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Tornillo v. Riddle

September 24, 2007

MICHAEL TORNILLO, PLAINTIFF-APPELLANT,
v.
SANDY H. RIDDLE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, FM-15-1184-00.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 11, 2007

Before Judges Axelrad and Messano.

Plaintiff Michael Tornillo appeals from the Family Part's December l, 2006 order denying his request for relief respecting the parties' ten-year-old son, including a plenary hearing to resolve chronic issues relative to custody and parenting time access; appointing a guardian ad litem; appointing psychologist Dr. Mark White to perform an evaluation of the parties and child and make a "best interest" recommendation; ordering further protective measures for the child pursuant to the court's parens patriae jurisdiction; and requiring defendant ("mother") to submit to a psychological evaluation. We affirm.

The parties have been involved in protracted litigation since their separation in l999. We need only recite the limited history relevant to this appeal. The parties' 2002 final judgment of divorce provided for the sharing of joint legal custody of their son. The court suspended appellant's unsupervised visitation in August 2003. In an order dated December 8, 2003, the court granted mother temporary primary custody, directed psychologist Dr. Edward Franzoni to complete a custody and parenting time evaluation, and established a procedure regarding appellant's supervised visitation and a therapy program toward re-establishment of appellant's relationship with his son. Unfortunately, a significant period of time passed during which appellant did not have any visitation with his son.

Dr. Franzoni sent his thirty-page report to Judge Millard on July 27, 2005. In an August 26, 2005 order, the court incorporated most of the psychologist's recommendations, including having the parties share joint legal custody and designating mother as the parent of primary residence; having appellant resume reunification therapy; and establishing an in-depth visitation schedule that provided appellant progressively more parenting time with the child, including mid-week and overnight weekends and holidays. At that time, the court also denied appellant's request that mother participate in a full psychological evaluation.

Pursuant to mother's order to show cause on July l2, 2006, Judge Millard entered an order requiring appellant to take the child to medical appointments and maintain him on his daily medications during his parenting time, and set the time that either party could call their son on his cell phone. In late August, mother filed another motion precipitated by problems with the child's unavailability by cell phone during appellant's parenting time and sought clarification and enforcement of a number of issues regarding parenting time. At the request of appellant's counsel, the court adjourned the motion to October 13, 2006, so appellant could respond and participate. Appellant, however, did neither. Following oral argument, during which the court addressed in detail numerous issues raised by the motion, an order was entered. The following week appellant's counsel filed the motion that is the subject of this appeal and appellant's "answering certification," both dated October 11, 2006. The certification reiterated the parties' past history.

The court adjourned appellant's motion to December 1, 2006 at the request of mother's counsel, but ultimately considered it uncontested because she did not file a timely response. Both parties accepted the court's tentative decision, R. 5:5-4(e), and did not request oral argument. On December 1, 2006, Judge Millard converted his tentative decision into a final order, denying appellant's request for a plenary hearing, for the appointment of a guardian ad litem and another psychological evaluation, for further protective measures for the child pursuant to the court's parens patriae jurisdiction, and for mother to submit to a psychological evaluation. On January l9, 2007, the court submitted an amplification of its December l opinion pursuant to Rule 2:5-1(b).

Plaintiff appealed, asserting the following arguments:

Point One:

THE TRIAL COURT'S FINDINGS ARE UNSUPPORTED BY, & ARE INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE IN ...


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