February 2, 2009
ROSANNE OLSHER, PLAINTIFF-APPELLANT,
RUSSELL GOLD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FM-13-1276-93 and FV-13-546-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Lisa and Sapp-Peterson.
Plaintiff appeals from various portions of a post-judgment order entered on April 25, 2008. The provisions pertained to the custody and parenting time arrangements of the parties' only child, a daughter, who has been living with defendant since 2002. Plaintiff presents these arguments on appeal:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ORDER PSYCHOLOGICAL EVALUATIONS.
II. THE TRIAL COURT ERRED IN FAILING TO ORDER REUNIFICATION THERAPY FOR PLAINTIFF AND THE MINOR CHILD.
III. TRIAL COURT ERRED IN REFUSING TO GRANT A PLENARY HEARING ON BEST INTERESTS OF CHILD.
IV. TRIAL COURT ERRED IN FAILING TO APPOINT A GUARDIAN AD LITEM FOR THE MINOR CHILD.
V. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS CONDUCT OF THE IN CAMERA INTERVIEW OF THE MINOR CHILD.
VI. TRIAL COURT ABUSED DISCRETION IN ITS RELIANCE ON STATEMENTS OF MINOR CHILD IN THE IN CAMERA INTERVIEW.
VII. THE COURT ERRED IN FAILING TO DISMISS THE FINAL RESTRAINING ORDER IN ACCORDANCE WITH THE CARFAGNO FACTORS.
We reject these arguments and affirm.
The parties' daughter was born on September 19, 1991. When the parties divorced in 1994, they were awarded joint legal custody, with plaintiff being designated as the parent of primary residence. This was consistent with their Property Settlement Agreement. In the summer of 2002, by agreement of the parties, the daughter moved in with defendant. Apparently, plaintiff's father was seriously ill at that time, and plaintiff wanted to spend more time with him. However, when plaintiff's father died later that summer, the custody arrangement did not change.
Plaintiff suffers from a number of disorders, including Fibromyalgia, Epstein-Barr virus, Lyme Disease and sciatic neuropathy. She takes many prescribed medications for these conditions, and, by her own admission, she does not always act rationally.
In the fall of 2002, plaintiff made a series of phone calls to defendant's home, making insulting and threatening comments to both defendant and the daughter. As a result, defendant sought and obtained a domestic violence restraining order. When the temporary restraining order was issued, plaintiff filed her own action, including an order to show cause seeking return of her daughter to her custody. The Division of Youth and Family Services (DYFS) became involved and conducted an investigation. As a result of court proceedings at that time, a final restraining order was entered on September 16, 2002 and amended on November 7, 2002, continuing the custody arrangement as it then existed and prohibiting plaintiff from having contact with defendant or the daughter, except that she was allowed visitation supervised by DYFS.
On June 23, 2003, plaintiff moved for an order granting her primary residential custody of the daughter and other relief.
That motion resulted in an order entered on May 24, 2004, allowing plaintiff unsupervised visitation and modifying the domestic violence restraining order to allow the parties to have limited contact and communication as it pertained to visitation.
Plaintiff did not appeal from any of those orders. The daughter continued living with her father. Although the record is not clear, plaintiff apparently had some visitation with her daughter, but on a sporadic basis.
On February 29, 2008, plaintiff filed the motion that is the subject of this appeal. She sought fifteen separate items of relief. We summarize those that are relevant to the appeal as follows: She sought vacation of the domestic violence restraining order initially entered in 2002 and later modified in 2004. She further sought an order compelling a psychological evaluation of the daughter and both parents, at defendant's expense, the appointment of a guardian ad litem for the daughter, an order compelling reunification therapy or therapeutic visitations, and a plenary hearing, if necessary, to determine the best interests of the child. She also sought counsel fees. Defendant cross-moved for denial in its entirety of plaintiff's motion and for counsel fees against her.
A hearing on the motions was scheduled for April 25, 2008. On April 23, 2008, Judge McGann interviewed the daughter who was then just over sixteen-and-one-half years old. He conducted the interview in chambers on the record, with his law clerk present. Based upon that interview, the judge found that defendant was not obstructing visitation between the daughter and her mother, and was not discussing with the daughter the ongoing litigation and post-marital disputes or demeaning plaintiff.
After hearing oral argument from the attorneys representing both parties on April 25, 2008, the judge, after considering all of the relevant factors in Carfagno v. Carfagno, 288 N.J. Super. 424, 435-42 (Ch. Div. 1995), determined that the previously entered domestic violence restraining order should not be dissolved. The judge further noted that, based upon his interview, the daughter presented as a sensible and normal teenager, who was getting very good grades in school, had a part-time job, and had friends, including a boyfriend. The judge noted that the daughter was old enough to intelligently express her views regarding custody and visitation, and he accepted her statements that she wished to continue living with her father and that he was not maligning plaintiff or doing anything to prevent the daughter form visiting plaintiff.
Indeed, in the interview, the daughter stated that she communicated rather frequently with her mother by computer, sometimes initiated by her mother and sometimes by her.
Although she would speak to her on the phone sometimes, she found this less desirable because they would end up arguing. And, she did visit with her mother on occasion, most recently about four months before the interview. The daughter told the judge that although her mother continually contended that her father was trying to keep her from visiting with her mother, that was not the case, and "he never has said I can't go over there. He offered [to take] me sometimes, but not anymore, but he used to offer to take me over there but I didn't want to." She said her father used to encourage her to go see her mother, but "[n]ow he doesn't bother because I just get mad if he like brings her up."
Judge McGann found no basis for appointing a guardian ad litem or ordering psychological evaluations or reunification therapy. He allowed the custody arrangements to remain in the status quo, as they had been ordered four years earlier. He denied each party's counsel fee request. This appeal followed.
With respect to the restraining order, we are satisfied that Judge McGann considered the applicable factors under Carfagno and reached a reasoned determination not to dissolve the restraining order. He correctly applied the controlling legal principles and there was no error in his ultimate determination.
We summarily reject plaintiff's contention that the judge abused his discretion in conducting an in camera interview of the daughter and relying on her statements. The interview was authorized, see R. 5:8-6, and the manner in which the judge conducted the interview was evenhanded and appropriate in all respects. The judge's assessment of the daughter's demeanor and credibility is entitled to our deference. Cesare v. Cesare, 154 N.J. 394, 412 (1998).
Finally, we note that the record supports the judge's determination that defendant was not impeding plaintiff's visitation rights. Indeed, the April 25, 2008 order contained a provision requiring a visitation of at least two hours within three weeks, and thereafter between plaintiff and the daughter as arranged between them, "[s]aid visitation [to] be encouraged by the defendant." Under these circumstances, and considering the age and maturity of the daughter, the judge did not exceed the bounds of his discretion in denying plaintiff's request to appoint a guardian ad litem or to order psychological evaluations or reunification therapy. Because there were no material facts in dispute with respect to the issues before the court, the judge did not err in declining to conduct a plenary hearing.
© 1992-2009 VersusLaw Inc.