On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-395-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 26, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this post-judgment matrimonial matter, plaintiff Z.H. (appellant) appeals from three orders entered by two Family Part judges pertaining to the dismissal of defendant's claims against him for wiretapping and installation of spyware and to parenting time and related issues regarding their then almost seventeen-year-old twins. We affirm.
The parties have engaged in protracted and rancorous post-judgment proceedings in New Jersey beginning in September l999, mostly pertaining to their children. We recite only the facts and procedural history relevant to the present appeal. The parties were divorced in New York in August l998, and pursuant to the divorce agreement, defendant had primary physical custody of their three sons -- the eldest, then almost eight years of age, and the twins, then five years of age -- subject to liberal visitation by appellant as extensively detailed in the parties' parenting time schedule. In June 1999, defendant relocated to New Jersey with the children, as provided for in their agreement, and appellant followed shortly afterwards.
Beginning in 1999, the court, in an effort to resolve parenting time issues and assist appellant in reunifying with the children, appointed various individuals, including a facilitator, parenting coordinator, psychologist, intervention specialist, family bonding therapist, guardian ad litem, and law guardian. Specifically, in February 2004, the court entered an order appointing Jamie Von Ellen, Esquire, as guardian ad litem and Bruce Pitman, Esquire, as the law guardian for the children -- positions they held throughout these proceedings. Appellant's relationship with his sons, however, continued to deteriorate.
In October 2006, the police responded to appellant's home resulting from the report of an argument between appellant and his eldest son, then almost sixteen years of age. The police reported that appellant became "enraged" because his son had a telephone conversation with the law guardian and appellant retaliated by throwing out items he had purchased for the children. Appellant told the police he did not want the children in his house and wanted to voluntarily suspend visitation with them. Accordingly, pursuant to the law guardian's order to show cause, on October 30, 2006 the court entered an order temporarily suspending appellant's parenting time, including telephone contact. The court appointed Dr. Dorothy Cantor, a psychologist, to evaluate the parties.
In January 2007, Dr. Cantor submitted a report in which she recommended appellant's parenting time not resume until changes occurred in his relationship with his children. She found it crucial the parties peacefully resolve their post-divorce differences, stating:
[The children] deserve better than to be in the midst of court battles and parental hostility. They share in an angry relationship with their father, although they express different reasons for their negative feelings toward him. . . . Their complaints about him include that he has never really been available either to play or talk, that he doesn't believe that children have any rights or can have minds of their own, that he is not compassionate, and that he insists on things being his way. They fear him, sometimes hate him, and see him as having poor social skills. They all see themselves as expendable to their father if they do not do as he says. They all talk about his threats to never see them again. All in all, it is a very disturbing view of father-son relations and it cannot be good for any of these very bright, verbal teenagers.
She noted the children described defendant as "extremely kind and generous" and defendant denied denigrating appellant to the boys. However, the psychologist was concerned that defendant's feelings of anger, resentment and irritation towards appellant were still so strong after nine years that the boys would have a hard time not being made aware of defendant's views of appellant. Dr. Cantor recommended defendant develop more "emotional distance" from appellant.
Dr. Cantor commented that her assessment of appellant's behavior during the evaluation confirmed many of the complaints of his sons. He was "self-centered and demanding[,]" had "a very hard time listening[,]" and rarely responded to her questions. He was also confrontational, in that if she offered him an appointment, he would ask her for one sooner, and if she offered to meet with him once, he would want to meet twice. The psychologist found that although appellant loved his sons and seemed, at times, to recognize he did things to alienate them, for the most part, appellant blamed defendant, the guardian ad litem and law guardian for "sabotag[ing]" his relationship with his children.
Both parties filed cross-motions. On March 23, 2007, the court entered an order continuing the suspension of appellant's parenting time for six months. During the suspension, appellant was permitted brief contact with the children by telephone or in public places, but the children were not to be "forced to communicate" with him "against their will." The court also denied without prejudice the request for the appointment of a parenting coordinator*fn1 and denied appellant's request to terminate the services of the law guardian and guardian ad litem.
