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Jennings v. Lathrop

November 17, 2008

KIMBERLY ANNE JENNINGS, PLAINTIFF-APPELLANT,
v.
STEVEN M. LATHROP, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1450-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 23, 2008

Before Judges Graves and Grall.

In this post-judgment matrimonial matter, plaintiff, Kimberly Jennings, appeals from an order entered on August 30, 2007, which allows her former husband, defendant, Steven Lathrop, to have unmonitored parenting time with their son, who was born in May 2001. On appeal, plaintiff presents the following arguments:

POINT I THE TRIAL COURT ABUSED ITS DISCRETION IN ELIMINATING MONITORED PARENTING TIME BETWEEN MR. LATHROP AND HIS SIX-YEAR-OLD SON, IN PART, BECAUSE THERE WAS NO EXPERT TESTIMONY THAT THE CHILD WOULD NOT BE PLACED AT RISK BY SPENDING TIME ALONE WITH HIS FATHER, WHO HAS BEEN TREATED FOR MENTAL HEALTH ISSUES.

POINT II THE TRIAL COURT COMMITTED NUMEROUS FACT-FINDING ERRORS IN DECIDING TO ELIMINATE MONITORED PARENTING TIME, WHICH LED TO AN UNJUST RESULT.

After considering these contentions in light of the record and the applicable law, we are satisfied the evidence fully supports the trial court's findings and conclusions and plaintiff's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons stated by Judge Solomon in his oral decision on August 30, 2007, with only the following comments.

When the parties married on June 9, 2000, plaintiff had one child, a son, who was born in May 1997, to the last of three husbands who preceded defendant. The parties separated in February 2001, and were divorced on January 8, 2003. The judgment of divorce (JOD) incorporated a stipulation of settlement. Paragraph two of the stipulation of settlement, entitled "Parenting Issues," reads as follows:

Attached hereto and incorporated by reference is a consent order dated December 23, 2002, addressing the present status of parenting issues, which order is incorporated into this Final Judgment of Divorce. In the event that as a result of Dr. Musetto's report the parties are still unable to agree to a resolution of parenting issues, either party may make application to the [c]court, post-judgment, for a resolution of these issues.

Pursuant to the consent order dated December 23, 2002, the parties agreed to equally share in the cost of a risk assessment by Dr. Andrew Musetto, a psychologist, to determine defendant's "fitness to have unsupervised parenting time with the minor child." Pending completion of the risk assessment, the parties agreed defendant would have one supervised parenting session per week.

Dr. Musetto's ten-page risk assessment dated May 3, 2003, contained the following conclusions and recommendations:

Mr. Lathrop shows at least a moderate degree of attention deficits, as indicated in his presentation, in his previous and current diagnoses, by his own acknowledgment, and in the observations of Ms. Jennings. Inattentiveness, impulsivity, and distractibility can be a significant risk factor for parenting. To remedy this, Mr. Lathrop should take a parenting class, establish a relationship with a counselor to help him work through the challenges of parenting, and commence his parenting time gradually. For Mr. Lathrop, the challenges and risks to parenting lie not only with his attention deficits but also with his general unfamiliarity with parenting and, more importantly, his and [his son's] unfamiliarity with each other. Gradual but steady contact will, however, reduce and eventually eliminate the latter risk, and education, the former. With the above reservations in mind, and with remedies in place, Mr. Lathrop should eventually be able to have unsupervised parenting time, time which can increase gradually and later become overnight parenting time.

Although the parties disagree on the factual history, the undersigned, in conclusion, finds no risk that needs to be considered in a parenting plan regarding antisocial trends or violence. Specifically, the overall assessment does not suggest a problem in the latter area and my assessment disconfirms the diagnosis of antisocial personality disorder.

Specifically, Mr. Lathrop should have approximately six to eight visits of one to two hours of supervised parenting time (under the aegis of a court-appointed counselor), then approximately six weekly two-hour unsupervised visits, then approximately six weekly four-hour visits, and so on until he has . . . eight-hour periods. After that, he should begin overnight parenting. All this presupposes that Mr. Lathrop takes a parenting class, engages in periodic (not necessarily weekly) parenting counseling, and continues his medication regime.

Based on Dr. Musetto's recommendations, defendant filed a motion to increase his parenting time, which plaintiff opposed.

On June 4, 2004, the court entered an order scheduling a plenary hearing to determine whether defendant should have unsupervised visitation. The order also provided that unsupervised visitation was to start on August 7, 2004, "for two hours [and] each week thereafter." The plenary hearing did not take place, however, because the parties entered into a ...


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