The opinion
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NOT FOR PUBLICATION WITHOUT THE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-1568-22
S.L.,
Plaintiff-Respondent,
v.
T.B.,
Defendant-Appellant.
___________________________
Submitted October 22, 2024 – Decided January 28, 2025
Before Judges Susswein, Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-1045-20.
Westerberg Law, LLC, attorneys for appellant (Jill S.
Westerberg, on the briefs).
S.L., respondent pro se.
PER CURIAM
In this post-judgment matrimonial matter, defendant T.B. 1 appeals from
the December 13, 2022 Family Part final judgment awarding equitable
distribution, custody, and parenting time. The judge designated plaintiff, S.L.,
as the parent of primary residence with the parties having equal parenting time.
The judge also divided the marital assets, ordered the marital home sold and the
proceeds split, and ordered an existing mutual fund for their daughter's benefit —
which was titled to defendant's mother—be transferred to plaintiff's name.
After carefully reviewing the record in light of the parties' arguments and
the governing legal principles, we reverse the judge's decision with respect to
the mutual fund since the court had no authority to order a nonparty (the
maternal grandmother) to transfer assets to plaintiff's name. In all other
respects, we affirm the judge's seventy-four-page written opinion.
I.
We presume the parties are familiar with the history of this vexatious
litigation and thus need only briefly summarize the pertinent facts to the issues
raised on appeal. Plaintiff and defendant were married in 2009 and have two
children together. Their daughter, G.L., was diagnosed with autism spectrum
1
We use initials to identify the parties in accordance with R. 1:38-3(d).
A-1568-22
2
disorder and learning disabilities and attends a special needs school. Their son,
M.L., has struggled with school, especially since the COVID-19 pandemic.
In 2020, plaintiff filed for divorce, citing irreconcilable differences.
Defendant alleges a history of verbal and physical abuse. Her application for a
temporary restraining order (TRO) in 2013 was dismissed and the parties entered
into civil restraints; a final restraining order was not issued. Plaintiff alleges
defendant has engaged in erratic behavior, including name-calling, cursing in
front of their children, and calling his employer in an attempt to have him fired.
Defendant has been represented by four attorneys. Her third attorney
described defendant's concerning behavior, a complete breakdown of
communications, and a threatening message he received from defendant's
mother. Due to these issues, he requested to be relieved as counsel, even though
they were in the middle of trial. When he made this application, his client
suffered from a transient ischemic attack (TIA) and was absent from court for
several days. When she was reached to participate electronically, she hung up
on the court, prompting the attorneys and the judge to request multiple wellness
checks.
A-1568-22
3
Plaintiff's counsel also moved for the appointment of a guardian ad litem,
which the judge granted. Defendant was ordered to undergo a capacity
evaluation. Defendant "declined to cooperate" with the evaluation.
Throughout trial, plaintiff alleged defendant was withholding the children
from him, denying him the court-ordered fifty-fifty parenting time. He was
forced to file several motions in an attempt to enforce his parenting time.
Defendant also called the Division of Child Protection and Permanency (DCPP)
during the litigation and made allegations of child abuse against plaintiff. The
resulting investigations found those allegations were "not established."
In December 2021, halfway through the trial, both parties were granted
TROs against each other. The TROs were eventually resolved through civil
restraints; no final restraining orders were granted. Defendant was ordered to
obtain an anger management evaluation and a substance abuse evaluation.
At trial, the judge heard testimony from the parties, defendant's mother,
and G.L.'s school psychologist, Dr. Shelley Rosenberg, who testified as a fact
witness to G.L.'s disabilities and educational needs. When Rosenberg took the
stand on July 30, 2021, Robert Forgash, an attorney for the school, accompanied
her to ensure the psychologist-patient privilege was protected. Plaintiff's
counsel had also preemptively filed a motion to bar any testimony that might
A-1568-22
4
concern privileged communications between Rosenberg and G.L. No expert
testimony was offered.
Although the trial judge had originally decided to interview the parties'
children, she reconsidered this decision and, on October 11, 2022, entered an
order declining to interview the children, stating her reasons in the order.
Following an eleven-day trial that was adjourned multiple times over the
course of more than a year, the trial judge issued the final judgment of divorce
and decision on December 13, 2022. This appeal followed. Defendant contends
the trial judge erred by: (1) ordering the transfer of the mutual fund to plaintiff's
name; (2) not considering DCPP reports when awarding equal parenting time;
(3) relying on reports that were not disclosed to counsel; and (4) declining to
allow Rosenberg to testify as an expert witness. She also claims the judge was
biased against her throughout the trial.