Appellant moved for reconsideration, and defendant filed a cross-motion for counsel fees, supported by a certification and a case information statement (CIS), which appellant contended grossly misrepresented the true extent of her wealth and was fraudulent. By orders of May 31, 2007, the court denied appellant's motion for reconsideration, directed the parties to continue to share the fees incurred by the law guardian and guardian ad litem, and denied without prejudice defendant's cross-motion for attorney's fees. The court also implemented a "Parenting Time Resumption Plan" that directed: (l) the continuation of individual therapy; (2) Lewis Epstein to meet with the boys in connection with the counseling he was giving appellant; and (3) Dr. Cantor to re-evaluate the boys and the parties in August, review updated reports from the therapists, and issue a report addressing resumption of parenting time.
In a July 31, 2007 report, Dr. Cantor found the children were not ready to resume visits with their father. She proposed the following plan, recommending appellant write letters to each of his sons and each would write back with the assistance of their respective therapists, explaining:
The correspondence would go back and forth, with the boys having the assistance of their therapists in dealing with their feelings about what their father is communicating. After the written dialogue has moved along with some success, the next step would be supervised, time-limited phone conversations, taking place when the child is in his therapists' office. Subsequently, visits with the boys in their respective therapists' offices could be initiated. If all of these steps are successful, unsupervised contact would begin.
The time to move to the next step would be determined by each therapist, in consultation with the child. My continuing role would be to check on the progress of the plan with each therapist quarterly, and to ensure that it has not been derailed.
Pursuant to the reconciliation plan, appellant corresponded with the children via email, underwent parenting therapy with Epstein, and re-established a relationship with his eldest son but not with the twins.
Appellant wrote to his sons in September 2007, expressing it was too painful to continue the separation and reconciliation process; he would respect their position and leave it to them to initiate contact with him. Nevertheless, the court convened a status conference in April 2008, and in an effort to facilitate reunification, ordered an intervention specialist to conduct therapeutic bonding sessions between appellant and the children. The court also implemented Dr. Cantor's plan, directing that once the specialist determined which issues they needed to address, the therapy would proceed into the second phase of bonding based on what the therapist found was in the children's best interests. In the interim, appellant was permitted to continue writing to his sons.
Cynthia A. Paglio, the intervention specialist, submitted a report dated July 17, 2008, in which she related that the boys, particularly the twins, "held steadfast" to the fact they were not interested in speaking or reuniting with their father. She elaborated:
They have no trust in him, they do not respect him, they harbor a lot of anger and resentments toward him and they do not recognize him as a Father. Complicating the issue of reunification is the fact that they see no logical reason to submit themselves to any further mistreatment as they are now teenagers with their own lives. [There was no] . . . information or evidence that Defendant has interfered with the relationship between father and children. The [appellant] has a very abrasive nature which at times comes across as indignant and entitled. He has demonstrated an incredible lack of patience and an inability to understand and accept unforeseen scheduling problems . . . .
Paglio opined that the "element of time and maturity will aid the process" of reunification between appellant and the twins, but that further court orders would continue to fuel their increased hostility toward him.
In an addendum to her report dated August 4, 2008, Paglio noted the eldest son was able to internally process the difficulties he had with communicating with his father and independently decided to reconnect with him subject to his own availability. One of the twins, however, demonstrated an adamant unwillingness to meet in person with his father and exhibited fear and anguish at the thought of doing so. The intervention specialist opined that it was unlikely further sessions with the boys would increase their willingness to have open communication with their father.
In contrast, Epstein, appellant's therapist, opined in a letter to the court dated September 3, 2008, that it would be in the best interest of the entire family, especially the children, for the reconciliation and bonding process to move forward without further delays. He described appellant as "a highly motivated client" who demonstrated the capacity and desire to make the necessary arrangements and changes to better see the world from his children's point of view and who worked to develop the skills that would allow him to reconnect with his sons in a meaningful and fulfilling way.
II. Spyware (first order on appeal)
Meanwhile, on August 18, 2008, defendant sent, from one of her home computers, a confidential email addressed to her attorney, in which she discussed concerns she had regarding appellant's plan to call the children as witnesses in the ongoing reunification proceedings. She did not, however, either intentionally or inadvertently send a copy of the email to appellant, but somehow he obtained it and emailed it to his sons. One of the twins notified his mother, who filed a report with the police department, triggering a brief interrogation of appellant by the prosecutor's office.
