for either one, is simply not in an ethical
             position to make a recommendation regarding the best
             interests of the children because of the lack of first-
             hand knowledge and/or clinical evaluation of the
             opposing spouse whom he or she has never seen.


                                                                          A-1966-17T2
                                        13
             [Kinsella, 150 N.J. at 320 (quoting Melvin G.
             Goldzband, Confidentiality in Disputes Over Custody
             and Visitation, 1 REV. CLINICAL PSYCHIATRY & L. 133,
             138 (1990)).]

The judge's reliance on Dr. Katz's letter, sent to plaintiff's counsel after a plenary

hearing where the court heard no expert testimony at all, was legal error. The

judge relied on its contents to grant relief that plaintiff sought in her cross-

motion, i.e., termination of overnight parenting time, without according

defendant any opportunity to challenge or rebut the letter's contents.

        We remand the matter for the court to conduct a further hearing on the

parenting time schedule that serves John's best interests.          We agree with

defendant that our opinion in P.T. v. M.S., under decidedly different facts,

cautioned courts not to "allow experts to shoulder excess responsibility or

authority, nor trial judges to cede their responsibility and authority[,]" and that

the judge "must not abdicate its decision-making role to an expert." 325 N.J.

Super. 193, 216 (App. Div. 1999). We stress that following the remand hearing,

it is solely the judge's province to decide what the appropriate parenting time

schedule should be and how and when it should be implemented, after giving

due consideration to any expert opinions and other evidence adduced at that

time.



                                                                              A-1966-17T2
                                         14
      We leave the conduct of the remand hearing to the judge's sound

discretion, including the extent and nature of any testimony he or she deems

necessary. Certainly, given the passage of time and for other obvious reasons,

we are in no position to exercise original jurisdiction and order a particular

parenting time schedule, as defendant requests. The judge should give fair

consideration in advance of the remand hearing to the requests of the parties,

including, for example, defendant's request that John's GAL provide an updated

report or testify. We express no opinion about the current relevance of any

evidence offered through him or other witnesses defendant wishes to have testify

given the passage of time. 5

      Lastly, although we earlier rejected defendant's appeal from the Family

Part's denial of his motion to vacate or modify the FRO, see P.V., slip op. at 7–

8, throughout these proceedings he sought relief from the FRO that implicitly

prohibited his presence at John's school. The judge's oral decision following the

plenary hearing never specifically addressed the issue, only mentioning the FRO



5
   Defendant also argues it was error not to permit release of the in-camera
transcript of the judge's interview of John. Frankly, we do not understand the
point, since the November order permitted release of the CD and transcript of
the interview. If for some reason that never occurred, as defendant asserts in his
brief without attribution to anything in the record, we reiterate that defendant
should have access to them in advance of the remand hearing.
                                                                          A-1966-17T2
                                       15
in considering, as he was required to do, the statutory factors regarding custody.

See N.J.S.A. 9:2-4 (requiring judge to consider "the parents' ability to . . .

communicate[,]" and "the history of domestic violence, if any"). The June order

does not grant or deny relief from any provision of the FRO.

      N.J.S.A. 2C:25-29(d) requires a showing of good cause for relief from an

FRO. To determine whether good cause has been shown, the court examines

the Carfagno factors. G.M. v. C.V., 453 N.J. Super. 1, 13 (App. Div. 2018)

(citing Carfagno v. Carfagno, 288 N.J. Super. 424, 434–35 (Ch. Div. 1995)).

The burden of demonstrating good cause is on defendant. Grover v. Terlaje, 379

N.J. Super. 400, 409 (App. Div. 2005). The same principles apply to a request

to modify specific provisions of an FRO. Ibid. We conclude this issue, too,

must be addressed on remand.

      Because the hearing judge made fact and credibility determinations, w e

order that a different judge conduct the remand hearing. P.T., 325 N.J. Super.

at 221.

                                       III.