II.
We first address defendant's contention that the trial judge erred in
awarding a mutual fund owned by a third party to plaintiff. The judge found
that defendant's mother started the mutual fund for G.L. and that plaintiff had
been the sole contributor for seven years. The judge ordered that the mutual
fund be transferred to plaintiff's name "in trust for the benefit of [G.L.]" and
A-1568-22
5
further ordered that any withdrawals from the funds must have the written
consent of both parties.
In a divorce proceeding, a judge is authorized to "make such award or
awards to the parties, in addition to alimony and maintenance, to effectuate an
equitable distribution of the property, both real and personal, which was legally
and beneficially acquired by them or either of them during the marriage or civil
union." N.J.S.A. 2A:34-23(h). This equitable distribution reflects the
"acknowledgement 'that marriage is a shared enterprise, a joint undertaking, that
in many ways it is akin to a partnership.'" Smith v. Smith, 72 N.J. 350, 361
(1977) (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)). Therefore,
"[a]ssets acquired by the joint efforts of the parties while the shared enterprise
continues, should be, on its termination, eligible for equitable distribution."
Ibid. "The goal of equitable distribution . . . is to effect a fair and just division
of marital assets." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div.
2004), aff'd in part, modified in part on other grounds, 183 N.J. 290 (2005)
(citing Rothman, 65 N.J. at 228-29).
In determining an equitable distribution of property, a trial judge must
identify what specific property is eligible for distribution, determine the
property's value, and decide how distribution can be most equitably made.
A-1568-22
6
Rothman, 65 N.J. at 232. "Generally, property qualifies for equitable
distribution 'when it is "attributable to the expenditure of effort by either spouse"
during marriage.'" Genovese v. Genovese, 392 N.J. Super. 215, 225 (App. Div.
2007) (quoting Pascale v. Pascale, 140 N.J. 583, 609 (1995)).
However, not all property is subject to equitable distribution, even when
acquired during a marriage. The statute provides that an asset "legally or
beneficially acquired during the marriage or civil union by either party by way
of gift, devise, or intestate succession shall not be subject to equitable
distribution, except that interspousal gifts or gifts between partners in a civil
union couple shall be subject to equitable distribution." N.J.S.A. 2A:34-23(h).
Income generated from exempt assets or original property that may be
exchanged for an exempt asset are also considered "separate property of the
particular spouse." Painter v. Painter, 65 N.J. 196, 214 (1974).
Furthermore, "[i]t is a principle of general application in Anglo-American
jurisprudence that one is not bound by a judgment in personam in a litigation in
which [they are] not designated as a party or to which [they have] not been made
a party by service of process." Hansberry v. Lee, 311 U.S. 32, 40 (1940).
Judgments do not normally bind nonparties to litigation, N. Haledon Fire Co.
No. 1 v. Borough of N. Haledon, 425 N.J. Super. 615, 629 (App. Div. 2012)
A-1568-22
7
(citing In re Application of Mallon, 232 N.J. Super. 249, 254 n.2 (App. Div.
1989)), unless the nonparties' interest was represented by a party. Ibid. (citing
Morris Cnty. Fair Hous. Council v. Boonton Township, 197 N.J. Super. 359,
364 (Law Div. 1984), aff'd o.b., 209 N.J. 108 (App. Div. 1986)).
Here, the dispute involves a mutual fund that defendant's mother holds
title to and only plaintiff contributed to. Plaintiff testified that the account was
funded with marital assets and neither party disputes the funds would have been
subject to equitable distribution before they were transferred to the mutual fund.
However, once contributed to the mutual fund, plaintiff gave the money and
control of it to defendant's mother.
Although defendant's mother appeared as a witness for defendant, her
rights and interests were not represented, and she had no notice that her property
rights might be affected by this matter.2 We thus conclude the mutual fund
assets titled in her name were not subject to equitable distribution. Relatedly,
the trial judge did not have authority to order a nonparty to transfer assets to
plaintiff's name. We therefore reverse that portion of the final order and remand
for further proceedings consistent with this portion of our opinion
2
We note that plaintiff did not move for leave to amend his pleadings to include
defendant's mother as a direct or third-party defendant at any time during the
litigation. See R. 4:9-1 and R. 5:4-2(e).
