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Parcel v. Parcel

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 1, 2007

CAROLINE PARCEL, PLAINTIFF-APPELLANT,
v.
STEPHEN PAUL PARCEL, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. FM-10-205-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 9, 2007

Before Judges Parrillo and Sapp-Peterson.

Plaintiff Caroline Parcel appeals from that portion of a final judgment of divorce (FJD) that conditioned her parenting time with the five children of the marriage entrusted to the physical custody of defendant Stephen Parcel on securing their consent. For reasons that follow, we remand for reconsideration of the visitation issue and for further findings of fact and conclusions of law.

This twenty-year marriage, entered into on March 22, 1986, produced seven children: Jessica, born September 6, 1986; Samantha, born June 14, 1988; Steven, born February 28, 1990; Spencer, born October 2, 1991; Hanna, born December 3, 1993; Gabrielle, born January 3, 1996; and Isabelle, born October 23, 1998. The marriage ended in a FJD entered on March 24, 2006. At the time, the children ranged in age from 8 to 20.

Not surprisingly, a hotly contested issue at the divorce trial concerned custody of these children and parenting time. To this end, the court retained an independent expert, Charles Most, Psy.D., to conduct a custody evaluation. Dr. Most's preliminary assessment of February 12, 2005 recommended that the children remain together as an intact unit with each parent alternating living in the family home on a three/four day schedule. The arrangement proved unsuccessful. In his final evaluation of September 5, 2005, Dr. Most recommended that the parents share joint legal custody of the children, but that defendant be the primary residential custodian of all seven children, consistent with his initial opinion that the siblings remain together as an intact family unit. Plaintiff would have co-parenting time with the children three weekends a month, at the option of the older children, although the younger children (Hanna, Gabrielle and Isabelle) would not have the option to decline.

Dr. Most's report paints a picture of a family thrown into "chaos" by the births of Gabrielle and Isabelle, Jessica's entering adolescence and plaintiff's extramarital affair with a neighbor. According to Dr. Most, plaintiff, although the primary parent in raising her children, "has alienated all of them by her impulsive, threatening actions and poor judgment for the past several years." Defendant fared no better in the evaluation. In Dr. Most's opinion, defendant is angry, resentful and condescending, has influenced his children in these same feelings towards their mother, and has repeatedly interfered with plaintiff's parenting. Nevertheless, despite defendant's attempt to influence the children against their mother, "[plaintiff] has more significantly alienated them by her threatening words and actions."

At the conclusion of trial, the judge rejected Dr. Most's recommendation to keep all the children together. While granting the parties joint legal custody of the seven children, the judge split their physical custody, awarding plaintiff primary residential care of the two youngest, Gabrielle and Isabelle, and defendant primary residential care of the five older children. As to the former, the judge concluded:

As between the mother's plan or the father's plan provided for Gabrielle and [Isabelle] I find the mother better able to care for them. First, she has been providing for them up to now and they're doing well, despite all these other problems that I mentioned. Plaintiff is able to spend more time with these girls than the father. Gabrielle and [Isabelle] are better off with the mother than with strangers or placing them in daycare. The plaintiff mother can take these girls to activities and remain with them. The defendant has or will have his hands full with all the other children. Gabrielle and [Isabelle] certainly would be able to spend sufficient time with the defendant and their siblings. I anticipate and I certainly hope that some of these stresses will be removed by virtue of the divorce and the fact that plaintiff will be able to focus on Gabrielle and [Isabelle].

I've already went through all of the reasons why I believe that the children's [Gabrielle and Isabelle's] needs can be best served by the plaintiff. She can be with them, they're doing fine with her, she's there as opposed to having friends, non-relatives, or daycare, or siblings baby-sit. Frankly, the plaintiff came across as understanding the needs of the children better. She also does things with them as I pointed out, gymnastics, other activities. She testified as to sightseeing, day trips. She's hands on. She can devote time to them. I don't believe the defendant, regardless of whatever good intentions he might have, given his employment obligations and the responsibilities for the other children can do what is required to be done as a parent of primary residence, nor should the other children be burdened with the role of surrogate mother.