      In our prior opinion reversing the counsel fee award of $25,000 and

compelling its payment before scheduling a plenary hearing on custody, we

noted the award could not be justified pendente lite in anticipation of costs


                                                                          A-1966-17T2
                                       16
associated with the hearing under Rule 5:3-5(c) for several reasons. P.V.P., slip

op. at 21–22. We also noted it could not be justified as a sanction for defendant's

"bad faith[,]" a finding unsupported by the record. Id. at 23. Further, we

observed that the "award was not supported by an affidavit of services as

required by the Rules; nor did the court perform a lodestar analysis." Id. at 24.

We did not preclude a fee award for costs incurred by plaintiff in conducting the

plenary hearing; however, we noted "the court may do so only after an

appropriate review of the factors under Rule 5:3-5(c), including defendant's and

plaintiff's financial need and ability to pay." Id. at 24.

      After reserving decision on plaintiff's request for counsel fees in his oral

decision supporting the June order, the judge awarded plaintiff counsel fees and

costs of $30,000 in the September order. The order itself includes the only

statement of the judge's reasoning.

      The judge wrote that plaintiff's fee application met "all Rule requirements

and appear[ed] reasonable." He stated that defendant's opposition to the

application "in no way question[ed] the amount or reasonableness of the fee

application, but relie[d] solely on the theory of 'bad faith' on the part of the

[p]laintiff in opposing the [d]efendant's motions." The order provided that

plaintiff did not demonstrate bad faith, and plaintiff "reasonably disputed"


                                                                           A-1966-17T2
                                        17
defendant's modification motion, most of which the court denied. At the same

time, the order provided that "[i]n some ways[,]" defendant's motion was

justified in "looking to expand parenting time and transition to unsupervised

time[,] which [was] reflected in this [c]ourt's decision." Nonetheless, the judge

found that defendant's "repeated motion practice" and request for full custody,

when he only had supervised visitation at the time, "prevented any reasonable

amicable resolution of his demands." The judge further wrote, "[d]efendant did

not contest his ability to pay [the fee] or the claim of disparity in incomes."

Accordingly, the court awarded approximately 75% of plaintiff's request.

      Defendant asserts that the judge failed to provide any detail regarding his

factual findings and legal conclusions, nor did he consider each parties' ability

to pay. Plaintiff's response is that the award was justified because of defendant's

bad faith.

      "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)). "Rule 5:3-5(c) provides numerous factors the judge

should consider in determining a counsel fee application . . . ." Clarke v. Clarke,

359 N.J. Super. 562, 572 (App. Div. 2003). These factors include:


                                                                           A-1966-17T2
                                       18
            (1) the financial circumstances of the parties; (2) the
            ability of the parties to pay their own fees or to
            contribute to the fees of the other party; (3) the
            reasonableness and good faith of the positions
            advanced by the parties; (4) the extent of the fees
            incurred by both parties; (5) any fees previously
            awarded; (6) the amount of fees previously paid to
            counsel by each party; (7) the results obtained; (8) the
            degree to which fees were incurred to enforce existing
            orders or to compel discovery; and (9) any other factor
            bearing on the fairness of an award.

            [Ibid. (citing R. 5:3-5(c).]

We have no doubt that the September order attempted to address some of these

factors, albeit without specific reference to the Rule.

      In any event, plaintiff's assertion that the fee award was justified because

the judge found defendant acted in bad faith is unsupported by the equivocal

statements contained within the order itself. Moreover, as we already noted,

defendant was actually successful in modifying his parenting time schedule as a

result of the hearing. The judge's finding that defendant did not contest the

parties' respective incomes did not constitute a reasoned consideration of "the

financial circumstances of the parties," or their respective abilities to pay their

own fees or contribute to the other's fees. Nor did the judge conduct any lodestar

analysis. J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div. 2012).




                                                                           A-1966-17T2
                                       19
      We reverse the September order and remand the matter to the Family Part.

Although we have ordered that another judge conduct the remand hearing

regarding parenting time and modification of the FRO, we have confidence that

the judge is capable of deciding upon review of the existing record whether

plaintiff is entitled to a reasonable and just award for counsel fees and costs

incurred as a result of the plenary hearing.

      Affirmed in part; reversed in part, and remanded for further proceedings

in accordance with this opinion. We do not retain jurisdiction.




                                                                       A-1966-17T2
                                       20