A-1568-22
8
III.
We turn next to defendant's contention that the trial judge erred when she
ordered equal parenting time because: (1) the judge ignored evidence from
DCPP and (2) did not appropriately weigh the factors for determining parenting
time.
Defendant contends the trial judge committed plain error by "brush[ing]
over" the DCPP reports. We are satisfied defendant's contentions with respect
to the DCPP reports, which found her allegations against plaintiff were "not
established," 3 lack sufficient merit to warrant extensive discussion. See R. 2:11-
3(e)(1)(E). The trial judge acknowledged that each party claims there is physical
abuse by the other, but she found there was a lack of "any specific testimony as
to any incidents occurring after" the equal parenting time was ordered and that
neither child or parent was at risk for physical abuse. We find no abuse of
discretion in the manner in which the trial judge considered the DCPP
investigation reports in conjunction with the trial testimony.
3
Regulations for DCPP require the agency's investigations to find an allegation
is "substantiated," "established," "not established," or "unfounded." N.J.A.C.
3A:10-7.3(c). A finding of "not established" indicates "there is not a
preponderance of the evidence that a child is an abused or neglected child . . . ,
but evidence indicates that the child was harmed or was placed at risk of harm."
N.J.A.C. 3A:10-7.3(c)(3).
A-1568-22
9
We thus turn our focus to defendant's argument the judge did not properly
consider the parenting time factors spelled out in N.J.S.A. 9:2-4. Decisions
concerning custody or parenting time rest within the trial judge's sound
discretion. Abouzahr v. Matera-Abouzahr, 361 N.J. Super 135, 157 (App. Div.
2003). As such, orders concerning custody and parenting time are reviewed for
an abuse of discretion. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div.
2012). Such "an abuse of discretion 'arises when a decision is "made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis."'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor,
171 N.J. 561, 571 (2002)).
In custody cases, "the primary and overarching consideration is the best
interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (citing
Fantony v. Fantony, 21 N.J. 525, 536 (1956)). The focus must be on "the safety,
happiness, physical, mental and moral welfare of the child." Fantony, 21 N.J.
at 536. Under the best-interests standard, the parents should be "on equal
footing." Bisbing v. Bisbing, 230 N.J. 309, 334 (2017) (quoting Emma v. Evans,
215 N.J. 197, 221-22 (2013)).
A-1568-22
10
When making custody determinations, courts must also "specifically place
on the record the factors which justify any custody arrangement not agreed to
by both parents." N.J.S.A. 9:2-4(f). The statute provides:
[T]he court shall consider but not be limited to the
following factors: the parents' ability to agree,
communicate and cooperate in matters relating to the
child; the parents' willingness to accept custody and any
history of unwillingness to allow parenting time not
based on substantiated abuse; the interaction and
relationship of the child with its parents and siblings;
the history of domestic violence, if any; the safety of
the child and the safety of either parent from physical
abuse by the other parent; the preference of the child
when of sufficient age and capacity to reason so as to
form an intelligent decision; the needs of the child; the
stability of the home environment offered; the quality
and continuity of the child's education; the fitness of the
parents; the geographical proximity of the parents'
homes; the extent and quality of the time spent with the
child prior to or subsequent to the separation; the
parents' employment responsibilities; and the age and
number of the children. A parent shall not be deemed
unfit unless the parents' conduct has a substantial
adverse effect on the child.
[N.J.S.A. 9:2-4.]
We note that in this case, neither party presented experts even though they
were afforded the opportunity to do so. Both parties confirmed to the trial judge
they had not retained a custody expert.
A-1568-22
11
In rendering her decision, the trial judge found plaintiff to be an overall
credible witness but found that defendant was not as credible. Furthermore,
contrary to defendant's assertion, the judge thoroughly and thoughtfully
considered the factors used to determine custody under N.J.S.A. 9:2-4, detailing
the evidence that supported her written findings.
For example, the judge determined that the parties were "not able to
cooperate in matters relating to the children," mostly due to defendant's
manipulation and withholding of parenting time. The judge also noted that,
while both parents were willing to accept custody, defendant had displayed an
"unwillingness to allow visitation" and had prevented plaintiff from seeing the
children, causing plaintiff to file "many actions to enforce 50/50 parenting time."
When the parties complied with the parenting time orders, the judge found their
interactions with the children were "good."
