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Clemente v. Clemente

November 28, 2008


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FM-13-379-04.

Per curiam.


Argued: September 10, 2008

Before Judges Cuff, C.L. Miniman and Baxter.

Defendant John S. Clemente appeals from various interlocutory orders entered in the course of this protracted matrimonial proceeding as well as virtually every provision of the August 7, 2006 Judgment of Divorce entered following a twenty-nine day trial. We affirm.


Plaintiff Linda J. Clemente and defendant were married on November 28, 1987, and initially resided in an apartment in Monsey, New York. Plaintiff worked as an occupational therapist; defendant worked as a cardiology resident at King's County Hospital. Defendant also conducted a private practice, supervised the emergency room in another hospital, and ran an ambulance company. Defendant claimed that he earned between $80,000 and $120,000 annually during the early years of the marriage.

In 1989, plaintiff became pregnant with the parties' first son. He was born on November 2, 1989. The parties moved to Marlboro, and defendant opened a private practice with his brother. Plaintiff became a full-time homemaker. On March 31, 1991, plaintiff gave birth to the parties' second son. A third son was born in December 1996. In 1993, the parties moved to a much larger home in Marlboro. Also in 1993, defendant purchased a building in Eatontown in which his medical practice is located.

Defendant is a self-described workaholic, who spent eighteen to twenty hours each day either at the medical practice or completing his rounds at various area hospitals. He was on call every night and weekend. He acknowledged that he spent at least half of every Saturday and Sunday at the hospital.

His work habits soon had a negative effect on his family. The parties lived parallel and increasingly separate lives. For example, in July 1993, plaintiff planned a trip to Long Beach Island with her sister-in-law and their respective children. Defendant arrived home just as they were about to leave and demanded that plaintiff stay home because he wanted to spend time with his family. When plaintiff began arguing with him, defendant became enraged and disabled her car by disconnecting a number of wires. Defendant conceded that he did open the hood to plaintiff's car and thought about tearing out the wires, but he did not actually do so.

Plaintiff maintained, and defendant admitted, that he was an absentee father. He did not know the names of his sons' teachers or friends, he never participated in school meetings regarding the children or took them to doctor's visits. The parties' oldest son had a history of impulse control problems and attention deficit disorder, which resulted in expulsion from several schools. Nevertheless, defendant did not support counseling with a clinical psychologist. In fact, defendant considered the psychologist a "quack."

Additionally, although provided with schedules pertaining to the children's activities, defendant never attended any of their sporting events, musical performances or religious ceremonies. According to plaintiff, defendant believed the children should not be involved in sports if it meant that they would not be home when he was.

In 1997, defendant suffered a heart attack while at work on a Saturday. He refused to go to a hospital. Instead, he enlisted the aid of one of his employees, a young nurse. Following this incident, defendant also learned that he was a type one diabetic.

Defendant and the nurse developed a close relationship following his heart attack. Both insisted that their relationship did not become intimate until late 2002 or early 2003. Nevertheless, defendant used business funds for the nurse's continuing education and several leased cars, including a 2002 Mercedes Benz, for her. In 1997, defendant also purchased a home, selected by the nurse, for her and her two children located close to the medical practice. Defendant created a corporation, Meridian Management, to take title to the home, and the nurse ostensibly made payments on the house as part of a lease/purchase arrangement that was later converted into a mortgage. Although requested by the court, neither defendant nor the nurse ever produced any proof of payments made on either the lease or mortgage. The nurse gave birth to defendant's child, a daughter, on May 30, 2005. Defendant confirmed that his sons reacted very negatively to this development.

Plaintiff recounted that she and the children had been close to defendant's brother, sister-in-law, and their children. In 1994, however, defendant insisted that plaintiff and his sons terminate this friendship. Defendant and his brother had a disagreement about their medical practice and became embroiled in litigation about the ownership of the practice. Defendant explained that he expected plaintiff to demonstrate allegiance to him during this dispute. He was also concerned that plaintiff might reveal litigation strategy to his brother or his sons would learn incorrect information.

Plaintiff recounted that her relationship with defendant deteriorated in 1997. She was criticized for either spending too much or buying items defendant considered too cheap. The parties ceased to be intimate and defendant began spending even less time with the children. Between 2000 and 2003, the verbal abuse plaintiff endured from defendant increased, and they had repeated arguments regarding the children's schedules and household operations. Plaintiff stated that defendant ridiculed her religious beliefs and insulted her intelligence. She claimed that defendant also maintained secret screen names on his computer and kept a private cell phone.

Defendant confirmed the increased conflict between the parties. He claimed that plaintiff deliberately scheduled events for the children to make them unavailable to him on weekends. Plaintiff denied this. Defendant further believed that plaintiff was to blame for their oldest son's significant emotional and behavioral problems at home and at school. Defendant pronounced plaintiff a terrible tutor who actually harmed their son through her efforts to help him. Defendant admitted, though, that he made no attempt to tutor their son himself because he was too busy or tired.

