On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-701-02 and FV-20-637-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges S.L. Reisner, Gilroy and Baxter.
Plaintiff Justin Tharaud appeals from portions of a September 16, 2006 order entered by the Family Part that, in relevant part: 1) required his exercise of parenting time with his son to be supervised by plaintiff's mother; 2) denied his motion to require defendant to pay $26,110, representing half of the $52,220 plaintiff advanced for repairs and improvements to the former marital home; and 3) required plaintiff to submit to a breathalyzer examination at the local police station on three random occasions of defendant's choosing, with the proviso that any breathalyzer reading greater than 0.00% would result in the judge "shut[ting] down plaintiff's parenting time." We reverse and remand for further proceedings.
The parties were married on February 14, 2000, and a final judgment of divorce was granted on March 4, 2003. The divorce judgment granted defendant physical custody of the parties' son subject to parenting time by plaintiff on alternate weekends. The property settlement agreement accompanying the divorce decree provided that defendant, who was to remain in the former marital home, would be responsible for all repairs to the former marital home costing less than $200. As to any repairs costing more than $200, the judgment specified that "defendant will notify plaintiff of the required repair, and plaintiff will either perform the repair himself with the parties to share the cost of materials on a 50/50 basis, or defendant will engage an outside contractor to perform the repair with the cost to be borne by the parties on a 50/50 basis."
In September 2005, defendant filed a domestic violence complaint against plaintiff pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. As a result, a final restraining order was entered on September 29, 2005, that barred plaintiff from the former marital home, granted him liberal visitation with his son, prohibited him from consuming alcohol during visitation, and prohibited any overnight visitation.
That order remained in effect until plaintiff filed a motion on July 19, 2006, seeking an order to: expand his parenting time to fifty percent; require defendant to pay him $26,110, representing one-half of the funds he had advanced to repair and improve the marital home following the divorce; and award him counsel fees and costs. In reply to that motion, defendant filed a cross-motion in which she sought to: deny plaintiff's request for an increase in his parenting time; change plaintiff's supervisor for visitation from his mother to his father; award defendant full legal custody of the parties' son; compel plaintiff to undergo alcohol evaluation; and deny plaintiff's request that she be required to pay him the sum of $26,110.
We set out the parties' contentions supporting the motion and cross-motion in some detail to demonstrate the sharp conflict between the factual assertions each side made. Plaintiff certified that the parties had agreed to list the former marital home for sale, but after nine months had passed without any reasonable offers being received, they took the home off the market. At that point, according to him, the parties entered into a verbal agreement to repair and improve the property, after which they would immediately re-list it in hopes of obtaining a more favorable sales price. According to plaintiff, he "agreed to advance the cost of all materials and labor and to be reimbursed 'off the top' from the net proceeds of sale." He also alleged that his ex-wife asked him "to move into a room at the house in order to expedite the work." Pursuant to their verbal agreement, he certified that he incurred expenses of $42,330 for materials, labor costs, supplies, refuse removal, and the cost of a new roof that was installed by a roofing contractor. Because of the interest on his credit card balance of $42,330, the total, with interest, was $52,220. He requested an order requiring defendant to pay him half of the $52,220. He attached to his motion papers more than seventy pages of canceled checks, receipts and other documents verifying the funds he expended in repairing the home.
As to visitation, he alleged in his certification in support of the motion that although his visitation had been scaled back after the entry of the domestic violence restraining order, it had gradually increased subsequently, and he sought to formalize an equal share of parenting time.
In support of her cross-motion and in opposition to plaintiff's motion, defendant certified that, with respect to the repairs on the home, if any repairs were needed, plaintiff would "either perform the repair himself with the parties to share the cost of materials on a fifty/fifty basis, or [she would] engage an outside contractor to perform the repair with the cost to be borne by the parties on a fifty/fifty basis." She contended that the work plaintiff performed "was neither required nor requested." She denied there was any verbal agreement for him to perform the repairs that he did.
She contended that he moved back into the former marital home only because he had ended a five-year relationship with Elizabeth Black that he had maintained after the marriage. Once his relationship with Black ended, "he and his mother insisted that I allow him to move back into the property and 'work on the house' to help him get over his loss of [that] relationship." She said she did not want "him to have to[o] much free time which usually leads to his excessive drinking." Defendant asserted that she "only agreed to this because until recently, I always did what the plaintiff and his mother said." Defendant also contended that according to a realtor, the improvements plaintiff made only increased the property value by a maximum of $5,000. She asked the court to deny plaintiff's request that she be ordered to pay him $26,110.
As to plaintiff's request for an increase in his parenting time, defendant urged the court to deny that request. She asserted that "over the past twelve years, the plaintiff [had] been emotionally abusive to [her] because of his constant problem with alcohol." She asked that the current parenting time schedule remain in place and that his request for an increase be denied.
Thus, defendant conceded that the divorce judgment specified that the parties would share equally any costs related to repairs to the home, but insisted that her obligation to pay for repairs would only become operative if she asked him to make a particular repair. She denied having ever asked plaintiff to make the repairs in question. He, in turn, maintained in his certification that not only had the parties agreed that the repairs would be made, but that defendant had even asked him to move into the home in order to expedite that process. Unquestionably, their claims regarding the circumstances surrounding the making of the repairs, and plaintiff having advanced the funds to do so, were diametrically opposed. Additionally, although defendant referred to plaintiff's history of alcohol abuse in her certification, and although she asked that he be required to undergo "alcohol evaluation treatment through Consortium," she never asked that plaintiff be required to submit to breathalyzer testing.
At the hearing, there was some discussion back and forth between the judge and the lawyers, during which the judge asked questions directly of the parties, not under oath. During that interchange, the judge asked defendant why she objected to plaintiff's request for weekend parenting time. We quote that colloquy verbatim in order to demonstrate the circumstances surrounding the imposition of the breathalyzer requirement:
THE COURT: But, why the objection to the weekends?
MS. THARAUD: Because, since we've--
THE COURT: It's a year now.
MS. THARAUD: --right. But, since we've been divorced, he's had a DWI and there's two--
THE COURT: He's not driving--
MS. THARAUD: --two restraining orders.
MS. THARAUD: But there's also two ...