February 24, 2011
DRAKE A. BARANYI, PLAINTIFF-APPELLANT,
NANCY L. BARANYI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-1041-06C. Scott Joseph Capriglione, attorney for appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011 - Decided Before Judges Wefing, Payne and Baxter.
Plaintiff, Drake A. Baranyi, appeals from a portion of the April 30, 2009 amended Judgment of Divorce (JOD) that granted residential custody of the parties' three children to defendant, Nancy L. Baranyi, allowed defendant's paramour unsupervised contact with the children, and required plaintiff's parenting time to be supervised for a three-month period. We reject plaintiff's contention that the award of residential custody to defendant was unwarranted, that the judge erred by permitting defendant's paramour to have unsupervised access to the children, and that the judge's grant of custody to defendant was influenced by an ex parte communication from defendant. As to the portion of the amended JOD that required plaintiff's exercise of parenting time to be supervised for a period of three months, we decline to review that matter, as the three-month period expired long ago, and the issue is therefore moot.
The parties were married in 1988, and had three sons, who were born in 1992, 1994 and 1997. After the parties separated in December 2005, plaintiff filed a complaint for divorce. Although the parties' Property Settlement Agreement resolved the issue of equitable distribution, they were unable to resolve the issue of child custody. That issue became the subject of a seven-day trial, which commenced on October 20, 2008 and ended on December 5, 2008.*fn1
The first witness at trial was plaintiff's mother, Elizabeth Baranyi, who was seventy-four years old at the time of trial. She testified that her son and daughter-in-law had lived with her for part of their marriage. She described in considerable detail the domestic violence that existed in her son's marriage, with both her son and her daughter-in-law each being the aggressor at various times. She also described both as having a serious drinking problem.
According to Elizabeth, because her son and daughter-in-law both worked, and were experiencing marital and other difficulties, she became the principal caregiver for her three grandsons. Elizabeth testified that although she was suffering from serious medical problems, she believed she was fully capable of continuing to care for them.
In the early part of 2006, while defendant and the three children were still living with Elizabeth, defendant began a relationship with James Hranek. Elizabeth asked Nancy to move out "because she was running around with [Hranek]*fn2 while she was living in my house." After living with a friend and in her own apartment, defendant and the three boys moved into Hranek's home in June 2007. At approximately the same time, plaintiff became suspicious of Hranek's background and conducted an Internet search, only to learn that Hranek had been convicted in October 2006 on a charge of endangering the welfare of a child based on conduct in 2000 involving Hranek's then-girlfriend's eight-year-old daughter. Concerned for the well-being of his three sons, plaintiff filed an order to show cause in July 2007 seeking an order barring defendant from permitting Hranek to have unsupervised contact with the parties' two younger sons. By that time, the older son had moved in with plaintiff.
On the return date of the order to show cause, July 11, 2007, the judge issued an interim order awarding residential custody of all three children to Elizabeth Baranyi, pending the completion of child custody evaluations and a further hearing.*fn3
The judge's order also prohibited Hranek from having any unsupervised contact with the parties' three sons. The July 11, 2007 order was still in effect at the time the custody trial began in October 2008.
Hranek was called as a witness by plaintiff. He admitted that in July 2000, while living with his then-girlfriend in East Amwell, he was found in bed wearing only his boxer shorts with his girlfriend's eight-year-old daughter naked on top of him kissing his neck. Hranek was apparently not arrested on that charge until nearly five years later. In June 2006, he pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and was sentenced to a two-year term of probation, subject to serving 364 days in the Hunterdon County Jail. In return for Hranek's plea of guilty, the State agreed to dismiss a charge of second-degree sexual assault, in which the State had alleged that Hranek asked the child to touch his penis.
When asked by plaintiff's attorney to describe the July 2000 incident, Hranek testified:
. . . I was drinking that night and also under the influence of marijuana and cocaine. In the middle of the night, the victim was on top of me kissing my neck and she was laying on top of me and she was naked and -- and I was in my boxers and --and at that time . . . she was kissing my neck, I kind [of] came to, because I was sleeping. I was passed out. . . . I went into the kitchen and . . . when I was talking to the victim's mother, the victim walked into the room and asked me to come back to bed and at that time, I asked the victim's mother to ask the victim to stop acting like mommy and I went back to bed and that was the end of what happened.
Hranek maintained that after the incident occurred, he enrolled in an alcohol treatment program that had "kept [him] sober until today and it's been over seven years."
When asked whether he blamed the victim for what happened, Hranek answered, "not at all." In addition to receiving treatment for his drinking problem, he also obtained seX offender counseling, and had continued in therapy with the counselor even after his period of probation had concluded. Hranek also explained that when he first told defendant about his criminal conviction and the circumstances surrounding it, she was upset, but soon agreed to continue a relationship with him and help him maintain his sobriety.
