On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication March 11, 1997. As Corrected March 12, 1997.
Before Judges Shebell and P.g. Levy. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Defendant, Joanne P. Dennison, formerly Ridley, appeals from orders of the Family Part dated February 20, 1996 and March 29, 1996 and questions the validity of the fines and fees imposed, the appointment of a guardian for her children, and the visitation terms ordered by the court. She argues that not only are the sanctions excessive, but that there is no factual information in the Judge's opinion to warrant the penalties and fees and that there are no facts to demonstrate recalcitrant behavior on her part, since she encouraged the children and made efforts to comply with the previous court orders pertaining to visitation, including the trip to Germany ordered by the court. We reverse the orders under review, set aside the penalties and counsel fees imposed, and remand for further proceedings.
The published opinion of the Family Part Judge begins by stating the obvious -- "this case presents difficult issues concerning enforcement of court orders mandating visitation by a non-custodial parent with the children born of the marriage." Ridley v. Ridley, 290 N.J. Super. 152, 154, 675 A.2d 249 (Ch. Div. 1996). The Judge then notes that plaintiff, William J. Ridley, has not seen his three children since 1988, and refers to plaintiff's alleged "consistent efforts to effectuate visitation." Ibid.
The record reflects, however, that in 1989, despite a scheduled hearing to determine the visitation issue, plaintiff instructed his attorney "to dismiss any pending claims he has with regard to custody and visitation of the children." This decision of the plaintiff closely followed the filing of a custody and visitation report by the Monmouth County Probation Department, which recounted allegations that plaintiff had serious alcohol problems, perhaps related to stress stemming from his Vietnam experiences, that he was frequently violent when intoxicated, that he had assaulted defendant and thrown her across the room, and that when he came for visitation with the children in early 1985, he became violent and hostile, reportedly breaking through a storm door to enter the house and breaking into the locked bathroom where the three children were hiding out of fear.
Defendant related to the probation department that because plaintiff forcibly took the children for their weekend visits, they were uncomfortable, stressed and unhappy when they stayed with their father. The children, according to the report, "related numerous stories and problems when they visit their father" and specifically, referred to him leaving them alone in hotel rooms while he went to bars or out shopping for extended periods of time, and that he would either not show up or be irresponsible towards the children when he did have them.
The probation department conducted numerous interviews with school authorities, police, and persons in the community to obtain their impressions of the family and the circumstances pertinent to a proper Disposition of the visitation and custody issues. The report relates that "all three children have stated they have fears and misgivings towards their father" which the report stresses "should not be overlooked by the Court." The report further recommends alcohol abuse evaluation for the plaintiff, and emphasized that allegations came not only from defendant and the children, "but from other sources as well." A psychological assessment of the three children was also carried out prior to plaintiff's withdrawing of his request for custody and visitation of the children. It is notable that the psychologist reported that although he requested a consultation with the father, the father never called for an appointment.
In any event, the Family Part Judge held a hearing on September 6, 1995 regarding the failure of the children to comply with a court order that they visit their father in Germany, even though they had not seen him since 1988. The father and children did not even recognize each other at this hearing because of the long separation. Testimony was received from the plaintiff and defendant, as well as from two of their three children, Michael, born May 10, 1976, and Michele, born March 13, 1978. Marielle, born April 15, 1982, did not testify, as it was represented there was little that she could add to the testimony of her two siblings.
The hearing was concluded that same day, however, the opinion of the Judge outlining his sanctions and orders was not filed until January 26, 1996. In open court, after hearing the testimony, the Judge immediately made known his reasoning that:
A logical Conclusion is that Mrs. Dennison through the years was doing her share of badmouthing, so to speak, her former husband. I do believe that is what happened, I do believe that is where all this trouble has started. And now it has grown to such an extent that the children say, well we don't ...