                        NOT FOR PUBLICATION WITHOUT THE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-2122-15T1

MARIEL MIRALLES FERRER,

        Plaintiff-Respondent,

v.

JOSEPH DURKIN,

     Defendant-Appellant.
______________________________

              Argued March 16, 2017 – Decided           April 10, 2017

              Before Judges Accurso and Manahan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Camden
              County, Docket No. FM-04-1464-13.

              Michael J. Confusione argued the cause for
              appellant (Hegge & Confusione, LLC,
              attorneys; Mr. Confusione, on the brief).

              Helen E. Casale argued the cause for
              respondent (Hangley, Aronchick, Segal,
              Pudlin & Schiller, attorneys; Ms. Casale, on
              the brief).

PER CURIAM

        Defendant Joseph Durkin appeals from a Family Part order of

December 16, 2015, entered after a plenary hearing, denying his

request to expand his parenting time.              Because we conclude Judge
Shusted conscientiously applied the law to the parties'

circumstances as he found them after taking testimony, we

affirm.   See Hand v. Hand, 391 N.J. Super. 102, 111-12 (App.

Div. 2007).

    By way of brief background, defendant and plaintiff Mariel

Miralles Ferrer were married in 1999 and divorced fifteen years

later.    They have two children, an eleven-year-old boy and a

nine-year-old girl.   Although the parties agreed on a

fifty/fifty shared parenting schedule, embodied in an April 2,

2015 parenting plan order, they could not agree on a vacation

schedule or on defendant's contention that he should be allowed

a right of first refusal when plaintiff is not available to care

for the children during her parenting time.   Accordingly, the

court conducted a hearing limited to those issues a few hours at

a time over the course of eight days.   The court heard testimony

from three witnesses, both parties and plaintiff's mother.

    Defendant's appeal is limited to the issue of whether he

should have been granted additional parenting time when

plaintiff was at work and not able to personally look after the

children during her parenting time.   Accordingly, we limit our

discussion to that issue.

    Following the divorce, defendant remained in the marital

home in Haddonfield and plaintiff moved two miles away to Cherry

                                 2                          A-2122-15T1
Hill.   They now live within seven minutes of one another.      The

children go to public school in Haddonfield.

    Plaintiff is a charge nurse at the State's developmental

center in New Lisbon.   She typically works weekdays from 7:00

a.m. to 3:30 p.m., leaving her home at 6:15 a.m. while the

children are still sleeping.   Defendant owns a Mister Softee

franchise, which he largely manages from home.     When plaintiff

is at work or otherwise unavailable to care for the children

during her parenting time, she relies on her parents or

defendant's sister to look after them.     During the summer, she

enrolls the children in day camp.     Defendant characterizes

himself as a stay-at-home dad.     Because of his flexible work

schedule, he rarely needs to rely on anyone else to care for the

children during his parenting time.    He admitted on cross-

examination, however, that he was likewise available to care for

the children during the marriage, yet the parties still sent the

children to daycare for the socialization benefits it provided.

    A review of the record makes clear that the parties'

relationship is acrimonious.     They pursued domestic violence

complaints against each other, which they dismissed in favor of

civil restraints on the entry of their parenting plan in April

2015.   Although Judge Shusted found that both are good parents

and devoted to their children, they do not speak and could not

                                  3                          A-2122-15T1
agree on relatively minor scheduling issues.   The judge found

the reason for that lay largely with defendant, who the judge

found "made no effort at compromise."

    Indeed, the judge found the many days of hearings "was

completely driven by the defendant," who "attempted to turn [the

hearing] into a personal crusade to assassinate the character of

his ex-wife."   The judge found defendant adopted a trial

strategy to shake plaintiff's composure and acted in an

"intimidating" manner towards her.   The judge characterized

defendant's "demeanor in court . . . as interrupting and rude."

Judge Shusted found plaintiff "exasperat[ed] with the money she

had to spend, [and] the time she had to spend for the limited

issue being tried by this court, which was school breaks and

summer recess parenting time."

    The judge found no support in the case law for

"[d]efendant's principal argument" of a "constitutional right as

biological father" to priority over "his in-laws or his own

sister" when plaintiff needed to turn to one of them to help her

care for the children during her parenting time.    Applying the

best interests standard of N.J.S.A. 9:2-4c, the judge concluded

defendant "does not get extra time because he lives within a

short walking distance of the elementary school."    Judge Shusted

found the inability of the parties to agree, communicate or

                                 4                          A-2122-15T1
cooperate regarding the children and, to a lesser extent, the

importance of the children maintaining a relationship with their

maternal grandparents, predominated over the other factors and

militated against the relief defendant sought.

    On appeal, defendant concedes there is no precedent for the

right of first refusal he seeks.    His argument is that the judge

misapplied the best interests standard and that it is in his

children's best interests to be with their father when their

mother is at work and unavailable to care for them.   He contends

"[r]uling that plaintiff must have 'equal parenting time'

regardless of whether it was Mom, an in-law, a babysitter, or a

day camp did not sensibly apply the best interests standard to

the facts presented by this particular family."

    Defendant's arguments that the judge did not "sensibly

apply" the best interests standard reduce to quarrels with the

judge's fact-finding which we are simply in no position to

reject.   See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).     We

cannot overturn the factual findings and legal conclusions of a

trial judge sitting in a non-jury case "unless we are convinced

that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to

offend the interests of justice[.]"   In re Trust Created By

Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276,

                                5                           A-2122-15T1
284 (2008) (quoting Rova Farms Resort, Inc. v. Investors Ins.

Co. of Am., 65 N.J. 474, 484 (1974)) (internal quotation marks

omitted).   Deference is especially appropriate in a custody case

in which we are reliant on the Family Part's special expertise

and where "the evidence is largely testimonial and involves

questions of credibility."   Cesare, supra, 154 N.J. at 412

(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117

(1997)).

     Having reviewed the record, we cannot find that the judge

misapplied his discretion by refusing defendant's request that

plaintiff turn to him first when she was not personally

available to care for the children during her shared parenting

time.   Such a "first refusal" arrangement depends on a very high

level of respect and mutual cooperation that these parties

simply do not possess.   Imposing it here over plaintiff's

objection would likely worsen an already overly contentious co-

parenting arrangement.

     After hearing the testimony and observing the witnesses,

Judge Shusted determined it was in the best interests of the

children that the parties' custody arrangement stay well-defined

but amenable to written agreement between them.   He thereby

hoped to reduce the friction between them, while encouraging

them to cooperate as co-parents in the best interests of their

                                6                            A-2122-15T1
children.   Defendant has given us no reason to second-guess the

court's careful determinations made in this matter.   See Hand,

supra, 391 N.J. Super. at 111-12.

    Affirmed.




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