September 24, 2007
MICHAEL TORNILLO, PLAINTIFF-APPELLANT,
SANDY H. RIDDLE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, FM-15-1184-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
THE TRIAL COURT'S FINDINGS ARE UNSUPPORTED BY, & ARE INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE IN THIS UNCONTESTED POST-JUDGMENT MOTION.
THE TRIAL COURT FAILED TO FUL[FILL] ITS PARENS PATRIAE RESPONSIBILITIES IN THIS FAMILY DISPUTE.
BY NOT ADDRESS[ING] PLAINTIFF'S MOTION ON THE MERITS, THE COURT IMPLICITLY CONDONED RESPONDENT'S "BAD ACTS."
REFUSAL BY THE TRIAL COURT TO APPOINT AN EXPERIENCED GUARDIAN AD LITEM WAS AN ABUSE OF DISCRETION.
RESPONDENT'S ACTIONS, OVER MANY YEARS GROSSLY VIOLATE PLAINTIFF'S FUNDAMENTAL LIBERTY RIGHT TO PARENT HIS SON. THE TRIAL COURT DECISION, TREADING AT THE MARGINS, FAILS TO PROTECT THESE CONSTITUTIONAL RIGHTS.
We are not persuaded by any of these arguments and affirm substantially for the reasons set forth by Judge Millard. Appellant incorrectly assumes that because his motion was considered uncontested, he was entitled to the relief sought, essentially by default. On the contrary, even without opposition, the trial court is required to independently assess each issue, which it did, and to deny a movant relief not warranted. Based on our review of the record, we are satisfied Judge Millard's factual findings, explained in detail, are amply supported by substantial credible evidence, and we perceive no basis to disturb them. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, the judge correctly applied the law, concluding there had been no demonstration of changed circumstances warranting a plenary hearing on custody and that although there had been a substantial history regarding parenting access, the parameters had been set based on Dr. Franzoni's recommendations so that the child's interests were properly protected.
We also defer to the Family Part's acknowledged special expertise in addressing family problems of this nature, Cesare v. Cesare, 154 N.J. 394, 412-13 (1998), and note that Judge Millard has been involved in this matter since 2004 and is familiar with the parties and the intricacies of the issues respecting their son. The judge astutely noted that the parties have "difficulty in communicating and interacting" and recommended they consider participating in the Ocean County pilot program involving utilization of parent coordinators. We encourage the parties to take heed of the Family Part judge's suggestion and channel their energies forward in a positive fashion.
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