The judge also noted the history of TRO applications and testimony from
both parties regarding abuse, but she nevertheless concluded that "neither the
safety of the children or either parent" were at risk with the equal parenting time
schedule.
The judge found that M.L. desired to "have parenting time with both
parents equally" while G.L. had expressed different desires at different times.
A-1568-22
12
Further, the judge found that both parents met the children's needs, with plaintiff
attending more of their children's school and after-school activities and
defendant attending more of their doctors' visits. Both children have "quality
education" in their current schools, but the judge noted defendant seemed more
concerned with their education, especially M.L.'s school absences.
The judge considered the stability of the environment, finding that
plaintiff "offers a stable home environment" but defendant "does not provide a
stable environment," contrasting plaintiff's timeliness and willingness to drop
off and pick up the children with defendant's unwillingness to adhere to the
parenting schedule. Both parents live reasonably close to one another and spend
quality time with the children. The judge found neither parent was "unfit" to
have the children.
The judge also found that the parenting schedule would give plaintiff the
flexibility necessary for his job and enable defendant to work during the week.
The judge concluded that it was in the children's best interest to maintain an
equal parenting time schedule, and that naming plaintiff as parent of primary
residence would "ensure more 'consistency' in parenting time, as well as
'involvement' in the children's lives."
A-1568-22
13
In sum, the trial judge's analysis of the relevant factors was commendably
thorough, and her findings are amply supported by the record.
IV.
Defendant contends the trial judge abused her discretion by denying
defendant access to the reports that served as a basis for the judge reversing her
decision to interview the parties' children. By denying defendant access to these
reports, defendant argues, she was deprived of due process and the chance for a
fair hearing. This problem was compounded, plaintiff argues, when the judge
reversed her decision to interview the children based on these reports.
As we have noted, initially, the judge indicated she would conduct
interviews and asked counsel to supply questions. The judge reconsidered that
decision, noting that both parties had written to the court that interviewing the
children would "cause pressure, stress, and produce a stressful situation to both
children," and that counsel agreed that the court should not conduct interviews.
Because a mental health professional previously interviewed the children and
both parties had the opportunity to testify as to the children's preferences, the
judge ultimately declined to interview the children. Neither party utilized the
health professional's report nor retained an expert in this matter, so the judge
A-1568-22
14
relied solely on the parents' testimony when she found that both children had
expressed a desire to be with both parents.
In custody cases, the court has a "special responsibility to safeguard the
interests of the child at the center of a custody dispute because the child cannot
be presumed to be protected by the adversarial process." Kinsella, 150 N.J. at
317-18. One factor the court must consider in determining custody is "the
preference of the child when of sufficient age and capacity to reason so as to
form an intelligent decision." N.J.S.A. 9:2-4 (flush language). In deciding this
factor, a "court may on its own motion or at the request of a litigant conduct an
in camera interview with the child(ren)." R. 5:8-6.
In Mackowski, we noted the importance of listening to the child affected
by its custody decisions:
Too often, judges deciding issues in the Family Part
must rely solely on the "voices" of the attorneys who
prepare the competing affidavits and certifications on
the pretense that the litigant is speaking. R. 5:8-6
[e]nsures that where custody is a "genuine and
substantial" issue, the judge will not be insulated from
seeing and hearing the subject of the dispute. The
"voice" seen and heard will not be that of the lawyer or
litigant but that of the child who is the subject of the
dispute. The value of a properly conducted interview
enabling the judge to see and hear the child first-hand
outweighs the possibility of harm that may befall a
child by being subjected to the interview process. On
balance, it is not the interview that is ultimately
A-1568-22
15
harmful, but the custody dispute between the parties
that potentially wrecks havoc with the child.
[Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App.
Div. 1998).]
Courts have further recognized that judges may be reluctant to subject
children to the "emotional trauma" that they might "experience during the
interview process," but also recognized that "Family Part judges have developed
a special expertise in dealing with family and family-type matters." D.A. v.
R.C., 438 N.J. Super. 431, 459-60 (App. Div. 2014) (citing Cesare v. Cesare,
154 N.J. 394, 412-13 (1998)). Even so, once a child is interviewed in a custody
case, "nothing the judge or any other person can say or do will ever convince
the child that he or she is not responsible for the ultimate decision that is made.
This is a burden no child of any age, should ever carry." Mackowski, 317 N.J.
