On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FM-21-172-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Lihotz.
In this matter, arising from an alleged event some fourteen months after the entry of a judgment of divorce, plaintiff, Robyn L. Frederick Chiappetta, appeals from two orders denying her motion to suspend or limit the parenting time of defendant, Michael T. Chiappetta, with the parties' child. The orders were entered following a three-day plenary hearing.
The instant matter had commenced on a June 3, 2005 order to show cause that, pending further order, suspended defendant's parenting time and prohibited "all members of the defendant's family . . . from having any contact whatsoever with [the child]." Subsequently, much of defendant's visitation was restored, but the restraint on the paternal grandmother's contact with the child was maintained. The plenary hearing was held to determine the merit of plaintiff's allegations that the child had been inappropriately touched in the vaginal area and injured by the paternal grandmother.
An order entered on February 9, 2006 memorialized Judge Pursel's findings stated on the record the day before, "that the plaintiff/proponent of the allegations [of sexual abuse] has failed to prove by a preponderance of the evidence that the event occurred and therefore they have no merit." Judge Pursel thereafter, on February 14, declined, for reasons stated orally on the record, to stay the effect of the order. On February 16, we rejected plaintiff's application to review the matter on an emergent basis. On February 17, Judge Amy O'Connor ordered, based on Judge Pursel's findings, that "the sole remaining restriction on the defendant's parenting time is . . . removed; specifically, the defendant shall be permitted to have the [child] in the presence of his mother[.]" Subsequently, we denied plaintiff's due-course motion for a stay pending appeal.
Plaintiff makes two arguments in her appeal from the February 9 and February 17 orders: that the trial court erred in: 1) "failing to consider the spontaneous statement made by [the child] to the mother and maternal grandmother that the paternal grandmother inappropriately touched the child"; and 2) "failing to adequately consider . . . unrefuted expert testimony that [the child] made a spontaneous disclosure to [the expert] that the paternal grandmother inappropriately touched the child."
In rendering his decision on February 8, Judge Pursel summarized the testimony of an emergency room physician, the maternal grandmother, the child, and each of the parties. He had also heard the testimony of police department and prosecutor's office investigators. He rejected an evidentiary proffer, "pursuant to [803(c)(27)] as being [the] tender-years exception to the hearsay . . . rule[,]" of a one-page report from a psychologist of a "psychosexual examination of this child." In making this ruling, Judge Pursel stated:
The Court has problems, not with Dr. [Valliere], but with her method of conducting these interviews. Although she had elicited from the child certain positive responses to the fact that the abuse had occurred, the Court has no list of questions which she asked the child.
The Court has no audio recording of what was asked to this young girl. The Court has no videotape of what was asked of this young girl. The Court cannot determine under what circumstances the examination occurred, cannot determine whether or not these statements were spontaneous or were elicited under interrogation in spite of what the witness said.
I can't really be guided or directed by [a] psychopsychologist telling me whether she thinks what happened is true or is not true. And I will not consider ...