December 13, 2007
VIRGINIA L. HELLER, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 at the bar. The bartender certified that defendant did not drink with dinner, and that the drink defendant ordered was indeed for Deyanira.
As for his driving the parties' daughter, defendant stated in his certification that the only reason he drove to the science fair was because his wife was too ill to drive, but that she was present in the car on the ride back and forth to the school. Although defendant acknowledged driving home from the airport, he contended that his wife had become airsick during the plane ride and was unable to drive. Defendant called his violations of the January 5, 2005 order mere "technical" violations.
In addition to providing explanations for those violations of the January 7, 2005 order, defendant also filed a cross-motion seeking: (1) to modify the parenting schedule by adding parenting time and setting a specific schedule for holidays; (2) unsupervised parenting time; and (3) permission to drive unsupervised with the parties' daughter. Defendant supported his cross-motion with a substance abuse evaluation conducted by Dr. Jeffrey Belgrave, Ph.D., who opined:
Since the patient is not currently suffering from any problem of alcohol abuse or alcoholism, no treatment recommendations for him are being made at the present time. Mr. Heller has made excellent recovery from his former alcohol abuse problem and his prognosis for maintaining recovery is very good. There is reasonable medical certainty that, with regard to alcohol abuse, he does not currently pose any risk of harm to his daughter if he is granted unsupervised visitation with her.
Oral argument on the motion and cross-motion was held on June 23, 2006. After interviewing the parties' daughter, the judge issued an order dated July 13, 2006, which granted defendant additional parenting time, vacated the requirement that parenting time be supervised, and authorized defendant to drive the parties' daughter. Additionally, the judge prohibited plaintiff from denying defendant his parenting time, and concluded that plaintiff was "in violation of litigant's rights as to parenting time." Finally, the judge ordered defendant to refrain from drinking twenty-four hours prior to or during parenting time. The judge provided a written statement of reasons in which he wrote:
The Court has reviewed all moving papers, reports submitted and conducted an in-camera interview of [the parties' daughter].
First, the Court is satisfied that Mr. Heller has addressed his alcohol issues and understands that he cannot drink alcohol before or during visitation periods.
Second, the defendant lacks the financial ability to pay for the cost of the supervised visitation which this Court finds to be unnecessary in any event. [The parties' daughter] is a bright young girl who is fully aware of the issues between her parents. She knows how to respond to a situation which would make her uncomfortable, i.e., Dad drinking alcohol.
She loves both of her parents very much and wants to spend time with them. She has a good relationship with her step-mother and step-sister and has other adults in her life to whom she can turn in the event of any problem.
The visitation sought by Mr. Heller is reasonable.
On August 8, 2006, plaintiff filed an order to show cause in which she requested that the court stay its July 13, 2006 order pending appeal, or in the alternative, reinstate the restraints that had been vacated by the July 13, 2006 order and set the matter down for a plenary hearing. An attached certification from plaintiff stated that when the parties' daughter exited her interview with the judge, "she was extremely upset and crying." The child said that "she told the judge what her father wanted her to say and not the truth." Plaintiff also provided a letter from the daughter's counselor who stated that the child was distressed about her conversation with the judge because she had lied. By order dated August 16, 2006, the judge denied plaintiff's request for an order to show cause because there was "no showing of immediate and irreparable damage."
A trial court's decision concerning custody or visitation rights is addressed to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Levine v. Bacon, 152 N.J. 436, 442 (1998). We have carefully reviewed all of plaintiff's submissions and understand plaintiff's concern for her daughter's safety and well-being in light of defendant's history of alcohol abuse. We nonetheless determine that the judge's finding that defendant "has addressed his alcohol issues and understands that he cannot drink alcohol before or during visitation," and the judge's ultimate decision to remove the restraints limiting defendant's parenting time were not an abuse of the judge's discretion. We so decide for two reasons.
First, the judge's decision is supported by the May 12, 2006 report of Dr. Belgrave. Plaintiff urges us to disregard Dr. Belgrave's conclusion, and argues that Dr. Belgrave based his opinion solely on defendant's self-serving statements that he no longer abused alcohol. We disagree with plaintiff's characterization of Dr. Belgrave's report. In the substance abuse evaluation, Dr. Belgrave specifically noted that he based his findings not only on a clinical interview with defendant, but also on three standardized tests: the Substance Abuse Subtle Screening Inventory (SASSI-III), the Michigan Alcohol Screening Test (MAST), and the Multiple Addictions and Personality Profile (MAPP). Dr. Belgrave also reviewed the prior psychological and substance abuse evaluation of defendant conducted by Dr. Franklin in November 2004, and summaries of substance abuse treatment that defendant received at Sunrise House Foundation, St. Clair's Hospital and High Focus Centers between March 2003 and April 2005. Accordingly, the judge's reliance on Dr. Belgrave's report was not improper.