Although a detailed schedule for defendant's parenting time with Gabrielle and Isabelle was ordered, the judge simply directed that plaintiff's "parenting time shall be as agreed between the plaintiff and the children", effectively conditioning her right to visit the five older children on their consent and approval. Expressing hope that "the older children will mature and at some point reunify and reunite with their mother," with the assistance of counseling and a parent coordinator, the court nevertheless failed to make any provision ensuring plaintiff's contact with her five older children. Indeed, plaintiff represents that since the FJD, she has not been able to exercise parenting time with the children in defendant's physical custody. Candidly recognizing that her parenting of the three eldest children -- Jessica, Samantha and Stephen -- "may be foregone given their ages and their express desire not to have contact with her", plaintiff essentially argues on appeal that the court erred in effectively foreclosing any continuing relationship with the remaining two children, Spencer and Hanna.

While we ordinarily afford wide discretion to our Family Part judges in their evaluation of such matters as custody and visitation, and while we defer to their findings where supported by substantial, credible evidence, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993), we, nonetheless, cannot undertake meaningful appellate review in the absence of a statement of findings and conclusions. R. 1:7-4(a); R. 1:6-2(f). This obligation of the trial judge is a significant one, for it permits us to perform our review in light of the expression of reasons articulated by the judge. Without such a statement, our ability to determine whether the judge mistakenly exercised his or her discretion, failed to consider relevant principles of law, or reached a conclusion that is not supported by the evidence is significantly impaired. Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003).

Here, the trial judge offered no explanation for his decision to condition plaintiff's visitation rights on the children's consent. No reason is given why this determination is in the children's "best interests" or why the court could not fashion a discrete and definite plan of visitation just as commensurate with the children's welfare without effectively depriving plaintiff of any contact whatsoever with her children. As noted, the absence of such reasons precludes meaningful appellate review. R. 1:6-2; R. 1:7-4; Raspantini, supra, 364 N.J. Super. at 532. "[A]n articulation of reasons is essential to the fair resolution of a case." Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000).

Of course, we might surmise that the age of the children and their resistance to parental visitation were dispositive in the judge's view, but that would be largely speculative. In any event, Hanna was only twelve years old at the time and Spencer, fourteen. Moreover, the preference of the child is only one of many considerations to be taken into account by the trial judge in the "best interests" formulation. N.J.S.A. 9:2-4c; Palermo v. Palermo, 164 N.J. Super. 492, 498 (App. Div. 1978); see also Beck v. Beck, 86 N.J. 480, 497 (1981); Laverne v. Laverne, 148 N.J. Super. 267, 271-72 (App. Div.), certif. denied, 75 N.J. 28 (1977). It is neither controlling nor conclusive in the determination. Callen v. Gill, 7 N.J. 312, 319 (1951); Sheehan v. Sheehan, 38 N.J. Super. 120, 126 (App. Div. 1955). Indeed, a trial judge is not bound by a child's preference of one parent over another as the judge is only required to give "due weight to the child's preference." W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989) (quoting Laverne, supra, 148 N.J. Super. at 271), appeal dism'd, 121 N.J. 630 (1990). On this score, our Legislature has expressly declared that the State's public policy is:

to assure minor children of frequent and continuing contact with both parents after the parties have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy. [N.J.S.A. 9:2-4.]

Here, we have no explanation from the trial judge to enlighten us about why the limitation on plaintiff's visitation rights advances this declared legislative policy or fosters the "best interests" of either Hanna or Spencer in particular. Although we do not reject as out of hand the court's conclusion, its failure to articulate the full set of applicable factors to be considered on so important an issue as visitation, see Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), and to render specific findings regarding these standards, undermines our confidence in the ultimate determination he reached. It is our conclusion, therefore, that the lack of adequate findings by the trial judge with respect to plaintiff's restricted visitation rights requires a remand on that issue, both for the making of further findings and for the presentation of additional proofs. Because of the length of time which has passed since the original judgment, the trial judge must not only make findings in respect of the original record, but must also consider those findings in view of the children's and parents' situations as they have developed since the original judgment. The parties shall have the opportunity to present additional proofs covering that period of time as they deem appropriate.

Remanded for further proceedings consistent with this opinion.

20070601

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