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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...