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Wagner v. Wagner

Decided: January 30, 1979.

LOUISE WAGNER, PLAINTIFF-RESPONDENT,
v.
EDWARD A. WAGNER, DEFENDANT-APPELLANT



On appeal from Superior Court, Chancery Division, Essex County.

Lynch, Crane and Horn.

Per Curiam

This appeal by defendant brings up for review an order of the trial judge made on January 12, 1978 modifying paragraph 2C of the final judgment by providing visitation for defendant with his two children:

Defendant urges that the judge's decision is inconsistent with the best interests of the children in that it deprives the

children of spending more time with him. Salmon v. Salmon , 88 N.J. Super. 291 (App. Div. 1965); Fiore v. Fiore , 49 N.J. Super. 219 (App. Div. 1956), certif. den. 28 N.J. 59 (1958). Defendant also contends that the judge's failure to inform him or his attorney of his findings resulting from his private interview with the children was improper and constituted prejudicial error.

The judge's determination embodied in the challenged order was made without the benefit of a plenary hearing. Plaintiff contends that a plenary hearing was waived by defendant. This may be so, but the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare, nonetheless it should require it. Fiore v. Fiore, supra.

The essence of defendant's argument before us under the first point is that a unilateral decision of plaintiff, defendant's former wife, to have the children undergo religious instruction every Saturday morning until 12:30 P.M., destroyed the then pending visitation arrangement with defendant, to the disadvantage of the children.

The parties were married on May 31, 1964. Two children were born of the marriage, namely, Elise, born July 6, 1967, and Elizabeth, born March 19, 1970. Although custody was awarded to plaintiff, the judgment provided liberal visitation and communication for defendant. It included one day of every weekend and one weekend every three weeks. Soon after the divorce judgment was entered, the parties themselves changed the weekend visitation to every other weekend (from Friday afternoon to Sunday evening), since defendant had moved to Westchester County, New York, a distance of 52 miles from plaintiff's residence. At the same time defendant relinquished the visitation of one day of every other weekend, as well as one week-day night in each week.

This arrangement continued until right after Labor Day 1976, when plaintiff, without prior notice to or consultation with defendant, entered the children in Hebrew School,

which, as stated, required their attendance every Saturday morning. Parenthetically, plaintiff disclaims any intention of coercing or otherwise punishing defendant because defendant was resisting plaintiff's efforts, initiated in October 1974, to secure increased support payments. Certainly, since visitation is primarily for the benefit of the children of a marriage, defendant's obligation to support the children is independent of his visitation rights. Fiore v. Fiore, supra at 227. Plaintiff also asserts that the somewhat sudden need to enroll the children in the school when she did so resulted from a requirement of the rabbi in charge of the school.

Plaintiff then told defendant, after the children's matriculation in the school, that thenceforth he could not take the children until after 12:30 P.M. on each of the Saturdays or the weekends when he was accustomed to have visitation with them. Except for summers, when the school was not in session, this resulted in the effective loss of the Saturdays as visitation days, due to the distance of travel and the children's needs to rest therefrom. Defendant's motions in ...


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