Plaintiff recalled that, in January 2003, defendant, while in a rage, broke a glass vase in front of the children. On March 18, 2003, defendant became enraged when she disturbed him to request help overseeing their oldest son's homework. Defendant flipped over the dining room table and threw a chair at plaintiff, causing her to fall. He then went after their son. Defendant denied that he engaged in any violent behavior on these occasions, although he admitted that he had hit their oldest son on prior occasions. Plaintiff also recounted an episode in June 2005, when defendant, who was angry about certain court proceedings, ripped a chandelier from the ceiling in the marital home in front of their oldest child.

On March 28, 2003, plaintiff learned of defendant's affair and decided to summon the police before confronting defendant. During this confrontation, she showed the police a bruise she asserted she sustained during the homework incident. The police subsequently arrested defendant and confiscated his gun collection; the charges against him were later dropped. Plaintiff also recounted another incident of physical abuse. She testified that, while pregnant with their youngest son, defendant pushed her and caused her to fall.

In early August 2003, defendant decided that the family should visit a military academy as a possible placement for their oldest son. On the day of the trip, their son refused to go. According to their son, defendant became angry and began smacking him on the head. Defendant insisted that he was more "bewildered" than angry. When their son ran out of the house, defendant chased him in his car. When their son doubled back to the house, defendant drove the car onto the lawn. Defendant then followed their son to his room and struck him on the leg with a piece of wood from a "smashed" kitchen chair. Defendant confirmed chasing his son and eventually confronting him with a stick, but denied striking him.

After this incident, plaintiff obtained a temporary restraining order against defendant barring him from the home. A final consent order was later entered in August 2003 whereby defendant formally relinquished possession of the home to plaintiff. Defendant claimed that he was forced to take up residence at the office for the better part of a year before finally moving in with his girlfriend. On August 26, 2003, plaintiff filed for divorce.

At trial, Dr. Lenore Walker, a psychologist, testified that plaintiff was a battered woman who had been subjected to physical abuse and psychological maltreatment by defendant throughout their marriage. Walker based this conclusion on the results of the psychological tests she administered to plaintiff, which revealed that plaintiff was suffering from moderate post-traumatic stress disorder and ongoing stress, as well as plaintiff's accounts of defendant's controlling and volatile behavior. Walker noted that, while defendant's behavior had clearly escalated over the years, plaintiff had inexplicably downplayed the frightening level of verbal abuse and violence in her home, and even made excuses for defendant. Walker believed that plaintiff had not revealed all the physical abuse to which she was subjected, and that she used dissociation as a defense mechanism against that abuse. Walker opined that plaintiff was unable to resume a full-time job at this point in time because of her high stress levels and the resulting memory problems she was experiencing. These impacts affected her overall intellectual functioning. She believed that plaintiff would benefit from psychotherapy, and that co-parenting with defendant was not a viable option as it would cause plaintiff's symptoms to persist.

According to plaintiff, after the divorce complaint was filed, defendant did not take advantage of the time allocated to him for parenting time. She further claimed that defendant refused to communicate with her directly regarding visits with the children. Defendant maintained, however, that the children simply had other engagements during his visitation time. He further claimed that plaintiff had poisoned the children against him and that she needed to take some psychology classes to understand the harm that she was causing them. Defendant also believed that once plaintiff understood that his girlfriend was a good person, she could use her influence to restore his damaged relationship with the children.

The oldest son's psychologist testified regarding his intermittent treatment of this child since 1995. He related that he interacted with school officials regarding the boy, as well as with his pediatrician, and gave plaintiff advice on how to handle him. He confirmed that defendant never participated in these appointments or conversations.

The psychologist recounted that he met with the parties' oldest son thirty-five times in 2002 and 2003. During these sessions, their son described his frustrations with his brothers, the conflict between defendant and his brothers, and the breakdown in the relationship between his parents. He also confirmed that there were repeated conflicts occurring between him and his parents. He discussed the military academy.

The psychologist stated that the parties' son told him that defendant had never had a relationship with him, only interacted with him negatively, and was generally "erratic, deceitful, and manipulative." He also related that he did not want to live with defendant.

Finally, the psychologist reported that defendant failed to show up at several appointments scheduled in Fall 2003 and then berated him when defendant allegedly arrived for an appointment ninety minutes late and the psychologist had not waited for him. The psychologist stated that he saw plaintiff alone regarding her son twelve times in 2004.

Judge Flynn appointed a parenting coordinator after receiving evidence of the strained relationship between defendant and his children and defendant's complaint that he was not seeing his children. The judge asserted that he hoped to facilitate visits over the up-coming holidays. On the first visit in December 2005, the parenting coordinator testified that the oldest son refused to go with defendant and the middle child became bored and insisted on returning home early so that he could attend a party. She noted that defendant was irate and blamed plaintiff.

The parenting coordinator was present when defendant arrived at the marital home to pick up the children for his next arranged visit. The children told her that they wanted to do things with defendant, but defendant frequently canceled or was late for their visits or simply took them to the Colts Neck house and promptly fell asleep on the sofa. The oldest son informed ...

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