On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-260-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2009
Before Judges Lisa and Alvarez.
Defendant Lazaros Tsitsoulas appeals from a January 16, 2009 order denying his application for enforcement of litigant's rights related to visitation with his children and denying relief as to certain financial issues. We hereby reverse and remand.
Some history is necessary to understand this appeal. Plaintiff Donna Tsitsoulas and defendant divorced on June 8, 2000, however, a final amended dual judgment of divorce was not entered until August 29, 2001. The parties were awarded joint legal custody of their two sons, although plaintiff has always been the children's primary caretaker.
Subsequent to the entry of the amended dual judgment of divorce, dozens of motions and cross-motions were filed, mainly by defendant, related to visitation. Suffice it to say that on May 1, 2006, an order was entered requiring defendant to attend a minimum of ten counseling sessions with a psychologist. The order further directed that the psychologist issue a written report for the court's consideration, including an evaluation of defendant's relationship with his sons and analysis of the effect that his conduct was having upon them. The 2006 order is not entirely clear as to the purpose of the report; it is clear that the court anticipated that father and sons would benefit from treatment.
The younger son, born in 1994, has refused to see his father since September 2004. The older child, born in 1992, had expressed some willingness to visit with defendant, but has not done so in approximately two years.
The most significant provision in the 2006 order was that defendant was barred from making "any application to the [c]court relating to resumption of parenting time visits with [the younger child] until after the [c]court receives the psychologist's report...." Defendant was granted limited visitation with the older son, whom he was required to pick up and return curbside at plaintiff's home.
The 2006 order was appealed by defendant on the grounds a plenary hearing should have been conducted prior to this major change in parenting time. We affirmed the 2006 order on December 7, 2007. Tsitsoulas v. Tsitsoulas, No. A-1823-06 (App. Div. Dec. 7, 2007). The appeal focused exclusively on visitation.
According to the certification defendant filed in support of the application resulting in the January 16, 2009 order now being appealed, plaintiff never cooperated with the evaluation process. The psychologist defendant contacted after entry of the 2006 order, wrote a letter advising him that it would cost between $8,000 and $10,000 to perform the necessary work, including the court-mandated review of prior court orders, letters, and extensive transcripts. The psychologist opined that it would be in the best interests of the children if he worked with the family as a therapist instead of an expert witness preparing a report. As he put it, he wanted to focus "on re-unification" immediately because it would be "easier on the children and much less costly" than the preparation and submission of the evaluation and report mandated by the 2006 order. The psychologist also opined that the inherent conflict between the role of therapist and expert witness made compliance with the order impossible. As a result, defendant returned to the psychologist he and plaintiff had consulted for treatment in prior years, and he continued in therapy intermittently until as recently as 2008. Neither the children nor plaintiff, of course, were involved in the treatment. Defendant perceived himself to be stymied in his compliance with the order.
Defendant has not seen his younger child in almost six years and has not seen his older son in about two years. Although the children have defendant's phone number, they do not call him. He claims he does not have a number to call them, although plaintiff claims in her undated and uncertified letter sent in opposition to his motion that defendant knows the children's phone number and merely chooses not to call. The older boy will be eighteen this fall. The younger will be sixteen this spring.
While defendant's appeal of the 2006 visitation order was pending, on June 29, 2007, the Morris County Probation Department created a fund in court "to secure" defendant's child support obligations. In 2007, as now, defendant paid $106.55 in weekly child support. He was not noticed in advance of the entry of the 2007 "sua sponte order" that created the account. Defendant had previously accumulated arrears of as much as $4000 on his child support account, although we cannot ascertain if he was in arrears when the "sua sponte" order was issued. There are no arrears at present. The fund ...