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Neal v. Corby

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 30, 2010

LETICIA NEAL, PLAINTIFF-APPELLANT,
v.
JOHN CORBY, JR., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-1738-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2010

Before Judges Baxter and Koblitz.

Plaintiff Leticia Neal appeals from orders entered on July 14 and August 7, 2009, allowing defendant to have unsupervised daytime visitation with the parties' six-year-old daughter, A. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff pro se previously appealed a March 23, 2007, order allowing defendant unsupervised overnight visitation. That appeal was unopposed. We remanded for the trial court "to reconsider the question of unsupervised overnight visitation pending receipt of a current evaluation of defendant's mental health and Dr. [Mathias] Hagovsky's report." Neal v. Corby, No. A-4573-06 (App. Div. Apr. 17, 2008) (slip op. at 4). Psychologist Dr. Hagovsky is a child custody and visitation expert who was retained by plaintiff to perform a thorough evaluation of the family and make recommendations as to defendant's visitation.

I.

Upon remand, the trial court did reconsider and ordered supervised visitation. On January 27, 2009, the supervised visitation coordinator, Nasirah K. Shaw, a judiciary employee, wrote to the court reporting that the bi-weekly, two-hour supervised visits, which began on August 23, 2008, had proceeded successfully. According to Ms. Shaw, the child interacted well with her father and enjoyed spending time with him. Ms. Shaw recommended unsupervised visitation.

The court convened a hearing on April 3, 2009, at which both parties were represented by counsel and Dr. Hagovsky's report was reviewed. Dr. Hagovsky reviewed all of the allegations of the plaintiff. One involved a ten-year-old final restraining order filed by a third party against defendant, which was entered in his absence. Another concern was an incident when the three-year-old child was brought to the hospital for an elbow dislocation when the defendant's aunt grabbed her to prevent a fall. Plaintiff voiced various other concerns. After he reviewed voluminous information, Dr. Hagovsky prepared a thorough, twelve-page, single-spaced report recommending:

Once medical clearance is provided, Mr.

Corby should continue to exercise parenting time with [A.] on a once-weekly basis... Initially a supervisor (this could be an agreed-upon relative) should be present but after six visits, the requirement should be lessened so that the supervisor be present during approximately half of the parenting time. [A.] should be introduced to a child therapist with whom she would meet after each two visits with her father to talk about her experiences, and to field any concerns expressed to the therapist by either parent... Eventually, a normalized parenting time schedule is anticipated wherein [A.] would exercise parenting time with her father on an every other weekend basis and perhaps one visit during the week for dinner.

Dr. Hagovsky also stated that defendant, who had previously been diagnosed as suffering from bi-polar disorder and attention deficit disorder (ADD), did not exhibit symptoms of bi-polar disorder nor any current problems from ADD, which earlier in life had impaired his educational progress. Defendant had been prescribed two medications which negatively affected his liver function, so he discontinued taking both prescription drugs. The diagnosis of bi-polar disorder without treatment was of concern to Dr. Hagovsky. He was less concerned about the ADD.

Dr. Hagovsky found that the interaction between defendant and his daughter was "comfortable and positive." A. enjoyed spending time with her father. After reviewing Dr. Hagovsky's report, the judge permitted defendant unsupervised visits every other Sunday from 2:15 p.m. to 7:00 p.m. in a public place. The court ordered that visits occur in a public place rather than with a supervisor because the parties could not agree on a mutually acceptable supervisor.

Plaintiff requested a stay of this April 3 order which was denied on April 21, 2009. On that date, the judge also ordered both parties to undergo a full psychiatric evaluation with court-appointed psychiatrist Dr. Ambrose O. Mgbako,*fn1 with special attention to defendant's bi-polar disorder and ADD.

