March 4, 2010
DONNA TSITSOULAS, PLAINTIFF-RESPONDENT,
LAZAROS TSITSOULAS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 consisted of approximately $98,090.59, the entire net proceeds defendant realized from the sale of some Pennsylvania real estate. The sua sponte order states:
2. Probation shall place and apply the entire amount of the net proceeds as a bond payment to secure the payment of defendant's obligations under New Jersey law to support his children, including without limitation, any contribution that defendant is required to make toward any higher education pursued by either child.
4. After both of the parties' children are emancipated, if there are any funds remaining in the bond account established by probation pursuant to this order, they shall be paid over to defendant without interest.
5. Once probation receives the net proceeds and establishes the bond account to secure defendant's obligations, it shall adjust the enforcement mechanisms that probation employs on defendant's account to reflect that probation has a source of funds to satisfy defendant's obligations if he fails to discharge them on a timely basis.
The cursory "statement of reasons" attached to the order indicates that the probation department "has requested this further order... implementing... the court's April 23, 2007 order." We do not have a copy of the April order.
The January 16, 2009 order again awarded defendant parenting time with the parties' older child and changed the pick-up and return point for visitation from plaintiff's home to the boy's school. Plaintiff was not in court when the January 16 hearing was held; her participation was limited to the letter previously referred to, in which she objected to all the relief sought by defendant. In his motion, defendant had sought parenting time with the parties' younger son in reunification therapy at a psychologist's office. Defendant also sought to have plaintiff sanctioned for her continued failure to honor prior court orders as to visitation with the older son. Additionally, defendant sought the release of a portion of the fund held by probation, $80,000 specifically, and reimbursement by plaintiff of $2150.43, representing one-half of the proceeds paid to the parties in a UBS Financial Services account close-out check pursuant to the divorce decree. According to defendant, plaintiff wrongfully retained the full $4300.86, even though the parties had agreed to divide the proceeds equally. Defendant's request for counsel fees was also denied.
In making her decision, the Family Part judge orally referenced a statement of reasons issued as to a May 20, 2008 order. We have neither a copy of the May 20, 2008 order nor a copy of the statement of reasons attached to the order. The judge made additional comments discussed below.
Setting aside this somewhat tortured history for the moment, the record establishes that when the motion judge issued the January 2009 order, she incorrectly believed that the creation of a child support "bond account" with probation was sanctioned by our prior decision on the appeal. It was not. The issue was not raised by defendant on that appeal.
We also note that no statute or court rule authorized the creation of this non-interest-bearing fund. Even if such authority was inherent in the Family Part's equitable powers, notice should have been provided and a hearing should have been conducted before entry of the order. No notice was provided. No hearing was conducted. Fundamental considerations of due process may have been ignored, although without the complete record of proceedings leading to the issuance of the "sua sponte" order, we are reluctant to draw that conclusion.
Nonetheless, the fund is many thousands of dollars greater than seems necessary and is not in an interest-bearing account. Therefore, we exercise original jurisdiction pursuant to R. 2:10-5 and order that the funds be immediately turned over to defendant. The matter is remanded for the entry of a judgment to that effect.
On appeal, counsel asserts that the UBS money was not addressed prior to this most recent application; this is unlikely. Many years have passed and many motions filed since the issuance of that May 10, 2005 check. Even defendant's attorney cannot be certain that this subject has not been previously addressed. Furthermore, given the extensive litigation between the parties, if defendant failed to previously raise the issue, his silence in our view is equivalent to a waiver of the right to seek enforcement of the order. See Belfer v. Merling, 322 N.J. Super. 124, 139 (App. Div. 1999) (the intentional relinquishment of a known right, or waiver, can be inferred from silent acquiescence to a particular set of circumstances over a period of time).
Judges of the Family Part are called upon daily to make difficult decisions that have an immediate impact on children and their parents. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003). We accord great deference to the factual findings made by Family Part judges and to the conclusions they derive from those findings. Ibid. We only accord that deference, however, when the judge's factual findings are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). If "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," or if a palpable abuse of discretion has occurred, they will not be sustained. Id. at 412 (internal quotations omitted). We reverse solely when legal "conclusions are so 'clearly mistaken' or 'wide of the mark'" that they deny justice to a litigant. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. V. G.L., 191 N.J. 596, 605 (2007)).
During the January 16, 2009 hearing, the motion judge forbid defendant's counsel from addressing defendant's visitation with the younger child because the conditions found in the 2006 order and affirmed in the 2007 appeal, had not been met. In fact, the judge advised counsel that if he raised the subject again, without defendant having first complied with the order, she would impose sanctions. She stated, "if we're going to continue to re-litigate those matters that have been litigated before, I'm going to impose sanctions because there's a cost on this Court for addressing it." The record is unclear on this point but she may have been referring not only to visitation with the younger child, but to the funds held by probation. It is clear from the record that in the judge's view, the problems with visitation were "the defendant's own doing."
By adhering to an order issued four years ago and affirmed three years ago, the court has left defendant with no recourse as to visitation with his younger son. As to the older child, since plaintiff was not present and no plenary hearing was conducted, although the meeting point was changed, defendant gained no enforcement of prior visitation orders. Changing the meeting point had no effect on the status quo. A plenary hearing with plaintiff's participation, assuming it can be obtained, is necessary in order for the court to determine what relief, if any, should be granted.
Realistically, it may be too late for defendant's relationship with his children to ever improve as a result of judicial intervention. Plaintiff may refuse to participate in a plenary hearing as to visitation, and the children, who are now teenagers, may refuse any contact with their father. It is clear, however, that whatever difficulties the court may experience in dealing with these parties and their claims, it is the court's responsibility to at least attempt to adjudicate their legal issues.
It is one thing for plaintiff to take the view, as she did in her letter:
I ASK YOUR HONOR HOW MANY TIMES CAN DEFENDANT [DISAPPEAR] FOR YEARS AT A TIME WITHOUT ANY CONTACT WITH THE CHILDREN AND THEN BE ALLOWED TO RESURFACE OUT OF THE BLUE ASKING AGAIN FOR YET ANOTHER BITE IN THE APPLE, AS YOUR HONOR ALSO STATES IN YOUR ORDER???????????? (Da147)
The motion court, however, is charged with fostering the best interests of the children, no matter how frustrating the parents. The courtroom door is to be kept open, not slammed shut because a litigant cannot meet now-impossible conditions.
At this juncture, to compel defendant to hire a therapist to review past court documents, to meet with him at least ten times, to meet with the boys and possibly plaintiff, to issue a report analyzing the damage defendant's conduct may have inflicted on his children, etc., no longer serves a purpose. The circumstances have now changed and warrant another approach to the impasse, regardless of who is "to blame."
Accordingly, we reverse the motion judge's refusal to consider defendant's application because he did not comply with the prior order. It works an injustice upon father and sons not warranted by the credible proofs on the record. He is entitled on these limited facts given the passage of time, and the unintended dead-end created by the 2006 order, to try yet again to rectify the situation with regard to his children. Therefore, the court shall conduct a plenary hearing as to visitation in which both parents participate and shall attempt to fashion an order that affords some relief to this litigant. We deliberately avoid comment on the outcome, confident that "the family courts' special jurisdiction and expertise in family matters" will serve as a guide to a fair proceeding and reasonable result. Cesare, supra, 154 N.J. at 413.
We find the remainder of defendant's points on appeal so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Accordingly, the matter is remanded so that defendant's fund in court may be returned to him forthwith, and a judgment entered to that effect. The matter is also remanded for the court to conduct a plenary hearing intended to afford defendant some means whereby he can resume contact with his sons.
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