On appeal from Superior Court of New Jersey, Chancery Division, Family Part (FM-15-1125- 96C).
Before Judges Pressler, Ciancia and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 11, 2001
Defendant Cindi D'Onofrio appeals a final judgment that restricted her rights as joint legal custodian of the parties' four children, awarded her unsupervised parenting time on a specific schedule, and designated plaintiff Donato D'Onofrio as the primary caretaker responsible for making day-to-day decisions regarding the children as well as final decisions on all major issues affecting them where agreement cannot otherwise be reached. Her principal challenge is to the admission of audio tapes of conversations with her children. She claims these conversations were intercepted by plaintiff in violation of the New Jersey Wiretapping and Electronic Surveillance Act (the Wiretap Act), N.J.S.A. 2A:156A-1 to -26, and therefore are suppressible. We have reviewed the record, including the issues and arguments presented on appeal in light of Judge Oles's comprehensive and well-reasoned decision. We affirm.
This bitter custody dispute endured for three years, culminating in a trial that spanned six months and consumed nineteen days from June 18, 1998 to January 12, 1999. It began when the parties separated in March 1996 following an incident between defendant and one of her daughters that left the child hiding in a fetal position in the clothes closet. At the time of this incident, defendant had been under psychiatric care since 1989, suffering from a long history of emotional instability, depression, and suicidal ideation. She had been hospitalized on several occasions. Throughout the pendente lite period, plaintiff remained the primary residential custodian of the couple's four daughters——then aged fourteen, eleven, nine, and seven——while defendant was permitted visitation on a specific schedule, at times supervised. Dr. Mark White was appointed to provide a custody and parenting analysis.
Problems with visitation arose practically at the outset and, on October 15, 1996, the family court judge appointed Dr. Neil Lavender as the children's guardian ad litem, with authority to mediate visitation disputes. The judge also ordered the parties not to discuss the litigation in front of, or with, their children, and restrained each from disparaging the other. At his initial interview with the children, Dr. Lavender learned from two of them of defendant's vulgar references to their father in their presence and of their objections to seeing their mother. Nevertheless, Dr. Lavender insisted the visitation schedule be followed.
Problems persisted, however, causing stress to the children. The daughter who had secreted herself in the closet, and was being treated for depression, threatened suicide in July 1996. That summer, the children were returned to their father several days later than their scheduled return from an extended August visitation with defendant. In December, Dr. Lavender recommended against increasing defendant's visitation time after conferring with the children's therapist and with defendant's treating psychiatrist. On January 17, 1997, defendant attempted to remove the children from school and, on that same day, Dr. White reported that defendant failed to recognize the impact her actions have had upon her children over the previous six years, and he recommended that plaintiff remain the children's primary custodian.
Dr. Lavender's interim report of February 24, 1997, agreed with Dr. White's assessment, noting further that defendant continued making derogatory remarks about plaintiff, often using profanity, and that the children expressed a clear desire to be with their father. Soon thereafter, defendant's emotional health seemed to deteriorate. She missed several scheduled visits with her children and had not made telephone contact during this time. On April 29, 1997, Dr. Lavender, concerned with the safety of the children, recommended supervised visitation. Unsupervised visitation resumed in May 1997 and continued throughout the summer until September 9, 1997, when defendant, dressed in pajamas, stepped in front of the school van transporting one of her children, tried to stop it, and then chased after it. Two days later, supervised visitation was reinstituted.
Around this time, in March 1997, plaintiff commenced taping telephone conversations between his daughters and defendant, an activity that he says began inadvertently when he left the tape recorder on while defendant and one of their daughters were conversing. The content and tone of that conversation apparently convinced plaintiff to continue taping for approximately eight to ten months thereafter. Judge Oles summarized the seventeen taped conversations admitted at trial thus:
On several occasions she made derogatory comments about Mr. D'Onofrio using vulgar and coarse language directly to her children. On numerous occasions she discussed the litigation directly with her children and made comments about Dr. Lavender, as well as the individuals who were hired by Dr. Lavender and Mr. D'Onofrio to accommodate supervised visitation. This behavior not only was inappropriate but has directly affected the attitude of at least two children in their opinion of their father. It is not necessary for this Court to repeat with detail the nature and the extent of the conversations, but the Court finds that Dr. Lavender's reliance upon those taped conversations to formulate his opinion was most appropriate and substantiates his opinion that Mrs. D'Onofrio's actions were harmful to the children. The use of the coarse language and the denigration of the plaintiff will have a lasting effect upon these children's relationship with their father. The audio tapes further substantiate the fact that Mrs. D'Onofrio has continually placed these children in the middle of this particular divorce. This has caused undue psychological pressure on these children and has greatly interfered with the normal development of their psychological well being.
Plaintiff provided Dr. Lavendar with several of the early tapings prompting the guardian ad litem's recommendation to Judge Oles to continue supervised visitation and permit the future monitoring of telephone conversations between defendant and her children. In any event, from September through Thanksgiving 1997, defendant failed to appear for supervised visitation. In his January 5, 1998 report, Dr. Lavender voiced concern that defendant continued to denigrate plaintiff in front of the children and that her erratic behavior had consistently affected the children's psychological well-being. He reiterated his request for monitoring of defendant's phone calls to her children. A final report of Dr. White, dated June 19, 1998, recommended that plaintiff retain custody of the children and concluded that defendant had "psychopathology on personality disorder level."
Pursuant to N.J.S.A. 9:2-4(c), Judge Oles addressed all relevant statutory criteria in awarding joint legal custody to both parties, designating plaintiff primary caretaker and residential custodian, and permitting defendant unsupervised, albeit scheduled, visitation with the four children. Citing Pascale v. Pascale, 140 N.J. 583 (1995), Judge Oles stated that his decision conferring rights with less significant responsibilities on defendant——the non-residential custodial parent——was made in light of the best interests of the children.
We consider the issue of the admissibility of the tape recordings against the rather disturbing factual backdrop set forth above. New Jersey's Wiretap Act, and its federal counterpart in Title III of the Federal Omnibus Crime Control and Safe Streets Act (Title III), 18 U.S.C.A. §§ 2510-2521, proscribe the taping of telephone conversations of others, including one's spouse, without consent, when the recording spouse or other interceptor is not a party to the conversation. N.J.S.A. 2A:156A-2, -3; 18 U.S.C.A. §§ 2510, 2511. Such evidence is ...