Super. at 15 (Kestin, J.A.D., concurring).
After Mackowski, Rule 5:8-6 was amended, and the word "shall" was
replaced with "may," leaving the decision to interview a child "to the sound
discretion of the trial judge, which, as in all matters affecting children, must be
guided by the best interest of the child." D.A., 438 N.J. Super. at 455-56.
Should the court, in its discretion, decline to interview a child, "it shall place its
reasons on the record." R. 5:8-6.
A-1568-22
16
We are satisfied the judge in the matter before us complied with these
substantive and procedural principles. The judge stressed that counsel for both
parties recognized that an interview would cause stress to both children,
especially to G.L., who has special needs. The children had already been
subjected to this stress when DCPP, the Custody Neutral Assessment (CNA)
evaluator, and the military interviewed them. Defendant also agreed that a
mental health professional should conduct the interview rather than the court,
since an interviewer more experienced with special needs would be "less
stressful for both children."
The record clearly shows the judge thoughtfully exercised her discretion
in reconsidering whether to interview the children, articulating her reasons not
only in the October 3, 2022 order, but also in the December 13, 2022 trial
decision. This amply satisfies R. 5:8-6's requirement to place the justifications
on the record. In sum, we find no abuse of discretion warranting our
intervention.
V.
Defendant next argues that the trial judge did not fulfill her role as a
neutral adjudicator in this matter but instead acted as plaintiff's advocate.
Specifically, defendant argues the judge showed bias against her by requiring
A-1568-22
17
her return to court after she suffered a TIA, giving her only one day to recover,
while allowing plaintiff a continuance for job training. Further, defendant
argues, bias was shown when the judge granted a continuance to plaintiff based
on plaintiff's counsel's vacation, but did not grant a continuance when
defendant's counsel had conflicting court appearances. In addition, defendant
alleges the judge retaliated against her by appointing a guardian ad litem and by
requiring her to undergo a competency exam for writing a letter to another judge.
Defendant also claims plaintiff's counsel received no pressure in
presenting his case whereas defendant's counsel, who had entered the case mid -
trial, was not given adequate time to prepare and was pressured to finish quickly.
These instances of bias, defendant contends, "fundamentally changed the course
of the trial," and defendant therefore requests the matter be remanded to a
different trial judge.
We are unpersuaded. Our review of the record shows that, contrary to
defendant's claims, the trial judge was laudably patient with defendant
throughout this protracted and hotly disputed litigation. We add the following
comments.
"The conduct of a trial . . . is within the discretion of the trial court."
Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div. 2003)
A-1568-22
18
(citing Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492
(App. Div. 2000)). This discretion is not disturbed "unless there is a clear abuse
of discretion which has deprived a party of a fair trial." Ibid. (citing Daisy v.
Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993)).
A judge must conduct a trial in a fair and impartial manner without
remarks that might prejudice a party. Mercer v. Weyerhaeuser Co., 324 N.J.
Super. 290, 297-98 (App. Div. 1999) (citing Cestero v. Ferrara, 110 N.J. Super.
264, 265 (App. Div. 1970), aff'd 57 N.J. 497 (1971)). The judge's obligations
include "the exhibiting at all times of judicial demeanor, patience and
understanding." In re Albano, 75 N.J. 509, 514 (1978).
Applying these standards, we conclude defendant's complaints of unjust
and unequal treatment by the judge are baseless. We note defendant's own
counsel, Michael Rothmel, stated on the record that his client had "taken actions
that I think are repugnant that I disagree with," including hanging up on the
court, driving with her children even when she claimed she was too ill to appear
in court, violating a court order to appear via Zoom, and refusing to
communicate with counsel. These actions, as well as threats received from
defendant's mother, prompted Rothmel, defendant's third attorney during this
litigation, to move to be relieved as counsel. Rothmel's paralegal also certified
A-1568-22
19
that in her forty years of paralegal work, she had "never experienced conduct
such as this from a client."
Relatedly, we reject defendant's contention that the appointment of a
guardian ad litem was done in retaliation. Given defendant's behavior, it was
eminently reasonable for the judge to appoint a guardian ad litem.
Finally, plaintiff's complaints that her new attorney had insufficient time
to familiarize herself with the case is unfounded. Defendant did not retain an
attorney until August, 31, 2022, over six months after Rothmel was relieved as
counsel. After a delay of over a year between trial dates, the judge was
reasonably reluctant to adjourn these dates further. And despite entering the
case near the end of trial, defendant's replacement counsel advocated for her
client zealously and competently.