On July 14, 2009, the judge reviewed Dr. Mgbako's report, provided to the parties that morning, which indicated that defendant did not suffer from bi-polar disease. The judge also reviewed defendant's medical records which confirmed that he had ceased taking prescription drugs due to an adverse reaction to the medication. The judge then ordered weekly daytime visits every Sunday. Defendant did not seek overnight visitation due to his housing situation. The judge directed plaintiff's attorney to prepare a holiday visitation order which was signed on August 7, 2009.

II.

Plaintiff raises the following points in her appeal:

THE PARTIES YOUN[G] CHILD WILL SUFFER IRREPARABLE HARM IF THE COURT DOES [NOT] INTERVENE TO PROTECT HER.

THE JUDGE ERRED IN GRANTING UNSUPERVISED VIS[I]T[]ATION RELYING UPON THE COURT APPOINTED PSYCHIATRIST, DR. MGBAKO'S REPORT WHICH WAS CONTRARY TO THE DEFENDANT'S FORMER TREATING PHYSICIAN'S DIAGNOSIS OF BIPOLAR AND ADHD, A HISTORY OF VIOLENT BEHAVIOR, AND AN ACTIVE FINAL RESTRAINING ORDER AGAINST HIM FROM ANOTHER PARTY.

THE JUDGE ERRED IN NOT PERM[I]TTING THE PLAINTIFF'S ATTORNEY A[] RE[A]SONABLE OPP[O]RTUNITY TO CONDUCT DISCOVERY AND/OR TAKE A DEPOSITION FROM THE COURT APPOINTE[]D P[]S[Y]CHIATRIST, DR. MGBAKO.

THE JUDGE ERRED IN ALLOWING DR. MGBAKO'S REPORT[] ENTERED [I]NTO EVIDENCE WHE[N] []HE SUBMITTED THE REPORT TO THE COURT WITHOUT SUBMITTING HIS REPORT TO THE PARTIES.

THE JUDGE ERRED BY PRECLUDING THE PLAINTIFF FROM A FAIR AND UNBIASED HEARING AND JUDGMENT.

The trial court, in large part, relied on the plaintiff's own expert to set visitation. Although the court did not order that a therapist be involved with the family as recommended by Dr. Hagovsky, plaintiff does not complain that this costly suggestion was not implemented. Rather, she objects that more time was not provided to her to conduct discovery and challenge the court-appointed psychiatrist's determination that defendant does not suffer from bi-polar disorder.

The court's determination not to delay the decision further in order to afford an opportunity for discovery was not an abuse of discretion. Defendant has complied with the court's rulings with regard to visitation. As Dr. Hagovsky noted, the child is old enough to report any problems.*fn2

"Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). The trial judge exercised her discretion appropriately by expanding visitation after reviewing the expert reports and records before her. In family matters, trial judges retain discretion regarding the extent of discovery and need for a plenary hearing. See Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div. 2006) (refusing to require a plenary hearing in a child relocation dispute where it would be unlikely to result in a different outcome). Dr. Hagovsky conducted psychological testing of both parents, interviewed both parents more than once, observed both parents alone with their child and consulted collateral sources. He was thorough and certainly not biased in defendant's favor, having been hired by plaintiff. Dr. Mgbako is a neutral, court-appointed psychiatrist. The court appropriately followed the direction of our remand in reviewing Dr. Hagovsky's report and defendant's current mental health evaluation prior to allowing unsupervised visitation.

Children thrive when they have a close, positive relationship with both parents. When discussing A., Dr. Hagovsky points out, that despite the parties' difficulties in the past, this youngster appears well-adjusted, comfortable and happy; clearly a testament to her mother's raising and her father's parenting time that has, thankfully, been essentially free of toxicity to the child.

The parties both continue to express the utmost concern for their daughter's well-being.

At the time of our prior opinion in April of 2008, we commented that "the parties have a long history of custody and visitation disputes." Plaintiff's attorney complained before the trial judge over a year ago that this visitation matter had dragged on for four years during which over twenty orders were signed. The parties are encouraged to promote A.'s happiness by finding a way to resolve their disputes and achieve a "normalized parenting time schedule" without the financial and emotional expense of continued court involvement.

Affirmed.


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