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Heller v. Heller

December 13, 2007

VIRGINIA L. HELLER, PLAINTIFF-APPELLANT,
v.
ROBERT A. HELLER, III, DEFENDANT-RESPONDENT.



On appeal from Superior County of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-595-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 26, 2007

Before Judges S.L. Reisner and Baxter.

Plaintiff Virginia Heller appeals from a July 13, 2006 order that: eliminated the requirement that defendant Robert Heller, III's parenting time be supervised; vacated the prohibition on defendant's driving the parties' daughter; and revised the parenting time schedule without referring the parties to mediation. Plaintiff also appeals the finding that defendant was not in violation of litigant's rights, and that plaintiff violated litigant's rights by interfering with defendant's parenting time. We affirm the elimination of the restrictions on defendant's parenting time, but remand for a statement of reasons on the issue of plaintiff's interference with defendant's parenting time. During the remand, the judge should also state his reasons for not referring the parties to mediation before setting a visitation schedule.

I.

The principal dispute between the parties at the time the court entered the order of July 13, 2006 was whether defendant was continuing to abuse alcohol. After concluding that he was not, the judge vacated restraints on defendant's exercise of parenting time that had been imposed in an order of January 7, 2005. We describe the prior proceedings in some detail in order to provide context for our decision.

In June 2002, after twenty years of marriage, plaintiff filed a complaint for divorce. In her complaint, she cited defendant's extensive history of alcohol abuse as one of the principal factors that caused the parties' marriage to unravel. The parties had one child, a daughter born in December 1995. In January 2003, plaintiff filed a pendente lite motion for custody of the parties' daughter, child support, and other financial contributions. In defendant's responding certification, he acknowledged having alcohol problems during the latter stages of the marriage, but denied that his drinking problem endangered the parties' daughter. He presented proofs that he was enrolled in intensive out-patient treatment for alcohol abuse. On March 7, 2003, a Family Part judge permitted defendant unsupervised parenting time provided that defendant enrolled in an alcohol treatment program, submitted to urine screenings, and refrained from consuming alcohol within six hours of the start of his parenting time.

Based on her suspicion that defendant was continuing to drink, plaintiff hired a private investigator. As a result of the investigator's observation that defendant consumed four drinks at a local bar, combined with plaintiff's affidavit that the parties' daughter did not want to be with her father on an unsupervised basis because she was afraid of him, the judge issued an order on April 17, 2003, again requiring defendant to enroll in an alcohol treatment program. The March 7, 2003 order had required defendant to enroll, but he failed to do so.

Although defendant enrolled in the alcohol treatment program after the entry of the April 17, 2003 order, plaintiff believed that defendant was continuing to drink heavily based upon comments from the parties' daughter. Plaintiff again hired a private investigator, whose report again established that defendant was drinking heavily. The investigator's report, combined with the daughter's statement that she did not want to be unsupervised during her visits with her father, nor stay overnight, resulted in plaintiff's filing a motion for enforcement of litigant's rights in November 2004. In that motion, plaintiff sought an order prohibiting defendant from driving with the parties' daughter, and requiring that all of his parenting time be supervised.

Defendant filed a cross-motion supported by a psychologist's report. The psychologist opined that although defendant had a history of alcohol abuse, there was "no indication of any current alcohol abuse problem." On January 7, 2005, the judge issued an order, finding defendant in violation of litigant's rights for drinking during the exercise of his parenting time. The judge restrained defendant from driving the parties' daughter, and ordered that parenting time be supervised by defendant's wife Deyanira. The prohibition on consuming alcohol six hours before parenting time was also continued.

Approximately fifteen months later, on April 28, 2006, plaintiff filed a second motion for enforcement of litigant's rights, in which she alleged that defendant violated the January 7, 2005 order by having unsupervised parenting time and by driving with the parties' daughter. In particular, she alleged that defendant and the parties' daughter drove to a science fair at the daughter's school with defendant at the wheel, and that the two attended the science fair together without the supervision of Deyanira. Plaintiff alleged that defendant also drove the parties' daughter home from the airport after a vacation. Plaintiff sought an order requiring that visitation no longer be supervised by Deyanira, but instead by Peaceful Measures at defendant's expense.

In support of her motion, plaintiff also presented a report from a private investigator. The investigator observed defendant remove a wine glass from a cooler in his car, and order a drink containing vodka at the bar of a restaurant.

Defendant offered an explanation for those events. He claimed that the wine glass was only for Deyanira, in celebration of her return home after a two-week absence. As to the drink he retrieved from the bar, defendant claimed that he bought the drink for Deyanira, but might have "sipped a little off the top" because the drink was too full for him to carry it to the table where Deyanira, defendant's mother and the parties' daughter were seated. In addition, defendant presented an affidavit from the bartender who served defendant the drink ...


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