In sum, the actions defendant claims as bias against her were in fact
reasonable reactions to her own actions.
VI.
Finally, we turn to defendant contention the trial judge erred when she
refused to allow Rosenberg to testify as an expert. The judge asked defense
counsel if she was listed as an expert, to which counsel replied simply, "she was
not." The judge reasoned that Rosenberg had not expressed any prior opinions
A-1568-22
20
or produced a report, and plaintiff had no chance to conduct further discovery
that might be needed for an expert witness, as opposed to as a fact witness. The
judge thereupon decided that Rosenberg "is limited to testify with regard to the
facts that she knows in her position," but could not provide an opinion, since she
was not proposed as an expert witness and could not testify as to what G.L. had
told her, since those statements were protected under the patient-psychologist
privilege.
"Evidentiary decisions are reviewed under the abuse of discretion standard
because, from its genesis, the decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion." Est. of Hanges v. Metro. Prop. & Cas.
Ins. Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160
N.J. 480, 492 (1999)). Evidentiary decisions will be upheld "if they are
supported by adequate, substantial and credible evidence on the
record." Ibid. (quoting MacKinnon v. Mackinnon, 191 N.J. 240, 253-54
(2007)).
The psychologist-patient privilege protects "communications between and
among a licensed practicing psychologist and individuals, couples, families or
groups in the course of the practice of psychology." N.J.S.A. 45:15B-28;
N.J.R.E. 505. The privilege "should be treated similarly to the lawyer-client
A-1568-22
21
privilege." Runyon v. Smith, 322 N.J. Super. 236, 242 (App. Div. 1999), aff'd
o.b., 163 N.J. 439 (2000). As the psychologist-patient privilege is modeled after
the attorney-client privilege, New Jersey courts have applied the three-pronged
test to determine when the attorney-client privilege may be pierced to the
psychologist-patient privilege:
(1) there must be a legitimate need for the evidence; (2)
the evidence must be relevant and material to the issue
before the court; and (3) by a fair preponderance of the
evidence, the party must show that the information
cannot be secured from any less intrusive source.
[Kinsella 150 N.J. at 299 (citing In re Kozlov, 79 N.J.
232, 243-44 (1970)).]
Only in the rare instance where a court determines that information
gathered from other sources, including independent expert evaluations, is
inadequate that the veil of psychologist-patient privilege should be pierced, and
prior treatment records should be disclosed. Id. at 328.
Certain exceptions to this privilege apply, such as N.J.S.A. 9:6-8.10,
which requires "[a]ny person having reasonable cause to believe that a child has
been subjected to child abuse . . . shall report the same immediately to the
Division of Child Protection and Permanency . . . ." In the face of abuse or harm
to a child, the privilege "must yield to the specific mandate" to report. State v.
A-1568-22
22
Snell, 314 N.J. Super. 331, 339 (App. Div. 1998) (citing N.J. Transit Corp. v.
Borough of Somerville, 139 N.J. 582, 592 (1995)).
We are satisfied defendant fails to meet the first and third prong of the
Kinsella test. If G.L. had indeed disclosed any instances of abuse to Rosenberg,
as defense counsel implies, she would have been compelled to disclose such
information to DCPP under N.J.S.A. 9:6-8.10. Because there is no evidence of
any such disclosure, it is reasonable to infer that she had no such information.
It would be unreasonable to break the psychiatrist-patient privilege on the mere
assumption that Rosenberg neglected her duty to disclose child abuse.
There also was no showing that the evidence defendant sought was not
available elsewhere. The parties could have called other expert witnesses or
psychologists to provide this information, but neither availed themselves of that
opportunity. Further, the CNA report, which neither party introduced as
evidence, would have provided a more thorough account of the children's desires
or preferences, since both children were interviewed. Rosenberg, had she been
allowed to speak about her sessions with G.L., could not speak to M.L.'s
preferences or desires, and her testimony would only be repetitive of other non-
privileged testimony and evidence.
A-1568-22
23
In sum, Rosenberg was called as a fact witness and provided the testimony
of a fact witness. The trial judge did not err in precluding her from offering an
expert opinion.
To the extent we have not specifically addressed them, any additional
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E).
Affirmed in part and reversed in part. We do not retain jurisdiction.
A-1568-22
24