Defendant hired Scott Anthony of iFocus Solutions Corporation to investigate. Anthony discovered that on July 29 and July 31, 2008, someone had manually installed KGB spyware, a commercial multifunctional keyboard tracking program that monitored all keystrokes, registered webpages and programs, Windows' clipboard, and made periodic screen shots of the computer desktop, on two of the computers in her home, and forwarded a log of all her computer activity by email every eight hours to the email address "firstname.lastname@example.org."
On September 26, 2008, defendant filed an order to show cause seeking, in part, sole custody of the children, termination of electronic contact between appellant and the children, to hold appellant in violation of litigant's rights for violating the Wiretap Act, to preserve her right to file a separate action against him, and discovery. In her supporting certification, defendant explained that she was vacationing with two of her sons in California on the dates the spyware was installed, and her third son, who remained home with her friends who were staying in the house with him, was at work at the time the software was installed. She claimed appellant could have installed the spyware onto her computer because he knew she would be away, and he had the necessary skills because he was a tenured professor in the school of engineering at a university, had conducted research on wireless communications, and held several patents in that field. Defendant urged there was no reasonable explanation for how appellant had received her email other than by illegally accessing her computer.
In a responding certification, appellant denied the accusations, and sought dismissal of the order to show cause, a protective order, legal expenses, appointment of a reunification specialist and a parenting coordinator, and an order vacating all prior orders related to his parenting time. He said he was at work in upstate New York on the days the spyware program was installed on defendant's computers, and on August 20, 2008, at 8:39 a.m., he received an email from her email address that included a copy of her August 18 email to her attorney. According to appellant, he assumed she was trying to pick a fight, and thus did not respond to her. He did, however, forward the email to his eldest son and to the guardian ad litem, and then inadvertently also forwarded copies to the twins. He later confirmed through the university's computer operations department that the email had been sent to his AOL email address as part of what then appeared to be a regular email transaction.
On November 18, 2008, the court signed an order granting, in part, the parties' discovery requests, and directing the infected computers be delivered to the law guardian's office for quarantine and inspection. On January 12, 2009, the court signed an amended order detailing the procedure for inspection of the computers, and directed the parties to bear the costs of their own respective computer expert subject to apportionment by future motion following the conclusion of discovery.
On March 5, 2009, the court entered an order appointing a discovery master, and extensive discovery ensued. In a reply certification, appellant detailed that his investigation revealed defendant's "friends" B. and E. Smith,*fn2 who were staying at her house the week she was away, had installed the program. He explained he discovered the Internet Protocol (IP) address of the computer from which defendant's email had been forwarded, which resolved to Frontier Communications, was allocated to the geographical area where the Smiths resided. He contended defendant's accusations that he had installed spyware "might" have a "devastating effect" on his professional career, and may severely affect his ability to do legal consulting work.
By letter dated June 3, 2009, defendant's attorney forwarded appellant a proposed consent order permitting defendant to withdraw "[a]ny and all applications currently before this Court with regard to the current wiretapping accusations and events regarding KGB spyware[.]" Appellant refused to sign the order.
Instead, in June 2009, appellant filed a pro se motion for "summary judgment" seeking dismissal of defendant's spyware accusations against him and an express finding that he had no part in the incident, did not violate the state wiretapping statute, and did not violate defendant's privacy. He also requested the court direct the law guardian and guardian ad litem to inform the children that the accusations were baseless, find defendant acted in bad faith in pursuing the claims and in failing to disclose that the Smiths were staying in her residence, and direct defendant to reimburse his legal, expert and law guardian fees. He certified he had obtained information from Frontier that: (l) the IP address from which defendant's email had been forwarded was, in fact, assigned to B. Smith, with E. Smith listed as a sub-account; (2) the email account, email@example.com, was a "free" AOL account, which contained "phony registration information"; and (3) it had been set up three days before the first date of the spyware installation. AOL provided appellant with a list of IP addresses from which accesses were made into defendant's AOL account; he verified there were twenty-one accesses from B. Smith's account and twenty-three accesses from the geographical area of the Smith's residence. The last access by B. Smith on September 4, 2008, failed, presumably because defendant's expert changed her AOL password. Based on this information, appellant concluded the Smiths had monitored defendant's computer transmissions sent to them by the spyware, which had allowed them to obtain the login information to her AOL account, and they logged onto her account multiple times from August 15 to September 4, 2008 and read her email. Appellant surmised that the Smiths, who were logged onto defendant's AOL account on August 20, had then inadvertently forwarded him a copy of her August 18 email to her attorney.