Plaintiff also testified. He explained that he was not seeking custody of the children, and urged the judge to continue the July 11, 2007 order, which had granted residential custody to his mother and had prohibited Hranek from having unsupervised contact with the parties' three children.
Plaintiff called Dr. Craig Weiss, a psychologist, as an expert to make a recommendation concerning custody. Weiss recommended that Elizabeth Baranyi retain custody because she was able to provide a more structured environment than defendant was able to provide. Weiss also expressed concern that defendant had essentially placed more importance on continuing her relationship with Hranek than on securing residential custody of her children. Weiss explained:
[W]hen Ms. Baranyi moved in with Mr. Horanic [sic], with that -- she had a place of her own and the children were with her and then she chose to move in with Mr. Horanic knowing that the children may not be able to be with her because of his criminal history. And that's an important distinction in my mind because you're making a choice. Even though she may believe that Mr. Horanic [sic] was either innocent or safe or he's a really good guy, the fact is that if the children couldn't be alone with him, . . . that means that they could not really live there and she then effectively relinquished the children to somebody else. In this case, it was Elizabeth Baranyi.
That was not putting the children first and unless there are other circumstances that I'm not aware of, she made a choice . . . that led to the children living with their grandmother.
Weiss did not recommend that plaintiff be awarded custody of the children because his living arrangements, a home crowded with tenants, did not allow room for the children. Weiss also explained that plaintiff was not seeking residential custody.
Dr. Weiss conducted a clinical assessment of Hranek, which included administering psychological testing. Weiss observed that although he had seen some signs of antisocial personality disorder in Hranek, he had not been able to conduct a full examination and was therefore unable to definitively conclude that Hranek suffered from such a disorder. Weiss also commented that "to [Hranek's] credit, it sounds like he has been sober for quite a while." He opined that if Hranek were to resume drinking, "his behavior would be unpredictable."
When asked to describe his findings and conclusions concerning Hranek and the parties' children, Weiss opined that because the incident in 2000 occurred while Hranek had been drunk, it was unlikely that such conduct would recur, although Weiss did express some discomfort with Hranek having, in part, blamed the victim for the 2000 incident. Weiss stated:
Well, he seems like a nice fellow. The children really like him. He likes them. I think he gets along with them. I don't really have a concern about him being any physical danger to them, but there were a couple of serious concerns I had and one is the account that he gave . . . of what occurred with the girl and although on one hand he's taking responsibility[,] [o]n the other hand, he's laying blame on an eight-year-old girl for chasing him and saying let's go back to the bedroom, that she would sneak in, that he was "helpless."
. . . My belief within a reasonable degree of psychological certainty is that this occurred while he was drunk and it's not likely to happen again[.]
Defendant called as a witness Cullen Herald-Evans, the sex offender counselor who treated Hranek after he was released from jail. Herald-Evans opined that Hranek did not present a risk to the parties' children. He testified at great length about the five factors that sex offender counselors consider when determining a patient's risk of re-offending. The first is denial or minimalization. Herald-Evans noted that Hranek's version of the incident was identical to that of the victim's;he did not try to minimize what he had done in any way. The witness also noted Hranek's willingness to take responsibility, observing that Hranek voluntarily pled guilty because, paraphrasing Hranek, "he was in recovery . . . and it was part of his recovery program to make amends and to deal with the truth."
The second factor is the extent and duration of the sexual contact. Here, Hranek had one incident of brief contact with no penetration, despite living with the victim for several years. The third factor is drug and alcohol abuse. Hranek was experiencing a serious substance abuse problem at the time of the incident, but has since achieved sobriety and has had no positive tests for controlled substances since he began treatment. The fourth factor is whether the offender is willing to tell people about the offense. On this subject, Herald-Evans noted that Hranek voluntarily told defendant about this issue, and she participated with him in counseling. The fifth factor is whether the subject has been convicted of other crimes, and Hranek had not. For all of these reasons, Herald-Evans opined that Hranek poses only a "negligible" risk to the parties' children. He explained:
So, when I take a look at those five factors and the question that was brought to me about whether there is . . . any significant risk with children being with Mr. Horanic [sic], my conclusion was that there is -- I will never say about any offender that there is no risk. That is simply something I don't think anyone . . . in the treatment of sex offenders [would say], but . . . there is negligible [risk] in this case and I believe that there is no reason for . . . the court based on Mr. Horanic's [sic] conviction as a sex offender [to] necessarily keep children from living with him. I believe the risk is that low.
The testimony at trial concluded on December 5, 2008.
When, by April 21, 2009, the judge had still not rendered a decision on the custody of the children, defendant wrote to the judge advising him that Elizabeth Baranyi had passed away on April 9, 2009, and she urged the judge to issue a decision on custody of the children immediately. Defendant explained that on April 8, 2009, her youngest son had been injured in the school yard, but the school would not release her son to anyone other than Elizabeth Baranyi, because of the terms of the July 2007 custody order. Defendant told the judge that only after she explained to the school that hours earlier Elizabeth had been taken to the hospital, where she suffered a stroke and was unresponsive, did the school finally release the child to defendant's care.
