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Kelly v. Kelly

Decided: May 29, 1986.

FRANCIS J. KELLY, PLAINTIFF,
v.
BERNADETTE T. KELLY, DEFENDANT



Clyne, J.s.c.

Clyne

The issue presented is whether, in a post-judgment setting, a noncustodial parent should have overnight visitation in his home in the presence of an unrelated woman and her son. This court concludes that the father in this case should have such visitation.

The court makes the following factual findings: The parties were married on October 7, 1972, in New York State. At that time, Mrs. Kelly was a nurse. Dr. Kelly was in medical school. Twin boys were born October 25, 1976.

Dr. Kelly filed a complaint for divorce on June 10, 1982 based on an 18-month separation. Mrs. Kelly filed an answer and a counterclaim on July 8, 1982. The counterclaim was also based on the grounds of an 18-month separation. At the time of the divorce, Mrs. Kelly resided with the children in a condominium located in Lakewood, which was purchased jointly by the parties. Dr. Kelly resided alone in a three-bedroom home in Toms River. Dr. Kelly was dating Margaret Doherty during the separation. In October 1982, the Kelly boys were introduced to Margaret Doherty and her son, Casey.

In July 1983, the parties reached an interim agreement as to issues of custody and visitation. The agreement was not reduced to writing. On the day of trial, September 13, 1983, the parties reached a settlement of the entire case which was placed upon the record. A dual judgment of divorce was executed December 23, 1983. The transcript of the September 13, 1983 hearing was attached to the judgment.

Paragraph B of the final judgment provides:

Neither party will do anything which might have an adverse effect upon the safety, physical, mental or moral welfare of the children. Neither party will do anything to alienate the feelings of affection which the children have for both parents.

In October 1983, Margaret Doherty and her son, Casey, moved into Dr. Kelly's home. In February 1984, Dr. Kelly took his sons to Vermont on a ski vacation. They were accompanied by Ms. Doherty and her son. The incident increased the already extreme tension between the parties. The doctor has not enjoyed overnight visitation with his sons since the Vermont ski trip.

In March 1984, Mrs. Kelly moved for modification of the final judgment seeking restraints under DeVita v. DeVita, 145 N.J. Super. 120 (App.Div.1976), or in the alternative an interpretation that the judgment contemplated the restraints established in DeVita. In April 1984, Dr. Kelly cross-moved for a plenary hearing. On May 3, 1984, the family intake service of the Ocean County Probation Department was requested to conduct an interview. Mediation of the case was attempted without success. A court appointed psychologist was designated to conduct a psychological evaluation of the parties and advise the court of any adverse impact that overnight visitation might have on the children. A hearing was conducted after the court received the expert's report. At the hearing, Mrs. Kelly, Dr. Kelly, the psychologist and an expert engaged by Mrs. Kelly testified.

Defendant argues that the custody and visitation agreement entered into by the parties, although not specifically set forth in the final judgment, envisioned that neither party would have the children overnight in the presence of an unrelated person of the opposite sex. Mrs. Kelly testified that she and Dr. Kelly had been raised as Catholics and continued to be practicing Catholics after reaching adulthood. Therefore, Mrs. Kelly asserts, the words set forth in the final judgment mean, when read in the light of the parties' religious faith, that there shall be no overnight contact by the children with an unrelated person of the opposite sex.

Dr. Kelly testified that when the precise language limiting overnight visitation was suggested he specifically rejected the

proposal. He testified that he had formed a relationship with Ms. Doherty by that time. Indeed, Mrs. Kelly acknowledged that after the divorce she knew Dr. Kelly's girlfriend would "come out of the woodwork." Dr. Kelly testified that the final language was a compromise in which he gave up a claim for joint custody and his wife gave up the limitation on overnight visitation.

The provisions of the final judgment were the product of agreement. Clearly, the provision dealing with the protection of the children's morals is sufficiently ambiguous to permit oral testimony as to the meaning of the agreement. Griffith v. U.S., ...


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