Defendant cross-moved for dismissal with prejudice of all of her claims against appellant for wiretapping and installation of spyware. In a supporting certification, she claimed she acted in good faith based on the information available, notably, her discovery of the spyware because appellant forwarded her email to the children. She denied concealing that her friends had stayed in her home, citing to an email sent to appellant stating they were staying there, which she had attached to her certification in support of the order to show cause.
On August 4, 2009, Judge Robert J. Mega conducted oral argument on the parties' motions, made findings of fact and conclusions of law, and entered an order, granting in part, and denying in part, the relief sought by the parties. The judge dismissed with prejudice defendant's complaint regarding the wiretapping accusations and events regarding the KGB spyware, finding she had a right to withdraw the claim, and because she had done so with prejudice, found appellant's application for summary judgment was moot. Nonetheless, the judge granted appellant's application to direct the law guardian to inform the children the claims against appellant had been dismissed. The judge also denied appellant's request for counsel fees in defending the action, finding defendant had not engaged in bad faith in pursuing the spyware accusations and appellant was acting pro se, ordered each party to pay for their own expert's fees, and directed the discovery master to return any unused portion of the retainer. The judge also denied without prejudice appellant's application for counsel fees regarding defendant's filing of an allegedly fraudulent CIS in 2007.
Appellant filed a notice of appeal on August 27, 2009. As the order was interlocutory, we required him to file a notice of motion for leave to appeal, which we denied by order of December 21, 2009, and dismissed the appeal.
III. Reunification (second order on appeal)
On September 26, 2008, Judge Mega ordered that the boys be brought to the court for an in camera interview. By order entered on January 23, 2009, the judge directed the guardian ad litem to interview the parties and the boys, and make recommendations regarding the appropriate utilization of therapists in the reconciliation process. By order entered on May 11, 2009, the judge appointed Dr. Toby Kaufman as the family bonding therapist.
In March 2010, appellant filed a pro se motion for "summary judgment," seeking to vacate all prior orders, direct that any future parenting time be based on mutual agreement between him and the children, continue Dr. Kaufman's services, release Paglio's interview notes, appoint a parenting coordinator, terminate the services of the guardian ad litem and law guardian, and direct defendant to reimburse him for legal fees associated with her allegedly fraudulent May 2007 CIS.
In a supporting certification, appellant claimed defendant had engaged in "parental alienation." He acknowledged, however, he had succeeded in restoring his relationship with his eldest son, then nineteen years of age. He attributed his success to the fact that as his son matured, defendant was less able to manipulate his son, who became more distanced from the "influence of the legal process." Appellant admitted the twins did not want to see him and Dr. Kaufman had reported there was nothing she could do to foster reconciliation with them. Nonetheless, he sought the appointment of a parenting coordinator in order "to have a conflict resolution mechanism in place."
Defendant filed a cross-motion seeking counsel fees and costs. She asserted that appellant's relationship with the twins had deteriorated solely due to his "verbal abuse and poor treatment of the boys." Pitman, the boys' law guardian, submitted a certification opposing appellant's application to terminate his services, explaining that the boys "have expressed the need for continued protection but, more importantly, for them to have the ability to have their voices heard by the Court." He further reported the boys, then age nineteen and one-half and almost seventeen years old, were "irrevocably opposed" to the appointment of another parenting coordinator and felt they were "old enough to determine the extent of the relationship they wish to have with their father." Pitman stated further:
I do not understand how a parenting coordinator would even engage in this matter since at the present time there has not been a reconciliation of the twins with their father. Obviously, [the eldest] is seeing his father. . . . [H]e is engaged in therapy with his father. . . . Thus, I think a parenting coordinator would not be able to be effective in this situation. Again, I would point out that it seems to me that on the one hand, [appellant] wants the end of the Court's involvement as it relates to his relationship with his children, and on the other hand the benefits of court involvement, e.g., reconciliation therapist, parenting coordinator, etc.
Pitman also submitted certifications by the boys who strongly opposed termination of the law guardian and guardian ad litem's services, release of the specialist's notes, continuation of therapy, and appointment of a parenting coordinator. They expressed anger at being forced to participate in the legal proceedings, and believed that most of their problems with their father had been caused by his abuse of the legal system. The twins also strongly opposed any reunification with their father.
With regard to the termination of the law guardian and guardian ad litem's services, the eldest son ...