Second, our comparison of the investigator's June 2006 report with his earlier report demonstrates that, with the exception of taking a small sip from the top of his wife's drink before he carried it from the bar, defendant has not been observed consuming alcohol during his parenting time. In light of the evidence presented to the judge, we cannot conclude that the order he entered on July 13, 2006 was unreasonable or represented a mistaken exercise of his discretion.
We also disagree with plaintiff's contention that the judge erred by vacating the restraints without conducting a plenary hearing. Plaintiff contends that the certifications "contained diverse factual contentions and issues of credibility and thus, a plenary hearing was required." Ordinarily, "[w]here the disposition [of a matter before the Family Part] hinges upon factual issues and credibility is involved, the court should . . . take oral testimony." Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968), superseded on other grounds by N.J.S.A. 2A:17-56.23a. It is clear, however, that a hearing is not always necessary. As the court explained in Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976):
Tancredi expressly recognizes the power of a trial judge to hear and decide motions or orders to show cause exclusively upon affidavits. It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required. Thus, where, as here, the affidavits do not show the existence of a genuine issue of material fact, the trial judge need not take oral testimony, and may decide the motion without a plenary hearing. An inflexible rule requiring a plenary hearing on every application for a modification of a judgment or order relating to alimony or support would impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants.
In this case, we note that the judge did not rely only on affidavits. As we have explained, there were numerous letters and psychological evaluations by psychologists and other treatment providers in the record to support the judge's findings. The only legally competent evidence plaintiff presented to establish that defendant continues to have an alcohol problem is the report of her private investigator who observed defendant taking one sip of alcohol and carrying a wine glass and cooler. The issue before the trial court is not whether defendant does or does not consume alcohol, but instead whether he has a drinking problem that would pose a danger to his daughter. Taking one sip of alcohol alone does not reasonably lead to the conclusion that defendant has a drinking problem. Additionally, as we have explained, defendant presented certifications from his wife, mother and the bartender certifying that the drink on June 17, 2006 was for his wife, not for him, and that he took a sip only to prevent it from spilling while he carried it.
Plaintiff also argues that she should have been given an opportunity to cross-examine Dr. Belgrave or obtain her own expert to evaluate defendant. We disagree. A review of the record reveals that plaintiff never requested an opportunity to present her own expert or cross-examine Dr. Belgrave. A judge is permitted to rely on an expert report that has not been admitted into evidence without affording the opposing party the opportunity for cross-examination if cross-examination was not requested. Prettyman v. State, 298 N.J. Super. 580, 595-96 (App. Div. 1997). We therefore conclude that plaintiff did not present legally competent evidence that created a genuine issue of material fact. Under those circumstances, the judge was not obliged to have conducted a plenary hearing, and his decision to vacate the prior restraints without a plenary hearing was not erroneous, much less an abuse of discretion.
For the same reasons, we conclude that the judge did not err when he declined to find defendant in violation of litigant's rights. A party who violates a court order is not held to a standard of strict liability. On the contrary, before a finding of violation of litigant's rights can be made, the court must be satisfied that the party's action was willful and unjustified. P.T. v. M.S., 325 N.J. Super. 193, 206-07 (App. Div. 1999). Here, the explanations defendant provided about his wife being incapacitated the night of the science fair and on the drive home from the airport, and his explanation for why he took a sip of the drink at the restaurant, entitled the judge to conclude that defendant had not willfully violated the January 7, 2005 order. We have been presented with no meritorious basis to disturb the judge's findings on that issue.
We do, however, agree with plaintiff's contention that the judge erred in finding her in violation of litigant's rights without providing an explanation for his conclusion that she violated defendant's parenting time. The judge's written statement of reasons does not address the issue. Rule 1:6-2(f) provides in relevant part that:
[i]f the court has made findings of fact and conclusions of law explaining its disposition of the motion, the order shall indicate whether the findings and conclusions were written or oral and the date on which they were rendered. . . . If no such findings have been made, the court shall append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate. . . .
Accordingly, we remand to the trial court for a statement of reasons explaining the conclusion that plaintiff violated defendant's rights.
Last, we address plaintiff's contention that the judge erred by granting defendant's parenting time schedule without any input from plaintiff. Plaintiff acknowledges that she did not present her own proposed schedule to the judge. As an explanation, she states that the ten-page limitation on the length of a party's reply certification in the Family Part, see Rule 5:5-4(b), left her no opportunity to discuss the parenting schedule in her certification. Plaintiff did, however, express a willingness to attend mediation. We are inclined to conclude that would have been the better course of action. See R. 1:40-5.
Accordingly, we affirm the portion of the July 13, 2006 order that vacated the January 7, 2005 prohibitions on defendant exercising unsupervised parenting time and driving the parties' daughter. We also affirm the denial of plaintiff's motion to find defendant in violation of litigant's rights. We remand for a statement of reasons on the finding that plaintiff violated litigant's rights. On remand, the judge should also refer the parties to parenting time mediation, or provide a statement of reasons as to why there is good cause not to send them to mediation. R. 1:40-5(a)(1).
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
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