In her letter, defendant stated that the school's position on the issue of custody made the "stakes . . . very high." She wrote, "With all due respect, a decision needs to be rendered immediately and a detailed written order enacted [sic]; my children are at risk if they become injured." Defendant enclosed a copy of Elizabeth Baranyi's death certificate. She sent a copy of the letter to plaintiff's attorney.
Two days later, on April 23, 2009, the judge rendered a twenty-two page oral decision in which he awarded residential custody of the children to defendant, and vacated the portion of the July 11, 2007 order that prohibited Hranek from having unsupervised contact with the parties' children. In particular, relying upon the testimony of Herald-Evans and Weiss, as well as Hranek's own testimony and demeanor on the stand, the judge concluded that it would be in the best interest of the children for them to reside with defendant and Hranek. In reaching that conclusion, the judge analyzed each of the factors contained in N.J.S.A. 9:2-4, which specifies fourteen criteria a judge should consider when making a custody determination. The judge noted that neither parent was "unfit, although certainly weighing the parties' fitness, Ms. Baranyi comes out ahead [of plaintiff]. Her residence is more stable. She has conquered any demon of drug abuse or alcohol abuse whereas I am totally convinced that Mr. Baranyi has not."
As to Hranek, the judge concluded that Hranek "is on the low risk of the bottom end scale for a repeat offense." In reaching that conclusion, the judge credited the testimony of both of the custody evaluators. As to the requirement that defendant be present at all times when Hranek was "around the children," the judge found "no basis in this record for [so] requiring."
Although the judge's oral opinion approved a modification of the portion of the July 11, 2007 order pertaining to Hranek, the JOD the judge signed on April 23, 2009 did not include such language. Consequently, on April 30, 2009, the judge signed an amended JOD that included a provision eliminating the requirement that defendant be present when Hranek is in the presence of, or has contact with, the parties' children.
Finally, the judge turned to plaintiff's parenting time. Observing first that the oldest son was mature enough to determine how often he would see his father, the judge held that plaintiff's parenting time with the two younger boys would be supervised for a period of three months, with either party being able to return to court to either continue or eliminate the supervision at the end of that three-month period. The judge did not explain the reason for the requirement of supervision, although we discern from other portions of his remarks that he had considerable concern about defendant's temper and defendant's continuing problems with substance abuse.
On appeal, plaintiff argues: 1) the judge impermissibly relied on an ex parte communication from defendant in the form of defendant's April 21, 2009 letter; 2) the judge erred by awarding residential custody of the children to defendant while she was living with Hranek; and 3) there was no basis in the record for ordering plaintiff's exercise of parenting time to be supervised.
We turn to point one, in which plaintiff argues that he is entitled to reversal of the April 30, 2010 order because it was the product, at least in part, of an ex parte communication from defendant. This argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the letter was not an ex parte communication, as defendant sent a copy of her letter to plaintiff's attorney. Moreover, the letter does nothing other than advise the judge that Elizabeth Baranyi had died, and implore the judge to render a custody decision immediately. Plaintiff's sole objection to the letter is that the judge had an obligation to verify defendant's assertion that Elizabeth Baranyi had passed away. This argument is meritless, as defendant's letter had enclosed a copy of the death certificate. We thus reject the argument plaintiff advances in point one.
In point two, plaintiff maintains that the judge abused his discretion by awarding residential custody of the children to defendant while Hranek was living with her. A judge's custody determination must be based on the best interests of the child. N.J.S.A. 9:2-4; Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). In light of the expertise of Family Part judges, our review of such decisions is circumscribed. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We will not disturb a Family Part judge's findings of fact and conclusions of law premised on those factual findings unless convinced that they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (citation omitted).
Although Hranek's conviction cannot be ignored, the record supports the judge's conclusion that in the ten years that have elapsed since Hranek engaged in the conduct underlying his criminal conviction he: has achieved, and maintained, sobriety; has engaged in sex offender counseling; continued in treatment long after the terms of his probation would have permitted him to terminate that treatment; and has remained offense-free ever since. Two experts, one of whom was plaintiff's own witness, opined that Hranek posed little, if any, risk to the parties'children. Plaintiff presented no contrary evidence, expert or otherwise. Under such circumstances, we reject plaintiff's argument that the judge abused his discretion by vacating the July 11, 2007 prohibition on Hranek's ability to have unsupervised contact with the parties' children.
We turn to point three, in which plaintiff maintains that the judge abused his discretion by requiring plaintiff's parenting time to be supervised for three months. The three-month period ended long ago. The issue is therefore moot, and we decline to address it.